Enacting the Liberty Amendments

The heartening success of Mark Levin's The Liberty Amendments has brought to the fore the long-standing debate over the unused second half of the Constitution's Article V. This allows two thirds of the States to require Congress to issue a call for a convention to propose amendments to the Constitution. This convention would act in place of the two-thirds vote in Congress by which all amendments to the Constitution to date have been initiated (in both cases amendments then have to be approved by three quarters of the States). Unfortunately, such a convention has never been successfully held, nor is one likely. However, this does not mean that we have to abandon all hope of using amendment to restore our lost Constitution. The solution is to first reform the amendment process to allow the States to directly amend the Constitution, without having to go though the untried and archaic mechanism of a convention. Many constitutional conservatives have long opposed using the state-called convention method for initiating an amendment proposal. Mark Levin used to be among these, and the estimable Phyllis Schlafly has continued to lay out the case against the convention method. Perhaps the most prominent opponent of the convention method was James Madison, who warned the 1787 Constitutional Convention that "difficulties might arise as to the form, the quorum &c., which in Constitutional regulations ought to be as much as possible avoided." Madison very much favored the idea that the States should be able to initiate constitutional amendments, but accurately foresaw that this lack of procedural specificity for an Article V convention would doom any attempt to use that mechanism to achieve them. The numerous possible procedural disputes over an Article V convention include such critical issues as how votes will be allocated and what percentage of votes will be required for the convention to act (more detail can be found here.)

Many, particularly Professor Robert Natelson, have done prodigious research on the original meaning of the convention clause to answer these objections. However, modern politicians and judges are unmoved by the original meaning of the Constitution. That is largely why we are in our current tragic mess. Without getting into the detail of the potential disputes over the procedures for an Article V convention, it is certain that, even if two thirds of the States were to call for a convention, it would be tied up in litigation for years. And if it was ever able to convene, it would likely turn out to be the largest convocation of leftist law professors ever assembled, who would dominate the media coverage and assure that no amendments would issue which would accomplish anything sought by constitutional conservatives. And yet, it is increasingly clear to many constitutional conservatives that the retail solution of electing supposedly conservative politicians and promoting the appointment of supposedly conservative judges is completely inadequate to push the federal leviathan back into its constitutional limits. Amendment offers the only wholesale solution, and the only remaining peaceful solution, to restoring our Republic. Mark Levin points the way out of this dilemma, although he does not seem to fully recognize its potency. In chapter 9 of The Liberty Amendments he proposes an amendment providing that two thirds of the States be allowed to directly amend the Constitution without having to go through a congressionally summoned convention. As he succinctly notes "there is no persuasive reason the states need to administratively organize their amendment efforts through Congress" (page 166). A similar but more detailed proposal which addresses other historical difficulties with the amendment process and includes certain features to attract progressive support can be found here. Instead of investing precious resources in promoting the call of a convention which would be unlikely to occur, and be equally unlikely to produce anything worthwhile even if it did occur, constitutional conservatives would do better to promote the enactment of an "amendment amendment" which would permit the States to directly amend the Constitution. Then grassroots efforts could be launched to pass Levin's Liberty Amendments and other measures to restore our Constitution. Other worthwhile proposals might include those by Georgetown law professor Randy Barnett, Texas independent scholar Jon Roland (who with over 70 distinct proposals is the numerical champ of conservative reformers) and perhaps some of my own. Of course, how does one enact an amendment to eliminate the convention requirement for state initiated amendments without still having to go through the sturm und drang of a convention? It is my contention that such an Amendment Amendment can be initiated by the traditional method of two-thirds vote of Congress. Now, why would Congress initiate an amendment proposal that would eliminate its de facto monopoly on that power, and why would Democrats vote for an amendment proposal which would open the possibility of constitutional amendments to restrict the power of the federal government? The answer is that Democrats, or at least the real progressives among them, have their own amendments which they want to push. Leading the list is one to overturn the Supreme Court's Citizens United decision allowing more political free speech by incorporated groups like unions and businesses. That none of the numerous proposals introduced in Congress to do this has gone anywhere presents a powerful argument for them to support opening a new path to amendment. I recognize that many readers of the American Thinker will find the idea of a short-term political alliance with progressives deeply distasteful, especially since their motive is to overturn a rare Supreme Court decision which reduced government control of free speech. However, any realistic chance of getting two thirds of the States to issue a convention call will require Democrat support. This will be especially difficult if the convention call is one limited to a conservative purpose like a balanced budget amendment. The political chances of such support are much better for a content-neutral proposal like direct state amendment. And I would dearly love to run the campaign against any member of Congress (or state legislator) who would oppose moving amendment power closer to the people. "So Representative or Senator Power-to-the-People, how do you explain your vote against actually restoring control over the Constitution to "We, the People" other than rank hypocrisy and your hopeless entanglement in the corrupt Washington power structure?" Most constitutional conservatives believe that we cannot wait any longer. I, for one, do not want to wait until my country collapses to try to restore the free nation our Founders gave us. Amending the Constitution to allow direct state amendment is our best hope of restoring our Republic in, to use George Mason's words at the 1787 Constitutional Convention, "an easy, regular, Constitutional way [rather] than to trust to chance and violence." James W. Lucas is an attorney, entrepreneur and the author of Are We The People? Using Amendment to Take Back Our Constitution from Big Government, Big Business and the Supreme Court and Timely Renewed: Amendments to Restore the American Constitution. He blogs at http://www.timelyrenewed.com/.