Conservative NC legislators eye national constitutional convention

The flurry of bills in the current session of the North Carolina General Assembly include some real political firestorm issues – guns, abortion, public education.

But several new bills deal with something that is, at once, a much more esoteric issue and a growing national controversy: the movement to amend the U.S. constitution.

House Joint Resolution 44 (Senate Joint Resolution 36) proposes an application to the U.S. Congress for a convention of the states under Article V of the U.S. Constitution for the purposes of proposing constitutional amendments.

What sort of amendments? According to the resolution, those that would “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.”

Senate Joint Resolution 40 further describes the desire for a “countermand amendment” that would “authorize the states, upon a vote of three-fifths of the state legislatures, to nullify and repeal a federal statute, executive order, judicial decision, regulatory decision by a federal government agency, or government mandate imposed on the states by law that adversely affects the interests of the states, in order to properly exercise the states’ constitutional authority to check federal power, preserve state sovereignty, and protect the rights of the states and the people.”

The idea is hardly a new one. The struggle for authority between the federal government and the states goes back to at least 1786, when delegates from five states met to consider improvements to the Articles of Confederation. That led to the Constitutional Convention in Philadelphia in 1787. The struggle over authority continued and intensified through the Civil War and formal calls for another convention have have been going on since at least the late 1800s.

The modern conservative movement for a convention of the states is inspired by everything from the desire for a balanced budget amendment and the abolition of the federal income tax to congressional term-limits and the desire of some states to reject civil rights laws and the authority of the Environmental Protection Agency.

Under Article V, two-thirds of the states – or 34 states – must apply for a convention. Three-fourths of the states – or 38 states – would need to ratify changes. That’s traditionally led constitutional scholars to doubt we’ll ever see such a convention or the changes it could bring.

But the notion has gained steam over the last few decades, last peaking during the conservative wave of the 1980s and intensifying again more recently with the growth of the right-wing tea party movement.

Twenty-eight states have now passed resolutions for a convention. After the November election the number of states where Republicans control both legislative chambers went from 30 to 32. In Nebraska, with its unique unicameral, officially nonpartisan legislature, conservatives are also in the majority.

That puts conservatives within striking distance of the 34 states needed – a number celebrated by publications like Conservative Review and groups like the American Legislative Exchange Council (ALEC), which consider a convention not only possible but a major priority.

That worries some of North Carolina’s top legal and constitutional scholars.

“I think this is playing with fire,” said William Marshall, the Kenan Professor of Law at the University of North Carolina.

Marshall is a former Solicitor General of Ohio and was Deputy White House Counsel and Deputy Assistant to the President during the Clinton administration. He said the reality of today’s politics is very different from that of 1787 – and a constitutional convention in the current atmosphere could be disastrous.

“In 1787 you had people coming together without strong ideological positions – partially because we didn’t have political parties yet,” Marshall said. “They had the interest of the country rather than their own partisan political interests in mind. Today things are very different – both sides are engaged in trench warfare and both parties are willing to take positions and use tactics they were condemning an hour earlier.”

That’s the wrong atmosphere in which to adopt amendments to the constitution, Marshall said.

“You also have to consider that the country is now very different – the way the states relate to one another is very different,” Marshall said. “The states are much more interdependent than they were in 1787. Giving states the authority to ignore environmental laws, for instance, doesn’t make sense when some states create the pollution and other states end up suffering the consequences.”

Ernest Young of Duke University School of Law said he agrees with that.

One of the country’s leading authorities on federalism, Young teaches constitutional law, federal courts and foreign relations law.

One of the dangers of such a convention is that virtually anything can happen once one is called, Young said.

Senate Joint Resolution 40 sets out a complex and detailed set of guidelines for delegates to such a convention. But the delegates to the original constitutional convention were only supposed to amend the Articles of Confederation, Young pointed out — and they ended up going significantly further.

“How do you control the actions of the delegates?” Young said. “That scares the hell out of people. Because whatever changes people might favor, people are mostly happy with the constitution.”

The super-majorities required for ratification probably make sweeping changes unlikely, Young said. For that reason the push for a convention may not be about amending the constitution so much as a reflection of public trust shifting away from centralized political power.

From Brexit and the European Union’s recent moves to give national parliaments a more prominent voice to the election of Donald Trump, Young said, there is an apparent distrust of – even hostility toward – centralized power.

“I think there’s less trust of centralized elites than there has been in a long time,” Young said. “The Pew Center’s recent studies on trust levels show this. For a long time people trusted the federal government most, then the states and local trust was the lowest. Those numbers have now almost entirely reversed.”

That can be seen in some segments of the American political left also embracing the idea of a convention of the states, Young said.

“It’s mostly from Republican legislators who are upset about federal laws cramping their style,” Young said. “But there’s been a resurgence of interest in federalism generally since the election. You could certainly imagine right now interest from Democrats in countermanding some of these executive orders we’re seeing.”

“Particularly if Congress is unable or unwilling to act at a check on the executive branch, it may not be so crazy to think that the states could provide a check,” Young said.

In North Carolina, the idea of a convention seems to still be largely partisan. The resolutions applying for a convention are all sponsored by Republican legislators.

House Joint Resolution 52 on the other hand, which would rescind state applications for a convention, is sponsored by both prominent Democrats like Rep. Darren Jackson (D-Wake) and prominent Republicans like Rep. Chuck McGrady (R-Henderson) and Michael Speciale (R-Craven).

The bipartisan appeal of state authority, Young said, is that action at the state level can lead to forward motion even on very controversial issues about which there is no clear national consensus.

“We may not agree on transgender policy for bathrooms, state lotteries or whether marijuana should be illegal,” Young said. “But if you decide these things at the state level – if Vermont and California and Montana can do what they want – we can move forward even when there’s no national consensus.”

But that’s also where the idea of a convention of the states to amend the Constitution falls down, Young said.

“When you think about it, if three-fourths of the states have to approve them, you’re unlikely to see a lot of countermands of federal laws or regulations,” Young said. “If three-fourths of the states could agree on something, you’d likely see some action on the issue in Congress. So if a convention did happen, it would probably be a mess – or just ineffectual.”

We’ve been down this road before, said Dr. Michael Bitzer, professor of History and Political Science at Catawba College.

“This idea of countermanding federal laws and regulations hearkens back to the days of nullification and the battle over slavery,” Bitzer said. “The proponent of states rights believed that the states could ignore or choose not to enforce federal law. We had this incident called the Civil War which, along with the supremacy clause of the constitution kind of settled the question.”

Which, in a sense, is why a new constitutional convention is seen as necessary by the political right.

“Right now, Republicans are gaining the control they’ve been seeking,” Bitzer said. “But in the future a Democratic controlled congress and president could rescind a lot of their initiatives. If they can assert a constitutional weight behind some of them, it becomes much more difficult to undo them.”

There are a lot of reasons to believe that a new constitutional convention is unlikely, Marshall said – but in a turbulent political period like the one in which the nation now finds itself, anything is possible. But those pushing for it should think very carefully about its possible consequences, he said, rather than simply following a prevailing political wind.

“The Constitution is really something that binds us together as a nation,” Marshall said. “We ought to be really reluctant to undo the ties that bind. Moving forward on it really creates a serious risk of undermining who we are as a nation.”