Greg Abbott, Anti-Federalist
Governor Abbott may claim he seeks to restore the constitutional order, but in fact his proposals have a lot in common with those who opposed the documents ratification in the first place.
From the Office of the Governor of the State of Texas : Governor Abbott Unveils Texas Plan, Offers Constitutional Amendments To Restore The Rule Of Law
Governor Greg Abbott today delivered the keynote address at the Texas Public Policy Foundation’s Annual Policy Orientation where he unveiled his Texas Plan to restore the Rule of Law and return the Constitution to its intended purpose. In his plan, Governor Abbott offers nine constitutional amendments to rein in the federal government and restore the balance of power between the States and the United States. The Governor proposes achieving the constitutional amendments through a Convention Of States.
I will note that Article V of the US Constitution does provide for “the Application of the Legislatures of two thirds of the several States” to ”call a Convention for proposing Amendments.” If said convention were to be called, then the ratification of those amendments would either be done via 3/4ths of the state legislatures or 3/4th of conventions called at the state level. The exact procedure would have to outlined in the process of proposing amendments. However, it is worth pointing out that while the provision to call such a convention has been in the Constitution since the get-go, that this has never happened (the closest analog would be the Philadelphia Convention itself, which wrote the current constitution). As such, it is beyond unlikely that this is going to happen, so we all know that this is a rhetorical exercise on Abbott’s part. Still, it is in interesting insofar as it does provide some insight into his political views as well as to his faction of the Republican Party. It is also interesting, to me at least, as it is opportunity to think out loud in public about some key constitutional and institutional issues.
Abbott’s list of proposed amendments are as follows:
Governor Abbott offered the following constitutional amendments:
- Prohibit Congress from regulating activity that occurs wholly within one State.
- Prohibit Congress from regulating activity that occurs wholly within one State.
- Require Congress to balance its budget.
- Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.
- Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.
- Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.
- Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.
- Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
- Give state officials the power to sue in federal court when federal officials overstep their bounds. Allow a two-thirds majority of the States to override a federal law or regulation.
(The full plan is here).
Now, #3 is long-term Republican boilerplate, but the rest strikes me as being in the spirit of the Anti-Federalists who opposed the ratification of the U.S. Constitution back in the 1780s. Those individuals did not want a strong central government and favored a system that left substantial powers, if not ultimate sovereignty, in the hands of the states.* This fact is, of course, at a minimum ironic when Abbott’s goals are all wrapped up in the language of allegedly restoring the constitution.
One can argue about the evolution of federal power (and about, specifically, the Commerce Clause), but what Abbott is proposing above is not restorative in any historically accurate sense of the term (and since the broad powers given the federal government under certain interpretations of the Commerce Clause are approaching 100 years of age, it is hard to consider them a new deviation that demands rectification). Many of the amendment suggested in that list above would utterly upend the constitutional order that prevailed for over two centuries (and would undercut, not restore, the Framers’ basic vision).
Let’s give the list a quick, but specific, look at the proposals:
1) Prohibit Congress from regulating activity that occurs wholly within one State.
2) Prohibit Congress from regulating activity that occurs wholly within one State.
My question here is: what does this mean? I understand the philosophical notion that if an action is truly local that it should be the domain of a given state in a federal system. Having said that, however, defining this is not easy (especially in out radically interconnected world). In reading the section on this proposal it is clear that Abbott wants to nullify the prevailing interpretation of the Commerce Clause (which his plan acknowledges has been in place for going on a century now). Still, while it might have been relatively easy to determine when commerce was confined to a given state in the 1800s, it is quite a bit harder to do so now (to put it mildly). But, moreover, we have been in the current constitutional era for a rather long time now, so to call for the turning back of the clock at this point is not conservative, it is reactionary. It certainly does not take into consideration that rightful concern of the truly conservative: the unintended consequences of swift, dramatic change (and undoing the prevailing understanding of the Commerce Clause would be just that).
3) Require Congress to balance its budget.
Again, this is typical GOP boilerplate. It sounds good but it would utterly cripple the ability of the federal government to confront crises (or, really, to govern at all). I am not going to belabor this one.Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.
4) Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.
5) Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.
In a technical sense, both are already true. Administrative agencies don’t technically make laws, they makes rules (and their authority to do so comes via laws passed by the Congress). Having said that, I do understand that for practical purposes such rules have the force of law and that those rules can preempt state activity. And while I do think there is room for debate about these power and the proliferation of rules that come from Washington, the bottom line remains that the authority for all of this activity is the Congress of the United States and the laws it passes–and those laws are supreme and do preempt state laws, as per the US Constitution.
Also, every time I read that someone who proclaims deep fealty to the Founders I am reminded that at one point James “The Father of the Constitution” Madison flirted with the idea of the giving the central government the power to nullify state law:
Over and above this positive power, a negative in all cases whatsoever on the legislative acts of the States, as heretofore exercised by the Kingly prerogative, appears to me to be absolutely necessary, and to be the least possible encroachment on the State jurisdictions.
Also, we fought a war, at least in part, on the question of nullification, so surely this is a non-starter. From a more political sciencey/political engineering point of view, I would note that these proposals upend federalism because they make the states ultimately supreme over the central government. This is Anti-Federalist thinking (the guys who opposed the US Constitution).
6) Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.
This, to, is a form of nullification. Further, this would ultimately make judicial review of legislation a political act of legislatures, not of the Courts. (Although, granted, getting two-thirds of the states to agree to anything is trick in and of itself).
7) Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.
This is simply a terrible idea. At the moment the Court is technically controlled by 5 Justices, if they can agree. A rule that requires a unanimous decision empowers 1 Justice, who could block any attempt at using judicial review of legislation. Why have judicial review if this is the requirement?
8) Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
This is really more long-standing GOP boilerplate about the Commerce Clause and a specific interpretation of the Tenth Amendment (as well as of the Article I, Section 8).
9) Give state officials the power to sue in federal court when federal officials overstep their bounds. Allow a two-thirds majority of the States to override a federal law or regulation.
What strikes me about this is that such suits are banned by the Eleventh Amendment, which was was ratified by the Founding generation in 1795. If the idea of these proposals is restoration of the constitutional order as given to us by the Framers, this is an odd suggestion since such lawsuits theoretically only could have happened for a period of about 6ish years in the life of the republic (and many of the same politicians who wrote the Constitution would have voted for the Eleventh Amendment). This proposal also smacks of Anti-Federalism (which doesn’t make it wrong, per se, but it does undercut the whole “the Constitution is sacred” vibe that Abbott is providing here). None of this invalidates the suggestion, but it is also amusing when politicians put the Framers on a pedestal but then propose something that many of those same Framers supported.
In general, Abbott’s list would utterly upend the basic foundation of federalism, not restore it. Again, while one might wish to see less power in the federal government, the bottom line remains that the very nature of federalism as invented by the Framers of the US Constitution is one in which the federal government is supreme. It is ironic that Abbott’s full plan asserts that “most Americans have no idea what our Constitution says” and “The Constitution is not just abstract and immaterial to average Americans; it also is increasingly ignored by government officials” because Article VI rather plainly states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding
This is the Supremacy Clause. One can, of course, argue about the exact distribution of powers in the federal system (i.e., what does the Tenth Amendment mean, or how to appropriately interpret Article I, Section 8), but is is unequivocally the case that the very purpose of the US Constitution was to place the central government in a position of ultimate authority over the states. We already had a system of supremacy by states, it was called The Articles of Confederation and it was a disaster (and the reason the Philadelphia Convention was called in the first place).
Again: there is a debate that can legitimately be had about the exact relationship between the central government and that of the states, but a system that would give the states veto power over central government action would upend the constitutional order that Abbott and many of his compatriots claim they revere.
To put it more plainly: a system of governance where the sub-units can override the central government is one of confederation, not federation. And one thing we know from history: confederations cannot effectively govern themselves and they eventually fail. Indeed, there are no true confederations in operation in the world today (the closest example is the EU, but the EU does not claim to be a sovereign state in its own right).
But, as I have noted before, the Tea Party faction of the GOP, despite their rhetorical fealty to the US Constitution, is very frequently arguing from Anti-Federalist notions than it is from the point of view of the vision of the Framers of the Constitution (whatever that may have been).
I would note that one could argue that that Anti-Federalists were right: the Constitution of 1789 ended up giving the federal government a lot of power (and they would say far too much). So if Abbott wants to argue that, he can certainly do so. The problem is that it is intellectually problematic to do so and claims that his foundation is the US Constitution itself and its authors. I would find a true Anti-Federalist set of arguments to be more refreshing, intellectually honest, and interesting. But at least acknowledge that what one is seeking is serious reform to the existing order.
Of course, all such arguments are really about the present, not the past. It just sounds better to make argument based on appeals to myth than it is to forthrightly state that one is looking to make some serious changes to the existing system. It is also worth pointing out that regardless of what one thinks is true about such phrases as “a living constitution” the fact of the matter remains that the actual constitutional order in a given country is not to be found solely in the document itself (and certainly not in its founding moment) but in the long-term application of that document (which includes legal interpretations, laws passed, customs and practices adopted, and so forth). There is also the simple fact that at this point in time we are approaching two and half centuries of governance under this document and things have changed a bit since 1789. While I find it interesting to think about design and intent and find examining the goals and intentions of the Framers to be an interesting intellectual exercise, the bottom line remains that pretending like we can “go back” to a purer form of the constitutional order is nothing but fantasy (and I say that fully understanding the rhetorical and political reasons people will continue to do so).
(See, also, Moore, Roy, for an example of someone who bases all of their arguments in an allegedly deep allegiance to the Constitution, but who really wants to nullify substantial portions of it).
*I recognize, before it is brought up, that the states retain a certain level of what is referred to as “sovereignty” within the US system. However, what I am ultimately referring to here is the who is ultimately in charge. States cannot go to war, they cannot sign treaties with foreign governments, they cannot coin money, etc. Further, the Constitution, federal laws, and treaties supersede state constitutions and laws. As such, the US government is ultimately sovereign over the territory known as the United States of America, which means that government is sovereign over the states.