More Evidence An Article V Convention is a “Convention of the States”

November 20, 2014 by Rob Natelson · Leave a Comment
Filed under: All Postings, Article V, The Founding 
Rob at the Univ. of Montana

Rob at the Univ. of Montana

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.

Treatise on Amendments Conventions Updated to Include Rules for Congress’s “Call”

November 6, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V 
Rob at the Univ. of Montana

Rob at the Univ. of Montana

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 actually 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.

The Washington Post Picks Up the Flag from the Convention Alarmists

October 27, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding, supreme court 
Rob in Roxborough State Park Colorado

Rob in Roxborough State Park Colorado

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.

The Famous Case of Coleman v. Miller—and, No, It Doesn’t Give Congress Total Control Over the Amendment Process

September 1, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, supreme court 
Rob at the Univ. of Montana

Rob at the Univ. of Montana

Not long ago, I was listening to a radio talk show and was assured by a caller that the Supreme Court, in the case of Coleman v. Miller, had delegated all important decisions over the amendment process to Congress. In other words, the caller said, Congress can make all decisions on every amendment issue: how states apply for a convention, how the convention conducts its business, whether amendments are ratified, etc., etc. Neither the states nor the courts would have anything to say about it.

Interesting assertion. Problem is, it’s not true.

The Supreme Court decided Coleman v. Miller in 1939. The case arose from a dispute over whether the Kansas legislature had properly ratified a proposed amendment to grant Congress authority over child labor. (All states banned child labor, but their laws were inconsistent.) The amendment had been pending for over 13 years, and the Kansas legislature earlier had rejected it.

So one question was whether Kansas could ratify an amendment after its earlier rejection. Another was whether Kansas could ratify an amendment 13 years after it was proposed. Still another was whether the lieutenant governor should have been allowed to cast a vote in an evenly-divided state senate. And there also was an issue of whether the plaintiffs had standing.

The Kansas Supreme Court upheld the ratification, and all those issues went to the U.S. Supreme Court.

The U.S. Supreme Court’s opinion was written by Chief Justice Charles Evans Hughes, an old-line progressive with a sterling legal reputation. This is how he ruled:

* The plaintiffs had standing.

* Apparently because the Supreme Court justices were evenly divided (one justice may not have participated) on whether they could consider the lieutenant governor issue, the Kansas court’s judgment upholding the lieutenant governor’s vote was sustained.

* Historical practice had been to leave to Congress the decision of whether a state ratification was valid if the same state had earlier (or later) rejected it.

* There was no way the Court could judge how long a proposed amendment might last. That was a judgment for Congress to make—by, for example, inserting a time limit in its original proposal.

The case certainly does not hold that Congress has complete control of the amendment process. I’ll address below where that misconception came from.

Two holdings in Coleman v. Miller were particularly notable, but only one remains important today. The Court’s rulling that it couldn’t judge how long a proposed amendment lasted is no longer relevant. That’s because America agreed in 1992 that proposed amendments lasted forever, unless they were withdrawn. We so agreed when we ratified the Twenty-Seventh Amendment, which Congress had proposed in 1789, more than two centuries earlier.

The part of the Coleman case still important today is its holding that courts interpret Article V in light of history. It was history that told the Court that Congress could resolve the conflict between a state’s ratification and its rejection. In this respect, though, Coleman is not unique: Both before and since, many judicial decisions have followed history in interpreting Article V.

Coleman also seems to clarify (although not entirely) that when Congress imposes a time limit on ratifying an amendment it proposes, Congress can do so because the time limit is part of its proposal. In other words, Congress’s authority to impose time limits doesn’t come from its prerogative to choose between the state convention and state legislative “modes of ratification,” as an earlier case had decided. It comes from its authority to propose. The implication is this: Although Congress can time-limit its own proposed amendments, it cannot impose time limits on an amendment proposed by an amendments convention.

Two justices dissented from the Court’s holding. They argued that the Child Labor Amendment proposal had expired. Four others concurred in the result, arguing that the plaintiffs had no standing.

There was another concurring opinion, too—this one written by Justice Hugo Black for himself and three colleagues. He claimed Congress enjoyed complete control over the amendment process and the courts had no power to review any of Congress’s decisions on that process. That’s where the misunderstanding about Coleman started. The notion that everything should be left to Congress did not come from the Court’s holding, but from the views of a minority.

Of course, anyone who reads Article V knows that the Black position was nonsense. Not surprisingly, subsequent court cases have rejected it repeatedly.

So why did Black make such a claim?

In 1939, the Court was entering the time period in which it was probably more deferential to Congress and the President than at any other time in our history. (Just five years later, Black was to write the Court’s decision in Korematsu v. U.S., deferring to the decision of Congress and the President to herd tens of thousands of American citizens of Japanese descent into concentration camps.)

Everyone knew that FDR had been considering constitutional amendments, and that he had the support of strong majorities in Congress. Black, who until recently had been a U.S. Senator closely allied to FDR, was still more of a politician than a jurist. Allies of FDR—such as Black and two of the other justices who joined his opinion—may have wanted to emphasize congressional control over the amendment process.

Such notions of extreme judicial deference to Congress are long gone. I doubt that the Black opinion would garner the support of even one Supreme Court justice today.

No, the Necessary and Proper Clause Does NOT Empower Congress to Control an Amendments Convention

August 23, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding 
Rob at the Univ. of Montana

Rob at the Univ. of Montana

A few days ago I heard a presentation by a spokesman for a group that claims to defend the Constitution and revere the Founders. Yet the spokesman trashed the Constitution’s framers for allegedly exceeding their authority and claimed they added a provision that largely rendered another provision useless. In other words, the spokesman charged the framers with being both (1) dishonorable and (2) incompetent.

The framers inserted the “Convention for proposing Amendments” in the Constitution to provide the states with a way of obtaining constitutional amendments without federal interference. Tench Coxe, a leading advocate for the Constitution during the ratification debates, pointed out that the convention device allows the states to obtain whatever amendments they choose “although the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them.” (Italics in original.)

The spokesman, however, asserted that the Constitution allowed Congress, through the Necessary and Proper Clause, to dictate, either in the convention call or by previous legislation, how an amendments convention is structured and how commissioners (delegates) are selected and apportioned.

The claim that Congress can use the Necessary and Proper Clause to structure the convention was first advanced in the 1960s, and has been repeated numerous times since then. A Congressional Research Service report published earlier this year noted that some in Congress have taken the same line, although the report did not actually endorse it.

But pause to consider: Why would the framers place in the Constitution a method by which Congress could largely control a convention created to bypass Congress? Were that framers that stupid?

Of course not. Most of them were highly experienced and extremely deft legal drafters.

Behind the belief that the Necessary and Proper Clause empowers Congress to structure the convention are three distinct assumptions—all erroneous: They are (1) that the scope of Congress’s authority under the Necessary and Proper Clause is broader than it is, (2) that the Clause covers the amendment process, and (3) that ordinary legislation may govern the amendment process.

The Necessary and Proper Clause is the last item in the Article I, Section 8 list of congressional powers. It reads:

The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

It happens that the most extensive treatment of the Necessary and Proper Clause is an academic book I co-authored with Professors Gary Lawson, Guy Seidman, and Geoff Miller: The Origins of the Necessary and Proper Clause (Cambridge University Press, 2010) (cited by Justice Thomas in a Supreme Court case earlier this year and apparently relied on by Chief Justice Roberts in 2012). This book reveals the Necessary and Proper Clause to be a masterpiece of legal draftsmanship.

The Clause was based on usage common in 18th-century legal documents. It is not a grant of authority, but a rule of interpretation. It tells us to construe certain enumerated powers as the ratifiers understood them rather than in an overly-narrow way. In legal terms, the Necessary and Proper Clause informs us that those enumerated powers include “incidental” authority.

Even if the Clause did apply to the amendment process, the authority “incidental” to Congress’s call would be quite narrow. An entity that calls an interstate convention always has been limited to specifying the time, place, and subject matter. It is the state legislatures who control selection of their own commissioners, thank you very much.

But in fact the Necessary and Proper Clause does not extend to the amendment process. To explain:

The Constitution includes numerous grants of power. These grants are made to Congress, to the President, to the courts, and to state legislatures and various conventions. The Clause is crafted to apply to most of those grants, but it also excludes a number of them. Specifically, it covers only the powers listed in Article I, Section 8, and those vested in the “Government of the United States” and in “Departments” and “Officers” of that government.

In other words, the Clause omits constitutional grants made to entities that are not part of the “Government of the United States.” For example, the Clause does not apply to state legislatures regulating congressional election law, prescribing selection of presidential electors, or (before the 17th amendment) choosing U.S. Senators. Nor does it apply to the conventions and legislatures operating in the amendment process.

But is Congress a “Department” of government as the Necessary and Proper Clause uses that word? When Congress acts in its normal legislative capacity, you can argue this either way. But when Congress acts under the amendment process, the answer is clearly “no.”

This is because when Congress and state legislatures act in the amendment process, they do so not as branches of government, but as ad hoc assemblies. We know this (1) from the Founding Era record, (2) from subsequent history and, perhaps most importantly, (3) from decisions of the United States Supreme Court. See, for example, United States v. Sprague (1931).

Well, if Congress cannot insert language in the “call” structuring the convention, can it pass laws for the same purpose? Again, the answer is “no.” A long list of 20th century cases from courts at all levels holds that ordinary legislation does not bind the amendment process. See, for example, Leser v. Garnett (1922).

Failure to Call Amendments Conventions Helps Explain Modern Federal Overreaching

August 18, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V 

Rob in the Colorado Rockies

Rob in the Colorado Rockies

This Article is a modified version of one appearing in the American Thinker.

If President after President failed to veto bills, would it surprise you if congressional power grew at the expense of the presidency? If the Senate never blocked the President’s appointments, would it surprise you if presidential power expanded at the expense of Congress? If the courts refused to enforce the Constitution’s ban on ex post facto laws, would it be strange if the states passed more ex post facto laws?

And if the states failed to use the Constitution’s “convention for proposing amendments” — a device inserted in the document to correct and check federal excesses and abuses — would it astonish you if there were federal excesses and abuses?

Of course not. Each of the Constitution’s checks is designed to ensure that the system operates in a balanced way while preserving liberty. Disabling any of these checks violates the Founders’ design.

Although Presidents often veto bills, senators sometimes block nominations, and the courts enforce the ban on state ex post facto laws, the Article V procedure by which a convention of states bypasses Congress and proposes corrective amendments has never been used to completion. The neglect helps explain the size and dysfunction of the modern federal government.

There are, of course, social, political, and economic explanations for expansion of federal power. There also are constitutional explanations. The three most common constitutional explanations are:

  1. The 16th Amendment (ending the apportionment rule for federal income taxes) granted the federal government a massive new revenue source.
  2. The 17th Amendment, by transferring senatorial elections from the state legislatures to the people, reduced the role of the states in the federal system.
  3. In the late 1930s and (especially) the 1940s, the Supreme Court abdicated its responsibility to police the boundaries of federal jurisdiction.

The 16th Amendment explanation falls short in a number of respects. Although the Amendment provided a new revenue source, it did not otherwise expand federal enumerated powers. Moreover, during the late 19th century (1865-95) and much of the early 20th century (1913-29) Congress enjoyed the de facto ability to impose non-apportioned income taxes. Yet federal spending shrank to (approximately) historic peacetime size after both the Civil War and after World War I.

The 17th Amendment reduced direct state legislative influence over the U.S. Senate, but it also provided some compensating advantages to the states. Some pro-small-government scholars believe the Amendment’s unbundling of state legislative and senatorial elections actually increased the relative power of the states.  In other words, despite all the rhetoric on the subject, the net effect of the 17th Amendment on the federal state balance is still uncertain.

As for the Supreme Court’s abdication of its duty to police federal limits in the late 1930s and 1940s: This was a crucial development, but it fails to explain the previous actions of Congress and the President. Beginning around 1930 (despite unfavorable Supreme Court precedent), federal politicians were able to leverage a financial crisis to seize far more power than federal politicians ever had before. During World War II, they were able to hold and expand that power.

The failure of state legislatures to trigger the Article V process in the midst of depression and war is understandable. Less justifiable was state inaction during the decades after World War II, when the federal government refused to retreat to traditional peacetime levels — especially since that sort of intransigence was precisely the kind of crisis for which the convention device was created.

To be sure, there were some efforts to trigger the convention procedure. The first was the state-based movement for presidential term limits, which became unnecessary when Congress proposed the the 22nd amendment.

The other two were the campaign for a balanced budget amendment and for reversal of Supreme Court apportionment decisions. Both were defeated when apologists for the status quo filled gullible activists with “runaway convention” hysteria.

Neglect of the Article V convention procedure has caused incalculable damage to the constitutional system. The recent surge in “convention of states” activity — at least 15 new state applications since 2011 — may signal that the cure has begun.

Momentum for an Amendments Convention Accelerates Even More

June 15, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding 
Rob atop St. Paul's Cathedral, London

Rob atop St. Paul's Cathedral, London

Well over a hundred state lawmakers from 33 states met this past week to plan for an Article V “Convention for Proposing Amendments.” Most attendees had been appointed officially as delegates by the leaders of their respective state legislatures.

The highly successful meeting dealt with such issues as convention rules and procedures, how to involve more legislatures in the process and how Congress should count applications. A key committee decided that, as with all prior interstate conventions, any Article V gathering should be conduced on the “one state/one vote” principle. The committee also decided that the basic source for convention rules would be Mason’s Manual, a familiar source now used by 70 of the 99 state legislative bodies (99 because there are two legislative chambers in 49 states each and one in Nebraska).

This was the second meeting of this group, formerly called the Mt. Vernon Assembly, but now the Assembly of State Legislatures. The effort is strictly bipartisan, and no special interest contributions are accepted.

A highlight of the proceedings came when the general session of the Assembly held its first rollcall vote—by states! The counting process was a little ragged the first time, but smoother the second. It was an electric moment. One member said later, “I was thinking, ‘Wow, this is really how it’s going to be!’”

Among those to be credited with conceiving and leading the Assembly are Rep. Chris Kapenga (Wisc.), Sen. David Long (Ind.), and Rep. Gary Banz (Okl.) The presiding officer for the general sessions was Rep. Matt Huffman (Ohio).

Momentum for Amendments Convention Accelerates

June 5, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V 
Rob in Golden Gate Canyon, Colorado

Rob in Golden Gate Canyon, Colorado

It increasingly looks like a “convention for proposing amendments” is really going to happen. The last 18 months have witnessed a flood of new state legislative applications for such a convention.

New Hampshire re-booted the process in 2012 with an application for a convention limited to considering a balanced budget amendment.

Late last year, the Ohio legislature passed a similar application by strong bipartisan majorities. The Tennessee legislature soon followed, by an overwhelming vote. Next came Michigan and Georgia. Florida then cured a defective 2010 application. The most recent action was in Louisiana, where the vote was not only bipartisan, but unanimous.

The balanced budget advocates now claim 24 of the 34 states necessary to force a convention, although my reading of the applications and the law puts the figure at 21. Either way, it is an extraordinary development.

In addition, four states have passed “faithful delegate acts” providing for discipline of convention commissioners, most recently Florida. (I’ll review the Florida law next week.)

There’s more: This year three states adopted the broader Convention of States application that permits the convention to consider amendments (but only amendments) that “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.” Those states are Florida, Georgia, and Alaska.

In addition, the Vermont legislature adopted the only “progressive” application—a proposal to restrict the scope of First Amendment freedoms. No other states have followed suit, and there is little chance that many will. Whatever dissatisfaction there may be with “money in politics,” most people recognize that far greater problems are federal overreach and looming federal bankruptcy.

Finally, there are two organizations of state lawmakers working toward a convention—the State Legislators’ Article V Caucus and the Mt. Vernon Assembly.

A Legal Treatise on the Law of Amendment Conventions—For Free!

April 6, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding 
Atop St. Paul's Cathedral, London

Atop St. Paul's Cathedral, London

A spate of new applications from state legislatures for a “convention for proposing amendments” make it more likely that we will have an amendments convention in the near future. In order to get ready for this historic event, lawyers, legislators, and others involved in the process need a reliable guide to the law governing amendment conventions.

Citizens for Self Governance has just published my legal treatise on the subject as part of their Convention of States project. It is called A Compendium for Lawyers and Legislative Drafters. In addition to over 80 pages of original material, it includes important and reliable scholarly articles on the subject. You can download it for free here.

The Lamp of Experience: Constitutional Amendments Work

March 9, 2014 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding, supreme court 

RGNStPauls(This article originally appeared in the American Thinker.)

Opponents of a Convention of States long argued that there was an unacceptable risk a convention might do too much.  It now appears they were mistaken. So they increasingly argue that amendments cannot do enough.

The “too much” contention was first promulgated in modern times by apologists for the liberal, ultra-activist Earl Warren/Warren Burger Supreme Court.  Specifically, these apologists feared a convention might propose amendments to reverse their favorite judicial decisions.  Their tactic was to claim that an amendments convention, even if legally limited, could turn into a “con-con” that disregarded its limits, repealed the Bill of Rights, and restored slavery.  (Yes, some of them really said that.)

The liberals who promoted this scenario must have been amused when some deeply conservative groups fell into the trap and began using the same argument to kill conservative amendments.

The “too much” line, however, has been losing its persuasiveness.   New research shows it to be legally and historically weak, and Americans increasingly are pondering the very real dangers of not resorting to the convention process the Founders bequeathed to us.

Hence the shift to the “too little” argument.  Its gist is that amendments would accomplish nothing because federal officials would violate amendments as readily as they violate the original Constitution.

Opponents will soon find their new position even less defensible than the old.  This is because the contention that amendments are useless flatly contradicts over two centuries of American experience — experience that demonstrates that amendments work. In fact, amendments have had a major impact on American political life, mostly for good.

* * * *

The Framers inserted an amendment process into the Constitution to render the underlying system less fragile and more durable.  They saw the amendment mechanism as a way to:

*    correct drafting errors;
*    resolve constitutional disputes, such as by reversing bad Supreme Court decisions;
*    respond to changed conditions, and
*    correct and forestall governmental abuse.

The Framers turned out to be correct, because in the intervening years we have adopted amendments for all four of those reasons.  Today, nearly all of these amendments are accepted by the overwhelming majority of Americans, and all but very few remain in full effect.  Possibly because ratification of a constitutional amendment is a powerful expression of popular political will, amendments have proved more durable than some parts of the original Constitution.

Following are some examples:

Correcting drafting errors

Although the Framers were very great people, they still were human, and they occasionally erred.  Thus, they inserted in the Constitution qualifications for Senators, Representatives, and the President, but omitted any for Vice President.  They also adopted a presidential/vice presidential election procedure that, while initially plausible, proved unacceptable in practice.

The founding generation proposed and ratified the Twelfth Amendment to correct those mistakes.  The Twenty-Fifth Amendment addressed some other deficiencies in Article II, which deals with the presidency.  (My reference to a particular amendment does not mean I agree with every provision in it.)

Both the Twelfth and Twenty-Fifth Amendments are in full effect today.

Resolving constitutional disputes and overruling the Supreme Court

The Framers wrote most of the Constitution in clear language, but they knew that, as with any legal document, there would be differences of interpretation.  The amendment process was a way of resolving interpretative disputes.

The founding generation employed it for this purpose just seven years after the Constitution came into effect.  In Chisholm v.  Georgia, the Supreme Court misinterpreted the wording of Article III that defines the jurisdiction of the federal courts.  The Eleventh Amendment reversed that decision.

In 1857, the Court issued  Dred Scott v.  Sandford, in which it erroneously interpreted the Constitution to deny citizenship to African Americans.  The Citizenship Clause of the Fourteenth Amendment reversed that case.

In the 1970, the Court decided Oregon v.  Mitchell, whose misinterpretation of the Constitution created a national election law mess.  A year later, Americans cleaned up the mess by ratifying the Twenty-Sixth Amendment.

All these Amendments are in full effect today, and fully respected by the courts.  Some argue, in fact, that the Supreme Court actually over-enforces the Eleventh Amendment — a contention with which I do not agree.

Responding to Changed Conditions

The Twentieth Amendment is the most obvious example of a response to changed conditions.  Reflecting improvements in transportation since the Founding, it moved the inauguration of Congress and President from March to the January following election.

Other amendments as well were wholly or partially triggered by changed conditions.  The Seventeenth Amendment, which transferred elections for Senators from the state legislatures to the people, is still controversial in some quarters.  But it was adopted only after social changes had caused widespread breakdown in the prior election system. (That is why the state legislatures themselves sought the change.) With the partial exception of Mark Levin, few if any of its critics address the very real problems the Seventeenth Amendment was designed to solve.

Similarly, the Nineteenth Amendment, which assured women the vote in states not already granting it, was passed for reasons beyond simple fairness.   When the Constitution was written, overwhelming domestic duties and very short female life expectancies effectively disqualified most women from politics.  During the 1800s, medical and technological advances made possible by a vigorous market economy improved the position of women immeasurably and rendered their political participation far more feasible.  Without these changes, I doubt the Nineteenth Amendment would have been adopted.

Needless to say, the Seventeenth, Nineteenth, and Twentieth Amendments all are in full effect many years after they were ratified.

Correcting and forestalling government abuse

Avoiding and correcting government abuse was a principal reason the Constitutional Convention unanimously inserted the state-driven convention procedure into Article V.  Our failure to use that procedure helps explain why the earlier constitutional barriers against federal overreaching seem a little ragged.  Before looking at the problems, however, let’s look at some successes:

*    We adopted the Thirteenth, Fourteenth, Fifteenth, and Twenty-Fourth Amendments to correct state abuses of power.  All of these are in substantially full effect.

*    In 1992, we ratified the Twenty-Seventh Amendment, 203 years after James Madison first proposed it.  It limits congressional pay raises, although some would say not enough.

*    In 1951, we adopted the Twenty-Second Amendment, limiting the President to two terms.  Eleven Presidents later, it remains in full force, and few would contend it has not made a difference.

Now the problems: Because we have not used the convention process, the first ten amendments (the Bill of Rights) remain almost the only amendments significantly limiting congressional overreaching.  I suppose that if the Founders had listened to the “amendments won’t make any difference” crowd, they would not have adopted the Bill of Rights either.  But I don’t know anyone today who seriously claims the Bill of Rights has made no difference.

In fact, the Bill of Rights continues to have a huge impact more than two centuries after adoption.  The courts enforce, to at least some extent, all of the original ten except, arguably, the Ninth.  Some, such as the First Amendment, have been “super enforced.” Others, such as the Second and Fourth are under relentless pressure, but remain far better than nothing at all.

What about the Ninth and Tenth? They are certainly under-enforced today, but we must remember that they enjoyed full effect for nearly 150 years.  No reasonable person would classify 150 years of effect as anything but a stellar political success.   Even today, the Tenth retains some of its power, as Congress learned when the Supreme Court upended its effort to corral all the states into the Obamacare Medicaid expansion.

“I have but one lamp by which my feet are guided; and that is the lamp of experience,” Patrick Henry said.  “I know of no way of judging of the future but by the past.”

In this case, the lamp of experience sheds light unmistakably bright and clear: Constitutional amendments work.

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