Amendments to Restore the Rule of Law

Amendments to Restore the Rule of Law

After the 1787 Constitutional Convention in Philadelphia concluded, a woman asked delegate Benjamin Franklin, "Well, Doctor, what have we got, a republic or a monarchy?" Franklin responded, "A republic, if you can keep it."

Last Friday, Texas governor Greg Abbott announced at the annual meeting of the Texas Public Policy Foundation that he intends to fight to keep it.

A republic, in the American context, signifies a representative democracy ruled by law, not by the caprice of politicians. Simply put, the rule of law distinguishes legitimate government from tyranny and anarchy. However, more than two centuries after Franklin's warning, many Americans are wondering whether we have succeeded at maintaining the rule of law. A recent Gallup poll reveals that 61 percent of Americans report "not very much" or no trust in the federal government's ability to solve domestic problems.

Why this lack of trust? Another poll shows that 72 percent of Americans regard "big government" as a "greater threat to the U.S. in the future than big business or big labor, a record high in the nearly 50-year history of this question," Gallup reports.

Such widespread fear of federal power, although alarming, is far from surprising. Many Americans have become increasingly angry over Supreme Court decisions that twist the Constitution in order to "discover" new "rights," over executive orders that thwart the will of the people and their elected representatives, and over a Congress that abdicates lawmaking authority to unelected, unaccountable Washington bureaucrats. One result of Washington's disdain for the Constitution is the national debt, which has grown from $7.3 trillion in 2004 to over $18 trillion today. By 2019, it is forecasted to reach $21 trillion. Such profligate spending is crippling economic opportunity, not only for this generation, but also for our children and grandchildren. The American Dream is thus dying.

In short, the federal government has grown to Leviathan-like proportions; as its power has expanded, individual liberty and the rule of law have shrunk. If Washington has shown itself unable to extricate Americans from the abyss into which it has thrust them, what is to be done? Governor Abbott offers a 92-page plan, titled "Restoring the Rule of Law with States Leading the Way." There he proposes nine constitutional amendments to curb federal overreach and restore the constitutional balance of powers between the states and the federal government.

The proposed amendments would: "prohibit Congress from regulating activity that occurs wholly within one State"; require Congress to balance the budget; bar administrative agencies "and the unelected bureaucrats that staff them" from making federal law as well as from "pre-empting state law"; empower a two-thirds majority of the states to veto a U.S. Supreme Court decision as well as to override a federal law or regulation; require a "seven-justice-super-majority vote" any time the Supreme Court seeks to "invalidate a democratically enacted law"; limit the federal government "to the powers expressly delegated to it in the Constitution"; and enable state officials to sue in federal court "when federal officials overstep their bounds."

The mechanism he advances for introducing the amendments is found in Article V of the Constitution, which states that Congress "shall call a Convention for proposing Amendments" following "the Application of the Legislatures of two thirds of the several States." The amendments are added to the Constitution if three-fourths of the states approve them.

Article V's inclusion in the Constitution demonstrates that America's Founders knew well the inevitable tendency of centralized power to expand beyond its constitutional limits. Hence, Article V provides the states a means to restore the balance.

During his speech, the governor made clear that his proposals are intended not to end, but to begin, a nationwide dialogue among the states about restoring the Constitution. Doubtless, some will want other amendments, while others will object to some that he has suggested. Moreover, the process for assembling an Article V convention is less than clear. Much wrangling will occur as a result. Finally, although four states already have officially joined the Article V movement, 30 more must come on board to reach the two-thirds required to propose amendments.

However, while there will be disagreement over content, and on the road forward, what large majorities do agree on is far more important — that Washington has lost our trust and gained our fear. We have a constitutional means available to us to restore trust and confidence in the federal government. If now is not the time to begin the amendment process, when is?

Thomas K. Lindsay directs the Centers for Tenth Amendment Action and Higher Education at the Texas Public Policy Foundation and is editor of He was deputy chairman of the National Endowment for the Humanities under George W. Bush.

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