Texas Gov. Greg Abbott wants to amend the Constitution. His proposed changes: Prohibit Congress from regulating activity that occurs wholly within one state.
• Require Congress to balance its budget.
• Prohibit administrative agencies and the un-elected bureaucrats that staff them from creating federal law.
• Prohibit administrative agencies and the un-elected bureaucrats that staff them from preempting state law.
• Allow a two-thirds majority of the states to override a U.S. Supreme Court decision.
• Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.
• Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
• Give state officials the power to sue in federal court when federal officials overstep their bounds.
• Allow a two-thirds majority of the states to override a federal law or regulation.
This proposal has shocked some people. Writing in The Washington Post, Catherine Rampell apparently unaware that the Constitution itself provides for amendments is appalled, saying that Abbot wants to "blow ... up" the Constitution. According to Rampell's analysis, if you love the Constitution, you can't simultaneously want to change it.
This would come as a surprise to the framers, who actually ratified the Constitution and then, immediately, passed 10 amendments known as the Bill of Rights. They then followed up in short order with the 11th Amendment protecting state sovereignty from federal courts and the 12th Amendment, which corrected serious problems in the way presidential elections were conducted.
The framers knew that the Constitution was a work in progress. And moderns like Rampell don't really disagree with the idea of constitutional change. Instead, opposition to a convention is more about locking in changes made through other means Supreme Court decisions like Roe v. Wade and Baker v. Carr, or just longstanding bureaucratic practice that courts and the public have come to accept rather than through a formal convention where the changes would have to be approved by the American people as a whole.
The real fear, I suspect, is that the proposals urged by Abbott, which would roll back much of the political class's successful power-grab over the past century, would prove popular enough to pass. If that happened, the federal government would become both smaller and more accountable, two political-class nightmares.
A smaller government would mean fewer phony-baloney jobs for college graduates with few marketable skills but demonstrated political loyalty. It would mean fewer opportunities for tax dollars to be directed to people and entities with close ties to people in power. It would mean less ability to engage in social engineering and "nudges" aimed at what are all-too-often seen as those dumb rubes in flyover country. The smaller the government, the fewer the opportunities for graft and self-aggrandizement and graft and self-aggrandizement are what our political class is all about.
A more accountable government would be, in some ways, an even greater nightmare. Right now, when the federal government screws up, people often don't find out look at how the IRS and the State Department have stonewalled efforts to find out what happened with the Tea Party audits or the Benghazi debacle and even when word gets out, it's rare that anybody loses their job. (The EPA knew that Flint, Michigan's water was toxic for months and didn't tell anyone. Will there be consequences? Doubtful.)
Most of the time, the bureaucracy acts without any real oversight from Congress, or from the public. It's able to enact political agendas that, if put to an open vote, would never pass. And to the bureaucracy's supporters, that's not a bug, but a feature.
There are legitimate reasons to be afraid of a constitutional convention I spoke at a conference on this topic a few years ago at Harvard Law School and compared it to pressing the "hyperspace" button on the old Asteroids video game, which sometimes saved you, but sometimes destroyed you but there's nothing illegitimate about it. Any changes, after all, would have to be approved by three-fourths of the state legislatures, and it seems less likely that bad ideas would make it that far than that bad ideas might persuade five out of nine Supreme Court justices.
Another nice feature of Abbott's proposal which is, as the Houston Chroniclenotes, "well within ... the mainstream of Republican governors" is that it doesn't depend on controlling the White House. The Constitution provides numerous checks and balances, and the Republicans are wise not to depend solely on the presidency.
I'm not yet ready to say that a convention to discuss constitutional amendments is a good idea. But to the extent it panics our current political class, which I believe to be probably the worst political class in our nation's history, it's looking like a better one.
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