The Prospects of a Constitutional Convention
Regardless of the outcome of the 2016 presidential election, our republic needs a powerful redress against the unconstitutional usurpation of power by the federal government and particularly by the Supreme Court and the president. Restoring federalism is the answer to every significant problem in our republic because federalism produces the marketplace of governments that reward states with honest, efficient, and unobtrusive and which drives wealth and voters out of leftist nanny states.
While Republicans at the federal level ought to embrace and to push this agenda, the narcotic of federal government power and printing presses makes it hard for any national party in Washington to actually fight Washington. The best answer is to enact constitutional amendments that structurally change the balance of power between state governments and the federal government.
State legislatures on their own have the power to make these changes because, although no amendment can be enacted without the consent of three quarters of the state legislatures, these very state legislatures can, on their own, both propose and ratify constitutional amendments.
Convening a constitutional convention would require 34 state legislatures, or two thirds of the states. Republicans in state legislatures, if they wished to convene such a convention, would be close to that right now. Thirty-one state legislatures have both chambers controlled by Republicans (I count Nebraska in that total), or three short of the needed 34 state legislatures.
The 2018 midterm elections could change all that, especially if it is the sort of Republican victory that took place in 2014 and 2010. Seven states – Colorado, Iowa, Kentucky, Maine, Minnesota, New Mexico, and Washington – have Republicans in control of one chamber and close to control in the opposite chamber.
If Republicans gained the opposite chamber in four of those states, then a convention could be called, and if Republicans gained the opposite chamber in all seven states, then Republicans at the state legislative level could not only convene, but ratify constitutional amendments. How unlikely is that? Well, consider just how few seats changes in state legislatures would be required.
In Colorado, Republicans would need to gain just two of the 65 seats in the House. In Iowa, Republicans would need to gain just two of the 50 seats in the Senate. In Kentucky, Republicans would need to gain four of the 100 seats in the House. In Maine, Republicans would need to gain 11 of the 151 seats in the House. In Minnesota, Republicans would need to gain six of the 67 seats in the Senate. In New Mexico, Republicans would need to gain four of the 42 seats in the Senate. In Washington, Republicans would need to gain two of the 98 seats in the House.
Put another way, there are 7,383 state legislative seats in America, and a shift of 31 seats, or less than one half of one percent of these seats, could give Republicans in state legislatures the power to both convene a constitutional convention and to ratify amendments proposed at that convention. Two other states, Delaware and Oregon, could have Republican legislatures; a shift of 17 seats total would give Republicans majorities in 40 state legislatures (unlikely, but in a wave election, possible).
The amendments proposed ought to narrowly focus on the imbalance of state and federal power. One advantage to this approach is that all state legislators would find some appeal in these amendments, and any state legislator would look absurd telling voters: "We could not vote to ratify amendments to give us more power at the expense of Washington because Washington knows better than we do."
First, restore to state legislatures the power to elect members of the United States Senate and add the power of state legislatures to recall a senator during the term of that senator.
Second, provide that a resolution by three fifths of the state legislatures of the several states could invalidate any federal judicial, legislative, or executive action and could remove any federal official responsible for that action from office.
Third, limit the terms of all members of the federal bench of a total, for all federal judicial offices, of ten years.
These would be reasonable, clear, and vital changes – and these amendments would also be revolutionary. Americans, by the time of the 2018 midterm elections, may well be ready for this sort of peaceful and constitutional revolution.