As the Tony Perkins annual event winds down, most of the buzz surrounds Ted Cruz. But Mark Levin (a.k.a. “The Great One”) gave the faithful a stirring cry on how best to “take our country back”. Mr. Perkins introduced the Great One as “one of the top constitutional lawyers in America today”, and that his new book “lays out a path to restore America’s founding principles”.[foot] http://therightscoop.com/watch-mark-levin-at-the-values-voter-summit-2013/[/foot]
In a (very small) nutshell, Levin[foot]Quick note:this idea is not original to him[/foot] would use Article V of the U.S. Constitution to call two-thirds of the state legislatures together to propose new amendments to our founding document. Levin outlines his ideal amendments in his book, which range from a balanced budget to the repeal of the 17th amendment to a nationwide mandatory voter ID law. The procedural maneuverings would be too tedious to describe here; suffice it to say that even serious conservative constitutional scholars disagree over some of the details.[foot]A dizzying thesis on this conservative strategy can be found here: http://www.compactforamerica.org/legal-brief-the-compact-for-americas-laser-focused-article-v-convention-is-clearly-constitutional/ A conservative retort and an alternate strategy may be found here: http://publiushuldah.wordpress.com/ Google “political question” for a good read on how the courts might be involved in this process.[/foot] Since this route has never been successfully navigated before, we can be certain there would be some “glitches” along the way.
So after listening to Levin, I did a little research. I started by reading Article V. Guess what? Article V requires something a little extra after two-thirds of the state legislatures call for the amendments — something Levin neglected to inform his listeners in this speech he made alongside Perkins. Check out this old bit of parchment:
“…when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof…”
What?
Here’s the deal. Before any amendment can be ratified, it must be agreed to by 3/4 of the states. The 2/3 number is what is necessary to begin the process.
Levin never mentioned “three-fourths” of anything in his speech. He emphasized “two-thirds.” So, okay, let’s do some math. And remember, you have to round up, because there can’t be a half a state legislature (Nebraska notwithstanding):
50 x (2/3) = 34
50 x (3/4) = 38
Comparing these numbers to Statescape[foot]http://www.statescape.com/resources/partysplits/partysplits.aspx>Source[/foot], we can count up the number of state legislatures each party controls:
Republican – 26
Democratic – 18
Split/Other – 6
Total – 50
The split states are Iowa, Kentucky, Nebraska (unicameral, non-partisan chamber), New Hampshire, New York, and Virginia (duly noting Virginia’s senate is deadlocked at 20-20 with a Republican lieutenant governor). Adding all the split states to the Republican’s tally (for fun, let’s include New York and New Hampshire) yields 32 chambers. That’s 2 short of the amount required to actually get the ball rolling, and 6 shy of the number needed to enact the amendments. Republicans are making a heroic attempt to flip the Colorado Senate through off-year recalls, but even that is fool’s gold – the lower chamber is solidly Democratic. No other state appears even remotely close to being competitive for Republicans to flip (Nevada and Oregon look like the most likely candidates, but that would probably take a “wave” year election). Just as many states look like potential flips from R to D (most notably Pennsylvania and Michigan, but let’s include Arkansas for good measure. Hey, we gave up New York, right?). Ultimately, it only takes 13 state legislatures saying “no thanks” to this scheme to upend the whole applecart. The numbers simply are not there — wave election or no.
The reason Mr. Levin does not mention the 3/4 ratification requirements is obvious.[foot]Indeed, in my brief travels over the interweb I have found few conservative commentators who even mentioned the ¾ ratification requirement. When I have found it mentioned, it is usually given a backseat status. That’s dishonest, and it’s bad business politically. Selling a strategy doomed to failure might gin up some short-term enthusiasm (read: cash), but in the long run the base will become depressed and fatigued with the results. The opposition party will see an opportunity to score a solid and decisive win. How can Republicans ever claim to be the “Pro-Constitution” party if they try this and can’t succeed?[/foot] I’d love to know how deeply his book touches on this, but I really don’t have time to scan over a few hundred pages of crap. The only “great” thing about this conservative strategy is that it sells books and generates advertisement revenue. This false prophet has sold a pipe dream to his flock, and it doesn’t take a constitutional scholar to see through the rubbish of this supposed “Great One”.