In 90-Page Proposal, Abbott Asks States to Amend U.S. Constitution

In a fresh — but long shot — assertion of states’ rights, Gov. Greg Abbott on Friday called for a convention of U.S. states to pass nine new amendments to the U.S. Constitution, measures meant to limit the powers of the federal government.

The amendments would require a balanced U.S. budget and prohibit Congress from regulating any activity “that occurs wholly within one state,” a category some conservatives say includes gun use and marriage. The amendments would also allow states to override federal laws or U.S. Supreme Court decisions if two-thirds of them disagreed and require a seven-justice supermajority for U.S. Supreme Court decisions that invalidate any law passed by state or federal legislators.  

When Texas lawmakers meet in 2017, the governor will ask them to approve the constitutional convention — one that would have to be agreed to by other states to actually occur. In 2015, a similar bill passed the Texas House but ultimately died in a Senate committee.

“When measured by how far we have strayed from the Constitution we originally agreed to, the government’s flagrant and repeated violations of the rule of law amount to a wholesale abdication of the Constitution’s design,” Abbott wrote in the 90-page proposal, which he was set to announce in a 1 p.m. speech before the conservative Texas Public Policy Foundation.

Abbott said President Barack Obama's administration had infringed on states’ rights and individual liberties, specifically mentioning an executive order Obama announced this week on gun control.

“The president took action that threatens Second Amendment rights, even though the entire point of the Bill of Rights was to protect Americans from invasions of their liberties,” Abbott said in his prepared remarks. 

The 27 existing amendments to the U.S. Constitution were all approved by a two-thirds vote of both chambers of Congress. A constitutional convention would be a different, untested route to passing new amendments. By law, if 34 states ask for a constitutional convention, they may meet to consider changes. Any amendment would require the support of at least 38 states to become law.

Sanford Levinson, a constitutional law expert at the University of Texas at Austin, cautioned that a constitutional convention approach is like a sweater. "You see a thread loose, and you pull at it, then you discover that the whole arm is falling off because things are connected to one another," he said. 

But Abbott is not the first Republican to endorse a constitutional convention. GOP presidential candidate Marco Rubio, a U.S. senator from Florida, called for a constitutional convention in an op-ed published Wednesday in USA Today.

And in 2011, then-Texas Gov. Rick Perry called on state lawmakers to endorse a constitutional convention for a federal balanced budget amendment. They didn't have the support to do it.

Critics of the convention approach say the constitutional rules governing a meeting of the states could allow for a "runaway convention," in which an unlimited number of amendments could be offered, potentially creating drastic changes to the U.S. Constitution. Tea Party groups opposed Perry's 2011 proposal on similar grounds.

Konni Burton, now a Republican state senator from Colleyville, told the Fort Worth Star-Telegram that year that such a convention could allow "anyone to offer up any number of amendments ... based on their own ideology and interests, which could ultimately radically change our Constitution." At the time, she was speaking on behalf of the NE Tarrant Tea Party.

Abbott insists those fears are unfounded. His policy paper argues the Constitution "leaves it to the states to limit the scope of the convention." And even if additional amendments were offered, he writes, "none of the delegates' efforts would become law without approval from three-fourths of the states."

As Abbott was preparing to unveil his proposal on Friday, his protégé in the attorney general’s office, presidential contender Ted Cruz, was pledging to push for “quite a few” constitutional amendments of his own if elected. Speaking with reporters while campaigning in Iowa, the U.S. senator from Texas said a balanced budget amendment is among the add-ons the country most critically needs. 

Cruz, the former solicitor general of Texas, went on to reiterate his calls for constitutional amendments that would impose term limits for members of Congress and justices on the U.S. Supreme Court. He has also proposed a constitutional amendment that would leave it to state legislatures to define marriage.

“There are many more amendments we need, in part because the federal government and the courts have gotten so far away from the original text and the original understanding of our Constitution,” Cruz told reporters after a stop in Webster City, Iowa.

Patrick Svitek contributed reporting.  

Disclosure: The Texas Public Policy Foundation and the University of Texas at Austin are corporate sponsors of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.