Skip to main content
Menu

Main navigation

  • About
    • Annual Reports
    • Leadership
    • Jobs
    • Student Programs
    • Media Information
    • Store
    • Contact
    LOADING...
  • Experts
    • Policy Scholars
    • Adjunct Scholars
    • Fellows
  • Events
    • Upcoming
    • Past
    • Event FAQs
    • Sphere Summit
    LOADING...
  • Publications
    • Studies
    • Commentary
    • Books
    • Reviews and Journals
    • Public Filings
    LOADING...
  • Blog
  • Donate
    • Sponsorship Benefits
    • Ways to Give
    • Planned Giving

Issues

  • Constitution and Law
    • Constitutional Law
    • Criminal Justice
    • Free Speech and Civil Liberties
  • Economics
    • Banking and Finance
    • Monetary Policy
    • Regulation
    • Tax and Budget Policy
  • Politics and Society
    • Education
    • Government and Politics
    • Health Care
    • Poverty and Social Welfare
    • Technology and Privacy
  • International
    • Defense and Foreign Policy
    • Global Freedom
    • Immigration
    • Trade Policy
Live Now

Blog


  • Blog Home
  • RSS

Email Signup

Sign up to have blog posts delivered straight to your inbox!

Topics
  • Banking and Finance
  • Constitutional Law
  • Criminal Justice
  • Defense and Foreign Policy
  • Education
  • Free Speech and Civil Liberties
  • Global Freedom
  • Government and Politics
  • Health Care
  • Immigration
  • Monetary Policy
  • Poverty and Social Welfare
  • Regulation
  • Tax and Budget Policy
  • Technology and Privacy
  • Trade Policy
Archives
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • October 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • November 2010
  • October 2010
  • September 2010
  • August 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010
  • March 2010
  • February 2010
  • January 2010
  • December 2009
  • November 2009
  • October 2009
  • September 2009
  • August 2009
  • July 2009
  • June 2009
  • May 2009
  • April 2009
  • March 2009
  • February 2009
  • January 2009
  • December 2008
  • November 2008
  • October 2008
  • September 2008
  • August 2008
  • July 2008
  • June 2008
  • May 2008
  • April 2008
  • March 2008
  • February 2008
  • January 2008
  • December 2007
  • November 2007
  • October 2007
  • September 2007
  • August 2007
  • July 2007
  • June 2007
  • May 2007
  • April 2007
  • March 2007
  • February 2007
  • January 2007
  • December 2006
  • November 2006
  • October 2006
  • September 2006
  • August 2006
  • July 2006
  • June 2006
  • May 2006
  • April 2006
  • Show More
January 2, 2017 5:48AM

A Proposed House Rule Could Lead to Good Constitutional Amendments

By Ilya Shapiro

SHARE

On Monday, House Republicans will vote on a possible addition to the House Rules proposed by Rep. Kevin Cramer (R-ND) and endorsed by Rep. Pete Sessions (R-TX), Chair of the House Rules Committee. The proposed “Tenth Amendment Rule” could incentivize states to propose useful, limited‐​government constitutional amendments without any fear of a “runaway convention” (not that such fears are justified, just prevalent and therefore worth a response). It could be the most important House rule change in a generation.


The proposed rule states in its entirety:

It shall not be in order to consider a bill, joint resolution, amendment, or conference report referring to the States for ratification under Article V of the Constitution of the United States any amendment to the Constitution which is proposed by a convention called by Congress pursuant to such Article unless the amendment is within the permitted scope of the convention, as authorized under each of the applications of the States calling for the convention or, if the resolution or other legislation enacted by Congress to call for the convention identified specific resolutions adopted by States to call for the convention, the amendment is within the permitted scope authorized by such resolutions.

In other words, the House cannot refer back to the states for ratification any constitutional amendment that wasn’t duly proposed by the states in the first place. No amendment convention would be able to go beyond its charge; states could limit such a convention to an up‐​or‐​down vote on a specific amendment. 


This proposed rule has been named after the Tenth Amendment because that provision reserves most power to the states and to the people — which suggests that the states and the people have the power to limit the scope of any Article V convention. James Madison indicated that states had that power when he wrote in Federalist 43: “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 on the other.”


Since 1994, when the American people supposedly triggered a tectonic shift by ending 60 years of Democratic control of the House, efforts to restore the federal government to its limited, constitutional roots have either failed to win 60 votes in the Senate, been countermanded by the big‐​government aspects of the Bush administration, or been eviscerated by subsequent Democratic majorities. But in 2017, proponents of limited government have a new advantage: the legislatures of 33 states have Republican majorities looking to push back on Washington.


A coalition of congressional and state leaders could potentially persuade Congress to propose permanent constitutional limits on federal power and debt. There has never been a constitutional amendment enacted after a proposal by the states and then an Article V convention — because Congress has seen the writing on the wall and jumped ahead of any such actions by proposing its own amendment. Similarly now, if states, emboldened by the new House rule, start making calls for amendment conventions, Congress would almost certainly propose the very amendments the states want — and, again, refer only them for ratification.


What sorts of amendments are worthy of consideration? I wrote about one idea at the start of the new Congress four years ago, and no constitutional reform has become more evidently necessary than the rebalancing of federal power by requiring that Congress approve major new federal regulations. The House has already twice voted to do just that in the form of the REINS (Regulations from the Executive in Need of Scrutiny) Act. But a statute like the REINS Act could be challenged in court or repealed by a future Congress. A constitutional amendment would be permanent.


More than 900 state legislators, 6 governors (including Vice President‐​elect Mike Pence), a unanimous Republican National Committee, and resolutions passed by 19 state legislative chambers have already urged Congress to propose such an amendment — called the Regulation Freedom Amendment — and polls show 2–1 voter support for it.


Empowered by the 10th Amendment Rule, House Republicans could mobilize state allies to persuade Congress to move this sort of thing along, among other opportunities for lasting reform. It will be interesting to see how House Republicans react to this opportunity.

Related Tags
Government and Politics, Constitutional Law, Robert A. Levy Center for Constitutional Studies

Stay Connected to Cato

Sign up for the newsletter to receive periodic updates on Cato research, events, and publications.

View All Newsletters

1000 Massachusetts Ave, NW,
Washington, DC 20001-5403
(202) 842-0200
Contact Us
Privacy

Footer 1

  • About
    • Annual Reports
    • Leadership
    • Jobs
    • Student Programs
    • Media Information
    • Store
    • Contact

Footer 2

  • Experts
    • Policy Scholars
    • Adjunct Scholars
    • Fellows
  • Events
    • Upcoming
    • Past
    • Event FAQs
    • Sphere Summit

Footer 3

  • Publications
    • Books
    • Cato Journal
    • Regulation
    • Cato Policy Report
    • Cato Supreme Court Review
    • Cato’s Letter
    • Human Freedom Index
    • Economic Freedom of the World
    • Cato Handbook for Policymakers

Footer 4

  • Blog
  • Donate
    • Sponsorship Benefits
    • Ways to Give
    • Planned Giving
Also from Cato Institute:
Libertarianism.org
|
Humanprogress.org
|
Downsizinggovernment.org