THE AMERICAN FEDERALISM PROJECT

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The ability of the states to check the abuse of power in Washington may be the most unrecognized, but among the most important features of the U.S. Constitution. The power of 2/3 of the states, united in support of a specific Amendment, to persuade Congress to propose that Amendment, without a Convention, is demonstrated by the actual history of the Constitutional Amendment process. 

OF THE 27 AMENDMENTS TO THE U.S. CONSTITUTION 12 WERE PROPOSED BY CONGRESS UNDER PRESSURE FROM STATES 

Three times in American history starting with the Bill of Rights, and most recently for the 22nd Amendment establishing Presidential Term Limits, pressure from the states has helped to force Congress to propose specific Amendments states wanted, without a Convention. The 17th Amendment for direct election of U.S. Senators was also proposed by Congress under pressure from the states. In fact, history demonstrates, that when Congress perceives that 2/3 of the states and a strong majority of the public want an Amendment, Congress has almost always proposed such an Amendment. 

THE AUTHORS OF THE CONSTITUTION RECOGNIZED THE POWER OF STATES TO CAUSE A SPECIFIC AMENDMENT TO BE PROPOSED 

James Madison recognized the Amendment power of the states in the Federalist Papers. In Federalist 43 Madison wrote: 

"It (the Constitution) equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side or the other" 

In other words, Madison believed that states and Congress had the same power to propose an Amendment. It follows therefore, the Madison believed either the states or congress could propose a single specific Amendment. 

Alexander Hamilton wrote in Federalist 85: 

"But every amendment to the Constitution, once established, would be a single proposition and might be brought forth singly. And consequently if nine, or rather 10 states were united in the desire of a particular amendment, that amendment must infallibly take place." 

Hamilton is emphasizing his belief that 2/3 of the states (9), if they were united, could cause an Amendment to be proposed and with the support of 3/4 of the states (10) could cause it to be ratified. Hamilton also wrote in Federalist 85: "We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority." 

THE AUTHORS OF THE CONSTITUTION GAVE STATES MOST OF THE AUTHORITY OVER THE MOST IMPORTANT POWER IN THE CONSTITUTION 

The authors of the Constitution understood that there was a risk that the new entities of the federal government they were creating, Congress, the Courts, and the Executive Branch, might someday abuse their power. Therefore they vested arguably the most important power in the Constitution, the power to change it, primarily in the hands of the one group of elected officials in whom they had the most confidence, state legislators. 

State legislators were then and still are the elected officials closest to the people, and the authors of the Constitution entrusted them with most of the responsibility for making changes to the Constitution if the federal government abused its power. State legislators can initiate one of the two process for proposing Amendments and historically have had most of the power over the ratification process in the states. 

WHY STATES HAVE BEEN ABLE TO, AND COULD IN THE FUTURE FORCE CONGRESS TO ACT WITHOUT A CONVENTION 

Because 2/3 of the states have the theoretical power, which they have never used, to force Congress to call a Convention, which Congress fears and will do almost anything to avoid, Congress has been very responsive when it perceives that 2/3 of the states want a specific Amendment. There has never been a Convention, because Congress has acted when it perceives that 2/3 of the states are, or about to unite in favor of an Amendment

Simply uniting the legislatures of 2/3 or more of the states in support of a specific Amendment, without ever calling for or even threatening a Convention, would have a powerful impact. Such an effort could unite both supporters and opponents of a Convention, who do support a particular Amendment and lead to the proposal of such an Amendment by Congress. 

STATES AND CONGRESS CAN ACT TO FURTHER STRENGTHEN THE 10TH AMENDMENT POWER OF STATES IN THE AMENDMENT PROCESS 

Both states and Congress have the ability to strengthen the power of states to persuade Congress to act.

 The enactment of a House Rule similar to the so-called "10th Amendment Rule" supported by House Rules Chair Rep. Pete Sessions, and a parallel 10th Amendment Pledge by a majority of U.S. Senators could recognize and enforce the power of the states in the Amendment process, significantly increasing the power of states to persuade Congress to propose an Amendment states wanted. 

A 10th Amendment-based law in a majority of the States, similar to laws already passed in 12 states, or a 10th Amendment state Constitutional Amendment enacted in just 13 states could have a similar effect. 

A NEW BALANCE OF STATE AND FEDERAL POWER IS POSSIBLE, IF STATES RECONGIZE THEIR POWER 

If state and federal leaders understood the power of 2/3 of the states to force Congress to propose a popular Amendment without a Convention, the entire balance of state and federal power would be changed. Amendments to curb the power of federal regulators, or to excessive federal borrowing are only two of the possibilities But both state legislators and advocates of federal government reform have been slow to recognize this power of states to force Congress to act without a Convention. 

STATE LEGISLATORS HAVE MORE POWER THAN THEY REALIZE 

The 4000 state legislators who constitute governing majorities in the 34 states most interested in restoring a balance of state and federal power, if united in support of a specific Amendment strongly supported by the public have a power almost as great as that wielded by the 2/3 majority of Congress that has also the power to propose an Amendment. 

And the 67-68 House Speakers and Senate Presidents, and the 67-68 House and Senate Majority Leaders who lead the legislative chambers in such a coalition of states have, if they work together with the support of a legislative majority in each of their respective chambers, power that exceeds in Constitutional terms respects, the power of a majority in either the U.S. House or the U.S. Senate. 

But we must educate these legislators, legislative leaders, and the interest groups, experts, and community leaders they rely on for advice, about their power to bring reform to Washington, 

MEMBERS OF CONGRESS, WORKING WITH STATE LEGISLATIVE ALLIES, COULD BREAK THE DEADLOCK IN WASHINGTON 

A coalition of allies in Congress, state legislative majorities in 34 states, and an aroused public could potentially break the 60 vote deadlock in the U.S. Senate and virtually force Congress to propose a specific Constitutional Amendment.