NATELSON: A FINAL CURE FOR SOCIALISM? UTAH ENDORSES CONVENTION OF STATES
Robert Natelson | Senior Fellow, Independence Institute 03/11/2019
While the media fixate on the socialist impulses Alexandria Ocasio-Cortez and her allies, a quiet grass-roots revolution is spreading through the country. If successful, it will ensure that demagogues can never impose socialism in America.
The revolution is called the Convention of States movement — and on Tuesday Utah became the 14th state to sign on. The Utah state legislature passed a formal “application” for what the U.S. Constitution calls a “convention for proposing amendments.”
The bill’s sponsor, Rep. Merrill Nelson, said the aim was to fix a “broken” federal government. “The checks and balances in our Constitution have been stretched and broken. All three branches are exercising legislative power. The courts are deciding matters of public policy. The executive is issuing executive orders, making law as we speak. And there’s no way to challenge it.”
Utah’s action is particularly significant because that state had been a stronghold for organizations opposing a convention. Those organizations typically raise money by telling donors the convention could, essentially, stage a coup d’etat — a ridiculous claim with no legal or historical basis.
The Constitution includes restraints on federal power, which, if enforced, would prevent socialists from enacting their agenda. However, those restraints have atrophied in recent years. A primary aim of convention advocates is to restore them.
For example, when read correctly, the Constitution grants Congress only limited spending authority, leaving most social programs to the states. Thus, a proper reading of the Constitution prevents Congress from imposing a single-payer health plan. But rogue Supreme Court decisions have “interpreted” the Constitution to permit Congress to spend without restraint. Those decisions give socialists legal cover for a single-payer system.
Fortunately, constitutional amendments can overrule rogue Supreme Court decisions. Three amendments — the 11th, 14th, and 26th — were adopted partly or entirely for that purpose. Similarly, amendments can protect Americans from other socialist goals, such as the Green New Deal, confiscatory taxation, seizure of businesses and other property, and abolition of air travel.
In addition to using the amendment process to overrule Supreme Court decisions, Americans have employed it to reform government and protect individual liberty. The first 10 amendments created our Bill of Rights. Other amendments abolished slavery (the 13th), protected minorities (the 14th and 15th), ensured women the right to vote (the 19th), and limited the president to two terms (the 22nd).
The Constitution requires all amendments to be ratified by three fourths of the states (38 of 50) — but the Constitution also requires that before they can be ratified, they must be formally proposed. Proposal is either by Congress or by a convention. Reform advocates recognize that Congress will never endorse amendments curbing its own power. But a convention for proposing amendments can, as its name suggests, propose amendments when Congress refuses to do so.
A convention for proposing amendments consists of delegations from the state legislatures. The rule of decision is “one state/one vote.” Its constitutional position is similar to that of the Electoral College — that is, the Constitution grants it only one function, after which it dissolves.
Thirty-four state legislatures would have to approve applications similar to Utah’s to require Congress to call such a gathering.
Applications like Utah’s would permit the convention to propose amendments reversing court rulings that unconstitutionally increase federal power. Under Utah’s application, the convention also could propose measures to tame the federal debt and enact term limits for Congress and for federal officials, including judges. And it could propose amendments to curb federal micro-management of American life. (Do we really need the feds to tell us how many gallons our toilets may flush or what bathrooms kids can use in our schools?)
During the Utah legislative debate, supporters emphasized that the federal government has grown dysfunctional and over-large. They noted that the founders inserted the convention process in the Constitution to allow Americans to respond when such problems arose.
They might have added that the Convention of States movement also provides a way to protect Americans from the threat of socialism.
Rob Natelson is senior fellow in constitutional jurisprudence at the Independence Institute in Denver. He was a law professor for 25 years, and became the nation’s most-published active scholar on the Constitution’s amendment process. He serves as an adviser to the Convention of States movement.