The Indiana General Assembly is considering a resolution mandating our participation in a Conference of States (COS). The synopsis of the resolution states that it is “A concurrent resolution urging the creation of a delegation to represent Indiana at a Conference of States debate and vote on elements of an action plan to restore checks and balances between states and the federal government.” The resolution was introduced by Senator Robert Garton as Senate Concurrent Resolution No. 22, and passed by the Senate on February 7. As of this writing, it is in an Indiana House committee, working its way toward a vote on the floor of the House.
If you’re concerned with restoring the Constitutional balance between state and federal powers, as I am, this sounds like the answer to a prayer. If the state legislatures would work together to claim their rights under the Tenth Amendment, perhaps we could make the US Congress sit up and take notice. The necessary law is all there in the Constitution: the doctrine of enumerated powers, backed up by the Tenth Amendment (see my January 31 column). There is a boatload of writings of the Founding Fathers to support the position that “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” (James Madison, The Federalist No. 45.)
Unfortunately, the resolution in question has the potential to do something more than bring about the enforcement of the Constitution. Section 1 states that the delegates to the COS are to officially “represent the State of Indiana…” They are to have the power to debate and vote on our behalf in the COS. Section 5(3) limits the agenda of the COS to “fundamental, structural, long-term reforms.” Added up, this could be interpreted as an authorization to propose Constitutional amendments. If the COS evolved into a Constitutional Convention (Con-Con), any resulting amendments would be invalid because the procedure set up in the Constitution would have been ignored. But with enough momentum built up through the actions of the participating states, the US Congress might be induced to sanction the Con-Con after the fact. If you think there would be anything worthwhile left of the Constitution after a Con-Con got through with it, you have a higher opinion of today’s politicians than I do.
Is this evolution of the COS into a Con-Con an outrageously far-fetched scenario? If we knew nothing but the details of the resolution itself, we might come to that conclusion. However, there is some background information to be reported as well. The COS is to be conducted under the auspices of the Council of State Governments, at the instigation of Utah Governor Michael Leavitt. As recently as April, 1994 Leavitt was publicly reported (in the Salt Lake Tribune) as calling for a Con-Con. Is it unreasonable to suggest that the COS might be Leavitt’s latest attempt to bring that about?
Resolutions almost identical to Indiana’s have been rammed through at least one house of the legislatures of 16 states as of this writing. They are under consideration in at least 20 others. There has been little or no public debate or news coverage of this massive legislative movement. Where’s the fire? Are proponents of the COS afraid of public discussion prior to votes in the state legislatures? This is a serious matter that demands serious consideration by the citizens, so we can advise our legislators before they vote. The COS appeals primarily to Conservatives, who are the most upset when the federal government ignores the Constitution. Shouldn’t Conservative legislators, of all people, be leery of making “fundamental, structural, long-term reforms?” Our Constitution can do the job if we will only insist that it be obeyed.
Let’s ask our state legislators to rescind the resolution to participate in the Conference of States. We can then step back and take a sober look at what is being proposed. Journalists can investigate the background of those who are pushing it so frantically, and report on exactly what is to be discussed at the COS. If we then agree that Hoosiers want to participate, the General Assembly can reinstate the resolution. But let’s not let our state be dragged into this potentially dangerous process without due consideration.