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Story highlights

Texas governor wants constitutional convention to pass nine new amendments

Plan would bolster state power at expense of federal government

Constitutional scholar calls plan a legal "black hole"

Marco Rubio has offered similar proposal on trail and in recent op-ed

CNN —  

Texas Gov. Greg Abbott on Friday revealed his plans for a “convention of the states,” the first in more than 200 years, as part of a larger effort to reshape the U.S. Constitution and expand states’ rights.

“We are succumbing to the caprice of man that our Founders fought to escape,” Abbott said in a statement followed by a speech at the Texas Public Policy Foundation. “The cure to these problems will not come from Washington, D.C. Instead, the states must lead the way.”

Abbott, despite deep ties to Texas Sen. Ted Cruz, has yet to endorse a candidate in the GOP’s 2016 presidential primary race, but he might now have some common cause with Florida Sen. Marco Rubio, who in scattered comments over the past month and then more explicitly in a USA Today op-ed on Wednesday, proposed a constitutional convention as a means of “reduc(ing) the size and scope of the federal government.”

Rubio’s spokesman Alex Conant told CNN on Friday, “It’s great to have (Gov. Abbott’s) support for the convention of states.”

Rubio has suggested enacting term limits on federal legislators and Supreme Court justices, and creating a balanced budget amendment.

The balanced budget idea also appears in Abbott’s program. But he goes into greater specific detail than Rubio elsewhere. As part of his “Texas Plan,” Abbott has proposed nine constitutional amendments, all designed to strengthen the states at the expense of federal power. One would require a “seven-justice super-majority” – rather than a simple majority of five – for the Supreme Court to “invalidate a democratically enacted law.”

Other amendments would allow a two-thirds majority of the states to override any high court decision and prohibit federal legislators from seeking to regulate “activity that occurs wholly within one state.” A similar majority would also be empowered to “override a federal law or regulation.”

In a 70-page, annotated treatise entitled, “Restoring the Rule of Law with States Leading the Way,” Abbot spells out his strategy and goals in further detail, while alternately attempting to preempt arguments about their legality. He also levels some political attacks, including an accusation that Obamacare proponents in Congress were responsible for “abandoning, ignoring, and eroding the strictures of the Constitution.”

In an email to CNN, Laurence Tribe, a professor of constitutional law at Harvard Law School, expressed doubts over the viability of Abbott’s plan. The process and protocol for gathering a “convention of the states” remains a mystery, he said, even to most experts.

“Nobody knows exactly how we’d determine when a new convention must be called,” or “whether distinct amendment calls could be combined to reach the requisite number of states,” Tribe wrote, citing his own research.

The role of the courts and Congress is also unclear and, as Tribe explained, despite arguments to the contrary, “there is no agreed-upon process for coming up with definitive answers to any of these unknowns,” creating a sort of legal “black hole.”

The amendment process is laid out in Article V of the Constitution, which says that either supermajorities in both houses of Congress or a national convention can propose them and a larger supermajority of states must sign on in order to secure ratification.

Here’s what that sounds like in the Constitution:

“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”

There have been only 17 amendments since the original Bill of Rights. The most recent, the 27th amendment, keeps pay raises for the House and Senate from taking effect until after the next election. It was first proposed in 1789, but was not added to the Constitution until 1992.