AUSTIN (CN) — In Texas’s latest and most wide-ranging effort to try to rein in what it sees as “abuses of power by the federal government,” the state Senate on Tuesday passed a resolution calling for a Convention of States to amend the U.S. Constitution and allow states to override Supreme Court decisions.
State Sen. Brian Birdwell, R-Granbury, ushered Senate Joint Resolution 2 to a 20-11 vote of approval after lengthy debate.
The resolution, deemed an “Emergency Item” by Gov. Greg Abbott in February, calls for the states to convene to propose constitutional amendments “to impose fiscal restraints on the federal government, to limit the power and jurisdiction of the federal governments, and to limit the terms of federal officials and members of Congress.”
Abbott and his Attorney General Ken Paxton repeatedly sued President Barack Obama’s administration, challenging laws, regulations and executive orders, with varying success.
With both houses of 33 state legislatures in Republican control today, a Constitutional Convention is not beyond the range of possibility. (One of the 33, Nebraska, also in Republican control, has a unicameral legislature.)
A Constitutional Convention can be called by vote of two-thirds of the states — 34 of them. Any amendments must be approved by three-fourths of the states, or 38 of them.
Birdwell said during the debate: “For years we have watched as the executive and judicial branches have usurped more and more power from the states issuing dictates that become de facto law. “I believe we are at the precipice of history, as George Mason believed, that some day a federal government would no longer have the interests of its states in mind.”
Mason’s concerns, raised at the 1787 Constitutional Convention, led to the addition of a provision in Article V that gave states the power to meet and to propose amendments.
To call a Convention of States through applications like Texas’s SJR 2, the states must agree on the subject matter for the convention, so there can be no substantive differences in the individual applications.
So far, eight states have passed legislation calling for a convention. Utah’s senate voted against a similar resolution last week.
Birdwell, who attended a mock Convention of States in Colonial Williamsburg in September last year, said he takes the issue “exceedingly seriously” and assured opponents that the legislation was about “structure,” not about enacting partisan policies.
Yet when asked about the potential of such a convention to overrule Supreme Court decisions, it was clear that Birdwell’s perception of judicial overreach is inextricably linked to his own policy preferences.
“It was not a Convention of States that changed the definition of marriage, not a Convention of States that decided that life did not begin until after birth,” Birdwell said. “We now live under the consent of the appointed, not the consent of the governed.”
An amendment to limit federal power that might be brought up at a convention would require a seven-justice super-majority vote of the Supreme Court to invalidate a law.
This was of great concern to state Sen. Royce West, D-Dallas, who recalled that the states have historically promulgated many discriminatory and unconstitutional laws that have been struck down by the Supreme Court. That process, in fact, recapitulates the history of the Civil Rights Movement of the 1960s.
“Slavery would probably still be in existence, because I don’t believe seven justices sided on many of the great constitutional decisions,” West said.
Birdwell responded that Congress passed a desegregation law in 1875, struck down as unconstitutional by the Supreme Court in 1883, and it wasn’t until Brown v. Board of Education in 1954 that the court “caught up” with what he called the will of the people.
Birdwell told West, who is black, “whether your melanin or my melanin, you will find no greater defender of your right to life, liberty and the pursuit of happiness.”
Birdwell said he just wanted to “get back to federalism … where states are making those decisions rather than being subcontractors to federal will.”
Opponents were concerned about how such a convention might be run and how delegates would be selected, given that the only precedent is the 1787 Constitutional Convention.
Texas Senate Bill 21, also by Birdwell, offers some guidance, outlining the qualifications and duties of Texas delegates to a convention.
The bill also was passed Tuesday, but only after the Senate approved an amendment, over Birdwell’s objections, that adds criminal penalties for a delegate who casts an “unauthorized vote.” Rogue delegates who cast a vote that exceeds or contravenes the Legislature’s instructions would be subject to a state jail felony and a fine of $10,000.
Abbott congratulated Birdwell in a statement Tuesday.
“Our nation is succumbing to the caprice of man that our Founders fought to escape and I am encouraged that the Texas Senate has taken the first step in joining other states from across the country in reversing that trend,” Abbott said.