Bench Memos

What’s the Best Way to Restore Constitutional Government?

Should we amend the Constitution to “correct” our officials’ failure to honor it?

Earlier this month, Texas governor Greg Abbott generated national attention when he urged the Texas Legislature to formally call for a “convention of states” pursuant to Article V of the U.S. Constitution, for the purpose of considering nine constitutional amendments, in order to rein in the overreaching federal government and restore the proper balance of power between the states and the federal government. Abbott’s proposal echoes the Constitutional Convention advocated by radio talk-show host Mark Levin in his bestselling book The Liberty Amendments: Restoring the American Republic (2013).

Abbott’s proposal, which he calls the “Texas Plan,” is outlined in an impressive 92-page document containing 353 footnotes. The Texas Plan provoked commentary from both ends of the political spectrum (e.g., here, here, here, and here). My own take on the subject is contained in an essay I posted today on the Library of Law and Liberty. To summarize, it is very unlikely that the requisite two-thirds of the states (34 in total) would join in calling for a Constitutional Convention, and even less likely that three-fourths of the states (38 in total) would ratify Abbott’s nine proposed amendments if they were adopted. Factor in the risk of a runaway convention, and efforts would be better spent educating the public about how we arrived at the dysfunctional status quo Abbott correctly bemoans.

The ultimate solution, I conclude, “lies in the election of a conservative President and a principled U.S. Senate, who would appoint and confirm a majority of sound, committed originalists to the U.S. Supreme Court.” A majority of justices in the mold of Clarence Thomas, Samuel Alito, and Antonin Scalia would do more to restore the Constitution than a plethora of pie-in-the-sky amendments.

— Mark Pulliam, a retired attorney, writes from Austin, Texas.

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