ICYMI: The Weekly Standard: A New Constitutional Convention?
A New Constitutional Convention?
Greg Abbott's Plan To Limit Federal Power
By Terry Eastland
The Weekly Standard
As Texas attorney general, Greg Abbott spoke with evident pride about how many times he’d sued the federal government. The total came to 31, and invariably the lawsuits challenged actions that Abbott believed violated federal statutes or the Constitution. Now, as Texas governor, he is no longer in court but has hardly quit objecting to federal overreach. In a speech last month to the Texas Public Policy Foundation, Abbott declared it's time for state legislatures to address the problem by amending the Constitution.
Note that Abbott is focused on state legislatures. There is a reason for that. Under Article V of the Constitution, constitutional amendments may be proposed by a two-thirds vote in both houses of Congress or by a special convention called by Congress on the application of two-thirds of the state legislatures—34, if you do the math. Thus Congress controls one path for proposing amendments while state legislatures control a second one. (A duly proposed amendment must then be ratified by three-fourths of the states—38.) Abbott is urging the second path on the assumption, doubtless correct, that a convention requested by state legislatures is more likely than Congress to propose measures limiting the federal government.
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"Acting through the States, the people can amend their constitution to force their leaders in all three branches of government to recognize renewed limits on federal power," the plan says. "We can rein in the federal government and restore the balance of power between the States and the United States."
Toward this end, the Texas Plan offers nine constitutional amendments. The first and second respond to what the plan calls "Congress's decades-long project of self-empowerment," which has been accomplished primarily through the commerce and spending clauses. The commerce clause gives Congress the power to regulate commerce "among the several states," but Congress has used it "to regulate every conceivable activity in America." The amendment the plan suggests would "prohibit the federal government from regulating any activity that is confined within a single State."
The spending clause gives Congress the power "to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." The Framers regarded the clause as a limitation on spending, but Congress "has gradually and successfully turned [it] into an affirmative grant of power to do whatever it wants with federal tax dollars." As a result, spending routinely exceeds revenues, and our national debt continues to rise. The plan recommends an amendment that would require the president to submit a balanced budget to Congress and require Congress to enact a balanced budget every year. The amendment would specify how Congress must do that—by cutting spending.
The Texas Plan discusses the remaining seven amendments in like manner, explaining the problems and stating constitutional remedies. Thus, the plan takes on the administrative state and calls for one amendment that would prohibit agencies from creating federal law and another that would prohibit them from preempting state law.
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Under the heading "The States," the plan then takes up the decline of state authority and the resulting loss of liberty, suggesting three amendments. One would 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. Another would give states authority to challenge federal actions that exceed enumerated powers. And a third would allow a two-thirds majority of the states to override a federal law or regulation.
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The Texas Plan recalls past arguments made against Article V convention efforts and anticipates they will be used again—chief among them that there could be a "runaway" convention "in which the states propose a convention to debate limited amendments, but . . . the delegates end up throwing the entire Constitution in the trashcan." If that were to happen, observes the Texas Plan, "none of the delegates' efforts would become law without approval from three-fourths of the States"—a serious check on an unlikely development. For Abbott, the "runaway" argument rests on the dubious idea that the people serving as delegates to an Article V convention would behave more irresponsibly in exercising their constitutional duties than the members of the many Congresses that proposed amendments did in carrying out theirs.
The Texas Plan also offers sensible counsel to state legislatures in the event a convention is called: that they require their delegates to "vote against any constitutional convention provision not authorized by the state."
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In an interview, Abbott reiterates that the Framers gave the people of the states a means in Article V they could use to restrain an out-of-control (runaway, if you like) federal government. Abbott declares he is passionate about the topic, having "focused on it for years," and he is determined to do all he can to make a convention happen, starting with getting both houses of the Texas legislature to pass the necessary application for a convention of states.
Abbott anticipates speaking on behalf of an amending convention at venues across the country, and he is likely to impress. Texas Monthly's Erica Grieder, a shrewd observer of Texas politics, was in the audience for Abbott's speech to the Texas Public Policy Foundation, and she called it "the best speech" she had ever seen Abbott give. "From the moment he took the stage, he was full of swagger, and there was nothing feigned about his ferocity as he made the case for [an Article V] convention." It would be the first ever.