Trying to Abolish the Convention’s One-State/One-Vote Rule Not Only Would Be Unconstitutional—It Wouldn’t Be Worth Trying
One of the far-fetched arguments used to persuade conservatives to oppose an amendments convention is that if 34 states apply, a left-wing Congress might try to dictate that commissioners (delegates) be allocated by population rather than by one state/one vote.
For reasons explained in earlier posts, such a move would be unconstitutional: A “convention for proposing amendments” is a meeting of equal semi-sovereigns, not a popular assembly (although the 38-state ratification requirement assures that any proposal has majority popular support before it is ratified). Because a central purpose of the convention is to bypass Congress, it is highly unlikely that either the courts or the states would acquiesce in such a maneuver.
Moreover, a successful effort along those lines is highly improbable politically: It would require a major change in the political composition of both houses of Congress. Indeed, it would require much more than that—because even when Congress was firmly Democratic, it repeatedly refused to pass legislation along those lines.
And it wouldn’t even be worthwhile to try, because converting the convention to a population basis wouldn’t make much political difference anyway. In the real world, over-representation from large “blue” states like California, New York, and Illinois would be offset by over-representation from large “red” states like Texas, Florida, and Georgia.
David Guldenschuh, a Georgia lawyer active in Article V issues, ran the numbers, and here is what he found:
* There are currently 30 states in which Republicans control both legislative chambers. There are 11 in which Democrats control both houses, eight are divided, and one (Nebraska) is non-partisan. So on a one-state, one vote basis, the “red” states would be comfortably in control of a convention. Divided chambers are likely to produce divided committees (delegations). By traditional rules, if a committee is evenly divided on an issue, it effectively abstains.
* The most liberal of the rejected congressional proposals was for a convention of 435 commissioners, one from each U.S. House district. (Another proposal, for allocation based on the electoral college, was slightly more conservative.)
* Consider the most liberal proposal: Based on the make-up of the current House, it still leaves “red states” (i.e., Republicans) comfortably in control: 246 to 188, with one vacancy.
* Or assume that the 435 are allocated according to the composition of each state legislature. The result then is 252 Republicans, 116 Democrats and 67 from split states—yet another a clear margin of “red state” control.
So how you allocate the commissioners does not really make that much political difference. That fact sharply reduces the motivation to try to reverse the “one state/one vote” rule.
Of course, future elections will result in voting shifts one way or the other. Although it is unlikely in the next few years, Democrats eventually will re-capture both Houses of Congress. But such changes do not happen in a vacuum—they are likely to be paralleled by corresponding changes in the state legislatures as well.
Let me be clear: It would not be constitutionally acceptable to depart from the historic rule. On the contrary, the courts tell us that the historic rules are effectively part of the Constitution’s Article V.
What these numbers do tell us is that neither party will have much motivation to try to change convention voting rules, even if they could.
As the likelihood of a Convention for Proposing Amendments increases, people are beginning to adjust to the idea.
A recent example is adoption of a new rule by the U.S. House of Representatives providing for the recording and public availability of state legislative applications for a convention. The rule change, sponsored by Rep. Steve Stivers (R.-OH), provides that the Chairman of the Judiciary Committee may transmit any such application to the House Clerk, and that “the Clerk shall make such . . . publicly available in electronic form, organized by State of origin and year of receipt.”
Although this is a modest change, it apparently is the first time either chamber of Congress has provided for an orderly way to handle and publicize Article V applications.
Another implication relates to the convention call. Under Article V, once Congress receives applications on a particular subject from two thirds of the state legislatures (34 of 50), it MUST call the convention. Nevertheless, for many years there has been concern that a ruthless congressional majority might stonewall by imposing unreasonable rules for counting applications or simply refuse to call or issue the call subject to unreasonable or unconstitutional terms. As the tone of Rep. Stivers’ news release announcing the change suggests, this rule change reduces those concerns.
This development also suggests what I am hearing elsewhere: A sizable contingent in Congress actually wants the state legislatures to get their act together and propose an amendment to fix a broken system.
The article was published in 1992 and is entitled A New Constitutional Convention? Critical Look at Questions Answered, and Not Answered, by Article Five of the United States Constitution. It was authored by John Eidsmoe.
The article contains many of the inaccuracies about the amendments convention process that were common in 1992—such as the claim that the 1787 gathering was called by Congress, that it was called only to amend the Articles of Confederation, that the delegates exceeded their power, and that an Article V convention is a “ConCon.” All of those inaccuracies have been corrected in the ensuing years.
Unfortunately, the article includes other slips that should not have occurred even in 1992. One of these is the unusual assertion that when the Constitutional Convention added the amendment convention procedure, the delegates simply made a hasty mistake!
The article acknowledged that the delegates added the procedure on Sept. 15, 1787 “to guard against an unresponsive congress.” But it stated that “in contrast to the meticulous care the Framers exercised in deliberating on various other provisions of the Constitution, the Concon provision of Article V was added rather hastily, at a time when the delegates were preparing to close their deliberations; and this provision did not receive the careful attention given to most other provisions of the Constitution.”
In fact, however, the amendments convention procedure was not a new idea, but had been under consideration for weeks. It was based on provisions in several state constitutions and the delegates in Philadelphia had been discussing it well before anyone proposed the congressional method!
Thus the Constitution’s first draft, presented by the Committee of Detail on August 6, contemplated a convention of states as the sole mechanism for amendments:
“On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a Convention for that purpose.”
Several delegates supported granting Congress direct power to propose as well, so the wording became:
The Legislature of the United States, whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose amendments to this Constitution . . . .
But this version had the unwitting effect of giving Congress sole power to propose. That went too far, and that is why George Mason successfully recommended re-inserting the convention of states as a proposal mechanism to bypass Congress.
The author speculated that the delegates’ supposed haste was why “there are many unanswered questions about the nature and effect of an Article V convention.” But the actual reason for the supposedly “unanswered questions” is simply because there was no need to go into detail: Americans had previously held many conventions among states and colonies, and were fully familiar with the procedures.
Now, it would be unfair to charge the author with findings about convention history that were made after 1992. However, the author should have known that the amendments convention procedure was vetted and discussed repeatedly during a ratification process that lasted nearly three years. Indeed, the procedure seems to have had an important role in securing public agreement to the Constitution.
For the history of publications about Article V, see Part I of my legal treatise, State Initiation of Constitutional Amendments: A Guide for Lawyers and Legislative Drafters.
* * * *
* Some constitutional scholars give the title “Whac-A-Mole” to convention opponents’ tactics of inventing new arguments after earlier arguments have been discredited. The later arguments are sometimes inconsistent with the former.
Filed under: All Postings, Article V, The Founding, supreme court
Some people have asked for further clarification on why the Constitution’s Necessary and Proper Clause does not grant Congress power to use its convention call to regulate a Convention for Proposing Amendments.
This is a technical area and can be difficult to grasp (or explain, for that matter). You have to understand the nature of the Necessary and Proper Clause, analyze its wording, and put together a variety of judicial rulings.
Accordingly, I’ve expanded my review of the subject. You can find it here.
Filed under: All Postings, Article V, The Founding, supreme court
A little known aspect of our Constitution is that it delegates power, not just to the U.S. Government and to its units, but also to persons and entities outside the U.S. Government. In each case, the power to act is derived ultimately from the Constitution. Even when those persons or entities are states or officeholders of states, their authority derives from the Constitution rather than from the pool of authority retained by the states under the Tenth Amendment.
The Constitution’s delegations of power to actors outside the U.S. Government are surprisingly plentiful. The first listed in the Constitution is Article I, Section 2, Clause 1 [“I-2-1”], which implicitly authorizes each state to define qualifications for the U.S. Representatives from that state. The Seventeenth Amendment extended this authority to include U.S. Senators.
I-2-4 empowers (and directs) state governors to “issue Writs of Election” to fill vacancies in the House of Representatives.
The original Constitution (I-3-1) also delegated authority to each state “Legislature” to elect U.S. Senators. The word “Legislature” was meant literally: The delegation was to the state representative assembly. It was not to the general state legislative authority, which the assembly might share with the governor (through the veto) or the people (through initiative and referendum). In other words, election of Senators was not subject to the governor’s approval, nor could it be handed off to the people. In addition, I-3-2 empowered each governor to temporarily fill senate vacancies during a legislative recesses. This situation continued until the Seventeenth Amendment moved Senate elections to the voters at large. That amendment also conferred on state legislatures power to authorize the governor to make temporary appointments.
The Supreme Court has held that another grant to each state “Legislature” (I-4-1) actually is a grant to the broader legislative authority rather than merely to the state’s representative assembly alone. The Times, Places and Manner clause allows each state to regulate the “Manner of holding Elections for Senators and Representatives.” Because the grant is to the general legislative authority rather than to elected assembly, the governor can veto such regulations, and the people can make them through the initiative process or approve or reject them through referendum, if the state constitution so provides.
The Constitution further bestowed on state legislatures a veto over congressional acquisitions under the Enclave Clause (I-8-17) and over proposed state divisions and combinations (IV-3-1).
Article II, Section 1 empowers “Each State” to choose the method of selecting presidential electors from that state. The same section, coupled with the Twelfth Amendment, authorizes the electors to choose the President. Again, both powers derive from the Constitution, not from those retained under the Tenth Amendment.
The Guarantee Clause (Article IV, Section 4) grants state legislatures the legal capacity to compel the federal government to protect them against “domestic Violence,” and it gives like capacity to state governors when the legislature cannot be convened.
Article V, which governs the amendment process, grants power to four kinds of assemblies: Congress, state legislatures, state conventions, and a federal convention to propose amendments. The courts tell us that in Article V matters, these assemblies act independently, and not as branches of any government.
Article VI empowers, and directs, state judges to apply the Constitution as the “Supreme Law of the Land.”
When an entity outside the government exercises authority conferred by the Constitution, the Supreme Court says it exercises a “federal function.” However, the Court also has made clear that exercising a federal function does not convert an independent entity into a part of the U.S. government.
One interesting implication of these grants, as I noted in an earlier posting, is that they fall outside the incidental federal legislative power defined in the Necessary and Proper Clause. This is because the Necessary and Proper Clause generally excludes laws not directed to the federal government or to “Departments” and “Officers” of that government.
Apparently in recognition of this, the framers provided for several compensating grants to the federal legislature (i.e., Congress-subject-to-presidential-veto). The Times, Places and Manner Clause permits Congress to regulate, to a certain extent, a governor’s writ of election and to overrule most state regulations of congressional elections. (I-4-1). Moreover, even though states are primarily responsible for selecting presidential electors, Congress may dictate “the time of chusing the Electors, and the Day on which they shall give their Votes.” (II-1-4). And in the amendment process, Congress calls the convention and chooses among two modes of ratification.
A new II Backgrounder contains a brief and clear explanation of how the people, through their state legislatures, can address federal dysfunction while bypassing Congress.
The Backgrounder is the first publication of II’s new “Article V Information Center.”
You can read it here.
This article originally appeared at The American Thinker.
The Article V Handbook, which I authored for the American Legislative Exchange Council, emphasizes that citizens pressing for constitutional amendments should avoid fringe or unpopular proposals. The Handbook distills four guiding principles for selecting amendments worthy of support:
(1) An amendment should move America back toward Founding principles.
(2) The amendment should enact substantial, rather than merely symbolic or marginal, reform.
(3) The amendment should enjoy supermajority support among the public. There must be room for slippage once opponents begin to attack the proposal.
(4) It should address a subject that state lawmakers of both political parties can understand and appreciate.
“As of this writing,” the Handbook adds, “a balanced budget amendment probably meets all four criteria; an amendment to abolish the income tax probably does not.”
Measured by subsequent success, those four principles have been vindicated. Since the Handbook was published in 2011, seven states have adopted BBA applications—far more than on any other topic. No legislature has adopted an amendment to repeal the income tax.
By my count, there are now 21 valid, aggregable BBA applications outstanding. The 2014 elections created a favorable political environment in the states, so the number may approach the required 34 by the end of next year. However, as BBA activists have long understood, drafting a politically and practically viable balanced budget amendment presents a considerable challenge. One reason lies in the nature of the amendment: establishing rules for budgeting is complicated. But there are other difficulties as well.
The amendment has to have teeth without threatening effective government. The balanced budget rule must take effect without unnecessary delay, but not so fast as to be overly disruptive. It should permit deficit spending in emergencies, but the emergency clause must not be easily manipulable. It must be enforceable without ceding the budget process to the courts. The amendment must be comprehensive enough to do the job, but not overly detailed.
Fortunately, history offers us some valuable drafting lessons. The relevant history includes experience both with state fiscal restraints and with prior U.S. constitutional amendments. Very instructive is the history of the 14th amendment, a critical and necessary measure that almost failed of ratification because of poor authorship.
Here are some drafting suggestions. This list is not exhaustive:
* Keep it short. Americans treasure their Constitution’s brevity, and will be suspicious of an amendment that looks like an economics treatise. Also, the longer a proposal, the more there is for opponents to pick apart. Tax and expenditure limitations in some state constitutions are far too long to suit the U.S. Constitution. At about 425 words, the 14th amendment proved too detailed, and offered opponents much fodder for attack.
* Make the substance fit. An amendment’s substance should blend with the “spirit” of the rest of the Constitution. For example, the federal government is wholly representative in nature, so requiring national popular referenda would be a major, and probably unacceptable, departure.
* Make the language fit. The amendment’s language should be consistent with the rest of the Constitution. If the draft employs words appearing elsewhere in the document, make sure the usages are consistent. Endless disputes have arisen over the 14th amendment’s phrases “privileges or immunities” and “due process of law,” because it is unclear whether the critical words in those phrases mean the same as in other parts of the Constitution.
* As a corollary: Avoid modern technical phrases such as “gross domestic product” or “discretionary spending.” Technical terms engender popular suspicion because everyone knows they can be manipulated. Moreover, as time passes the meaning of technical terms can be forgotten. For several years now, I’ve made a living explaining the Constitution’s many technical phrases to Americans who had forgotten what they were supposed to communicate. That should not have been necessary.
* Don’t overreach. Drafting an overly-strict amendment is one kind of overreach. Another kind of overreach is adding bells and whistles to win the support of particular groups. To be politically acceptable, a BBA should be “clean.” It should feature neither exemptions for entitlements (favored by liberals) nor anti-tax add-ons (favored by conservatives). Bells and whistles create the perception of favoritism and probably will not convince BBA skeptics anyway.
* Avoid numbers and formulae. They create public suspicion and people find them hard to understand. (Most people find the formula in Section 2 of the 14th amendment, for example, to be inscrutable.) Formulae and numbers also are manipulable: Experience with state tax and expenditure limitations shows that a 5% annual “ceiling” often becomes a 5% annual floor.
* Don’t concede the constitutionality of the welfare state. Proposals that assume the validity of existing programs may prejudice future litigation over the validity of those programs. Current spending practices also are inconsistent with the founding-era principle of limited government. Any such a concession will provoke opposition among the fiscally-conservative activists necessary to ensure ratification.
* Favor procedure over substance. Some of the Constitution’s most effective provisions create checks and balances rather than merely mandating “thou shalt” or “thou shalt not.” Instead of defining the “emergency” that justifies a deficit, the amendment should include a special procedure for authorizing it.
* Be very careful with legislative supermajority requirements. Because of how group dynamics work, an excessive supermajority requirement in an assembly the size of the House of Representatives may actually increase deficits. Drafters should consult existing social science research on this topic, or rely on other mechanisms instead.
Readers with additional suggestions should email them to me at email@example.com.
Earlier this year, I documented one of the reasons we know an Article V convention is a “convention of the states” rather than a mass popular gathering: Founding Era documents tell us so. I listed several such documents. (Subsequent to the Founding, in the case of Smith v. Union Bank, the Supreme Court also referred to an Article V convention as a “convention of the states.”)
Here is another piece of evidence:
In 1788, New York ratified the Constitution, but the state ratifying convention called for extensive amendment. In a circular letter to the other states, it urged that an amendments convention be called. On February 4, 1789, therefore, the New York state assembly, the lower house of the legislature, debated whether to submit an application to Congress for an Article V convention. Only four assemblymen spoke to the issue, but two of them characterized the gathering as a “convention of the states.”
Both of those two were highly significant figures. Samuel Jones had been a key member of the ratifying convention. So also had John Lansing, Jr., a respected judge. Lansing, furthermore, had been a delegate to the Constitutional Convention itself.
No one called the amendments convention anything else, although the eventual application used the term “Convention of Deputies from the several States.” The term “Deputy” was a synonym for “agent”—in this case, the agent of one’s state.
You can read the legislative proceedings in volume 23 of the Documentary History of the Ratification of the United States Constitution.
I have updated the earlier posting accordingly.
Some people claim the rules pertaining to the Constitution’s “Convention for Proposing Amendments” are largely unknown, but there actually is quite a lot of law on the subject.
Earlier this year, I pulled together that body of law in a legal treatise entitled “State Initiation of Constitutional Amendments: A Guide for Lawyers and Legislative Drafters.” This is the latest of several legal treatises I’ve written on various subjects for national publishers, mostly on constitutional and property law.
Section 3.9 of the treatise deals with the rules by which Congress must call the convention. That section has now been updated and supplemented extensively. You can read the treatise here. It is primarily designed for legal professionals, but many lay people will find it useful.
Filed under: All Postings, Article V, The Founding, supreme court
The past week saw yet another assault on those reformers who seek to cure federal dysfunction by promoting a “Convention for proposing Amendments.”
The latest attack took the form of an opinion column that in content offered nothing new. It featured many of the usual errors of commission and omission: The author confused a “Convention for proposing Amendments” with a constitutional convention. He alleged that convention protocols are unknown, and that “anything goes” with “no rules, guideposts, or procedures.” He asserted that the courts won’t provide any guidelines and that the convention would threaten “the freedoms we take for granted under the Bill of Rights.” He demonstrated no awareness whatsoever of the history behind the amendment process nor of the long line of judicial decisions, from the Supreme Court and other tribunals, prescribing ground rules for that process.
But this alarmist column was distinctive in two respects. It was not penned by one of the conspiracy types with whom we usually associate such stuff. It was written by Robert Greenstein, a Washington, D.C. insider who served in the Carter and Clinton administrations and on the Obama transition team. Moreover, the medium of publication was the liberal establishment’s iconic newspaper, the Washington Post.
So why are pillars of the liberal establishment picking up the flag from rightwing conspiratorialists?
The answer to this question has three parts:
* They are resorting to a playbook that was, in fact, scripted not by conservatives but by the Left;
* the Left has a great deal to lose if the convention movement goes forward; and
* at least some establishment Leftists have become concerned about reformers’ recent successes.
First, as to the playbook:
For many years after the Founding, no one seems to have confused an amendments convention with a constitutional convention. For decades, everyone seems to have recognized that an amendments convention was a convention of states that—like all previous interstate gatherings—was nothing more than a diplomatic task force of state government representatives (”commissioners”) operating under a prescribed agenda.
At the turn of the last century, however, when state legislatures were applying for a convention to propose direct election of U.S. Senators, a few opponents began to contend that any such gathering would be a “constitutional convention.” During the 1960s and 1970s, the liberal establishment elaborated this contention into the “runaway convention” scenario often advanced today.
Several perceived threats precipitated the Left’s invention of the runaway scenario. The first was an effort by Senator Everett Dirksen (R.-Ill.) for a convention to propose an amendment overruling the Supreme Court’s legislative reapportionment decisions. The second was a movement to adopt a federal balanced budget amendment. The third was talk of a convention to propose an amendment reversing the Supreme Court’s abortion decision in Roe v. Wade.
Russell Caplan’s book Constitutional Brinksmanship (Oxford University Press, 1988) chronicles some of the methods the Left used to respond to those perceive threats. Senators Robert Kennedy (D.-N.Y.) and Joe Tydings (D.-Md.) led opposition in the Senate, and several Kennedy associates, such as Theodore Sorensen and Arthur Goldberg, led a public disinformation campaign. Various liberal academics also participated.
Perhaps the most heated anti-convention rhetoric came from the New Yorker’s Richard Rovere, a Kennedy sycophant. Rovere charged that a convention could “reinstate segregation and even slavery; throw out much or all of the Bill of Rights . . eliminate the Fourteenth Amendment’s due-process clause . . . and perhaps, for good measure, eliminate the Supreme Court itself.” In the 1980s, Chief Justice Warren Burger, apparently concerned for the power of his court, adopted a less heated version of the same line.
From the participants’ viewpoint, the disinformation campaign was an unqualified success: It frightened enough people effectively to disable one of the Constitution’ most important checks and balances. Unfortunately, it was a disaster for the country, because it removed a crucial constitutional curb on federal overreaching.
During next 20 years, figures on the political Left found it unnecessary to do their own heavy lifting because many naive conservatives did it for them by alarming enough people to defeat all efforts to impose restraint, fiscal or otherwise, on Washington, D.C.
A few years ago, however, the tide began to change. Several scholars, I among them, undertook previously-neglected legal and historical research into the amendment procedure. We restored for all to read the rules as the Founders understood them and as the courts apply them. Then Mark Levin publicized these findings in his best-selling book, The Liberty Amendments.
Empowered by this new information, state lawmakers began to resume their constitutional responsibilities in the amendment process. Most state legislatures now participate in the Assembly of State Legislatures, an organization planning for a possible amendments convention. Since 2011, at least 11 states have adopted at least 15 formal applications for a convention. Most of those applications are targeted at federal fiscal excess.
Obviously, reinvigorating of a procedure by which the people, acting through their state legislatures, can check federal overreaching, is not something that people like Mr. Greenstein and other Washington, D.C. power brokers want to see. It poses to them the threat of authority seeping out of Washington and back to the state capitals and to the people at large. Hence their wish to bury the movement as quickly as they can. If scaremongering from the Right won’t do the job, then they’ll try scaremongering from the Left.
Several years ago, I advised reformers that they would know they were winning when the liberal establishment stopped using misguided conservatives as cannon fodder, and entered the fray directly. That has now happened.
I further advised that the power of the Left would pose a far greater challenge than the arguments of conservatives. Reformers have largely overcome the lesser challenge. America’s future depends heavily on whether they can overcome the greater.