Widespread, deep-seated discontent with our federal government has turned many Americans’ attention toward Article V of the Constitution, which allows states to propose constitutional amendments if 34 states agree on a particular subject. The Convention of States Project, an initiative of Citizens for Self-Governance, maintains that the only way to restore our original constitutional system — a federal government limited to specific, enumerated powers — is to pass amendments that are framed and worded to effect this kind of course correction.
A recent Boston University Law Review article by Professor Richard Albert builds the case for using Article V by demonstrating that the consequence of its non-use has been the rise of various means of “informal amendment” of our Constitution. Whether we like it or not, he explains, our Constitution is continually being amended through judicial interpretation, national legislation and executive actions.
We, the people, effectively “ratify” these changes when we fail to use the Constitution’s formal amendment process to correct faulty interpretations of the Constitution by judges or the abuse of its powers by Congress, the president or administrative agencies. In these cases, not to act is to act.
In other words, we are all responsible for continued abuses of federal power.
Are we really outraged about the Affordable Care Act’s individual mandate, upheld on the basis of court precedents that have morphed Congress’ taxing authority into an unlimited superpower? Then we should amend the Constitution to explicitly reject those precedents. Are we truly shocked at President Obama’s usurpation of legislative powers via scores of “executive orders”? Then let’s use black-and-white, constitutional language to eliminate this practice.
As James Madison explained in an 1830 letter to Edward Everett, Article V’s Convention process is the means by which state governments can provide a final “check” on all three branches of the federal government. It is the ultimate, but absolutely constitutional, form of nullification.
The unchecked use of an “informal amendment” process, on the other hand, has resulted in an America with two different Constitutions: the written one, and the one that is unwritten.
The operation of an unwritten Constitution created by “informal amendments” undermines our claim to be a nation ruled by law rather than men. And this is why the Convention of States Project is leading the charge to call for an Article V Convention to restrain our runaway federal government through proper, textual amendments.
