All of the discussion of how the newly empowered Republicans in Congress will interface with the newly empowered Tea Party has overlooked one issue that could prove more fundamental than all of the others. The Tea Party clearly wishes to seize the opening provided by the recent elections to advance many of its supporters’ views of the proper constitutional role of the federal government. Certainly conservatives in 1964, 1980 and 1994 also protested the extent to which the federal government had overreached its original constitutional bounds. However, in the Tea Party universe, constitutional concerns now seem to occupy a more visible position than for its predecessors.
This is manifested in more than rally placards and a copy of the Constitution in every Tea Party pocket. The Contract With America had to promise to reference constitutional authority for every congressional enactment. Many probably regarded talk about adhering to the Constitution as a code for not enacting sweeping new government programs such as Obamacare. However, in the view of many Tea Party constitutionalists, adhering to the Constitution goes far beyond that. By their strict-constructionist reading of the Constitution, most of what the federal government did even before the Obama, Pelosi and Reid triumvirate took power exceeded the federal government’s constitutional authority.
In addition, talk of reforming the Constitution itself is emerging. The term-limits and balanced-budget amendments aborted by Congress and the Supreme Court in the 1990s have returned. Other constitutional reforms are discussed regularly in many Tea Party precincts, such as the repeal of the 17th Amendment or the first sentence of the first section of the 14th Amendment (although it is the hopelessly vague language of the second sentence that has been most abused by the Supreme Court to make itself into an unaccountable and irreversible superlegislature). Other proposals call for amendments allowing states to repeal acts of Congress and/or Supreme Court decisions or reining in a limitless federal police power that has been created by the Supreme Court’s seemingly infinite expansion of the Interstate Commerce Clause.
Some are even calling for a constitutional convention, invoking a dormant aspect of Article V of the Constitution, which provides that two-thirds of the states can require Congress to call a convention for the purpose of formulating amendment proposals.
Working with such demands as well as negotiating the constitutionality of legislation could prove very tricky for the new Congress. However, the 112th Congress can do something useful to respond to these demands for restoration of original constitutional understandings and, at the same time, display an example of the bipartisan cooperation all sides profess to seek.
The framers clearly intended that the states as well as Congress have the ability to initiate constitutional amendments. The cumbersome convention mechanism was used in Article V simply because in 1787, when it took weeks for one exchange of correspondence between distant parts of the nation, that was the only practical way for the states to formulate proposals. Time and historical experience have shown the convention method to be useless, and modern communication and travel technologies have made it unnecessary.
The 112th Congress should initiate a constitutional amendment eliminating the convention requirement from Article V and permitting states to initiate constitutional amendments directly. This “amendment amendment” would allow grass-roots activists, otherwise known as the people, to regain their prerogative as the primary initiators of fundamental constitutional change, thereby replacing the anti-democratic usurpation of that role by an unelected, elitist, Washington-based entity known as the Supreme Court.
Although presented here as responding to the concerns of the Tea Party, such an amendment should command the support of progressives as well. It is content-neutral, and many on the left also have amendment proposals they wish to advance. This “amendment amendment” merely makes it possible for amendment proposals to be initiated at the state level, closer to the grass roots beloved of all sincere progressives. The only reason for opposing such an amendment would be the belief that control over constitutional meaning should remain restricted to Washington. After Nov. 2, do you think there are any members of 112th Congress who would advocate that?
James W. Lucas is a lawyer and author of “Timely Renewed: Amendments to Restore the American Constitution” (CreateSpace, 2010).