January 25, 2012

Changing the way we change: Is reforming the constitutional amendment process the key to restoring federalism?

By Brian T. Hodges Senior Attorney

The federal government, although originally vested with only limited powers, has greatly expanded its reach over time.  Examples abound: the health insurance individual mandate, federal regulation of land use as a consequence of the Endangered Species Act, and centralized control of water resources under the Clean Water Act come to mind.  It was not supposed to be this way, yet the growth of the federal government continues.  As we at PLF know, it takes vigilance and a lot of hard work just to “play defense” against the federal government’s centralizing tendencies.

But what if there was an institutional solution for reining in the federal government’s excesses, something that could be done to the U.S. Constitution to safeguard against federal encroachment?  A new paper from Professor Michael B. Rappaport and Cato Institute suggests that changing the process for amending the Constitution might be the key.

In Renewing Federalism by Reforming Article V, Professor Rappaport hypothesizes that “the increasingly nationalist character of our constitutional charter” may be reversed by removing Congress from the constitutional amendment process.  The problem, according to Rappaport, is that Congress is the gatekeeper for passing amendments that will stop the expansion of its own power.  Because Congress has proven that it seeks to increase its power, and because no amendment has ever been passed without Congress’ approval, there is little hope of instituting constitutional changes that will help rebalance our system of federalism unless Congress is removed from the process.

What about the “convention method” for amending the Constitution?  After all, Article V does not give Congress exclusive control over proposing amendments.  The Constitution also provides that two-thirds of the state legislatures may apply to Congress to call a convention that would propose an amendment.  Rappaport, however, says the convention method is broken.  For one, it has never been used.  And, according to Rappaport, there are strong reasons to believe that it never will be used.  He cites problems with coordination between the states in applying for a convention, and the danger of a “runaway convention” that the state legislatures fear they could not control, such as a convention that ended up proposing an amendment on a different subject than originally anticipated.

Rappaport’s proposed solution is to reform the amendment process by allowing state legislatures, rather than a convention, to draft an amendment, formally propose an amendment once two-thirds of the states have agreed to its language, and then ratify it through a vote of three-quarters of the states, bypassing Congress entirely.  In his view, with Congress on the sidelines, states would be free to constitutionalize limits on the federal government’s power that Congress would never permit on its own, such as a balanced budget amendment, line-item veto, or term limits.

One of the most interesting things about Rappaport’s paper is that his apparent motivation for writing it seems to differ from other scholars who have written about the amendment process in the past.  (For example, he cites Sanford Levinson’s Our Undemocratic Constitution).  That is, Rappaport does not necessarily want to make the Constitution easier to amend.  Instead, he wants to establish an amendment process that places states in the driver’s seat.  Getting a supermajority of states to propose and ratify a particular amendment would not be an easy task, but it is probably true that the states’ proposed amendments would look much different than amendments enacted through a process that requires congressional approval.  In short, states will be far more interested than Congress in passing measures that limit Congress’ authority.

The great paradox of Rappaport’s proposal is that the only way to effectuate his reforms, assuming that Congress is not interested in limiting its own power, is with a constitutional amendment enacted pursuant to the “broken” convention method that his proposed amendment seeks to replace.  Rappaport responds to this criticism by suggesting that state legislatures might be able to be persuaded to ask Congress to call an Article V convention for the purpose of creating a new amendment process if the states can be convinced that the new amendment system will enhance their own authority in the future.  Nevertheless, there is more than a touch of irony in Rappaport’s suggestion that the only way to fix a hopeless amendment system is to make it destroy itself.

On the whole, Rappaport’s paper contains a fascinating appraisal of what he believes to be the latent cause of the most vexing constitutional problem facing our nation — expansion of federal power — and offers a creative solution for addressing it consistent with federalism.

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