The drives for one or more convention of states to reform the dysfunctional federal government are proceeding apace, and Georgia lawyer David Guldenschuh is providing a newsletter with regular updates.
His summaries contain information on the progress of every major application campaign—balanced budget, “convention of states,” campaign finance, and more.
The latest version is here. A footnote explains how you can be added to the recipient list.
I’ve already mentioned another of Mr. Guldenschuh’s contributions to the Article V movement in this column—his calculation that even if an Article V convention were to adopt a population-based voting rule, it wouldn’t result in much practical political difference than if the convention stuck to the traditional state-based voting rule.
Filed under: All Postings, Article V, The Founding, supreme court
In a recent post, I pointed out that, despite superficial appearances, the Constitution’s Necessary and Proper Clause—clarifying that Congress has authority to make laws “necessary and proper” to carrying out its other enumerated powers—actually grants Congress no power.
The Necessary and Proper Clause is representative of one of four related kinds of provisions found in 18th century grants of authority. Some of these provisions granted powers, but others merely clarified how their documents were to be interpreted. The Necessary and Proper Clause was one of the latter kind. For that reason it is what lawyers call a “rule of construction”—that is, a guideline for interpretation.
During the debates over the Constitution, advocates of the document repeatedly outlined to the ratifying public the purely explanatory role of the Necessary and Proper Clause. James Wilson, for example, probably the second-most influential framer after James Madison and the most influential Pennyslvania ratifier, made this point at his state’s ratifying convention. He stated that the Clause did not “in any degree, go beyond the Particular enumeration . . . . It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution.” His ally at the convention, Thomas McKean, echoed this position.
At the North Carolina ratifying convention, another spokesman for the Constitution stated the same thing this way:
This clause specifies that they shall make laws to carry into execution all the powers vested by this Constitution; consequently, they can make no laws to execute any other power. This clause gives no new power, but declares that those already given are to be executed by proper laws.
Even John Marshall, the Chief Justice often accused of taking an overly-expensive view of the Clause, concurred with this reading.
In a recent posting, an anonymous blogger with perhaps more enthusiasm than knowledge argued that this was incorrect. Among that person’s claims were that the Federalist Papers showed that the Clause was an affirmative grant rather than a rule of construction.
No one who reads the Federalist carefully could come to such a conclusion. Madison’s Federalist No. 33 is absolutely clear that the Necessary and Proper Clause grants no power, but is purely explanatory:
[I]t may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if [the Necessary and Proper and Supremacy] clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers. . . . The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.
Similarly in Federalist No. 44 Madison explained what would have happened if the Clause had been omitted.
Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.
In 2012, Chief Justice John Roberts agreed:
[T]he Clause is “merely a declaration, for the removal of all uncertainty,that the means of carrying into execution those [powers] otherwise granted are included in the grant.”
All the Founding-Era quotations for this posting are found in my article on the origins of the Necessary and Proper Clause, which is available here. Those who wish more detail can consult the book I co-authored on the Clause with three other scholars. The publisher forbids me to post that work free of charge. I receive no royalties from it, but the publisher needs to recover costs of production.
Two bills introduced in the U.S. House of Representatives show that whatever they may say on the campaign trail, many Republicans in Congress don’t have much more respect for federalism, states’ rights, or local control than Democrats do.
These two bills also demonstrate, if further demonstration be needed, that Congress has broken almost all constitutional restraint, and that a convention of states is the only real hope left, short of massive civil disobedience, of repairing the situation.
The first bill is H.R. 36, which passed the House on May 13 with nearly unanimous GOP support. It would outlaw most abortions of fetuses more than five weeks old.
I’m pro-life, so I think curtailing abortion would be a good thing. But the Constitution specifically limits Congress to certain enumerated powers, and regulating abortion is not one of them. H.R. 36 offers no clue as to what its constitutional basis is supposed to be. It’s basically a criminal law of the kind the Constitution clearly leaves to the exclusive jurisdiction of the states.
When I worked for pro-life groups, one of our key arguments was that the Supreme Court’s abortion decision in Roe v. Wade violated the Constitution because it improperly federalized an issue that is constitutionally a state responsibility. Even many pro-choice Americans agree with that principle.
But the unprincipled GOP House majority just threw that argument into the trash bin. Republican members of Congress can no longer credibly use it.
The other bill is H.R. 2300, a massive (242 page) measure to re-jigger the health care system yet again. Although the bill has some good parts (e.g., repealing Obamacare), it also imposes mandates on state courts considering health care claims.
The Constitution grants no power to Congress to impose rules on state courts about how they resolve health care cases, other than the power to enforce the 14th amendment rule that those courts respect due process and equal protection of the law. In fact, during the debates over whether to ratify the Constitution, the document’s proponents sold it to the public in part by affirming that subjects such as tort law, most criminal law, civil justice among citizens of the same state, and health care all would remain immune from congressional meddling.
Yet H.R. 2300 would empower unelected bureaucrats in the Department of Health and Human Services to override state law in an area the Constitution clearly reserves to the states. H.R. 2300 recites no constitutional basis for this provision.
Widespread support for H.R. 36 and H.R. 2300 from House Republicans—generally elected on promises to respect our system of federalism—provides yet more evidence that Congress will never cure Congress. It’s up to the states, acting through the amendment process of Article V, to do the job.
Filed under: All Postings, Article V, The Founding, supreme court
More evidence has turned up that the late Chief Justice Warren Burger was defending his Court’s decision in Roe v. Wade when he wrote three letters opposing the Article V convention process.
Burger’s letters frequently are cited as authority by opponents of a “convention of states.” However, in an earlier posting I noted that the letters show little knowledge of the subject, and that Burger apparently had never heard an Article V case or published anything on the topic. I explained that the likely source of Berger’s views was his friend William Swindler, a liberal law professor who passionately attacked the convention process because he feared the states might use it to propose one or more conservative amendments.
It now it turns out that Burger had further reason to oppose a convention of states. In 1973, he was one of seven justices who signed onto Roe v Wade, which legalized abortion-on-demand nationwide and upended long-standing laws in all 50 states.
There was widespread public outrage against the decision. Even many pro-choice citizens believed that abortion should be a state rather than a federal issue, and legal scholars (including many who agreed with the result) decried the reasoning of the case as sloppy. As a result, people began to cast around for a remedy.
Many fixed on the constitutional amendment process as such a remedy. Both the 11th and 14th amendments had been passed wholly or partly to reverse overreaching Supreme Court decisions, and in 1971, it had happened again, with the 26th amendment’s reversal of the Court’s confused decision in Oregon v. Mitchell (1970).
Not surprisingly, therefore, in 1974 the Indiana legislature passed an Article V application for a convention to propose an amendment to overrule Roe. Missouri joined the following year, and Louisiana in 1976. The campaign picked up steam, and by the time Burger wrote the first of his three letters, 19 of the necessary 34 states had adopted applications to overrule Roe in various ways. So you can understand why the Chief Justice was nervous.
But here’s the ultimate irony: During the 1990s, the leadership of a few deeply conservative groups launched a campaign to rescind all Article V applications. They exhorted their grassroots members to lobby state legislatures, and in some cases they did win rescission.
You have to wonder, though: Did the leadership of those groups ever tell their members that by campaigning to rescind applications, they were campaigning to preserve Roe v. Wade? Or that they were thereby destroying any real hope of Roe being overturned?
What would their members have said if they’d known?
FOR IMMEDIATE RELEASE
April 16, 2015
Contact: Rob Natelson, 303-279-6536, ext. 114 or Rob@i2i.org
New “Article V Information Center” Helps Federal Reform Efforts
DENVER — The burgeoning “convention of states” movement wants to save the republic, and the Independence Institute is pitching in to help.
The Institute’s new “Article V Information Center” website provides journalists, state lawmakers and other citizens with up-to-date, accurate and unbiased information on a little-known part of the U.S. Constitution that could be triggered in the next year or two.
Article V of the Constitution empowers state legislatures to force reforms on the federal government. If 34 state legislatures demand a particular kind of constitutional amendment, the result is a meeting of state legislatures that the Constitution calls a “convention for proposing amendments.” The gathering can then propose reforms, which become part of the Constitution if 38 states agree.
A convention for proposing amendments is a limited-purpose gathering, and NOT a constitutional convention, with which it is sometimes confused.
Advocates of an amendment forcing Congress to balance the federal budget are only a few states away from the necessary 34. They have added three states to their tally this year.
Also picking up steam are amendments imposing term limits on federal officials, campaign finance reform, and cuts in the federal bureaucracy.
“Relatively few people realize it yet, but we could be on the cusp of a major change for the better,” says Rob Natelson, the long-time constitutional law professor who heads the Article V Information Center. Natelson’s publications on the amendment process sparked the “convention of states” movement.
“When I first started investigating, there was widespread ignorance about how the amendment process worked and what its possibilities are,” he added. Journalists and state lawmakers are still being fed misinformation by people who appear to know more than they do. That’s why we started the Article V Information Center.”
Natelson hopes the Article V Information Center will clear up the confusion. “We don’t endorse particular amendments; we just help the process,” he said. “Similar conventions have a very long track record, and we know how they work,” he says. “Our goal is to provide people with the facts.”
Visit the Article V Info Center here.
Learn more about the Center from Rob Natelson and Ken Clark:
To see more Freedom Minutes, go to our IITV YouTube channel.
Are you a journalist or other citizen who needs a quick overview of the Constitution’s Article V “Convention for Proposing Amendments?” Get our issue paper, “Curing Federal Dysfunction by Constitutional Amendment: A Primer.”
It’s a vital resource for anyone who wants a quick and accurate overview of the process.
It explains what a Convention for Proposing Amendments is—and is not. (It is not, for example, a “constitutional convention.”)
The issue paper also explains why the procedure is in the Constitution, and how it works. And it corrects misconceptions prevailing even among scholars who have not researched the topic themselves.
Filed under: All Postings, Article V, The Founding, supreme court
Some conservative groups have become known for uncompromising opposition to the Constitution’s convention method of proposing constitutional amendments.
They may think they are protecting the republic. But it turns out that they are mostly carrying water for the liberal establishment.
New research shows that nearly all the arguments of convention opponents merely repeat disinformation first propagated by the liberal establishment in the mid-20th century. The goal of this disinformation campaign was to disable an important check on federal overreach.
The Founders created the convention method of proposing amendments to enable the people, acting through their state legislatures, to offer corrective changes if the federal government ever became unresponsive, abusive or dysfunctional. When two thirds of the legislatures pass resolutions demanding it, Congress must convene a task force known as a “convention of the states“—or, in the language of the Constitution, a “Convention for proposing Amendments.” If that task force does propose amendments, they become law only if ratified by three fourths of the states.
As the federal government grew larger and more abusive during the 20th century, conservatives and moderates repeatedly suggested constitutional amendments as a partial cure. They included proposals to reverse certain Supreme Court decisions, such as Roe v. Wade; to otherwise restrict judicial activism; and to impose term limits and require a balanced federal budget.
To blunt the these amendment drives, leading figures in the liberal establishment organized a disinformation campaign against the convention process. Participants in the campaign included liberal Senators such as Joseph Tydings (D.-Md.) and Robert F. Kennedy (D.-NY); several sitting and former Supreme Court justices; members of the Kennedy circle, such as Theodore Sorensen and Arthur Goldberg; and liberal academics perched at prestigious universities, such as a Harvard and Yale.
The apparent goal was to disable the convention process as a constitutional check on the power of the federal government.
In speeches and articles, the participants promoted several key talking points. Most of these talking points were contradicted by law or historical precedent. Some of them even contradicted each other.
But truth was not the goal. The goal was political. The principal talking points were:
• Little is known about how the process is supposed to operate;
• A convention for proposing amendments would be an uncontrollable “constitutional convention;”
• A convention for proposing amendments could be controlled or manipulated by Congress under the Constitution’s Necessary and Proper Clause; and
• A convention for proposing amendments could unilaterally impose radical constitutional changes on America.
If these claims sound familiar— well, they are. Some conservative organizations swallowed them, hook, line, and sinker and continue to tout them today, apparently unaware of how they were fabricated and why.
The 20th century liberal disinformation campaign was strikingly successful. It derailed all drives to curb the Supreme Court’s liberal activism. It blocked efforts to control federal debt or restrain federal spending. It left an increasingly dysfunctional Congress with an absolute monopoly of the amendment process. And it pitted—and continues to pit—conservatives against conservatives.
This article originally appeared in the American Thinker.
Opponents of the Constitution’s Article V convention method of proposing amendments tout three letters written in the 1980s by former Chief Justice Warren Burger. In those letters, Burger took a very hard line against any convention of states that might bypass Congress and propose corrective constitutional amendments.
I’ve previously explained one reason Burger may have been so adamant: Although appointed to the court by President Nixon as a “strict constructionist,” Burger proved to be a fairly activist judge. He famously voted for Roe v. Wade, the abortion decision that up-ended laws in all 50 states.
Thus, when Burger wrote his anti-Article V letters, he was protecting Roe v. Wade and his Court. At the time, there was a great deal of talk about using Article V to overrule Roe and other ventures into judicial activism.
But now I’ve learned more.
It seems that Burger was a friend (that’s his word) of a man named William F. Swindler.
Swindler was a law professor at the College of William and Mary, which is located in Williamsburg, Virginia. Burger appointed Swindler to two official Supreme Court committees. Upon Swindler’s retirement, Burger wrote a glowing testimonial. Upon Swindler’s death, Burger eulogized him as “an analyst of history and a historian of the first rank.”
Swindler was a strong liberal, and he fiercely opposed the convention process of Article V—particularly when conservative amendments were proposed. During the 20th century, many academics wrote attacking Article V, but Swindler’s assault was the most over-the-top I’ve seen.
When Swindler wrote, the Council of State Governments was promoting a convention to consider three amendments—one to streamline the amendment process itself, one to reverse a Supreme Court legislative reapportionment decision, and the third to establish an additional layer of judicial review in a very narrow class of cases. Swindler was apoplectic, and assailed those amendments and the convention idea in unbridled language. He essentially urged resistance to a convention by all means necessary.
Part of Swindler’s plan of resistance was that federal officials should act as if the state-application-and-convention process were not part of the Constitution. Asserting that “only a federal agency (Congress, as provided by the Constitution) is competent to propose” amendments, he claimed that the convention procedure should be disregarded as “no longer of any effect.”
Thus, Swindler suggested that if the requisite number of state applications was reached, Congress should simply ignore its duty to call a convention.
Alternatively, Swindler wrote, Congress could gerrymander the convention and/or prescribe rules that would render its operation impossible. For example, he suggested that Congress mandate a rule that convention delegates were not permitted to propose any amendment unless they did so unanimously. He also argued that the courts should determine which states had permission to participate in the process and which states did not.
Was the author of these lawless propositions the source of Burger’s vehement dislike of the convention procedure? He very likely was. Remember that William Swindler was Burger’s friend. Their relationship was professional, but it was also personal: Burger wrote of his “warm personal relationship with Bill” and his “visits and walks with him at Williamsburg.” Furthermore, I can find no evidence that Burger ever did any research on Article V himself: He seems never to have heard an Article V case or published anything on the subject.
It is at least probable, therefore, that the source for Burger’s anti-Article V views was a ideologically-driven liberal willing to gut the Constitution to achieve his policy goals.
Not much of a testimonial.
For many years, opponents of a convention for proposing amendments argued that the law governing such a convention was unknowable because the only precedent for such a gathering was the Constitutional Convention of 1787.
This was always an ignorant claim, since even high schoolers learn that Annapolis, Maryland hosted a “convention of states” the previous year. Russell Caplan’s book, Constitutional Brinksmanship, published nearly three decades ago, documented several other interstate and inter-colonial conventions as well. It was clear that those claiming the “only precedent” was the 1787 gathering had not done their homework.
In 2010 I uncovered more multi-state conventions, and 2013 published an article that listed 32 such gatherings from 1689 through 1787. Twenty-four of these were regional—or, to use the Founding-Era word, “partial”—conventions. The other six were national, or as the Founders would say, “general.” In that article I also analyzed in detail the records of fourteen of these conclaves. All of them employed pretty much the same set of protocols.
In addition, on this website I’ve discussed several conventions of states occurring after the Constitution was adopted: regional conventions at Hartford (1814), Nashville (1850), and Santa Fe (1922), and a general convention in Washington, D.C. (1861). The last of these was convened to draft a constitutional amendment. Yet, believe or not, some people are still asserting that “We have only one Precedent, the Convention in Philadelphia in 1787!”
Now there’s more. I recently obtained the journal for still another convention of states. Some have claimed that the proceedings for that assembly were never recorded, or perhaps had been lost. But I found them within the first volume of the journals of the Congress of the Confederate States of America.
The convention in question was held in 1861 in Montgomery, Alabama. It included only those southern states that failed to attend the convention in Washington, D.C. And while the purpose of the Washington meeting was to head off the Civil War, the purpose of the Montgomery meeting was much less desirable: to write a new Confederate Constitution and to serve as a provisional government until elections were held under that Constitution.
However regrettable its purpose, though, there is no denying that the Montgomery Convention is useful precedent. It demonstrates yet again the consistent understanding throughout our history of the law and rules governing multi-state conventions. While unionist states were applying the standard protocols at their gathering in Washington, seceding states were applying almost exactly the same set of protocols in Montgomery.
Here are some other facts about the Montgomery Convention of 1861:
* It was called by South Carolina and by Alabama—South Carolina sent out the initial invitation and fixed the topic. Alabama fixed the time and place.
* The other states participating were Mississippi, Louisiana, Florida, Georgia, and (belatedly) Texas.
* The calls and acceptances agreed on the two basic missions: (1) write a constitution for the seceding states and (2) serve as a provisional government until elections were held under that constitution.
* The calls and acceptances did differ in minor ways. Possibly the most important was that some stated that the new Confederate constitution should be based on the U.S. Constitution, while others omitted that term. This discrepancy did not prevent the meeting, and seems to have caused no problems.
* The convention began on February 4, 1861, and eventually split its functions to fit its two missions. From February 28 to March 11, it acted as a constitutional convention and wrote a new basic charter. Throughout its entire timespan it served as a provisional government (much as the Second Continental Congress had done for the United States from 1775 to 1781).
* The call suggested (and it was only a suggestion) that the convention proceed by one state/one vote, but that each state delegation consist of as many commissioners as the state had Senators and Representatives in the Federal Congress. The other states generally agreed to this formula.
* The convention did, in fact, proceed under a one state/one vote rule, as has every other interstate convention for which the rule of suffrage is recorded. But the size and composition of each state committee (delegation) remained a prerogative for each state to determine.
* The group elected its own officers and adopted its own rules. Like other all other conventions, it elected its president from among its members: Howell Cobb of Georgia. Like nearly all other conventions, it chose a non-delegate as secretary—Johnson J. Hooper of Alabama.
* The convention stayed within its two missions, as defined by its call.
* Upon completion of those missions, the gathering adjourned sine die (permanently).
Article V scholar and former House of Representatives legal counsel Mike Stern has just written a response to the irresponsible claim that Congress could control a Convention for Proposing Amendments, either by specifying how commissioners are allocated or in other ways.
His response is worth wide publicity. Here it is:
RESPONSE TO FEBRUARY 24, 2015 PAPER ENTITLED “UNITED STATES CONGRESS V. CONVENTION OF STATES PROJECT”
I am writing to respond to the argument, circulated by opponents of HJR 1018, that Congress could by law attempt to exercise control over an Article V convention. Specifically, a piece circulated in the House on February 24, 2015 claims that “the U.S. Constitution gives Congress the authority to determine the voting delegate count and the Supreme Court of the United States has already affirmed this.”
This claim is wrong as a matter of law. Moreover, as described below, there is no chance that Congress would attempt to regulate the Article V convention as suggested even if it had a colorable legal basis for doing so.
The argument for Congress’s supposed legal authority is premised entirely on a series of bills that were introduced in Congress from the late 1960s until 1992. These bills derived from legislation originally proposed by Senator Sam Ervin of North Carolina to support a specific constitutional amendment designed to overturn the Supreme Court’s “one man one vote” decision in Reynolds v. Sims. It is important to note that no such legislation was ever enacted and it has been more than 20 years since it has even been introduced for consideration.
Senator Ervin explained the background for his legislation in a 1968 law review article:
Article V of the Constitution of the United States provides that constitutional amendments may be proposed in either of two ways—by two-thirds of both houses of the Congress or by a convention called for by the Congress in response to the applications of two-thirds of the state legislatures. Although the framers of the Constitution evidently contemplated that the two methods of initiating amendments would operate as parallel procedures, neither superior to the other, this has not been the case historically. Each of the twenty-five amendments ratified to date was proposed by the Congress under the first alternative. As a result, although the mechanics and limitations of congressional power under the first alternative, very little exists in the way of precedent or learning relating to the unused alternative method in article V. This became distressingly clear recently, following the disclosure that thirty-two state legislatures had, in one form or another, petitioned the Congress to call a convention to propose a constitutional amendment permitting states to apportion their legislatures on the basis of some other standard that the Supreme Court’s “one man-one vote” requirement. The scant information and considerable misinformation and even outright ignorance displayed on the subject of constitutional amendment, both within the Congress and outside of it—and particularly the dangerous precedents threatened by some of the constitutional misconceptions put forth—prompted me to introduce in the Senate a legislative proposal designed to implement the convention amendment provision in article V.
As the above passage makes clear, Senator Ervin’s legislation was designed to assist the states in calling for an amendments convention. Indeed, although Ervin’s legislation wrongly assumes that Congress has the power to legislate with regard to convention procedures, he also says that it would be “a flagrant disavowal of the clear language and intended function of article V” for the Congress to use this power in a manner that would thwart the states in their efforts to call a convention.
Ervin was primarily concerned with what he describes as the “considerable misinformation” and “constitutional misconceptions” being circulated by the opponents of an Article V convention. Of these the most important, which Ervin spends considerable time in refuting, is the idea that the convention cannot be limited. Ervin explains that this interpretation was “supported neither by logic nor constitutional history” and argues that “[t]his construction would effectively destroy the power of the states to originate the amendment of errors pointed out by experience, as Madison expected them to do.” It should be noted that opponents of the Article V convention still rely primarily on the constitutional misconception of the runaway convention, while cherry picking Ervin’s legislation for “precedent” they find more to their liking.
Unfortunately, Senator Ervin gave comparatively little attention to the question of Congress’s power to regulate the Article V convention. He merely observed that someone would need to provide for the membership and procedures of the convention and contended it would be impossible for all fifty state legislatures to do so. The original version of the legislation provided for one vote per state, but Ervin amended it to provide for proportional representation, apparently in the hope of reducing opposition from liberal senators who were opposed to any attempt to reverse Reynolds v. Sims.
In assessing whether Congress has the power to regulate voting at an Article V convention, two questions need to be asked: (1) does the Constitution provide for a default voting rule for the convention and (2) does Congress have the power to establish a voting rule or alter the default rule? Ervin seemed to assume, without analysis, that no default voting rule existed (hence his contention that Congress or all fifty states would have to act to establish such a rule). But this assumption is obviously wrong. If the Constitution provided no default rule, calling a convention would be impossible until Congress or the state legislatures established what rule would apply. Yet Article V clearly provides that once two-thirds of the state legislatures apply for a convention, Congress “shall” call the convention. As Hamilton wrote in Federalist No. 85, the words of Article V are “preemptory” and “[n]othing in this particular is left to discretion.” Thus, there can be no requirement of other action, particularly by Congress, before a convention is called.
Once it is recognized that the Constitution provides a default voting rule, it is apparent that this rule must be one vote per state. This is true for the following reasons: (1) there are a number of different possible proportional representation methods (population, congressional representation, seats in the House, etc.) and nothing in Article V or the Constitution provides a basis for choosing among them; (2) one vote per state was the voting rule used in the Philadelphia convention and all interstate conventions prior to that time; (3) in respect to both applying for a convention and ratifying an amendment, Article V provides an equal vote to each state; (4) statements made during the debate over ratification, such as Hamilton’s observation that “whenever nine or rather ten states, were united in the desire of a particular amendment, that amendment must infallibly take place,” confirm an understanding of one vote per state; and (5) post-ratification history, including the procedure used during the Washington Convention of 1861, demonstrates that voting at Article V conventions was to be one vote per state.
As Ervin acknowledged in the passage quoted earlier, there was a paucity of “learning” regarding the Article V convention at the time he crafted his legislation. However, subsequent work by noted scholars such as Professor Rob Natelson and Michael Rappaport provides a much more detailed understanding of the Framers’ original intent with respect to the Article V convention. Professor Natelson’s research, for example, demonstrates that at the time of the framing there were well understood procedures for holding such a convention, including a one vote per state rule. Thus, although the resolutions of the states and the Confederation Congress calling for the Philadelphia Convention were silent (as is Article V) as to the voting rule to be used, the Philadelphia Convention employed a one vote per state rule without objection or controversy.
It is also apparent that Congress cannot, consistent with the purpose of the Article V convention, be permitted to establish or alter the voting rule for the convention, nor otherwise to exercise any authority that would infringe upon the independence of the states and the convention. The entire purpose of the Article V convention was to empower the states to obtain constitutional amendments without congressional authorization or assistance. Allowing Congress to control the convention through adoption of voting rules or other procedural requirements would fly in the face of this fundamental purpose of the convention.
The February 24, 2015 document circulated by opponents of HJR 1018 claims that Congress has the power under the Necessary and Proper Clause to prescribe rules for the convention. But for the reasons already discussed it would be neither necessary (because the Constitution provides a default voting rule) nor proper (because the convention must be completely independent of Congress) for Congress to regulate the convention. Moreover, the Necessary and Proper Clause applies to powers vested by the Constitution in “the Government of the United States, or in any Department or Officer thereof,” which description does not include the Article V convention.
It is also suggested that the Supreme Court has somehow upheld Congress’s authority to regulate an Article V convention. This claim is obviously false since Congress has never passed such legislation and the Court has therefore never had occasion to consider it. The case cited for that proposition, Dillon v. Gloss, involved Congress’s authority to include a time limit for ratification in a congressionally proposed constitutional amendment. It had nothing to do with an Article V convention at all.
The Feb. 24 document cites a Congressional Research Service report for the proposition that the Ervin legislation and later proposals modeled on it establish Congress’s claim to “broad responsibilities” in connection with a convention. But the very same CRS report also acknowledges a strong argument for a “minimalist” role for Congress and notes there is “justification for this course of action from the pens of the founders themselves.” The original intent of the Framers is much more powerful legal support than the terms of comparatively recent legislation that never passed Congress.
In any event, there is no practical possibility that Congress would today be willing or able to enact legislation regulating an Article V convention. The fact that the Ervin legislation failed to pass Congress for more than 20 years should amply demonstrate that today’s Congress, more divided and dysfunctional than ever before, is never going to pass such legislation. In the extraordinarily unlikely event that such legislation were introduced, much less seriously considered, the states would have plenty of time to defeat the legislation or, if all else failed, to rescind their applications.
As a final red herring, the Feb. 24 document suggests that Congress could insulate delegates from control by their state legislatures by citing to a provision of the Ervin legislation that would provide delegates with a privilege against arrest. This provision would have simply provided delegates with standard legislative immunity that appears in the U.S. Constitution and most state constitutions. The arrest privilege is extraordinarily narrow (applying only to arrest in civil cases, which makes it essentially meaningless) and was neither intended to nor would have the effect of interfering with state legislative control over their delegations.