A version of this article first appeared at the Mountain States Policy Center website.
On November 5, a federal district court decided Thompson v. Masterson. The decision may put to rest state legislative objections to calling for a “convention of states” to address the federal government’s dysfunction.
To understand why, let’s start with some history:
The delegates to the 1787 Constitutional Convention recognized that America needed more powerful federal institutions. But they also recognized that power can be abused and misused. So they inserted checks and balances in the Constitution. One of them allows the states to amend the document without interference from federal politicians and bureaucrats. Without this procedure, the American public likely would have rejected the Constitution.
The procedure works like this: Two-thirds of the state legislatures (now 34 of 50) pass resolutions requiring Congress to call a “Convention for proposing Amendments.” Most of the Founders expected the resolutions to limit the convention to prescribed topics.
The convention then decides whether to propose one or more amendments. If it does so, the states then decide whether or not to ratify them. Three-fourths of the states (38 of 50) must approve before the amendment becomes law.
This gathering is a kind of “convention of the states” because it is composed of state delegations and each state has one vote.
Most state legislatures have passed convention resolutions, because they understand that the federal government needs reform. State lawmakers who regularly balance their budgets, for example, recognize that Congress should do the same. The most popular topics in the current resolutions are term limits and fiscal restraint
Americans know that the federal government is not working well. But some are uncertain about the convention procedure. The reason for the hesitation is uncertainty sown by anti-convention propaganda, disseminated by special interests and by fringe groups on both the far left and far right.
The propaganda includes the claims that we don’t know how a convention would be chosen or how it would work, that the conclave might exceed its authority, and that the judiciary would not protect the process because amendment cases are “non-justiciable.”
Yet all of these claims are provably false. The courts regularly decide amendments cases. In doing so, they impose uniform federal rules on the procedure. And those rules are based on the Founders’ understanding and on historical practice.
The Newest Case
In 1974, convention opponents sponsored a change in the Kansas Constitution prohibiting the legislature from calling for an amendments convention unless two-thirds of each legislative house voted for it. This provision violated several Supreme Court rulings, but that didn’t stop convention opponents.
In Thompson v. Masterson, convention advocates challenged the constitutionality of the Kansas restriction. Opponents argued that the judge should dismiss the case because amendment law was “non-justiciable.” But the judge, following case precedent, ruled that amendment issues are perfectly justiciable.
Opponents further argued that the state could alter the uniform federal rules governing amendments with a rule of its own. But the judge, again following precedent, held that uniform federal law applied.
In addition to existing precedents, the judge’s decision conformed to historical practice and the Founders’ understanding.
The decision in Thompson v. Masterson reminds us that the convention process is perfectly usable and perfectly understandable. It also reminds us that state lawmakers have a constitutional obligation to help fix federal dysfunction.
State lawmakers: Please take note.