Recently in the Kansas legislature there has been much discussion related to upholding one’s oath to the state constitution related to calling a convention for proposing amendments to the United States Constitution. Kansas’ constitution is unique in that it spells out that for the legislature to garner a two-thirds majority of the legislature to make application under Article V of the U.S. Constitution for such a convention. This is where it gets interesting.
When a state legislature makes these applications, that legislature is performing a function found in the United States Constitution. In Article V it states, “on the Application of the Legislatures of two-thirds of the several States, (Congress) shall call a convention for proposing amendments”. This is a right that is guaranteed in the United States Constitution, proposed in 1787 and officially ratified in 1788, that exists for all state legislatures. That right is guaranteed just like any other right that exists in the document.
Leading up to the 1974 session, the Kansas legislature was looking at a major rewrite of the Kansas Constitution. There was at the time, much debate on why that was needed, but ultimately the House passed HCR 1060 and moved it to the Kansas Senate for consideration. That House version of HCR 1060 did not mention any restrictions on calling a convention for proposing amendments. It was not until the floor debate in the Senate when Senator Ross Doyen offered an amendment on HCR 1060 before final passage, that included a two-thirds provision for making application for a convention for proposing amendments and ratifying any amendment to the United States Constitution. HCR 1060 was amended in the Senate and adopted in the final version.
One can only speculate the reasons why this provision was installed, but it was 1974, and there was a major push at the time to fight for the unborn with a right to life amendment after the Roe v Wade decision the year prior. Ultimately 19 states made application for a convention to propose such amendment, but Kansas never joined. At the time, there really was no known fear of a “runaway convention” that seems to exist today. That fear really did not take off for another decade.
This change to the Kansas constitution was intended to limit a “right” guaranteed in the U.S. Constitution. This right guarantees the legislatures in all states the ability to call a convention. It is just like any other right in the Constitution, it cannot be limited or restricted by a state constitution.
For some historical perspective, by the late 1880’s, several southern state legislatures amended their constitutions to formally implement voting barriers, which they realized was the most effective way for them to maintain power. Those state legislators swore an oath to those state constitutions, despite the clear contradiction with the U.S. Constitution. It took several federal courts to rule those state constitution restrictions on voting rights unconstitutional before these states changed their practices.
The states did not amend their constitutions to conform to the rulings, they just stopped following those restrictions. Were they violating their oaths to the state constitution? No, the U.S. Constitution is supreme. A right held in the U.S. Constitution cannot be limited by their state constitution, and they were not violating their oaths by ignoring their state constitution in the matter.
Last week in Topeka, the Kansas legislature was considering the passage of SCR 1611, which is the Kansas legislature’s attempt to exercise its right found in the U.S. Constitution to call a convention of states. SCR 1611 would add Kansas to 15 other states that have already joined the effort to call a convention to propose amendments to the U.S. Constitution that place further limits on the size and power of the federal government, term limits on Congress, and fiscal limitations on the federal government.
During the debate in the Kansas Senate last week, it was mentioned that the Kansas constitutional provision for a two-thirds support by the legislature was not enforceable. It was reported that Senate President Masterson was prepared to declare the measure passed if it were to garner a majority of Senate approval. The opposition to calling a convention was successful in making an argument that individuals that voted for the resolution would be violating their oath to the Kansas constitution. Their efforts killed the resolution for the year by reassigning SCR 1611 back to committee. Despite a legal opinion issued in December of 2019 by Attorney General Derek Schmidt explaining this in detail and mounds of legal precedence in the matter, armchair lawyers were able to hijack the effort.
To be clear, the Kansas senators were being asked to support calling a convention of states, not on the constitutionality of passing it on a majority vote. The question before the legislature was should they join the effort or not. The majority chose to punt. If they had not, and had the Senate President ruled a majority vote was sufficient, the only argument they could possibly have for violation of one's oath would have been from the Senate President. No other senator has claim to a possible oath violation (which it would not have been), yet some continue with the excuse.
In the meantime, the federal government has proven to be out of control. It shows no appetite to limit its spending or limiting its own tyranny. The Framers of the Constitution predicted this of course, and they provided the right to call a meeting of the states to address these issues. Now all we need to do is to better educate our state legislators on their own rights and the hold them each accountable to act to secure the future of our Republic.
