Mark Your Calendar
The Time has Come
Five Guys: What Dobbs v Jackson Can Teach Us About Federalism
Article V News
Mark Your Calendar: Academy of States 3.0
To avoid conflicting with the NCSL Legislative Summit schedule, Academy 3.0 has been rescheduled from Monday morning, August 1 to Sunday afternoon, July 31. The conference will take place from 1:00-5:30 p.m. (MDT) followed by a celebrity chef event.
Why attend? Because…
a convention could take place within the next 24 months! (add link)
there is a widespread perception that Washington is not serving the best interests of the states and the American people…and you can do something about it! As President Obama famously said, “You can’t change Washington from the inside.”This workshop will equip state legislatures with practical skills to effectively prepare for and participate in a convention to propose amendments. Topics include:
- drafting a delegate selection statute
- creating delegate instruction, oversight, and enforcement
- measures the need for bipartisan cooperation in order to draft and ratify amendments
Please note that this event is exclusively for legislators and legislative staff. It will be recorded and made available for online viewing, but a remote participation component will not be offered. A link to the registration page will be available in the next newsletter.
The Time has Come
South Carolina Governor Henry McMaster has penned a full-throated endorsement of an Article V Convention. McMaster has joined countless Americans who have come to the realization that our problem is not left vs. right: it’s Washington, DC vs. the rest of us.
It has become clear that Congress is unwilling or unable to set aside its self-serving institutional interests in preserving and expanding the size and reach of the federal government. Thus, any initiative to reduce the size of the federal government must originate elsewhere.
McMaster acknowledges concerns surrounding the never-before-attempted process, but argues, “I see the ever-increasing size and scope of the federal government as the larger threat.” The entire letter may be accessed here.
Five Guys: What Dobbs v Jackson Can Teach Us About Federalism
by Vickie Deppe
The leak of a draft Supreme Court opinion penned by Justice Samuel Alito has ignited a firestorm in Washington and across the nation. While politicians gear up to make abortion a mid-term election issue, protestors can be heard expressing sentiments like, “Five guys in black robes shouldn’t have the power to tell me what to do!”
Whether one agrees with their stance on abortion or not, these protestors are right about the “five guys:” the Supreme Court was never intended to make law. It was created to try certain federal officials and adjudicate interstate disputes and those between states and the federal government. In Marbury v Madison, the Court staked its claim of judicial review, i.e., the power to vacate laws that violate the Constitution. The judicial branch never had and still does not have constitutional authority to make law…nor does the executive branch, which is charged with ensuring that our laws are faithfully executed. The authority to make law lies solely with legislative bodies.
It’s true that Roe is on uncertain ground because of guys in black robes…but not the ones who currently occupy the Supreme Court. Even liberal scholars have criticized Roe v Wade; perhaps none more notable than the late Justice Ruth Bader Ginsburg, who characterized the decision as a “breathtaking” judicial overreach that went much further than vacating the law in question “to fashion a regime…that displaced virtually every state law then in force.” She predicted, based on her own experience as a jurist, that it would prove to be “unstable.” Today we are experiencing the result of that instability.
Dobbs v Jackson illustrates why nominations to our federal courts—ostensibly the apolitical branch of our government—have become so contentious. Roe is just one example of the Court opting to effectively rewrite laws more to their liking instead of sending the originating legislature back to the drawing board. This practice seriously undermines a key feature of the design of our government: the separation of powers. It endangers rather than safeguards our rights by transferring lawmaking power from our elected legislators—men and women who must stand for reelection regularly and frequently—to as few as five unelected judges who, once nominated and confirmed, serve for life. The people who make laws shouldn’t be the same ones who decide whether or not they are constitutional.
The Atlantic has published an analysis of the leaked opinion that explores the constitutional considerations in play. It concludes,
…enacting legal change is precisely the role of the people’s elected representatives. Legislation is for the legislature, and if the people of the United States want to create a right to abortion, they have that power. They had that power before Roe, and if Alito’s opinion holds, they will still have that power.
Article V can be employed to restrain judicial overreach by limiting the Court to sending unconstitutional legislation back to the originating legislature rather than rewriting it. The Constitution does not permit “five guys in black robes” to tell us what to do. We shouldn’t allow it, either.
Article V News
Many thanks to our friend David Guldenschuh for sharing his Legislative Progress Report.
Convention of States Project
An amended version of S 133 passed in the South Carolina House and has been returned to the Senate for reconciliation. The Colorado legislature has adjourned.
Term Limits
The Tennessee legislature has adjourned.
Delegate Selection and Oversight:
The Missouri legislature has adjourned. New Hampshire’s HB 1170 died in committee. In Oklahoma, HJR 1056, providing for the selection of delegates to attend both interstate planning and Article V Conventions, received a do-pass vote in the Senate Rules Committee but did not reach the floor before adjournment.
Who Said It?
“It’s a kind of miracle when you sit there and see all those people in front of you, people that are so different in what they think and yet they have decided to solve their major differences under law.”
Justice Stephen Breyer
January 27, 2022