A Safe Constitutional Way to Protect States' Rights

By W. Cleon Skousen, March 28, 1995

Every student of American history knows that on June 28, 1787, the Constitutional Convention in Philadelphia almost collapsed because the large states wanted their Senators elected by a popular vote whereas the small states wanted each Senator appointed by his state legislature to serve as a guardian of states' rights. In the fury of debate which followed, the whole Constitutional Convention came to a standstill.

Three different times during the convention Roger Sherman of Connecticut had suggested the "grand compromise" whereby the House of Representatives would be elected by the people but the members of the Senate would be appointed by their state legislatures. This would give the people a voice in the House of Representatives but make the Senators accountable to their state legislatures to be certain states' rights were protected. To further insure this balance, each state was given just two Senators and therefore an equal vote. Furthermore they were not to be elected by the people but appointed by the state legislature to represent the entity of the state and thereby protect its interests.

George Washington said it was this sensible compromise which saved the convention and prevented the delegates from rushing out of Independence Hall and going home. Every student of our history also knows that during the first hundred years, the Senate became the body of seasoned statesmen who traditionally frustrated the clamor of the people for the federal government to solve all their problems and ignore the prerogatives of the states.

But this was changed in 1913. A storm of propaganda claimed it was "undemocratic" to have Senators accountable to the state legislatures. It was demanded that they should be elected by the people just like Congressmen. It was in that emotional climate that the Seventeenth Amendment was passed which required Senators to be elected by popular vote.

Then an interesting thing happened. Senators had to respond to the current feelings of the people or they could not be elected. When social issues arose, the liberal elements in the media often churned popular feelings into a state of virtual hysteria demanding immediate intervention by the federal government. Of course, after the Seventeenth Amendment nobody was in a completely independent position to point out the dangers of the massive collectivization which came in a flood. If a candidate for the Senate tried to do so, he was defeated. Any careful student of history knows that during the past sixty years states rights have gone down the drain by the bushel basket.

Thomas Jefferson would say we have witnessed the fulfillment of his prophecy when he declared that if power is allowed to concentrate in Washington "it will render powerless the checks provided of one government on another, and (the power of Washington) will become as venal and oppressive as the government from which we separated."

So, for thinking Americans, the immediate question is how can we safely reverse this trend?

THE FOUNDERS THOUGHT THEY HAD PROVIDED A SOLUTION

The Founders were well aware that Washington might try to gobble up the states and so they provided - in rather loose, general terms - a procedure in Article V which allowed two-thirds of the states to ask the Congress to call a "Convention of the States" for the purpose of suggesting a needed amendment to regain their states rights. Of course, by itself a "Convention of the States" had no power whatever except to make the suggestion by passing a resolution. After that nothing would happen unless three fourths of the state legislatures adopted the idea. Should it be adopted then the resolution would become part of the Constitution without requiring the approval of either the Congress or the President.

However, this provision in the Constitution has never been used.

There has been a lingering fear that such a convention might get out of hand and try to promote a new constitution or destroy the basic structure of the old one. Of course the Founders felt that anything radical or inappropriate would never get the ratification of three-fourths of the states. In fact, the last two amendments proposed by Congress were defeated by the state legislatures. This indicates that both Democrats and Republicans in the state legislatures have turned out to be the most conservative Constitutionalists in our system just as the Founders expected they would.

Nevertheless, a Convention of the States has never been used.

IS THERE ANY OTHER WAY?

Assuming from past experience that a "Convention of the States" is not a viable way to go, is there any other solution which would reverse the destructive trend of the past and still not become a threat to anybody?

At the invitation of Governor Mike Leavitt of the state of Utah, a group of Constitutionalists and political leaders of both parties discussed the possibility of setting up a voluntary "Conference" of the states.

The genius of this proposal is the fact that it would have only "political" status, not "legal" status. In other words, its effectiveness would depend on the force of political opinion among the leaders of both parties in the various states who felt some legislative acts of Congress were an objectionable intrusion into their states' rights. The proposal provided no legal "teeth" to enforce the desires of the Conference but it merely depends upon the political influence which a united front by the states might have.

When you think about it, this is what Jefferson would call Democratic-Republicanism at the highest level.

The proposal for a "Conference of the States" has this preliminary statement:

"States must employ a means of communicating their resolve and commitment to Congress. It is our job, our responsibility, our stewardship. State leaders must act or be held responsible by history for allowing the brilliant federalist creation of Madison, Jefferson and Hamilton to expire from neglect."

So how would the Conference of the States get into operation?

A BRIEF OUTLINE OF THE PROPOSAL FOR A CONFERENCE OF THE STATES

1) Each state legislature would pass a resolution authorizing the appointment of a "bipartisan, seven-person delegation of legislators and the governor" to represent that state at the Conference.

2) As soon as a significant majority of the states have passed resolutions to participate, their delegates will meet together to make preliminary arrangements such as the organization needed for the Conference as well as the rules and procedures. The agenda at this preliminary meeting will include a discussion of proposals to restore the needed balance in the federal system, and committees will be created to screen the proposals and select those topics which would be appropriate for consideration when the Conference is held.

3) The actual Conference of all the participating states will take place in the fall of 1995. They will discuss the various proposals for needed remedies to restore the balance in the federal system. These proposals will be discussed and voted upon.

3a) Each state will have one vote.

3b) Approved proposals will become part of an official declaration called, the "States Petition." While this States' Petition will be the message which the Conference expects to communicate to Congress, "it will have no force or binding authority." It is simply a petition which is designed to have a continuing political impact on Congress until the necessary balance has been implemented.

3c) On a specified date, the representatives will gather in Washington and make a formal presentation to the Congress and ask for a response which can be reported back to the members of the Conference.

4) The Conference of the States will be governed by four fundamental policies:

4a) It must be scrupulously bi-partisan.

4b) It will seek fundamental, long-term structural changes as opposed to dealing with current issues of the day.

4c) It will avoid single-issue problems. It will not provide an arena for presentations relating to single issues.

4d) It will be an activist organization seeking to restore and protect states' rights and instituting the Founders' original design for a balanced relationship between the federal government and the states.

THE PROBLEM OF MISUNDERSTANDING AND OPPOSITION

Although the original plan was enthusiastically received by both parties in The National Conference of State Legislatures and The National Governors' Association, opposition has arisen primarily from two directions.

First of all, the labor leaders have opposed this newly proposed mechanism lest the increased influence of the states might weaken their nationalized control of the unions.

Historically, the labor union movement was one of the foremost power groups seeking a federal control of labor-management disputes. Their efforts were repeatedly declared unconstitutional until the New Deal Supreme Court finally allowed the setting up of a National Labor Relations Board and permitted unions to be organized on a national basis. Almost immediately attempts were made by the union leaders to set up mandatory union membership with closed shops throughout the country. This resulted in "Right to Work" laws being passed in many states.

It is understandable why the labor leaders might be concerned that the influence of the Conference of States might tend to upset the rather cozy monopoly which they have enjoyed for nearly sixty years.

But that is not the purpose of the Conference of States. Under these new arrangements the union chiefs would still have an opportunity to argue their case in Congress, and the states could only object where there was an abuse of union power in violation of the traditional rights of the states to intervene.

OPPOSITION FROM THE EXTREME RIGHT

The second area of opposition has come from those who have a residual fear that the Conference of the States might be somehow converted into a Convention of the states as outlined in Article V of the Constitution. Assuming this to be true they extrapolate this myth into the possibility of terrible consequences including the possibility that it might even involve the United States in the New World Order.

Having studied their arguments, I concluded that their line of reasoning falls under the indictment of George Washington at the Constitutional Convention. He became exasperated when many sound proposals were attacked with meaningless arguments that kept bogging down the convention. He finally protested, saying:

"They build their objections upon principles that do not exist ... and then, as if they were unanswerable, draw all the dreadful consequences that are necessary to alarm the apprehensions of the ignorant or unthinking. It is not the interest of the major part of those characters to be convinced, nor ... yield to arguments which do not accord with their present or future prospects.".

Washington was talking about some of his friends and fellow delegates. He didn't question their sincerity, but he definitely knew they were not contributing anything by constantly sandbagging those who were proposing constructive ideas.

In one of the articles by the extreme right we read that "A conference of the states is a ConCon (Convention of the States) in disguise." Then the article tries to make the two systems seem similar when they are as different as day and night.

Here is why the "Conference" and the "Convention" are totally different.

A convention of the states is a law-making procedure to ask the state legislatures to amend the Constitution. On the other hand, a "Conference" of the States is merely designed to send a petition to Congress to stay within its Constitutional boundaries. It has no law-making powers whatever. It is simply a body of state legislators representing both parties who decide to meet together and petition the Congress as authorized by the First Amendment.

The reason both Democrats and Republicans united behind the "Conference" idea in both The National Conference of Governors and the National Conference of State Legislators was because it threatens nobody. Nor is there any risk of its getting out of hand or becoming a tool of the New World Order. It could accomplish a tremendous amount of good both for the present and the future. It is a brilliant idea.

I congratulate Governor Leavitt and his associates who have offered the nation a safe, constitutional way to solve the continued erosion of states' rights by providing an all-American device which threatens no one.