James Madison had mixed feelings about the constitutional convention when it adjourned in September 1787.He was relieved a constitution had been written, but he was disappointed his fellow delegates did not give Congress the authority to invalidate state laws, which he considered essential to creating a strong central government.
One can only imagine how distraught Madison would be over efforts today to do the opposite: Give the states the power to overturn federal laws.
Energized by their victory in the 2010 mid-term elections, Tea Party movement members and others frustrated by what they see as an unaccountable federal government have been promoting the "Repeal Amendment," introduced in the House in September by Rep. Rob Bishop, R-Utah. It would annul federal laws if two-thirds of the states agree.
The amendment is supported by legislative leaders in 12 states and by the new House majority leader, Eric Cantor, R-Va. Ironically, Cantor represents Orange County, the home of Madison's Montpelier estate.
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Supporters don't expect Congress to propose an amendment that would curtail its power, but their chances are better than they think. An obscure section of the Constitution allows states to offer amendments without Congress' consent.
Article V provides two methods for proposing amendments, but only one has been used. All 27 amendments have been approved by a two-thirds vote of each house of Congress. But the framers, worried that the federal government might grow too powerful and resist reform, created a second way to offer amendments.
If two-thirds of the states submit petitions, Congress is required to call a convention to propose amendments. Any amendments from such a convention must then be forwarded to the states for ratification.
This was deliberate on the part of the framers. Until the final days of the Philadelphia convention, the only way to amend the Constitution was through the petition and convention process. Congress could not call a convention nor propose amendments itself.
Then on Sept. 10, 1787, only a week before the Constitution was signed, Alexander Hamilton and James Madison strenuously objected. Hamilton said "the State Legislatures will not apply for alterations but with a view to increase their own powers. The National Legislature will be the first to perceive and will be the most sensible to the necessity of amendments."
The delegates reached a compromise that gave Congress the power to offer amendments but not to call a convention on its own. Only the states can demand a convention through the petition process.
Throughout our history, more than 400 petitions have been submitted by the states, but only a few times have enough done so to get close to the requisite two-thirds. Between 1893 and 1911, 30 states — one short of the number then required — filed a total of 73 petitions seeking a convention to propose an amendment for the direct election of senators.
Between 1906 and 1916, 30 states requested a convention for an anti-polygamy amendment, prompted by the admission of Utah in 1896. By 1964, 28 states had petitioned Congress for a convention to consider amendments on reapportionment. By 1983, 32 states — two short of the 34 needed — had submitted petitions for a balanced budget amendment.
Understandably, Congress wants to control the process. The most comprehensive bill, the "Constitutional Convention Implementation Act," was sponsored by Sen. Orrin Hatch, R-Utah, in 1979. It stipulated how long petitions could remain active and limited amendments to the subjects identified in the petitions. Congress has never passed such legislation.
Unlike the first federal convention held behind closed doors in Philadelphia, this one would be open to the public and media and would generate substantial interest. State legislators could choose the delegates to the convention, but their constituents would likely insist on elections, thus leading to campaign contributions and TV ads for the many delegate candidates.
According to Article V, once the convention agrees on amendments, Congress must decide whether they will be ratified by state legislatures or state conventions. Only one time in our history has Congress chosen conventions, when it did so for the 21st Amendment in 1933 to repeal prohibition. It worried that state legislators from rural and dry districts would keep the ban on alcohol.
If it looks like two-thirds of the states will submit petitions, Congress could propose the repeal amendment itself rather than call a convention. But it is unlikely to do so. Instead, Congress may take its chances on a convention, thus giving the nation a fascinating and unprecedented civics lesson.