A Challenge to the Tea Party: Amend the Constitution

The Political Effect of Calling a Constitutional Convention
As a Democrat-controlled Congress makes it unlikely for the Congress to call this convention, the call is left to the states. This is done when 2/3 of the states (34 in number) pass a resolution advocating for a constitutional convention. It could be very difficult to get 34 state legislatures to pass a resolution advocating for this, but extensive state-level campaigning by Republicans in the 2010 cycle could make this a somewhat realistic prospect. The 34^th best Republican state on the presidential level in 2004 was Pennsylvania and the 34^th best Republican state in 2008 was Nevada. While state legislatures are different animals than statewide presidential voting habits, this does not seem like a prohibitively difficult barrier to reach.

Though the political hurdles are relatively easy to surpass for an organized grassroots movement, numerous logistical challenges remain. There’s never been a constitutional amendment convention called before, and there are many questions as to how to organize one. Yet merely getting enough political support for a convention could yield congressional action on these amendments. Georgetown Law Professor Randy Barnett notes “Congress, fearing a convention, itself proposed the particular amendments requested by the states” if they got close to calling for a convention. Even Democrat voters in dark blue areas have proven susceptible to immense national pressure on these issues, which in turn affects their representation. Just ask Martha Coakley, or the 30-plus House Democrats who voted against the final health care bill.

For ratification, an amendment must pass 38 states. The 38^th best Republican state in 2004 was New Jersey, which just elected a fiscally conservative Republican to the governorship. The 38^th best Republican state in 2008 was Washington. We think it is likely that referendums to elect favorable delegates to a state convention would be successful, even in many deep blue states.

Even if Congressional action does not emerge, such a grassroots movement could positively affect those raising legal challenges to the individual mandate. Prof. Barnett also noted that “[w]hen the Equal Rights Amendment [ERA] came close to final approval…the Supreme Court rendered the ERA unnecessary by modifying the Court’s treatment of sex discrimination.” Here, significant opposition to the individual mandate raised on a constitutional basis might convince the Court to reason their commerce clause jurisprudence in such a way to exclude an individual mandate.

At worst, these potential side-effects are proof positive of the value in pursuing these amendments. The national dialogue alone would do the cause of limited government a great service, making the most of the current national spirit. At best, timid Congressmen would no longer fear tough votes to tax or spend. If passed, the Tea Party will have radically reduced the liberalizing pressures of the bureaucracy and interest groups with one stroke. Should they desire a lasting legacy, these amendments await them.

Will Haun is a Juris Doctor candidate at the Catholic University of America, Columbus School of Law, where he serves as president of the Federalist Society. Chris Palko is currently a graduate student at George Washington University and an intern at the Daily Caller.