Conservative Constitutional Reform: Is Texas Ground Zero?

Has the needle moved on constitutional reform?  Have off the wall ideas suddenly moved a bit closer to being on the wall?  Those are my questions in the wake of Texas Gov. Greg Abbott's release of the Texas Plan, a proposal for constitutional reform.  It features nine proposed constitutional amendments, to be enacted by a constitutional convention called by the states.  The Texas plan is a detailed brief and I think deserves careful attention.  My immediate reactions have mostly to do with constitutional theory, which I will make after the jump.

Part of me is wondering whether this is partly a move to lay down a marker at a time of extraordinary ferment in the country and especially in the Republican Party.  I interpret four of the proposed amendments as coming pretty much solely from the libertarian wing of the party (which has always been strong in Texas).  The other five are better characterized as promoting "states' rights" than libertarianism per se, although I may be off on that score.

But it could be meant as more than a policy marker.  The Texas Plan does not just promote a few ideas for amendment -- it promotes them by advocating a convention called by the states. Republicans currently control 30 of the 34 state legislatures needed to call a convention.  Whatever one thinks of the propriety of this idea, such a convention would be most likely controlled by state legislators -- loyal party members, in other words, but not necessarily supporters of Donald Trump, who looks like the nominee at this point.  In a very real sense, ordinary Americans need not apply to this convention!

The practical political point this also raises is whether the liberal left needs to propose its own platform for such a convention.  I believe it should!  There is no lack of left liberal ideas for constitutional reform. Gov. Abbott's advocacy of the Texas Plan has upped the ante and liberals should not be caught out just saying no.

Now for two scholarly points.


One of the theory arguments I've pushed with respect to constitutional change and reform is called the "reverence feedback effect."  The idea is that over time, the Constitution gets more venerated and revered as Madison predicted in Federalist 49.  As this happens, it becomes more and more difficult to argue for reasonable reforms as times change on the basis that the Constitution is flawed.  This tends to discourage advocacy of significant amendments because they can always be attacked by the opposition as un-American.  So it's interesting how the Texas Plan deals with this issue.  The Plan illustrates the reality of the feedback effect by explicitly reassuring its audience that the Constitution is not to blame!  From my point of view, this forces the argument in a somewhat conspiratorial direction.  The Plan labors to explain how we have gotten so far off track in arguing that all three branches (!) of the national government have deviated from the proper understanding of constitutional meaning.  Given the long period of time involved, it's hard to see how such a deviation could have happened without the support of the American people, their state legislators, and even Texans (like LBJ!).

Another argument I like that is not widely shared is that it made a difference when FDR decided not to validate the New Deal through constitutional amendments.  I don't contend this was the wrong decision, given the politics of the time and other considerations.  I simply don't believe that it's plausible it had zero effects on later politics.  The Texas Plan illustrates my argument in spades by focusing on the New Deal as the point at which the Constitution jumped the tracks.  The Plan can do this because all that validates the New Deal, at least on the books so to speak, is several Supreme Court decisions, not amendments.  And we all know how the Court makes mistakes!  The signal lack of amendments during the New Deal makes it easier today to argue that its constitutional legacy is illegitimate.  That's a nonstarter for many constitutional scholars, which I understand, but I hope they will reconsider the idea that you can do constitutional changes the size of the New Deal solely through "small c" means without paying an eventual political price.  I hope that's not too cryptic.