The following essay is designed to stimulate debate.  We look forward to that debate and to your response.

A NEW FEDERALISM FOR THE 21st CENTURY?

Many politicians are talking about taking power out of Washington D.C. but few are actually discussing a realistic strategy to do so. 

Here is an idea that might be of interest to those who believe that enhancing the constitutional power of state legislatures may be the key to restoring the federalist balance of power the founding fathers wrote into the Constitution. 

Former Attorney General Ed Meese, ACU's David Keene and the Wall Street Journal's Stephen Moore are among those interested in this idea.

A key problem in American government is the continued unchecked growth of federal power at the expense of state and local authority.

A conservative Congress and President have not halted this growth. A liberal Congress and President will accelerate it.

Addressing the problem may require structural change in our government not merely electing more self-professed limited-government advocates to Congress.

The Founding Fathers provided for the U.S. Senate to be elected by State Legislators as a check on the tendency of central governments to acquire more power. But that was changed in 1913 by the 17th Amendment which required the direct popular election of Senators and took away the power of state legislators to elect Senators.  For many reasons federal government growth has accelerated since then.  

America is unlikely to repeal the 17th Amendment. Voters like to directly elect their Senators.

But perhaps there is another way to restore the original balance of federal and state power that the Founders intended.

STATE LEGISLATORS ARE THE KEY TO RESTORING THE CONSTITUTIONAL BALANCE OF FEDERAL-STATE POWER.

No group of elected politicians in America is more concerned about the unlimited growth of federal power than the more than 7000 state legislators of the 50 states.

As an example, the issue of state powerless to resist unfunded federal mandates might unite state legislators across party lines as few other issues would.

The power and influence of every state legislator in America, and especially that of legislative leaders, would be enhanced by giving states more leverage to oppose unfunded mandates and the precedent it would create for state initiated constitutional limits on federal power.  And it is attractive for most politicians of any ideology to consider increasing their own power.

Perhaps that is why the Founding Fathers recognized that the best limit on power was a balance of power among the different branches and levels of government. And that is why restoring the balance the founders intended between the federal and state governments may be so important.

ACHIEVING CONSTITUTIONAL REFORM

Restoring a long-term balance of power between the state and federal government will almost certainly require amending the U.S. Constitution.

Constitutional Amendments must be proposed by a 2/3 vote of Congress, or by the legislatures of 2/3 of the states. Then they must be ratified by 3/4 of the states.

Congress of course would be very unlikely on its own to propose any amendment that would limit its power.

However state legislatures may also propose amendments, but only if a majority of legislators in 2/3 of the states vote to call for a Constitutional Convention for that purpose.

Few conservatives, and for that matter few legislators, constitutional scholars, or American voters would favor a Constitutional Convention with an unlimited mandate to amend any part of Constitution.

So a key challenge to any effort to limit federal power via a state-initiated constitutional amendment process would be determining whether or not a majority of legislators in 2/3 of the states could, if they acted in concert, successfully call for a Constitutional Convention that would effectively be limited to an up or down vote on the text of just one proposed amendment.

Hamilton and Madison writing in the Federalist papers said that that the power of state legislatures to propose Constitutional amendments was the same as the power of Congress to propose amendments. This implies that they believed that states could in fact call a Constitutional convention limited to voting on whether to propose a single amendment, just as Congress can vote on whether to propose just one amendment.

The American Bar Association some years ago issued a report concluding that a one-subject limitation imposed by states calling a Convention would be Constitutional and a recent article in the Harvard Journal of Law and Policy agrees.  But the issue is not settled.

If, however, state legislators could successfully set a precedent for a one-amendment constitutional convention, the ability of Congress to ignore states would be sharply curtailed. A coalition of legislators in 2/3 of the States would have a powerful new tool to propose amendments to the Constitution despite the opposition of Congress. 

One possible amendment for such a convention would to Article V of the Constitution to provide that 34 states, in the future, could propose single amendments without the need to call a convention.

Such an amendment would end the future risk of an accidental runaway convention while at the same time clearly establishing the power of states to propose single amendments without the consent of Congress.

Very simply stated, it would increase the power of every state legislator without addressing divisive issues of how they might choose to use or not use that power in the future.

Of course any proposed amendment would still have to be ratified by 3/4 of the states and Congress would not doubt insist, as it could, that ratification be considered by state conventions, not just by the legislatures.

The key question is: Could a set of legal, political, and procedural safeguards ensure that a convention could be limited to an up or down
vote on whether to propose one amendment? 

LIMITING A CONSTITUTIONAL CONVENTION TO CONSIDERATION OF JUST ONE AMENDMENT

Here is how a convention might be successfully called that, even given the lack of predictability at the Supreme Court level, would be effectively limited to proposing for ratification or rejecting just one specific amendment.

1. The Resolution calling for the convention passed by a state legislature would state that the same Resolution must be passed in the precisely identical form by 34 states for it to go into effect.

2. The Resolution calling for the convention would state that the agenda of the convention be legally limited to a debate and an up or down vote on the precise text of the proposed amendment contained in the Resolution.

3. The resolution, and a proposed law to accompanying the resolution and giving it effect, would outlaw consideration or ratification of any but the authorized amendment in that state and direct that state's Attorney General to sue both in federal court to block ratification of any other amendment proposed by the Convention, and in state court to block consideration in the state of any other Amendment from that Convention. The Courts might or might not enforce such bans, but each would be a major legal hurdle.

4. The Resolution would state that those legislators, by voting for it, pledge to oppose consideration or ratification by their state of any other amendment proposed by the Convention

5. The Resolution would state that in the state delegate selection process all candidates for delegate to the proposed convention would be required to either make a public pledge, or refuse to make a pledge that they would vote to limit the convention to consideration of just the one amendment. The Resolution might also provide enforcement penalties, including automatic forfeiture of their delegate status, for convention delegates who took and then broke such a pledge.

6. The Resolution would state that the first order of business of the proposed convention must be a vote on a Rule automatically adjourning the convention after a debate and an up or down vote on the proposed amendment.

Since few people voting in the delegate selection process would want an unlimited "runaway convention" delegates to such a Convention would likely have taken a pledge during the selection process to limit the Convention to one amendment. They would then have to break their pledge to consider other amendments. 

Any delegates who broke their pledge would face very uncertain prospects at the Convention for any additional amendment they favored, plus the new risk of the Convention proposing a different amendment that they opposed.

Even if a group of renegade delegates succeeded in getting the Convention to propose an additional amendment they would face the wrath and opposition of voters who elected them and the majority of legislators in 2/3 of the states who called for a one-amendment limited convention. There would also be the risk that Courts would block their efforts at the either the state or the federal level. 

The likelihood of getting 38 states to ratify and the Supreme Court to approve an "out-of-bounds" amendment under these conditions would be very small.

As a result, few, if any delegates to a one-amendment Convention would be likely to take the big risk of breaking their pledge and voting to consider another amendment for so little chance of success.

In fact, the best advice to supporters of an unauthorized "apple pie and motherhood" amendment would be to suggest that they ask state legislatures in 34 states to call a new one-issue "apple pie and motherhood" convention, instead of attempting, with little chance of eventual ratification, to disrupt a convention pledged to consideration of a just a single proposed amendment.

The 38 state requirement for ratification would serve as a check on amendments without deep and broad-based support.

In other words if a majority of legislators in 34 states were determined to call a limited, one-amendment convention, they would have a very high probability of success.

The realignment of power from Congress to state legislators resulting from a successfully limited one-amendment convention called at the request of 34 states would be substantial, even if the proposed amendment were never ratified.

No effective long-term limit on the growth of federal power is likely without a Constitutional Amendment and no such Amendments are likely to be proposed by Congress.  An Amendment process that results from action initiated by state legislators may be the only alternative to continued unchecked government growth.
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THE THREAT OF STATE ACTION MAY FORCE CONGRESS TO ACT

Even the threat of action by a significant number of states could act as a significant limit to the future expansion of federal power.  

As the number of states calling for a one-amendment convention, for example to consider an amendment to outlaw unfunded mandates, approached the 34 required, the pressure on Congress to propose the amendment and head off the convention will increase.  One way or another action becomes far more likely.

CONCLUSION

If state legislators in a number approaching 34 states can act or force Congress to act, by credibly threatening a one-amendment convention, the balance of power between Congress and state legislators could be fundamentally altered.

If what limited-government advocates want is a new peaceful American Revolution to limit the growing power of the federal government, perhaps state legislators could be the leaders and an amendment to give them power to propose future amendments without the need to call a convention or obtain the consent of Congress could be the catalyst.

BEGINNING THE DEBATE AMONG STATE LEGISLATORS AND OPINION LEADERS

Interested legal scholars, organizations, political leaders, and elected officials, especially state legislators may wish to initiate studies, forums, and other discussion on these issues. 

If a broad spectrum of state legislators and opinion leaders in 30-40 states are familiar with this issue, and if the debate convinces enough of them that a one-amendment convention strategy has a plausible chance of success, the groundwork will have  been laid for legislators and legislative leaders to make an informed decision on whatever steps they think advisable.