Make the Constitution great again: On a Convention of States in the age of Trump

mounttrumpmore

(Trump coloring book)

 

Good morning Austin:

This morning, the Senate State Affairs Committee will hold a hearing on Gov. Greg Abbott’s call for a Convention of States, in which, under Article V of the United States Constitution, two-thirds of the state legislatures can call for a convention at which the Constitution could undergo some rewriting, though any proposed changes would have to then be ratified by three-quarters of the states.

Governor Abbott has offered the following constitutional amendments that he would like to see.

  1. Prohibit Congress from regulating activity that occurs wholly within one State.
  2. Require Congress to balance its budget.
  3. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.
  4. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.
  5. Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.
  6. Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.
  7. Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
  8. Give state officials the power to sue in federal court when federal officials overstep their bounds.
  9. Allow a two-thirds majority of the States to override a federal law or regulation.

I don’t know how soon this could all happen, but the moment is ripe for Abbott’s agenda because Republicans are now in control of a record 67 of the nation’s 98 partisan state legislative chambers.

And let’s face it, if, for the first time in our history, we’re going to throw our hallowed Constitution open to some tinkering by the vox populi, let’s do it while the Big Guy is still in the White House to offer some leadership and guidance to the hoi polloi.

There will, of course, be naysayers, who think the big task ahead is keeping the Constitution we have and not worrying about improving it.

Here was Garret Epps writing in the Atlantic the very day after the November election (note: Epps teaches constitutional law and creative writing  (!) for law students at the University of Baltimore.).

The election of Donald Trump was, in procedural terms, scrupulously fair. I hold no dark suspicions of altered vote counts or intimidation at the polls. We may wish the Voting Rights Act had not been gutted by the Court; but the election of 2016 followed the law of 2016.  Clearly a large proportion of American citizens—not as many as voted for Hillary Clinton, but still, under our strange system, enough—wanted Trump as their president and now hope that he fulfills the loud promises he repeatedly made to the country.

But those promises are the problem. Donald Trump ran on a platform of relentless, thoroughgoing rejection of the Constitution itself, and its underlying principle of democratic self-government and individual rights. True, he never endorsed quartering of troops in private homes in time of peace, but aside from that there is hardly a provision of the Bill of Rights or later amendments he did not explicitly promise to override, from First Amendment freedom of the press and of religion to Fourth Amendment freedom from “unreasonable searches and seizures” to Sixth Amendment right to counsel to Fourteenth Amendment birthright citizenship and Equal Protection and Fifteenth Amendment voting rights.

Like an admissions officer at Trump University, he offered Americans a bag of magic beans and asked them in exchange to hand over their rights and their form of government.

Smiling, nearly 60 million complied.

A couple of months earlier, Epps had warned:

A Trump victory would render the Constitution as toothless as the Statuto Albertino of 1848 after Mussolini’s March on Rome. That’s not because Trump proposes violating this or that provision; it is because, to him and his followers, the Constitution is simply nonexistent.

But, I’m of a mind that, if you’re getting a heart transplant, why not, as long as you’re paying for the bed, have met the deductible and are already under anesthesia, go for a little brain surgery.

And, as of Monday, President’s Day, Trump will have been president for a whole month, and we’ve still got a Constitution.

Anyway, I’m sure if Abbott succeeds and we get a Convention of States while Trump is still president, he and his team of Constitutional scholars – Steve Bannon, Attorney General Jeff Sessions,  Stephen “The powers of the president to protect our country are very substantial and will not be questioned” Miller, Kellyanne Conway and Sean Spicer – will be very circumspect in the kinds of changes they might like to see in our nation’s founding document.

Maybe, just a few little  tweaks

For example, in Section 1, where it delineates “The judicial Power of the United States,” just throw a so-called in front of judicial.

Easy.

In fact, just go through the whole document, and wherever you see a judicial, or a judiciary, or court,  throw a so-called in front of it.

Simple stuff. Little tweaks.

Like the First Amendment.

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Great stuff. The Number 1 amendment.

But it could be even Greater.

Like that bit about or of the press. How about adding to that, but not including the fake media with its fake news.

I mean, why should we be protecting fake news?

Doesn’t make any sense.

And, you know, that line about the right of the people peaceably to assemble, and to petition the government for a redress of grievances, just add at the end there, but not in numbers greater than the president shall have drawn in support of whatever policy these sore-loser Soros-bots are grieving about.

Now that would be a great First Amendment.

Oh, and, what is the story with the Emoluments Clause?

8: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

OK. Quick question. What’s an emolument?

It sounds great.

Like adding maybe some gold leaf to the Affogato (vanilla honey baklava ice cream, whipped cream, chocolate sauce covered in espresso coffee) on the menu at the Trump Grill.

Yum.

But let’s look it up.

e·mol·u·ment
əˈmälyəmənt/
nounformal
plural noun: emoluments

a salary, fee, or profit from employment or office.
“the directors’ emoluments”
synonyms: salary, pay, payment, wage(s), earnings, allowance, stipend, honorarium, reward, premium; fee, charge, consideration;
income, profit, gain, return
“his name alone is worth the emolument they’re willing to offer”

Wow. That’s it.

“his name alone is worth the emolument they’re willing to offer”

Yes.

And, let me get this straight. The Founding Fathers thought that was bad thing?

What a bunch of losers.

trumpcoloring2

Trump coloring book

In his State of the State Address, Gov. Abbott alluded to the fact that Trump can’t restore the Constitution all by himself:

For decades, the federal government has grown out of control.

It has increasingly abandoned the Constitution, stiff-armed the states and ignored its citizens.

This isn’t a problem caused by one president. And it won’t be solved by one president. It must be fixed by the people themselves.

That’s why we need a Convention of States—authorized by the Constitution—to propose amendments.

Rep. Miller, you know my support for this. I wrote a book on it.

More importantly, there are hundreds of thousands of Texans who are motivated by this.

The proposed amendments would include things like term limits, restoring the 10th Amendment, an amendment that reins in federal regulation and, yes, Rep. Workman, a balanced budget amendment.

We should demand that the federal government do two things. One: Fulfill important—but limited—responsibilities as written in the Constitution. And two: On everything else, leave us alone, and let Texans govern Texas.   

Sen. Birdwell and Rep. King, the future of America can’t wait for tomorrow, so I’m making this an emergency item today.

The governor elaborated on this on Glenn Beck’s show this week. (Note that in the show’s transcript, they’re on a first-name basis.)

GLENN: All right. Let’s go to — let’s go to something that I feel strongly about. And I’m afraid that there are a lot of Republicans now that have Donald Trump in office, they will say, “Oh, things aren’t so bad. We don’t really need this.” And that is the Convention of States.

In your state of the state speech, you spent a good deal of time talking about the Convention of States and why we need this. Are we going to — are we going to be added to the list? Are we going to be a state that is involved in the Convention of States?

GREG: There is such a strong movement in the state of Texas right now. I began talking about this when I wrote a book on it and started touring around the state of Texas talking about it. And there are well over 100,000 — I’m told, hundreds of thousands of activists. Not just people who have supported — but people who have actively engaged in the political process, who are taking the capital by storm. Educating the members of the House and Senate, that it needs to be done.

Remember this, and that is last session we had here in the state of Texas, the Texas House of Representatives did adopt the Convention of States platform. We — at that time, we were only a vote or two short in the Texas Senate.

I think we will have enough votes in both the House and the Senate to finally get this done and make Texas a leader in this process of the Convention of States.

Let me follow up as kind of a comment you were suggesting about Trump. And that is, remember this, for your audience, the problem that we are in now nationally is not a problem caused by one president alone. Yes, Barack Obama did more than his share to depart from the Constitution. But this is something that’s been going on for almost a century now. It goes back well before FDR who was one of the leaders of getting away from the Constitution. But it goes back into the 1800s.

So it’s been a process of erosion. Just the way you would see a river erode over time. Our Constitution has been eroded over time. So this wasn’t a problem caused by one president. It cannot be fixed by one president.

Simply because Donald Trump is in there, doesn’t mean our constitutional flaws are going to be fixed. Let me give you the most easiest example. And that is, I know you and many of your listeners will know the Tenth Amendment. We want a Tenth Amendment to be upheld. And that is that all powers not delegated to the federal government and the Constitution are reserved to the state and sort of the people.

Well, there’s a problem in the way that provision is written. It doesn’t specifically say who gets to enforce the Tenth Amendment. All we want to do is to add a clause or a sentence that says, “States have the power to enforce the Tenth Amendment.” That’s easy. That’s common sense. That’s something we can get 38 states, which is three-fourths of the states to agree upon. And it restores power to the states to enforce the Tenth Amendment.

STU: Hmm.

GLENN: We would like to have you back on. I know you have to go because you’re a governor I guess of an important state. But we’d love to have you on again. Because there are just so many things that need addressing. And you distill them so well. Texas Governor Greg Abbott, we appreciate your time, sir. Thank you so much.

GREG: My pleasure. Thank you, Glenn.

GLENN: You bet. You know, it’s interesting to me. And I wish we had time to talk to him about what’s happening in California. California, remember, they all made fun of us for saying we wanted to secede. Texas wanted to secede. And now, Slate and Atlantic and all these left magazines are all saying —

PAT: That’s not so outrageous. That’s not so bad.

JEFFY: Why it makes sense for California to leave.

PAT: Yeah.

GLENN: No. What makes sense is the Convention of States so you as a state are not being held with a gun to your head, depending on who is elected. We’ve got to stop this, now. Because I’ve got news for you. Trump can reverse all this stuff. You think the other guy is not going to come in and reverse all this stuff when they get in, of course.

PAT: And how about a constitutional amendment to take away some of that power.

GLENN: Yes.

PAT: Take that power away from some of these people. And just term limit them.

STU: Yes.

So here’s Glenn Beck saying this week, Simply because Donald Trump is in there, doesn’t mean our constitutional flaws are going to be fixed.

But here was Beck on Nan. 7, 2016, reading, approvingly and in its entirety, National Review editor Rich Lowery’s December 2015 piece, The Right’s Post-Constitutional Moment.

GLENN: (reading Lowery) No one will ever mistake Donald Trump for a student of James Madison. (laughter). The real estate mogul has demonstrated about as much familiarity with the US Constitution as with the Bible, which is to say none.

Trump has captivated a share of the Tea Party with a style of politics utterly alien to the Constitution. In the year of Trump, the right is experiencing a post constitutional movement and moment. This wouldn’t have seemed possible just a few years ago.

In 2010, the newly arrived Tea Party produced a class of constitutional obsessives like Rand Paul, Mike Lee, who were not focused just on what government shouldn’t do, but on what government couldn’t do and why. After the passionate conservatism of George W. Bush and the earmark happy excesses of a congressional Republican in the Bush years, the Tea Party rebaptized the G.O.P. in the faith of limited government and constitutional constraints.

If you weren’t down with the Tenth Amendment, you weren’t down with the Tea Party. Glenn Beck earnestly explored the Founding Fathers with his audience. It was a time once again of first principles. Rand Paul who sells autographed copies of the Constitution is a Libertarian. He makes constitutional persnicketiness, he takes it to a high art. Paul, by the way, is the guy who objected that closing down part of the internet, as Trump has proposed, would be unconstitutional, not that it has seemed to have made much of an impression on Donald Trump or anyone else.

Trump exists in a plane where there isn’t a Congress or a Constitution. There are no tradeoffs or limits. There is only his will and a team of experts who will figure out how to do whatever it is he wants to do, no matter how seemingly impossible.

The thought, “You can’t do that never seems to occur to him.” He would deport the American-born children of illegal immigrants. He has mused about shutting down mosques and creating databases of Muslims. He has praised FDR’s internment of the Japanese-Americans in World War II. In Trump’s world, constitutional niceties, indeed any constraints whatsoever, are for losers.

It’s only strength that matters. It shouldn’t be a surprise that he expresses admiration for Vladimir Putin, as a powerful leader who is highly respected within his own country and beyond. Trump’s call to steal Iraqi’s oil and kill the families of terrorists are in the Putin-esque key. For some, on the right, clearly the Constitution was an instrument, rather than a principle.

It was just merely a means to stop Obama. And it has been found lacking. Trump is a reaction to Obama’s weaknesses. But also to his exaggerated view of executive power. Trump rejects the former, but is perfectly comfortable taking up the latter.

Progressives have been perfectly willing to bless Obama’s post constitutional government. Trump’s implicit promise is to respond in kind, and his supporters think it’s about damn time. What he has done is to unmoor conservative’s populism from its traditional ideological commitments, including those to constitutionalism and limited government.

Pure populism is inherently intentioned with constitutional conservatives. The Constitution is a device for frustrating popular enthusiasms, as are federalism, checks and balances, and the rule of law. It’s why impassioned factions usually have very little patience for those things and why they are so central to checking government and protecting individual rights. If the right’s devotion to these things wanes, it will not only be a loss for constitutional conservatives, but also for America.

Rich Lowry. Really, really good and right on the money.

STU: And a huge part of the frustration, I think with people who work so hard with the Tea Party and work so hard to focus us on constitutional principles and limited government — I mean, just because Trump says things that you generally agree with, does not mean he gets to trample over the Constitution to do them.

Well, as Gov. Abbott told Beck: Remember this, and that is last session we had here in the state of Texas, the Texas House of Representatives did adopt the Convention of States platform. We — at that time, we were only a vote or two short in the Texas Senate.

That vote or two short was most especially that of Sen. Craig Estes, a Republican from Wichita Falls, birthplace of Greg Abbott, whose own bill, SJR 38,  pertaining to a Convention of States, will also get a hearing today.

And what is SJR 38?

A JOINT RESOLUTION rescinding each and every application made at any time by the Texas Legislature to the United States Congress to call a national convention under Article V of the United States Constitution for proposing any amendment to that Constitution.

WHEREAS, Over the years, the Texas Legislature has approved resolutions officially applying to the Congress of the United States to call a convention, under the terms of Article V of the Constitution of the United States, to offer various amendments to that Constitution; and

WHEREAS, While no Article V amendatory convention has yet taken place thus far in American history, nevertheless, there is a very real possibility that one, or more than one, could be triggered at some point in the future; and

WHEREAS, Regardless of their age, such past applications from Texas lawmakers remain alive and valid until such time as they are later formally rescinded; now, therefore, be it

RESOLVED, That the 85th Legislature of the State of Texas, Regular Session, 2017, hereby officially rescinds, repeals, revokes, cancels, voids, and nullifies any and all applications from Texas legislators prior to the 85th Legislature, Regular Session, 2017, that apply to the United States Congress for the calling of a convention, pursuant to Article V of the United States Constitution, regardless of how old such previous applications might be, and irrespective of what subject matters such applications pertained to; and, be it further

Egads.

Rescinds, repeals, revokes, cancels, void, and nullifies.

What about annuls, quashes, invalidates, abrogates, overrules and vacates?

And what so outrages, upsets, annoys, vexes, riles and disturbs Sen. Estes about a Convention of States?

From Brandi Grissom last January in the Dallas Morning News:

Last year, House legislators filed measures calling for such a convention. State Sen. Craig Estes, R-Wichita Falls, unleashed a screed against the proposal when it came before the Senate State Affairs Committee in May. He compared the idea to “a petulant teenager who’s lost a few basketball games and plans to burn down the gymnasium.”

“The constitution has served us well for over 200 years. The problem is not the constitution,” Estes said, adding that the solution is to elect more conservative lawmakers. “Slap a bumper sticker for Ted Cruz on your car and get after it and knock yourself out.”

Estes went on to promise a filibuster if the measure came to the Senate floor.

But that was before Donald Trump defeated Ted Cruz (and Hillary Clinton) and Gov. Abbott declared the convening of a Convention of States an emergency.

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