Entrenching Good Government Reforms
Tushnet, Mark V., Harvard Journal of Law & Public Policy
Those concerned with enumerated powers, the Tenth Amendment, and limited governance have many questions about current trends in U.S. governance: Has the federal government grown too large? Is it doing too much? Has it transgressed lawful limits? Is the federal-state relationship out of balance? Assuming that the federal government has gotten too large, what can you do about it? Or, more generally, what can you do if you think that the federal government is too big, or too small, or is doing the wrong things, or is not doing what it should be doing?
The obvious answer to the two latter questions is that you win elections. The winners decide what good governance is. There are, however, two problems with that answer. First, once you win an election, you can still lose the next one. As a result, you have an interest in figuring out some method to entrench your policy positions reasonably permanently. Second, some of the things you want to do may be precluded by the existing Constitution, though people obviously disagree about what those things are. (1) The obvious remedy to both of these problems is to amend the Constitution. So to entrench your policy victories, you need to win elections first, and then you might also have to amend the Constitution.
I am actually in favor of amending the Constitution in a variety of ways. People disagree about what ought to be amended, but those differences get worked out through the amendment process. The problem with the amendment route is that politicians actually have very few incentives to seriously pursue amending the Constitution, even if they have won an election. The reason for that is two-fold, depending on the type of amendment.
The first kind of amendment is substantive. This is the type of amendment that could, for example, restrict the scope of the national government, preventing it from doing certain kinds of things. The second type of amendment is procedural, something like the amendment to let a state override national legislation. Both types of amendments present their own problems. With respect to the substantive amendments, the problem is this: A politician presumably wants to make a substantive amendment in order to enact substantive legislation. But if that politician has the votes in Congress to submit amendments to the states, then he also has the votes necessary to enact the substantive change through ordinary legislation. (2) Politicians have limited time and political capital, which means that they are more likely to use this more straightforward method of attaining their substantive goal. Then, maybe if there is time left over, a politician might make some effort to get an amendment that would be submitted to the states. This submission poses additional incentive problems for politicians, which I will address later in this Essay. This route historically has been used to pursue amendments. (3)
In addition to a congressional vote, there is another route to amending the Constitution. This second method is to convene a constitutional convention upon the call of the states. (4) Using this method makes sense only if the substantive change lacks the support necessary to pass in Congress, and there is sufficient control over state legislatures to get the right kind of call for a convention. In other words, it makes sense for a politician to use this method if he does not have two thirds of the votes in both the House and Senate, but his party does control two thirds of the state legislatures, and he thinks there is a decent chance that, within the foreseeable future, he will get control of three quarters of them. Another political obstacle is the myriad of procedural issues about how one goes about convening a convention and what the convention would have the power to do once in session. (5) No matter what the correct resolution of those questions, the uncertainty about them will allow opponents of the amendment to raise fears of a "runaway" convention and the like. …