Article V of the Constitution is a not-so-secret weapon for opponents of ObamaCare and other federal outrages.
In August, Missouri became the latest state to rebel against the new national health care law when 71 percent of voters supported a ballot initiative rejecting the legislation’s requirement that individuals purchase government-approved insurance. Several other states will consider similar measures on the ballot this November.
However satisfying this backlash against ObamaCare may be to opponents of the law, these state-based efforts could all be for naught if the U.S. Supreme Court sides with Congress and rules that the legislation’s individual mandate is constitutional.
Such a decision would have far-reaching consequences, giving broad new power to the federal government over individuals and states. It would mean that the interstate Commerce Clause would have been interpreted so broadly as to allow the federal government to regulate the activities of people who choose not to engage in commerce, and within a health insurance market where businesses aren’t even allowed to sell their products across state lines. It would represent the culmination of decades in erosion of the concept of the separation of powers between federal and state governments, and the boldest example of congressional over-reach in the age of Obama.
In that scenario, short of repeal, the only remaining way to fight the law would be to amend the Constitution. Given how polarized the modern U.S. Senate is, it’s highly unlikely that a proposed amendment would garner the necessary 67 votes needed to amend the Constitution in the traditional manner. Yet the Founding Fathers left the states one last check on federal power.
Under Article V of the Constitution, “Congress… on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which… shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States.”
The Constitution has never been amended through a convention of the states, and this route remains controversial, with many conservatives fearing that the meeting would turn into a circus in the modern media age, and open the door to a wholesale rewriting of the nation’s founding document. Yet a new body of research suggests that these fears are unwarranted, and that there are enough checks built into the system to prevent what scholars refer to as a “runaway convention.” With state legislators and grassroots activists searching for ways to limit the abuses of Congress, the possibility has begun to generate more chatter.
“MY SENSE IN TALKING to state legislators and others is that there is growing interest in the idea,” said Merrill Matthews, a scholar at the Institute for Policy Innovation. “About what it would take and what the Founders had to say. People are increasingly warming to the possibility.”
One such legislator is James LeMunyon, a Republican member of the Virginia House of Delegates, who took to the pages of the Wall Street Journal this March to propose a convention as a means of reining in Washington. He has offered his own proposal in the Virginia legislature, pushing for a convention to amend the Constitution to give the president line-item veto power. Earlier this year, the Florida senate passed a measure calling for a convention to deal with the bloated federal budget.
“What we’re really after, in the very broad sense, is to rebalance the relationship between federal and state governments,” LeMunyon told TAS.
The prospect of a convention still has its many detractors.
“I think it’s a terrible idea,” Phyllis Schlafly told TAS. “Who are these people who think they could do a better job than George Washington and James Madison? We have a wonderful Constitution and we don’t want to rewrite it or cause any discontent with the Constitution that we have.”
Schlafly has long been one of the leading opponents of a convention, and has used her conservative activist group, Eagle Forum, to oppose it.
Michael Uhlmann, a political science professor at Claremont Graduate University, was also dismissive of the convention route.
“I don’t take the idea seriously, and I don’t think anybody else should,” he said. “Unless you can figure out a way to reincarnate James Madison.Then I’ll reconsider my position.”
AT THE TIME of the founding, the ability of the states to call a convention to propose amendments was seen as a way to prevent the federal government from becoming too expansive. In essay No. 85 of the Federalist Papers, Alexander Hamilton cited the states’ convention option in his response to critics who feared that Congress would never allow any amendments limiting its power. The Constitution orders that “The Congress shall call a convention” if two-thirds of states demand one, he pointed out, and thus whether to call a convention isn’t up to the federal government. “We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority,” he predicted.