Note what this does *not* say. It says not a word expressly authorizing the states, Congress, or some combination of the two to confine the subject matter of a convention. It says not a word about whether Congress, in calculating whether the requisite 34 states have called for a convention, must (or must not) aggregate calls for a convention on, say, a balanced budget, with differently worded calls arising from related or perhaps even unrelated topics. It says not a word prescribing that the make‐up of a convention, as many conservatives imagine, will be one‐state‐one‐vote (as Alaska and Wyoming might hope) or whether states with larger populations should be given larger delegations (as California and New York would surely argue).
Does Congress, or perhaps the Supreme Court, get to resolve these questions—the same Congress and Supreme Court that the process is aimed at doing an end run around? If the Supreme Court resolves them, does it do so only at the very end of the process, after years of national debate have been spent in devising amendments that we find out after the fact were not generated in proper form?
Justice Burger described the whole process as “a grand waste of time.” One reason is that after advocates get the process rolling by convincing two‐thirds of states, or 34, itself a fairly demanding number, the amendments that emerge from a convention do not get ratified unless three‐quarters of states ratify, or 38, a quite demanding number.
Put differently, it takes only 13 states to refuse to act to kill any of these ideas, bad or good, in the end. Sorry, Cenk and Marco, but so long as we have a nation fairly closely divided between Blue and Red sentiment, there will be at least 13 states skeptical of some systemic change so big that you had to go around the backs of both Congress and the Supreme Court to pull it off. If you’re a progressive who thinks the populist winds blow only in your favor, reflect for a moment on the success of Donald Trump. If you’re a conservative to whom radio call‐ins resound as the voice of the people, consider that state legislatures confronted with the hard legal issues a convention would raise might turn for advice and assistance to elite lawyers (yikes) or even law professors (double yikes).
Finally, we shouldn’t assume—as do some of Gov. Abbott’s co-thinkers—that most state governments are as eager as Texas to curtail the powers of the feds. One of the most significant conservative books on federalism lately, George Mason University professor Michael Greve’s The Upside‐Down Constitution, sheds light on this. Conservatives tell a campfire story of how the federal government got big by taking power away from the states. But in his (admittedly long and complicated) book, Greve argues that the truth is closer to the opposite.
Whether in spending programs, regulations, subsidies, you name it, almost every big expansion of federal power has been skillfully designed as a deal that cuts state political elites into some of the resulting flow of power and money—consider, for example, how state education, police, road, and environmental departments have come to depend on Washington’s largesse. And while many states may join Texas in sincerely griping at the bad end of the deal—the endless paperwork, the unfunded mandates—that doesn’t mean they’d actually join Gov. Abbott in risking the connection.
Yes, the federal government has slipped its constitutional bounds, and yes, that’s infuriating. Just don’t confuse a plan for talking, which is what these amount to, with a plan for actually changing things, and always beware of a cure that might kill the patient.