Controlling the Beast

Professor Randy Barnett, a libertarian scholar of constitutional law, proposes a “federalism amendment” to the Constitution. As Barnett notes,

Article V [of the Constitution] provides that, “on the application of the legislatures of two thirds of the several states,” Congress “shall call a convention for proposing amendments.” Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.

An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.

Here’s how: State legislatures can petition Congress for a convention to propose a specific amendment. Congress can then avert a convention by proposing this amendment to the states, before the number of petitions reaches two-thirds. It was the looming threat of state petitions calling for a convention to provide for the direct election of U.S. senators that induced a reluctant Congress to propose the 17th Amendment, which did just that.

There’s always the chance (albeit a slim one) that Congress would allow a convention to go forward. Were that to happen, I would try to drum up support for my version of a new Constitution, which does all that Barnett wants to do with his proposed amendment — and a lot more.