For those who were watching last week, Texas Governor Greg Abbott unveiled a plan to help reign in the out of control federal government.  (You can watch the unveiling on YouTube HERE)  The 92 page “Texas Plan” as it is called (You can read it HERE) suggests that essentially nine amendments to the U.S. Constitution need to be added to help restore the balance between the states and the federal government.  The 9 amendments are:

  1. Prohibit Congress from regulating activity that occurs wholly within one State.
    2. Require Congress to balance its budget.
    3. 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 preempting state law.
    5. Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.
    6. Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.
    7. 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.
    8. Give state officials the power to sue in federal court when federal officials overstep their bounds.
    9. Allow a two-thirds majority of the States to override a federal law or regulation.

The problem with the plan?  1) These amendments are basically powers the states already possess and, 2) The governor wants these amendments implemented through an Article V Convention.

The “Texas Plan” does have some pretty good constitutional and political history.  It also does a pretty fair job of outlining some of the areas where the powers that were guaranteed to be reserved to the states in the constitution under the Ninth and Tenth Amendments have been eroded away.  But, unfortunately, within the various documents that Governor Abbott claims were “combed through” to construct the Texas Plan, they appear to have missed that there also contains the solution to our problems. 

For those who are unfamiliar with our Constitution, here’s a quick review:

  1. The states came together and contractually created an entity whose responsibility it would be to focus on external objects (war, peace, negotiation and foreign commerce). Thus this would give the states the ability to focus on the needs of the people within their own borders.  This contract was called a compact, which is the term for an agreement between sovereign governments.  The product of this compact was our federal government.
  2. The constitution is the creating document of the federal government and is the law that it must follow, just as a contract restricts the parties of it as to what they are allowed to do. It is a document of enumerated powers, that is, that the federal government only has the powers listed in the document and no more (i.e. if it is not listed then the federal government does not have it).
  3. Over and over in the state ratifying conventions it was assured to the people of the states that this newly formed federal government would only have the powers that were “expressly” delegated to it.
  4. And, that should this new government reach for any “residuary authorities” (i.e. meddle in areas that were strictly the areas of the states) that those would be “merely acts of usurpation”. (Usurpation is defined as an act of wrongful or illegal encroachment, infringement, or seizure.)  Obviously, acts of usurpations are illegitimate and the federalists explained that the states were to treat them as such.

James Madison gave an outline of what it could/should look like if the federal government stepped outside of its prescribed boundaries in Federalist #46:

“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”

So, in the case of unconstitutional laws (unwarrantable measure) and even with some constitutional laws (warrantable measure) the method of handling the “usurpations” was:

  • The people are to let their representatives know they’re dissatisfied (both state and federal) – “The disquietude of the people…”
  • The states are not to help the federal government in the enforcement of the law in any way “…refusal to cooperate with officers of the Union…”
  • And, the states are to pass all manner of laws against the federal act so as not to comply with it – “…created by legislative devices… would oppose, in any State, very serious impediments…”

The embodiment of this refusal was even given a name the first major time the federal government stepped out of its bounds:  Nullification.  But, though this solution is readily available to any state in the union to utilize and even more effective when utilized by multiple states at the same time, our leaders in Texas tend to want to ignore it.  The Texas Plan smacks of the all too familiar political maneuvering.  Politicians calling for additional laws in order to have political “red meat” to throw at the constituency, when the mere enforcement of laws already “on the books” would suffice.  This is why Texas Representative David Simpson tweeted:

Governor Abbott also outlined how the Texas Plan would be implemented in an Article V Convention or “Con Con” as some today refer to it.  But Con Cons can have a great peril associated with them if not conducted with care, as has been outlined by some on the internet.  The problems?  Namely, who gets to decide the delegates to it and who gets to run it?  The federal government has already decided that it will be the one to run this convention should a sufficient number of states request it.  It has also determined that the states have already been designated in an absolute subordinate position.  Constitutionalist Kris Anne Hall outlined this problem in detail on her radio show in a five-part series (you can listen to them HERE).  So, is it worth the risk of having what our founders put in place undone by an ill-conceived convention?  Many say no.

The thing to remember is that the Texas Plan does nothing to help the bottom line problem with enforcement of the Constitution, namely, that the document is being ignored by the federal government and our nation as a whole.  We can add an innumerable amount of amendments to it and it will have absolutely no effect until that bottom line problem is dealt with.  But, this really should be no surprise?  The Constitution isn’t taught in our schools and if it ever is it is referenced as an antiquated document or as a “living breathing document”.  If we want to solve the problems we are facing as a nation today we must stop all the political grandstanding and political theater that we are subjected to on a daily basis and deal with the root of the problem.  And that is namely that the federal government is breaking the law which was written to govern it by the states who created it.