[Editor: This is a five part series of essays by Prof. Rob Natelson adding one each week]
Don’t Be Fooled! Don’t Let Them Divert Us From Ensuring Electoral Integrity!
Part I
By Rob Natelson – January 12, 2021
Commentary
The public furor over the illegal Capitol break-in is a diversion. Don’t let it stop us from planning and implementing our agenda for the immediate future.
I’ve been in and around politics for over 50 years. I know a diversion when I see one. Those trying to turn the Capitol incident into an impeachment know there’s no time, or grounds, for impeachment. They also know that President Donald Trump didn’t incite illegal behavior. Anyone can see that by reading his allegedly objectionable words. (I have reproduced them at the end, courtesy of Snopes, a left-leaning website.)
The goals of this diversion apparently are to (1) move public attention away from election irregularities and the legitimacy of the Biden presidency, (2) forestall honest investigation into those irregularities, and (3) prevent corrective action.
But we mustn’t be diverted. This is the first essay in a five-part series laying out a two-year agenda for concerned Americans. If adopted, these changes will reduce greatly many of the problems that bedeviled the 2020 election. They also will begin to ameliorate dysfunctions and divisions in our political system.
This agenda focuses on state legislatures. There’s no hope of making much progress at the federal level, where the system—and perhaps the elections themselves—has been corrupted. In Washington, the power and incentives are stacked against the responsible and productive Americans who make up our country’s backbone. In the federal political game, we always have to start on our own two-yard line and run the football uphill. The other side starts on our 20 and runs downhill. The referee (i.e., the mainstream media) calls every real or imaged penalty against our side and rarely calls one on the opposition.
That’s why fiscally conservative Americans have not been very successful at the federal level. It’s why, other than Ronald Reagan, there hasn’t been a consistently conservative president for nearly a century. (Trump was conservative on some issues, but liberal fiscally.)
In most states (sorry, California!), the playing field is very different than at the federal level. Moreover, in the 2020 election, while Trump was purportedly losing, at the state level conservatives were gaining. Republicans (admittedly, not all of whom are conservative) now control both legislative chambers and the governorship in 23 states. In at least seven more, they control both houses of the legislature without the governorship.
And while it’s not widely known, state legislatures are near the heart of our constitutional system. They have power to force changes in federal operations—in some cases, even without the consent of their governors.
What follows are the four agenda items. The succeeding essays in this series will elaborate on each.
Item 1: Constituents must educate state lawmakers about their constitutional role and motivate them to fulfill that role. As mentioned above, state lawmakers have important constitutional responsibilities. They govern the presidential election process, they have much to say about the congressional election process, and they can control the constitutional amendment procedure. State legislatures have been neglecting these duties. That must change.
Item 2: Reform state election laws. After the 2020 election, the need for this is evident. The details to be addressed vary from state to state. However, it’s clear that the promiscuous use of mail-in ballots is dysfunctional, as well as unconstitutional. That being said, it’s clear that election law change can’t cure all corruption. That’s the reason for Item 3.
Item 3: This applies in states with histories of big-city or university town-vote corruption. These include six swing states with Republican legislatures: Arizona, Georgia, Michigan, North Carolina, Pennsylvania, and Wisconsin. Their legislatures should adopt resolutions whereby those states’ presidential electors are chosen by congressional district rather than at large. Two states—Maine and Nebraska—do this already, and the Supreme Court has upheld that approach. The consent of the governor isn’t necessary. This reform would effectively cage local corruption to a few congressional districts rather than allow it to infect the presidential election in the entire state.
Item 4: Persuade as many state legislatures as possible to endorse the “Convention of States” application for constitutional amendments. These amendments would impose federal term limits and restrain federal power. Over the long term, this is the most important of the four agenda items.
Certain problems in our current system of governance are acknowledged across the political spectrum: severe division among citizens; enormous special interest influence; poorly functioning, and sometimes abusive, government; excessive centralization; and an oligarchy (whether you call it the “deep state” or the “military industrial complex”) not subject to popular control. Only a convention of states—or, in the Constitution’s phrase, a “convention for proposing amendments”—would have both the will and power to propose constitutional reforms to address those problems. Only the state legislatures can ensure a convention is called.
Each of those four goals is achievable on a playing field where productive Americans, rather than so-called “progressive” interests, have the advantage. And each is a relatively small change with big potential effects.
More in later essays.
Postscript: As promised, here are the actual words in President Donald Trump’s speech. Where’s the incitement to violence?
“After this, we’re going to walk down—and I’ll be there with you—we’re going to walk down, we’re going to walk down—anyone you want, but I think right here—we’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women. And we’re probably not going to be cheering so much for some of them. Because you’ll never take back our country with weakness, you have to show strength, and you have to be strong. We have come to demand that Congress do the right thing, and only count the electors who have been lawfully slated—lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your votes heard today. …
“The best is yet to come. We’re going to, we’re going to walk down Pennsylvania Avenue—I love Pennsylvania Avenue—and we’re going to the Capitol. And we’re going to try and give—the Democrats are hopeless, they never vote for anything, not even one vote—but we’re going to try to give our Republicans, the weak ones because the strong ones don’t need any of our help; we’re going to try and give them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.”
Robert G. Natelson, a former constitutional law professor, is a senior fellow in constitutional jurisprudence at the Independence Institute in Denver, and a senior adviser to the Convention of States movement. His research articles on the Constitution’s meaning have been cited repeatedly by justices and parties in the Supreme Court. He is the author of “The Original Constitution: What It Actually Said and Meant.”
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Saving America and Election Integrity: Part 2
By Rob Natelson – January 13, 2021
This is the second essay in a five-part series.
Rep. Bennie Thompson (D-Miss.) chairs the House Homeland Security Committee. He disagreed with Senators Ted Cruz (R-Texas) and Josh Hawley (R-Mo.) when they asked for an investigation to ensure that certified slates of presidential electors were, in fact, those chosen by the people. So Thompson wants the government to punish them.
He suggests Cruz and Hawley be placed on the U.S. Department of Homeland Security’s “no fly” list. Ground them!
Thompson’s suggestion is akin to that of an intolerant bully. But it also showed that he’s ignorant of the fundamentals of his job. His remark, like many others issued by federal officials, should tell us this: Stop relying so much on the federal government and start telling state lawmakers to resume their constitutional duties.
This is the second essay in a five-part series explaining a simple agenda for ensuring election integrity and for taking our country back from arrogant and ignorant federal officials.
Thompson has been a member of Congress for 28 years. Yet he apparently is unaware of a portion of the Constitution central to protecting both himself as a member and Congress as an institution. That portion is called the Speech and Debate Clause (Article I, Section 6, Clause 1). It says that “for any Speech or Debate in either House,” members of Congress “shall not be questioned in any other Place.”
Its principal purpose is to shield members of Congress from executive branch retaliation—such as being slapped on a no-fly list.
The Speech and Debate Clause was the product of sad historical experience. Prior to our Founding, the English Crown repeatedly tried to crush opposition in Parliament by punishing its members. For example, in 1576, Queen Elizabeth I confined Peter Wentworth to the Tower of London because he argued on the floor of the House of Commons that the Queen was a trustee for her people. In 1642, Charles I helped bring on the English Civil War by storming into the House, seeking to seize members who had displeased him.
The Speech and Debate Clause prevents that sort of thing from happening to Congress. It obviously is crucial to the preservation of Congress as an independent entity.
Thompson is only the latest in a series of key federal officeholders shown to be clueless about the most basic facts of our political system. Joe Biden—longtime chairman of the Senate Judiciary Committee—recently claimed that for a president to nominate a Supreme Court justice during election season was somehow “unconstitutional.” Sen. Brian Schatz (D-Hawaii) confused a reference to the English origins of our legal system with a racist dog whistle. Rep. John Conyers (D-Mich.)—who headed the House Judiciary Committee for the lifetime of Methuselah—thought the Constitution contained a mysterious “Good and Welfare Clause.” The list goes on.
Now, if these characters don’t understand even the fundamentals of their jobs, how can we expect them to know enough to govern health care? Or education? Or the environment? Or defense, commerce, or any of the other activities they purport to regulate?
To be sure, the Founders did not expect Members of Congress to possess that much knowledge. So the Constitution left governance of most aspects of life to the state legislatures. The Constitution also assigned the state legislatures tasks necessary to keep our political system well calibrated.
Here are the principal jobs the Constitution assigned to state lawmakers:
- Govern the internal policies of their respective states (including areas into which the feds have since intruded, such as health care and education).
- Approve or veto changes in state borders.
- Approve or veto new national enclaves within state boundaries, such as military bases, federal office complexes, and some national parks.
- Regulate congressional elections, subject to limited congressional override.
- Approve or veto proposed constitutional amendments.
- Propose amendments through a meeting of state delegations called a “convention for proposing amendments.”
- Decide how presidential electors are chosen. Last summer, the Supreme Court ruled (pdf) that state legislatures may even tell electors how to vote.
State legislatures may exercise several of these important responsibilities—including choice of electors and their constitutional amendment powers—without their governor’s consent.
Over the years, I’ve found that most state lawmakers generally understand their responsibilities under the state constitutions. But I’ve found that many are unaware of the scope of their duties under the U.S. Constitution. We saw this after the 2020 presidential election: When evidence of vote-counting hijinks surfaced in several states, many lawmakers were caught flatfooted.
In some ways, it’s hard to blame them. Special interests have flooded state lawmakers with disinformation for years—disinformation designed to prevent them from doing their jobs. This is particularly true with respect to legislatures’ constitutional amendment powers. And one reason lawmakers were slow to resolve the 2020 election mess was that people who should know better were telling lawmakers that they couldn’t act without the governor.
If we are to assure electoral integrity and other progress, we must educate state lawmakers about their responsibilities under the U.S. Constitution.
Send them this article and others on the same topic. Look for my forthcoming survey in the University of Pennsylvania Journal of Constitutional Law about the duties the Constitution assigns to non-federal officials, including state lawmakers.
Check out the website of the American Legislative Exchange Council (ALEC). If your state lawmaker is not active in ALEC, encourage him or her to become involved.
Tell lawmakers about the Article V Information Center, which explains the role of state lawmakers in the amendment process. Tell them about the Convention of States movement.
Remember: A first step to election integrity and taking back our country is making sure state lawmakers know what their constitutional responsibilities are.
Robert G. Natelson, a former constitutional law professor, is a senior fellow in constitutional jurisprudence at the Independence Institute in Denver, and a senior adviser to the Convention of States movement. His research articles on the Constitution’s meaning have been cited repeatedly by justices and parties in the Supreme Court. He is the author of “The Original Constitution: What It Actually Said and Meant.”
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Saving America and Election Integrity: Part 3
By Rob Natelson – January 18, 2021
Commentary
This is the third essay in a five-part series.
The Article of Impeachment against President Donald Trump complains more about his asserting the 2020 election was corrupt than about other (supposedly) incendiary language. Taken in context, impeachment seems to be part of a wider campaign to divert attention away from election irregularities and to marginalize anyone who cares about them.
This diversionary tactic must not be successful. Corruption of elections is a much greater threat to the republic than a few hundred rioters entering the Capitol, as bad as that was. At a time when key constitutional curbs on the federal government have been disabled, free and fair elections are particularly vital.
This essay is part of a series outlining four simple but crucial goals for the next two years. My last essay discussed the need to educate state lawmakers about the special functions the Constitution delegates to them. This column explains why they must exercise two of those functions to reform federal election procedures.
Let’s start with the Constitution. It has three provisions relevant here.
The first is sometimes called the Elections Clause, but because the Constitution has several “election clauses,” a better name is the Times, Places, and Manner Clause (Article I, Section 4, Clause 1).
The Times, Places, and Manner Clause states:
“The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
In 2010, I explained this language in detail in a scholarly article (pdf) later cited in a dissent by Chief Justice John Roberts. In a nutshell:
- The clause empowers states to regulate the details of congressional elections, including drawing districts; setting registration, voting, and counting procedures; deciding whether there will be run-offs; and fixing the day for voting.
- It grants this authority to the entire law-making apparatus of the state not just the legislature per se. This includes the governor’s signing-and-vetoing and any authority reserved to the people by initiative and referendum.
- Congress may override state laws regulating congressional elections.
Next, the Constitution (Article II, Section 1, Clause 2) gives state legislatures power over presidential electors. It says:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors …”
With one important limitation (explained below), the Supreme Court tells us this power is “plenary” (complete). The legislature may choose electors itself. It may prescribe how the people elect them. It may even dictate how electors vote. The legislature doesn’t share this authority with anyone—not even the governor.
The third constitutional provision limits somewhat the legislature’s power in presidential elections. It’s called the Same Day or Presidential Vote Clause (Article II, Section 1, Clause 4). It reads:
“The Congress may determine the Time of chusing the Electors and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”
In 2020, the congressionally selected “Time for chusing the Electors” was Nov. 3. The day on which the electors voted was Dec. 14.
With that background, let’s examine the 2020 presidential election.
The liberal media claim any problems were minor and couldn’t have affected the results. But they started making this claim just a few days after the election, well before any serious investigation was possible.
Furthermore, the claim rests heavily on self-serving statements by the very election officials ultimately responsible for screw-ups. It also relies on dismissal of the challengers’ judicial cases, although nearly all were dismissed for procedural reasons, not because their allegations were wrong. And—as explained below—there’s just too much evidence to the contrary for the media assertions to be credible.
There was one huge election irregularity no one is discussing, but which was undeniable: States throughout the country ignored both the Constitution’s Same Day Clause and federal law in carrying out the 2020 popular vote.
The law required each state to conduct balloting on Nov. 3. But many states adopted mail-in voting systems allowing people to cast ballots over periods of weeks. Moreover, those periods were not uniform across the country.
Not surprisingly, the election was marred by problems of the very sort the Constitution’s framers inserted the Same Day Clause to prevent: Some people voted in more than one state. Others voted from different addresses within a state. Handling procedures changed over time. And so forth.
There is further evidence the election was compromised in at least six swing states: Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin. Biden carried all of them, although all except Nevada have Republican legislatures. The margin in each state was narrow. If Trump had carried any three, he would have won a majority in the Electoral College. (There also is evidence of problems in North Carolina, but they were insufficient to prevent Trump from winning that state.)
A few state legislative committees have heard testimony on alleged irregularities. Some of this testimony likely will be disproved, but that’s the nature of an investigation. Even so, much of it looks very strong.
Consider Georgia. Last month, the Election Law Subcommittee of the state senate Judiciary Committee heard testimony and accepted sworn statements. The subcommittee did not investigate Dominion voting-machine conspiracy theories. But the evidence the committee did collect is disturbing enough. The chairman’s summary (pdf) reads in part:
“The November 3, 2020 General Election (the “Election”) was chaotic and any reported results must be viewed as untrustworthy. The Subcommittee took evidence from witnesses and received affidavits sworn under oath. The Subcommittee heard evidence that proper protocols were not used to ensure chain of custody of the ballots throughout the Election, after the opening of ballots prior to the Election, and during the recounts. The Subcommittee heard testimony that it was possible or even likely that large numbers of fraudulent ballots were introduced into the pool …
“There was a lack of enforcement of the law, sloppy handling of the ballots by those counting, deliberate covering-up of voting numbers by workers, lack of following the process during the recount, unsafe handling of military ballots, and insecure data such as on laptops and flash drives. … [O]ther times … ballots were counted more than once.
“A great deal of testimony supported evidence of a coordinated effort to prevent a transparent process of observing the counting of ballots during the absentee ballot opening period and on Election Night.”
Some testimony revealed only sloppy procedures. But there also was evidence of deliberate fraud. One example:
“At the State Farm Arena recount on November 14, Susan Voyles—who has 20 years’ experience managing election precincts in Fulton County [Atlanta]—reviewed a stack of 110 absentee ballots [ballots are normally placed in stacks of 100] and noticed they were ‘pristine.’ They had not been folded, and they did not appear worn as though voters and election workers had handled them. Each ballot was ‘bubbled in’ with exactly the same marking, which showed a small crescent of white in the bubble. It appeared as though one ballot had been marked and then reproduced over 100 times. In addition, one of these ballots bore the distinctive ink markings of having been pulled from a printer too soon. Almost all of these ballots were votes for Vice President Biden; only two were for President Trump. In her 20 years of election experience, Voyles had never seen any ballots like these.”
For the survival of the republic, we cannot sweep such evidence under the rug. During their sessions this year, the legislatures of the contested states must investigate more thoroughly (1) whether there were irregularities in their states, (2) if so, their nature and extent, and (3) how to ensure they don’t happen again.
The findings and solutions will vary from state to state. But one reform is absolutely mandatory everywhere—as well as compelled in presidential elections by the Constitution and federal law.
That reform is to end promiscuous use of mail-in ballots. There is no reason most people cannot go to the polls and vote in person. When you add in our colonial experience, Americans have done so for 400 years.
Justifiable absentees should vote only on the legally designated Election Day, either by mailing their ballot so that it’s post-marked on that day, or by voting by proxy or electronically.
Next time: How state legislatures can prevent big-city corruption from poisoning statewide presidential elections.
Robert G. Natelson, a retired constitutional law professor and senior fellow in constitutional jurisprudence at the Independence Institute in Denver, had a long career as a political activist and observer. In 2000, he ran second in a five-candidate field in the bipartisan primary for governor of Montana. He is the author of “The Original Constitution: What It Actually Said and Meant.”
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How State Legislatures Can Break the Power of Corrupt Big-City Machines in Presidential Elections Part IV
By Rob Natelson – February 25, 2021
Commentary
This is the fourth essay in a five-part series.
This essay explains how lawmakers in swing states can contain local corruption in presidential elections: by changing how their states choose presidential electors.
This is the fourth in a five-part series on how to cleanse our presidential contests from the kind of irregularities we saw in 2020.
There is a long history of big-city Democratic Party machines corrupting American elections. When the political stars are aligned correctly, those machines can award the presidency to a candidate who really lost.
It is said that the classic script was written by Chicago Mayor Richard Daley in 1960. Most of Illinois voted for the Republican presidential candidate, Richard Nixon. One version of events says that Daley knew this was going to happen, so he allegedly held back Chicago’s vote totals until he saw how many votes the Democratic candidate, John F. Kennedy, needed to overcome Nixon’s statewide lead. Daley then released enough Democrat votes, real or fake, to swing all of Illinois’s electors to Kennedy.
Meanwhile, alleged corruption in South Texas (home of Kennedy’s running mate, Lyndon Johnson), secured all the Texas electors for Kennedy. Flipping Illinois and Texas proved enough to put the likely loser, Kennedy, in the White House.
This had enormous consequences. Kennedy proposed—and after Kennedy’s death Johnson pushed through—the massive “Great Society” programs that have proven such spectacular failures. These were the programs that rendered the federal government nearly omnipotent and now threaten to bankrupt the country.
Although Chicago is legendary for electoral corruption, the 2020 presidential election showed that Chicago is not alone: Dubious vote totals generated by big-city Democrat machines allegedly swung enough states to take the presidency away from Donald Trump and hand it to Joe Biden.
Why can the machines do this? They can because all but two states choose their presidential electors at large. Whatever candidate wins a bare plurality of the popular vote in the state takes all of that state’s electors.
For example: According to CNN, in 2020, Trump won 54 of Pennsylvania’s counties, mostly by large margins. Biden won only 13 counties, mostly by much narrower margins. However, Philadelphia County turned in an astonishing 81.4 percent for Biden, giving him all 20 of Pennsylvania’s presidential electors.
The Constitution doesn’t require that presidential electors be chosen statewide. Each state’s legislature decides that. The decision may be by law or simple resolution. A law generally requires the governor’s signature, but a resolution doesn’t.
The Supreme Court outlined this “plenary” legislative power over the choice of presidential electors in the famous case of McPherson v. Blacker (pdf)—probably the most important Electoral College decision ever issued. And while that case is more than a century old, it remains very good law: The Supreme Court re-affirmed this (pdf) last summer.
The court’s opinion in McPherson contains a lot of valuable guidance. But its specific ruling was that a state legislature may allow voters to choose electors by district. Maine and Nebraska do this now: Currently the people of Maine and Nebraska choose only two electors at large and elect the rest by congressional district.
Moreover, a state legislature doesn’t have to align presidential-elector districts with congressional districts. In the early republic, state legislatures sometimes drew them differently.
Why, therefore, do 48 states choose presidential electors at large? The usual reason is a belief that at-large election increases a state’s influence in the Electoral College. That’s fine for states such as Oklahoma, Idaho, or Hawaii. But it’s not fine for states with big-city machines able to smother the rest of the state’s voters.
To illustrate how district voting can de-fang corruption, let’s consider the 2020 election in the swing state of Georgia. In most of Georgia, the election was fair. But in Atlanta (and a few other places) the attested number of irregularities was appalling. Corrupt big-city ballots likely swamped other regions’ honest ballots, pulling all of Georgia’s 16 electoral votes away from Trump and toward Biden.
Suppose, however, the Georgia legislature had adopted the Maine–Nebraska electoral system. Biden would have won the two at-large electors and electors in a handful of congressional districts. But the rest of Georgia’s citizens would have awarded most of Georgia’s electors to Trump.
In the 2020 presidential election, six other swing states reportedly suffered from big-city vote inflation as well. They were Arizona, Michigan, Nevada, North Carolina, Pennsylvania, and Wisconsin.
In North Carolina, support for Trump was so strong that he overcame the irregularities and won the state. But the other six swing states reported Biden victories, generally by very narrow margins. Those margins were produced by big-city Democrat machines and university towns, and they delivered each state’s entire slate of presidential electors to Biden. If Trump had won any three of those states, he would have won the Electoral College. In a fully honest election, he may have taken all six.
Significantly, all of these swing states except Nevada have Republican legislatures. (This is another reason to suspect the Biden victories were fabricated.) Hopefully, their legislatures are motivated to correct the problem.
In Part 3 of this series, I explained that state legislatures should adopt election law reforms to address corruption. But this may not be sufficient. The Republican legislatures in Arizona, Georgia, Michigan, North Carolina, Pennsylvania, and Wisconsin should consider supplementing election law reform with a district method for choosing presidential electors.
District voting for presidential electors in those states would have the following effects:
- It would isolate corruption to particular electoral districts;
- It would reduce the incentives for corruption; and
- It would even the odds in the Electoral College.
We don’t yet have complete 2020 data on what presidential candidate won each congressional district. But an analysis based on 2016 data suggests that adopting a congressional district system in these swing states would have resulted in a 2020 Trump victory with about 282 electoral votes—12 more than needed.
In fact, Trump’s 2020 total might well have been more. If people know corruption can’t sway an election for them, they’re less likely to engage in it. That’s why in 2020 we didn’t witness serious irregularities in states such as California or Texas, where the results were known beforehand. Vote inflation and other irregularities occurred only in states where they made a difference.
For the same reason, districting in those six states also would have changed the popular vote totals. Reportedly, Biden edged Trump by around 7 million popular votes nationwide. But remove big-city machine vote inflation, and Trump may have won the popular as well as the electoral tally.
Proposal: The Republican-majority legislatures in Arizona, Georgia, Michigan, North Carolina, Pennsylvania, and Wisconsin should consider permitting their citizens to vote for presidential electors by district. The simplest solution is the congressional district approach of Maine and Nebraska. But perhaps an even better approach is to draw boundaries so as to isolate corruption in as few districts as possible, while preserving the “one person/one vote” rule mandated by the courts.
Next time: The fourth proposal: A convention of the states to propose corrective constitutional amendments.
Robert G. Natelson, a retired constitutional law professor, is a senior fellow in constitutional jurisprudence at the Independence Institute in Denver. He is the author of “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2014).
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The Solution Is a Convention of the States Part V
By Rob Natelson – February 25, 2021
Commentary
This is the fifth essay in a five-part series.
Almost immediately upon taking office, President Joe Biden signed a series of executive orders wiping away the progress of the Trump era and resurrecting some of the worst abuses of the Obama era. In addition, he proposed massive new spending—and more national debt—to be added to the extravagant expenditures of the past few decades.
For more than 80 years, Americans who love their country have been fighting a defensive political battle to preserve the values and traditions that made our country great. But we have suffered one defeat after another. Even the incremental successes of the Reagan and Trump administrations have been wiped away in the “progressive” tide, like sandcastles on the seashore.
This is the lesson we have learned from participating in federal politics. As I wrote in an earlier essay in this series, “In the federal political game, we always have to start on our own two-yard line and run the football uphill. The other side starts on our 20 and runs downhill. The referee (i.e., the mainstream media) calls every real or imaged penalty against our side and rarely calls one on the opposition.”
That’s accurate as far as it goes. But here’s the rest: If we do happen to get possession of the ball, we are allowed one down while the other side gets six.
That’s why in laying out agenda items in this series, I have limited myself to four that state legislatures can accomplish alone, thereby wiring around Congress. Most state lawmakers remain receptive to traditional, productive Americans in a way that Congress is not.
This essay outlines the fourth, and most important, agenda item. This is to enshrine corrective reforms in the U.S. Constitution. Experience shows that constitutional amendments have lasting power that other restraints—including laws and provisions in the original Constitution—don’t possess.
The American Founders weren’t superhuman, but they were very wise. They understood that the day might come when the federal government exceeded and abused its powers and the electoral system had failed to remedy the problems. So they inserted an additional remedy in the Constitution: the amendment process.
We usually think of constitutional amendments as responses to changed conditions. But the founding generation recognized that we can use amendments to cure constitutional drafting defects, resolve constitutional disputes, overrule bad Supreme Court decisions, and restrain federal power.
And the founding generation did more than recognize this; they acted on it.
In 1791, they adopted the First through Eighth Amendments of the Bill of Rights. The goal was to prevent abuses that might arise in the otherwise-lawful use of federal powers. At the same time, they added the Ninth and 10th Amendments to clarify limits on federal authority. In early 1795, they ratified the 11th Amendment to reverse an overreaching Supreme Court decision. Less than a decade later, they added the 12th Amendment to correct a constitutional drafting issue.
All of those amendments have had a major historical impact. Today, all but the Ninth retain at least some force.
In subsequent years, Americans have used the constitutional amendment process to institutionalize other reforms: abolishing slavery, protecting minorities from state oppression, ensuring that women can vote, and imposing term limits on the president.
Each of these amendments was ratified by the requisite three-quarters of the states. Before they could be ratified, however, they had to be proposed. In each case, Congress proposed them. But that was back when the necessary two-thirds of each house of Congress still had some sense of honor.
Today, however, Congress is abusive. It revels in its power. And as an entity, it’s mendacious: Despite repeated promises over many years, Congress still refuses to propose amendments favored by towering majorities of the American people. These include amendments requiring a balanced budget except in genuine emergencies, imposing term limits on members of Congress and on the Supreme Court, and curbing undemocratic and unfair regulations.
Anticipating this, the Founders included in the Constitution’s Article V a provision effectively granting state legislatures equal power with Congress to propose amendments. Upon the “applications” (resolutions) of two-thirds of the state legislatures, Congress must call “a Convention for proposing Amendments.” This is a task force of state delegations with authority to propose pre-specified amendments that Congress refuses to propose.
A convention for proposing amendments is a type of “convention of the states”—a very old mechanism employed many times for other purposes. However, special-interest groups have prevented such a convention from being used to formally propose constitutional amendments. They have done so primarily through an effective disinformation campaign that began during the 20th century (pdf).
In the 1970s, it appeared that the states might force a convention to reverse liberal-activist Supreme Court decisions on a wide range of subjects. (The most famous is the abortion case of Roe v. Wade.) Liberal establishment figures—academics, politicians, “journalists,” and others—were determined to prevent the American people from overriding the court. So they decided to frighten people away from the convention route by publicizing scare stories.
They claimed, for example, that a convention of states would be almost unprecedented and that its procedures and composition were unknown. They simultaneously argued both that it would be an uncontrollable “constitutional convention” and that Congress could control it.
Mainstream media outlets, particularly The New York Times and The Washington Post, readily spread these falsehoods (pdf).
Today, the campaign continues, largely carried on by groups funded by progressive financier George Soros. Left-wing professors, none of whom has ever published any scholarly research on the subject, work with these groups. They use their unique access to the mainstream media to publicize their disinformation. A handful of naïve conservatives provide them political “cover” on the right.
In 2009, I started researching the Constitution’s provision for a “convention for proposing amendments.” This was part of my regular academic duties. I received no grants or compensation for my findings, other than my regular academic salary. That’s how I learned that the claims in the disinformation campaign were false.
I published my conclusions in scholarly articles, thereby subjecting them to the review of other academics—several of whom have confirmed my core findings. I moderate the Article V Information Center website, and I continue to counsel organizations and lawmakers who wish to promote a convention. I’ve even published a legal treatise on the topic, now in its second edition.
Since I began publishing my research, more state lawmakers have come to understand why we need a convention. Indeed, a majority of state legislatures have now adopted “applications” (resolutions) to force Congress to call one. Resolutions of this kind need not be signed by the governor.
Perhaps the most prominent convention-advocacy group today is the “Convention of States” movement. It urges state legislatures to pass applications for a convention limited to proposing amendments (1) restraining federal power, (2) imposing fiscal restraints, and (3) adopting term limits on federal officials. Of course, any proposed amendments would have to be ratified by three-quarters of the states (38) before they became effective.
But once ratified, these amendments can’t be reversed by Joe Biden, Congress, or federal bureaucrats. As explained above, amendments historically have very long life expectancies, longer even than the original Constitution itself.
This is a step we can encourage state lawmakers to take and that no one in the federal government can block. By using the Constitution’s convention procedure, we can enact the reforms necessary to save the country—and we can make them permanent.
Robert G. Natelson is a retired constitutional law professor, prominent originalist scholar, senior fellow in constitutional jurisprudence at the Independence Institute in Denver, and a senior adviser to the Convention of States movement. He is the author of “The Law of Article V” (2nd ed., 2020), a legal treatise on the amendment procedure.
