Failure to Call Amendments Conventions Helps Explain Modern Federal Overreaching

If president after president failed to veto bills, would it surprise you if congressional power grew at the expense of the presidency? If the Senate never blocked the president’s appointments, would it surprise you if presidential power expanded at the expense of Congress? If the courts refused to enforce the Constitution’s ban on ex post facto laws, would it be strange if the states passed more ex post facto laws? And if the states failed to use the Constitution’s “convention for proposing amendments” -- a device inserted in the document to correct and check federal excesses and abuses -- would it astonish you if there were federal excesses and abuses?

Of course not. Each of the Constitution’s checks is designed to ensure that the system operates in a balanced way while preserving liberty. Disabling any of these checks violates the Founders’ design. Although presidents often veto bills, senators sometimes block nominations, and the courts enforce the ban on state ex post facto laws, the Article V procedure by which a convention of states bypasses Congress and proposes corrective amendments has never been used to completion. The neglect helps explain the size and dysfunction of the modern federal government. There are, of course, social, political, and economic explanations for expansion of federal power. There also are constitutional explanations. The three most common constitutional explanations are: The 16th Amendment (ending the apportionment rule for federal income taxes) granted the federal government a massive new revenue source. The 17th Amendment, by transferring senatorial elections from the state legislatures to the people, reduced the role of the states in the federal system. In the late 1930s and (especially) the 1940s, the Supreme Court abdicated its responsibility to police the boundaries of federal jurisdiction. The 16th Amendment explanation falls short in a number of respects. Although the Amendment provided a new revenue source, it did not otherwise expand federal enumerated powers. Moreover, during the late 19th century (1865-95) and much of the early 20th century (1913-29) Congress enjoyed the de facto ability to impose non-apportioned income taxes. Yet federal spending shrank to (approximately) historic peacetime size after both the Civil War and after World War I. The 17th Amendment reduced direct state legislative influence over the U.S. Senate, but it also provided some compensating advantages to the states. Some pro-small-government scholars believe the Amendment’s unbundling of state legislative and senatorial elections actually increased the relative power of the states. In other words, despite all the rhetoric on the subject, the net effect of the 17th Amendment on the federal state balance is still uncertain. As for the Supreme Court’s abdication of its duty to police federal limits in the late 1930s and 1940s: This was a crucial development, but it fails to explain the previous actions of Congress and the President. Beginning around 1930 (and despite unfavorable Supreme Court precedent), federal politicians were able to leverage a financial crisis to seize far more power than federal politicians ever had before. During World War II, they were able to hold and expand that power. The failure of state legislatures to trigger the Article V process in the midst of depression and war is understandable. Less justifiable was state inaction during the decades after World War II, when the federal government refused to retreat to traditional peacetime levels -- especially since that sort of intransigence was precisely the kind of crisis for which the convention device was created. To be sure, there were some efforts to trigger the convention procedure. The first was the state-based movement for presidential term limits, which became unnecessary when Congress proposed the the 22nd amendment. The other two were the campaign for a balanced budget amendment and for reversal of Supreme Court apportionment decisions. Both were defeated when apologists for the status quo filled gullible activists with “runaway convention” hysteria. Neglect of the Article V convention procedure has caused incalculable damage to the constitutional system. The recent surge in “convention of states” activity -- at least 15 new state applications since 2011 -- may signal that the cure has begun. Rob Natelson is a retired constitutional law professor and Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver. His work has been cited repeatedly in Supreme Court opinions. His biography and bibliography are at http:/constitution.i2i.org