Fall 2000
Vol.1, No.1



Constitutional Proposals from
the States

by John Kincaid

"Always a bridesmaid, never a bride" is the fate of most proposed amendments to the United States Constitution. This is no less true for amendments put forth by political leaders than for amendments proposed by interest groups seeking to enshrine some cherished principle in the federal Constitution. Reluctance to tamper with the 212-year-old document is widespread. In recent years, for example, proposals to ban desecration of the U.S. flag, restore prayer to classrooms, abolish abortion, limit campaign spending, and protect victims' rights have fallen short of the two-thirds votes needed in the U.S. House and Senate to propose an amendment for ratification by three-fourths of the states. The supermajority votes needed for amendments are high barriers to constitutional change, but the public also has shown no eagerness to amend the federal document. Citizens frequently amend their state constitutions instead.

Amendment proposals proliferate and succeed during periods of vigorous debate or conflict over fundamental values and basic directions of our federal republic. The constitutional ratification campaign led to the first ten amendments, the Bill of Rights, in 1791. The Eleventh and Twelfth Amendments (1795 and 1804) followed shortly thereafter as further corrections. The Reconstruction Amendments (XIII, XIV, and XV) affirmed the outcome of the Civil War (1860-65). Amendments XVI through XIX were products of the turn-of-the-century Populist and Progressive movements. The Twentieth through Twenty-second Amendments reflected issues arising from the Great Depression and the Democratic party's New Deal dominance. The Twenty-third through Twenty-sixth Amendments stemmed from the grass-roots egalitarian revolution of the 1960s and from the New Frontier and Great Society ethos of that decade.

To date, the last amendment (XXVII), ratified in 1992, is the only amendment to emerge from the Kulturkampf that has rocked American politics since the mid-1970s. Ratification of this amendment, regarding compensation for members of Congress, reflected the decline in public trust and confidence in the federal government that has occurred in recent decades. The amendment also succeeded because it did not have to pass through Congress; it had been proposed by the Congress in 1789 but not ratified by three-fourths of the state legislatures until it was revived 200 years later.

Like past conflicts, today's Kulturkampf has generated a bevy of proposals on issues that agitate Americans-abortion, crime, flag desecration, prayer. Yet, the proposals have failed because neither conservative Republicans nor liberal Democrats have been able to build a nationwide coalition strong enough to effect constitutional change. Many of the issues that agitate Americans also passionately divide them. The federal government, too, has been divided more often than not since 1968; that is, all or half of Congress has been controlled by one party, and the White House controlled by the other party.

Such has been the fate, as well, of three amendment proposals put forth by the States' Federalism Summit held in Cincinnati, Ohio, in October 1995. The summit was organized by the Council of State Governments, National Governors' Association, National Conference of State Legislatures, American Legislative Exchange Council, and State Legislative Leaders' Foundation for the purpose of recommending ways to rebalance the federal system.

One proposal called for a "National Reconsideration" amendment to allow two-thirds of the states to suspend a federal law within five years of its enactment, with Congress having authority to reinstate the law by a two-thirds vote of each house. A second proposal sought to limit federal regulation of the states; a third proposal was to amend the amending procedure:
Whenever three-fourths of the Legislatures of the several States deem it necessary, they shall propose, in identical terms, an amendment to the Constitution that shall be valid to all intents and purposes as part of this Constitution when ratified by two-thirds of both Houses of Congress (Council of State Governments, 1996).

These proposals reflect many state leaders' concerns about the vast growth of federal power since the late 1960s through mandates, preemptions of state laws, rules attached to federal grants-in-aid, and other mechanisms (Kincaid and LaRocco, 1995). State leaders were especially concerned about Congress's propensity to enact legislation without any consideration of constitutional propriety. Essentially, Congress had left it to the U.S. Supreme Court to worry about the Constitution; yet, the Court had announced in 1985 (Garcia) that it would not umpire the constitutional rules of federal-state relations, such as the Tenth Amendment, so as to protect state sovereignty from federal encroachments.

The time also seemed ripe for the states' proposals. Public trust and confidence in the federal government had declined precipitously, while public trust and confidence in state and local governments had increased significantly. Gridlock, scandals, and big-money politics in Washington, D.C., had produced pressure to shift more power back to the states. The Republicans' ability to capture a majority of the governorships and, then, majorities in the U.S. House and Senate in 1994, coupled with President Bill Clinton's New Democrat centrism and declaration of the "end of big government," seemed to signal a seismic shift in public sentiment about the balance of power between the federal government and the states. The concerns addressed by the summit's proposals, moreover, cut across party lines. Democratic and Republican governors and state legislators often agree with each other more than they agree with their own party's members of Congress. Thus, the Federalism Summit was bipartisan.

The idea that received the most favorable attention was the proposal for state-initiated amendments. This recommendation sought to correct the dead-letter provision of the U.S. Constitution that obligates Congress to call a convention to propose amendments upon application of two-thirds of the state legislatures. This procedure has never been used. Congress has refused to recognize applications from the state legislatures, even when two-thirds have submitted petitions, and fear of a constitutional convention is so deep that the possibility of Congress calling a convention is unthinkable.

The delegates to the Federalism Summit believed, therefore, that they were merely proposing a viable means to fulfill the Framers' design of the federal Constitution. Article V does not give Congress, the national partner to the federal covenant, a stranglehold over amendments. The Framers included state-initiated amendments as the alternative to possible congressional truculence or tyranny. At the same time, because the U.S. Constitution issues from "We the People" and because this alternate procedure excludes a congressional vote on amendment proposals, the Framers balanced the state action in this procedure with the requirement of a popular convention, which Congress is obliged to call. Article V does not give Congress discretion over this matter.

Alexander Hamilton was emphatic on this point in Federalist 85: "... the national rulers, whenever nine states concur, will have no option upon the subject. ... the congress will be obliged [to call a convention] ... The words of this article [V] are peremptory. ... Nothing in this particular is left to the discretion of that body [the Congress]."

Amendments proposed by a convention must be ratified by three-fourths of the state legislatures or by conventions in three-fourths of the states, just like amendments proposed by Congress. This provision for state ratification of convention-proposed amendments would seem to be an adequate check on the possibility of a runaway constitutional convention; however, fear of a convention has precluded use of this procedure. A constitutional convention could presumably, like the 1787 convention, violate its mandate and insist on a method of ratification of its proposals through a national referendum or state-by-state referenda instead of state legislative or convention action.

The Federalism Summit's proposal does not eliminate the convention procedure. It simply adds a second way for states to propose amendments and, thus, to fulfill as well Hamilton's belief that "[w]e may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority" (Federalist 85). Because the summit's proposal does not include a convention, the proposal provides for balance by requiring congressional ratification of state-initiated amendments. This is consistent with the U.S. Constitution's basic amendment principle that the federal document cannot be amended unilaterally by either Congress or the states. It takes two partners to do the amendment tango.

The Federalism Summit's proposals, however, have not yet found a partner. The time has not been ripe; citizens have little understanding of their federal system; the proposals entail structural changes that would enhance the states' constitutional position; and Congress has been unwilling to entertain the proposals. State leaders have not yet persuaded the people of the need for such change, and fear of structural change is probably as deep as fear of a constitutional convention. Indeed, some critics on both the right and the left charged that the Federalism Summit was itself a plot to trigger a constitutional convention for nefarious purposes.

In 1997, moreover, the National Conference of State Legislatures achieved strong majority support from its members for the summit's proposals but not the three-fourths vote needed to adopt the proposals institutionally. Many legislators who voted against the proposals believed that they were premature, especially in light of the U.S. Supreme Court's new state-friendly decisions, which had become more apparent by 1997. In light of Congress's enactment of the Unfunded Mandates Reform Act of 1995, many legislators also believed that Congress could be moved to restrain itself and be more attentive to the constitutional limits on its powers. Consequently, state leaders have turned their attention to the political arena and to statutory and judicial remedies for their concerns about imbalance in the federal system.

Although the Federalism Summit's amendment proposals may never be wedded to the U.S. Constitution, they reflect our continuing debate about the nature and purposes of our federal system, a debate that reached another high point during the 1990s. This debate has not yet peaked. For proponents of federal power, the U.S. Supreme Court's recent federalism decisions are alarming. For state leaders, Congress's enactment of the Internet Tax Freedom Act, which could lead to federal usurpation of state tax sovereignty, is even more alarming. The balance of power in the federal system now hangs heavily on the outcomes of the 2000 elections.

References
Council of State Governments. Restoring Balance to the American Federal System. Lexington, Ken.: Council of State Governments, 1996.

Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).

Kincaid, John. "De Facto Devolution and Urban Defunding: The Priority of Persons Over Places." Journal of Urban Affairs 21:2 (Summer 1999): 135-167.

Kincaid, John, and Joseph C. LaRocco. "Current Trends in Federalism: An Instructional Guide." Update on Law-Related Education 19:3 (Fall 1995): 16-19.

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 About the Author
John Kincaid is the Robert B. and Helen S. Meyner Professor of Government and Public Service and director of the Meyner Center for the Study of State and Local Government at Lafayette College in Easton, Pennsylvania. He also served as executive director (1988-94) and director of research (1986-88) of the U.S. Advisory Commission on Intergovernmental Relations in Washington, D.C.; and as assistant and then associate professor of political science at the University of North Texas (1979-94). In 1972-73, he was vice president of the Pentagon Papers Fund for the Defense of Human and Civil Liberties-the legal defense organization for Daniel Ellsberg and Anthony Russo in the Pentagon Papers Trial in Los Angeles.

He is editor of Publius: The Journal of Federalism; editor of a 50-book series on the governments and politics of the American states published by the University of Nebraska Press; elected fellow of the National Academy of Public Administration; member of the editorial board of the State Constitutional Law Bulletin; recipient of the Donald Stone Distinguished Scholar Award from the Section on Intergovernmental Administration and Management of the American Society of Public Administration; editor of Political Culture, Public Policy and the American States (1981) and co-editor of Competition among States and Local Governments: Efficiency and Equity in American Federalism (1991) and The Covenant Connection: From Federal Theology to Modern Federalism (2000); and author of various works on federalism and intergovernmental relations. He is also president of the International Association of Centers for Federal Studies (1998-2001) and past president of the Southwestern Political Science Association (1993-94).

He has lectured and consulted on issues of federalism throughout the United States as well as in Australia, Belgium, Brazil, Canada, Cyprus, the Czech Republic, Germany, India, Japan, Mexico, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, Ukraine, and the United Kingdom.

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