George Gibbs Center for Economic Prosperity

Op⁠i⁠n⁠i⁠on: Does ⁠t⁠he U.S. need ano⁠t⁠her cons⁠t⁠⁠i⁠⁠t⁠u⁠t⁠⁠i⁠onal conven⁠t⁠⁠i⁠on?

By: The James Madison Institute / 2017

While July 4 gets the fun and attention, Sept. 17 – Constitution Day – is barely noticed. It deserves better.

After all, Americans joyfully celebrate their independence because it enabled them to overcome the tyranny of the British crown and embark on a journey of self-government. For most of that epic journey, this nation has been guided by a Constitution signed on that September day 230 years ago.

This ingenious charter of government included a carefully calibrated series of checks and balances – among the three branches of the federal government and between the federal government and the states. The document, primarily authored by James Madison, emerged from a Constitutional Convention that was originally called to revise the young nation’s first charter of government, the Articles of Confederation, after Madison and others concluded it left the national government too weak.

Now some are asking whether the United States now needs another Constitutional Convention. Jim DeMint thinks it does. The former head of the Heritage Foundation has joined a movement pushing the states to stage the first Constitutional Convention since 1787 because he and others have concluded that the central government is now too strong.

This movement has critics. They warn a Constitutional Convention could stray from its stated purpose, even tinkering with the Bill of Rights. They have a point. The Constitutional Convention of 1787 went far beyond merely revising the Articles of Confederation.

Some pundits will ask, “Why the fuss about something that's unlikely to happen?” They, too, have a point. Calling such a convention requires resolutions from two-thirds of the states, and amending the Constitution would require approval from three-fourths.

Yet stranger things have happened. First, we need to ask how the balance of power between the states and the feds tilted so far toward the latter. Second, we need to ask whether there's a better way to fix it.

The answer is complex, but it boils down to this: The states too often ceded power to the feds in exchange for money that the states could spend – on education, infrastructure, health care, welfare, etc. – without having to raise state or local taxes.

The states were further at fault in another way: Most legislatures were badly apportioned prior to 1962, when the U.S. Supreme Court mandated that legislative districts be equal in population. Florida provides a striking example. In 1960, Jefferson County, population 9,543, had one state Senate seat all to itself. So did Dade County, population 935,047.

Most state legislatures were similarly dominated by districts that had more trees than voters. Many rural lawmakers were disinclined to respond to the pressing needs of their states' growing cities and suburbs.

As a result, cities turned to Washington for federal aid.By the time legislatures became more representative, the states had become dependent on federal largesse, which invariably came with strings attached. Lawmakers also had to live down another legacy of rural domination when “states’ rights” became equated with racial segregation.

Now, with most states arguably functioning better than the feds, is there something other than a Constitutional Convention that could restore the proper balance between the feds and the states?

Yes. It's right there in the U.S. Constitution's 10 Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Now all we really need are federal judges who will be faithful to the intent of the plain English in Amendment 10.

Robert F. Sanchez is senior fellow at the James Madison Institute, a non-partisan policy center based in Tallahassee.