The Kansas Legislature takes issue with much of what’s coming out of Washington.
New environmental protections. Obamacare. “Activist” judges. The threat of gun control.
Now it’s planning to fight back by trying to change the U.S. Constitution.
Kansas, along with Missouri and several other states, may join a national effort to call for a convention to amend the Constitution, something not seen since the country’s founding.
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It’s a sign of the increasing friction between state capitals and Washington as anger builds over what some see as excessive federal spending, mounting debt, cumbersome government regulations, inaction on immigration and the influence of big money in elections.
“We have seen exponential growth of the federal government, and the federal government has never been one to really restrict itself,” said Rep. Brett Hildabrand, R-Shawnee, one of the sponsors of a House bill calling for a convention. The bill passed out of committee on a voice vote this week.
The chances of a gathering to rewrite the work of the Founding Fathers remain remote. Talk about such a constitutional convention has come and gone for generations – without result.
At the same time, even legal scholars disagree about what might be up for revision. Would a convention be limited to issues raised by the states in their call for a convention, for instance, or would the entire framework of the nation’s foundational document be subject to a rewrite?
Forcing a convention
Still, state politicians speak with increasing conviction about forcing a constitutional convention.
Two-thirds of the states need to agree to force a convention. Any constitutional amendment adopted at the convention would later need ratification from three-fourths, or 38, of the states.
No such convention has ever been assembled, despite an estimated 750 applications made by the states over the years.
It’s a far different approach from how the Constitution has always been changed, with 27 amendments passed by two-thirds of Congress and then ratified by the states.
A group called the Convention of States, headed by a tea party activist and the chancellor of an evangelical Christian college, is coordinating the initiative nationally.
The group is backing bills in 26 states this year, including Kansas, Missouri, Oklahoma, Iowa and Nebraska. So far, three states – Georgia, Florida and Alaska – have passed bills calling for a convention. Even endorsement by the 23 other states considering the same action would fall short of the number needed to prompt a convention.
It’s an effort that straddles party lines, with Democrats and Republicans lining up behind different measures in different states.
Similar bills backed by conservatives in Kansas and Missouri propose a constitutional convention for placing fiscal restraints on the federal government, limiting its power and imposing term limits for Congress.
Another Missouri bill sponsored by Sen. Jason Holsman, D-Kansas City, calls for a convention addressing the Supreme Court decision opening the door to unlimited independent political spending. So far, California, Vermont and Illinois have passed bills seeking a constitutional convention on those grounds.
“We need to rein in spending, and we need to clean up our elections,” Holsman said. “We can do both.”
Meanwhile, critics worry about where a convention to amend the Constitution might lead.
“The fear comes from both sides,” said David Schneider, a banker from Marion, who is coordinating efforts to pass a convention resolution in Kansas. “The left sees it as the right trying to grab power and push their agenda. The right sees it as the left trying to take over the Constitution.”
Opponents fret that measures pushed in Kansas, Missouri and elsewhere could set the stage for a runaway convention to make over the entire Constitution. Language in the hallowed document doesn’t offer much clarification: “Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments.”
Some people are wary of the monied interests – on the left and the right – backing such legislative efforts. For instance, the conservative American Legislative Exchange Council has published a handbook explaining how to make an application for a constitutional convention.
Although experts say there are many uncertainties about holding a constitutional convention, some scholars are skeptical that it would result in a massive constitutional overhaul. After all, any amendment adopted by the convention would face a daunting task in winning ratification from the needed 38 states.
“Nobody in their right mind is going to rip up the Constitution, propose an entirely new one and expect to see three-fourths of the state legislatures ratify it,” said Michael Paulsen, a constitutional law professor at the University of St. Thomas Law School in Minneapolis.
But experts see deep differences over whether a convention could be limited and whether two-thirds of the states could pass resolutions on different topics to meet the requirements for a convention.
“Despite decades of scholarly attempts to define a convention’s contours and clarify convention procedures, scholarly unanimity has not emerged on key points,” editors of the Tennessee Law Review wrote in 2011.
The law review article pointed out that states have filed hundreds of applications on an array of subjects over the years, but Congress still hasn’t called a convention.
Kansas, for instance, passed a resolution calling for a constitutional amendment for a balanced budget in 1979, Paulsen said.
Overall, 36 states proposed 167 amendments from 1963 to 1969, the Tennessee Law Review reported. Thirty-eight states proposed 57 amendments from 1965 to 1971.
Paulsen doesn’t think the convention can be limited.
“A lot of people are running around with their pet theories of a limited convention asking state legislatures to call for a limited convention,” Paulsen said. “The effect of their call will be nothing.”
What’s clear, some experts said, is that Congress cannot ignore the states’ applications once enough of them are submitted.
“The ability to call a constitutional convention is the last-stop remedy for the people short of a revolution,” said University of Tennessee constitutional law professor Glenn Harlan Reynolds. “It’s not some little technicality that Congress can do or not do as it sees fit.”