Now that the Republican Party controls over two-thirds of America’s 50 State Senates, and also over two-thirds of America’s 50 State Houses, the Republican Governor of Texas, Greg Abbott, has laid out a plan to impose upon the nation a new Constitution, which might now become possible to do on account of this Republican takeover of so many state legislatures.
His plan, introduced on January 8th, notes that the existing Constitution’s Article V (five) presents two methods by which a national convention may be called together in order that the Constitution can be amended (or else entirely replaced): one method is by votes in the U.S. Congress, the other method is by votes in the state legislatures. He writes:
Article V establishes two paths for proposing constitutional amendments. Congress controls the first path. Under it, Congress can propose constitutional amendments by a two-thirds vote in both houses. The States control the second path. Under it, the two-thirds of the state legislatures can call for a constitutional R E S T O R I N G T H E R U L E OF LA W -66- convention to propose particular amendments. In either case, no amendment becomes effective until it is ratified by three-fourths of the [legislatures of the] States.
Until now, only the Congressional path has been used. However, that path seems to be extremely unlikely to work at all in the foreseeable future, because the two political Parties are unprecedentedly opposed to each other, and because of the extremely low likelihood that the Democratic Party will soon have less than one-third of the seats in the U.S. Senate and also in the U.S. House. Furthermore, the last Constitutional amendment that was passed, which was in 1992, the 27th Amendment, didn’t even need any authorization of a convention to be called together to place it before the legislatures of the various states: it was instead among the first twelve U.S. Constitutional amendments that were proposed, all of them in 1789, and only ten of those, which constitute our Bill of Rights, were then approved by three-quarters of the state legislatures, but the two that were not, remained available for subsequent final approval by three-quarters of the state legislatures; and #27 just happens to have been one of those two, and was finally ratified by three-quarters of the state legislatures in 1992; the other of the two is still hanging.
The second-to-last, #26, passed in 1971, lowered the voting-age down from 21 years to 18 years, in order to stop insulting Vietnam-War draftees who could die for their country but could not vote in its elections, was the least-controversial and the fastest-approved U.S. Constitutional Amendment ever.
The third-to-last, #25, passed in 1967, dealt with Presidential succession, in the wake of the Kennedy assassination, and filled in a vagueness in the existing Constitution concerning Presidential succession. It too was an uncontroversial solution to an old problem that had recently risen to its peak public prominence in the immediately preceding years. And that was also the pattern for Amendments #s 20-24.
The most recently passed amendment that was really controversial was #19, women’s suffrage or right-to-vote. It entered the Constitution in 1920.
Therefore, we would have to go back nearly a full century in order to be able to find an instance where a really controversial Constitutional Amendment was passed using the congressionally-initiated approach.
By contrast, in all of the publicly-available-online history of party control of state legislatures, which goes only back as far as 1938, there is nothing even approximating, for the Republican Party, anything like the overwhelmingly high degree of Republican control of U.S. state legislatures that came into force starting in 2011 and continuing thereafter, but peaking right now, at nearly 3 to 1 Republican control. This might even be unprecendented in U.S. history.
Thus, the only way that something as controversial as possibly replacing the Constitution might be able to generate the required constitutional convention which would then be able to pass it to the states for their approval or not, would be by taking advantage of the current extraordinarily high degree of one-party (Republican) control of both houses of the legislatures in all of the states. This unprecedented possibility is now at least an incipient action-plan from the Texas Governor.
Because the Republican Party already controls over two-thirds of the state legislatures, such a convention can now be called together by the Republicans on that extraordinary basis; and, then, If the 2016 elections manage to increase that Republican state advantage to three-fourths, the trip-wire could be pulled, and there would finally become a real possibility of replacing the Constitution.
The core of Abbott’s proposal, which he calls “The Texas Plan,” is 9 Constitutional amendments that would basically restore the Articles of Confederation that preceded the U.S. Constitution, and thereby return the nation to being largely separate and independent states (where slavery was common even in the north). Here are those proposed amendments:
”We the People” can reign in the federal government and restore the balance of power between the States and the United States. The Texas Plan accomplishes this by offering nine constitutional amendments:
I. Prohibit Congress from regulating activity that occurs wholly within one State.
II. Require Congress to balance its budget.
III. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.
IV. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.
V. Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.
VI. Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.
VII. Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
VIII. Give state officials the power to sue in federal court when federal officials overstep their bounds.
IX. Allow a two-thirds majority of the States to override a federal law or regulation.
For example, his first proposed amendment would enable each state, if it so chooses, to restore slavery, by prohibiting the Federal Government from “regulating activity that occurs wholly within one state.” (States would then be able to compete against each other to attract corporations that want to pay a minimum wage of zero. This country would again have a “free market”; but slave-property would have no freedom at all, while investors would have the unencumbered freedom to pay zero wages, other than providing to slaves what’s necessary in order to enable them to survive to work — a libertarian’s heaven.) On the same basis, each state would be able to post the Ten Commandments inside its courtrooms, and to segregate public bathroom facilities, lunch counters, schools, etc. It would be a libertarian’s heaven on multiple counts.
States could even impose apartheid laws, imprison homosexuals, prohibit practicing or teaching the Muslim faith, require Jews to be publicly marked as “Jew,” etc. However, any libertarian who favors equal rights — even though enforcing those rights will necessarily entail a lot of government intervention that libertarians oppose — will not join in the joy of those who do favor such equality. So, even some libertarians would oppose a state’s right to impose bigotry. There is a conflict within the libertarian community between the equalitarian individual-rights libertarians versus the states-rights libertarians; and this split will weaken the support for “The Texas Plan.”
One-party rule, if it’s the Republican Party, would return America not to the early republic, but to even before that, and without any of the human-rights protections that were instituted by the U.S. Constitution. This would clearly be a states-rights libertarianism.
If “The Texas Plan” even begins to gain support from other Republicans, then Greg Abbott’s initiative will have made abundantly clear that the Republicans are extremist far-right; and, if that happens, then America’s voters will know very clearly what they are voting for when they vote for a Republican. However, if “The Texas Plan” fails to win the support of other Republicans, then equalitarian individual-rights libertarians will be the future of the Republican Party.
So, no matter what happens, the fate of Governor Abbott’s initiative will tell us a lot about what the Republican Party stands for — and what it doesn’t.
Investigative historian Eric Zuesse is the author, most recently, of They’re Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010, and of CHRIST’S VENTRILOQUISTS: The Event that Created Christianity.