More On Why Amendment Procedures Are Not Governed by the States’ Tenth Amendment Powers

January 30, 2016 by Rob Natelson · Leave a Comment
Filed under: All Postings, Article V, supreme court 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

A few groups pushing constitutional amendments are trying to convince state legislatures to adopt laws and interstate compacts that rely on state authority reserved by the Tenth Amendment.

This is a serious mistake—one that likely will lead to defeat in the courts.

In a recent article, I pointed out that the courts have held repeatedly that the power to amend the U.S. Constitution comes exclusively from Article V of the Constitution. The courts hold that Article V functions are not part of the states’ reserved authority. Since 1920, the courts (including the U.S. Supreme Court) have repeatedly voided efforts to funnel amendment procedures through state law.

Recently, my article was challenged by a paid activist for one of the groups pushing the “Tenth Amendment” approach. Although he seemed to admit that the Tenth Amendment was irrelevant to the proposal and ratification procedures, he claimed the application process was different. He argued that states could adopt laws and interstate compacts that controlled the state application process.

However, he overlooked cases that rule that the same principles govern the application process as govern other Article V functions. I’ve supplemented my article to reference those cases.

This does NOT mean state legislatures have no control over the convention. It just means that their authority to do so is an implied power granted to them by the Constitution, not part of their reserved powers. They must control the convention through their applications and by selecting, commissioning, and supervising their convention commissioners. They can’t do it in advance by passing laws or entering compacts.

The Impending Convention for Proposing Amendments — Part VI

January 9, 2016 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: This is the last in a series of six articles that originally appeared in the Washington Post’s “Volokh Conspiracy,” a leading constitutional law website. Parts I – V appear below this post.

How the Procedures for a Modern Amendments Convention May Unfold

Parts I to V of this series discussed the background and nature of the Constitution’s “Convention for proposing Amendments.” This final installment surveys the most likely scenarios for calling a convention, and possible developments if 34 states apply on any one subject or an overlapping group of subjects.

The subject matter for amendments submitted to a convention will depend on which of several application drives induces Congress to issue the first call. The possibilities are complicated by the fact that some applications are vulnerable legally. For example, convention opponents have argued that applications that are “too old” are invalid or “stale” on that account. This argument was significantly weakened by adoption of the 27th amendment, in which unrepealed ratifications two centuries old were accepted as valid.

More serious is the fact that many extant applications purport to limit the convention to considering only an amendment with prescribed wording. That may render them inherently invalid or inaggregable with more general applications.

The number of unrepealed applications is in the hundreds, although no one subject has attained the threshold of 34. Some are from now-abandoned campaigns, such as those for banning polygamy and repealing the 16th amendment (which dropped the apportionment requirement for the income tax). The application totals are at the website of the Article V Library.

Among the currently active campaigns, the frontrunner is the Balanced Budget Amendment Task Force, which claims applications from 27 states. In 2014, Citzens for Self-Governance began its “Convention of States” project. Relying on grassroots enthusiasm, it has won the endorsement of four state legislatures. All four applications closely track the form recommended by “Convention of States” activists: They would empower the convention to consider fiscal restraints on the federal government, term limits and reductions in federal power.

Also enjoying the endorsement of four states is the Wolf PAC movement, which seeks campaign finance reform. Realistically, Wolf PAC is unlikely to reach the threshold of 34. This is partly because of the conservative political composition of most state legislatures and partly because not all of its applications are fully consistent. In addition, while the general idea of campaign finance reform enjoys strong public support, most specific proposals involve granting more power to Congress. This is a tough sell at a time when the electorate is deeply dissatisfied with Congress.

Other Article V campaigns include those aiming to impose a single subject rule on Congress, a revived push for congressional term limits and the Act 2 Movement, which promotes term limits, fiscal restraints, campaign finance reform and creation of a fourth branch of government to enforce the law against the other three.

Once a campaign claims to have reached the 34-state minimum, Congress will have to determine whether the applications truly “aggregate” with each other. If the campaign is for a balanced-budget amendment, Congress may have to exercise some discretion. Although most balanced-budget applications simply demand a convention to consider the subject, three purport to limit the convention to prescribed language. Congress may have to determine whether to aggregate the two sets. Congressional discretion also may be necessary to decide whether applications that demand an unlimited convention should be included in the total.

How Congress reacts will, of course, be influenced by the then-current political environment. I have stressed to state legislators the need to communicate forcefully both to Congress and the general public the conditions under which Congress must call and the proper limits of a call. State legislative planners have responded well to this advice.

Interstate conventions held earlier in our history included commissioners who had attended prior interstate conventions. Because that sort of experience is lacking today, state legislative planning groups have sprung up to prepare: the State Legislators Article V Caucus, the Assembly of State Legislatures and the Convention of States Caucus. In addition, two trade organizations of state lawmakers, the National Conference of State Legislatures and the American Legislative Exchange Council, have presented programs on convention issues.

Necessarily, there have been some mistakes. Recently the executive committee of the Assembly of State Legislatures recommended to the general membership an impractical system of convention rules mandating super-majorities and weighted voting, and even co-presidents and co-committee chairs from opposite parties. The general membership’s firm rejection of those rules suggests that wisdom is likely to prevail over the long term, and that when a convention does meet it will have the benefit of a viable procedural template.

Earlier this year, I undertook a study of prior convention rules to ascertain their modern applicability. Here are some of my conclusions:

* Most of the rules applied at 18th and 19th century conventions are still viable. In fact, some these rules are echoed in modern legislative practice.

* Any set of convention rules must be supplemented by default rules. For this purpose, I recommended “Mason’s Manual,” by far the most commonly used rule book in American state legislatures. Both the Assembly of State Legislatures and the Convention of States project have adopted this recommendation.

* The principles of one state/one vote and decision-by-simple-majority sometimes have been challenged, but ultimately every convention has retained or returned to them for most purposes.

* Although in theory a bare majority of low-population states could cause the
convention to propose an unpopular amendment, modern political conditions render this highly improbable.

* Ratification is quite a different process from proposal. A proposal’s margin of victory at the convention is probably not a strong predictor of whether or not it is ratified.

* Some traditional rules will have to be modified. For example, rules barring
commissioners from access to written materials will yield to the world of electronic hand-held devices. Traditional rules of secrecy will yield to modern values of transparency.

* In prior conventions, the distances between the state capital and the convention site required most legislatures to rely heavily on their commissioners’ discretion once those commissioners had received their initial instructions. Modern communications will enable commissioning authorities to exercise more influence on their representatives. On balance, this is probably a good development, since it reduces the chance of commissioners exceeding their authority, and it involves a wider group in the negotiating process.

* A modern 50-state convention probably will consist of between 200 and 250
commissioners. Some states may appoint alternates as well. Each state legislature is free to fix the size of its own “committee,” but at my suggestion most planners are contemplating convention rules that limit the number of commissioners on the floor from any state at any one time. This will reduce the incentives for states to flood the assembly, as Tennessee did at the 1850 Nashville convention.

* Some states may boycott, as Rhode Island boycotted the Constitutional Convention. Over the three-plus centuries of American multi-government conventions, none has ever attained 100 percent participation.

Whether or not a modern convention actually proposes an amendment, and whether any such amendment is ratified, the event will provoke new public interest in our constitutional system. It may also revivify awareness of the role of the states in American federalism.

The Impending Convention for Proposing Amendments — Part IV

December 31, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, supreme court 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: This series of six articles originally appeared in the Washington Post’s “Volokh Conspiracy,” a leading constitutional law website. Parts I, II, and III appear below this post, and Parts V and VI will be posted in the near future.

How the judiciary’s decisions shed light on the federal amendments convention

Although there has not been a convention for proposing amendments, there has been a considerable amount of other amendment activity. Disputes arising from this activity have produced a series of reported court decisions interpreting Article V.

Within this nook of constitutional law, the courts have followed certain rules and principles with remarkable consistency. Thus, even though no judicial decision has arisen out of an actual amendments convention, the case law offers useful guidance as to the nature of such a convention and its protocols. This post draws on my treatise, “State Initiation of Constitutional Amendments: A Guide for Lawyers and Legislative Drafters” in summarizing this case law.

Perhaps the most important lesson from the accumulated cases is that when interpreting the language of Article V, the courts follow historical practices and understandings. The words of Article V are to be construed as the Founders
understood them. Moreover, procedures employed in adopting earlier amendments are followed for later amendments.

The courts construe Article V as a list of enumerated powers. Article V confers these powers on named assemblies, both pre-existing and ad hoc. They include Congress, the state legislatures, proposal conventions and ratifying conventions. No assembly has any power over the amendment process except that granted, expressly or impliedly, by the Constitution. The 10th Amendment’s recognition of reserved state powers is inapplicable to Article V.

Article V bestows its authority on named assemblies per se, not on any government or branch of government. Thus, the Supreme Court has held that Article V grants power to propose amendments to the assembly called “Congress,” not to the federal government or the national legislature as such. Similarly, Article V grants power to apply and ratify to state legislatures as independent assemblies, not to state governments or to the state legislative authorities.

Article V further bestows power on ad hoc bodies (conventions) that are not departments of any government. When an assembly wields authority derived from Article V, it is said to exercise a “federal function.”

There are analogues elsewhere in the Constitution. Article II confers a federal function on the Electoral College, an entity the Supreme Court has held is not a branch of government. The Guarantee Clause of Article V devolves federal functions on state legislatures and governors. Article I similarly devolves federal functions on state legislatures and officials, sometimes as governmental entities and sometimes not.

Each entity empowered by Article V is, of course, subject to the express limitations in the Constitution. For example, a federal amendments convention is limited to “proposing” and may not change the ratification rules or ratify its own proposals. Judicial respect for historical practice provides other guidance. For example, conventions of states always have been subject to the limits imposed by their calls and by legislative authority, so it follows that a convention may not propose amendments outside the scope of the state applications and congressional call.

Within its prescribed scope, each assembly is free to exercise the discretion an assembly of that kind historically has enjoyed. Hence, the courts hold that it is improper for a voter initiative to attempt to force a member of Congress to
propose a particular amendment or a state legislature to apply or to ratify. Similarly, it would be improper for an applying state legislature to try to turn a proposing convention into a ratifying convention by limiting it to an up-or-down vote on predetermined wording. (This last conclusion is controversial in some quarters, but I believe it is unavoidable.)

Because legislatures operating under Article V act only as resolving assemblies and not as lawmakers per se, executive participation (signing or vetoing) is not appropriate.

As noted in Part I, the Supreme Court has recognised (in accordance with nearly unanimous Founding-Era authority) that a convention for proposing amendments is a “convention of the states.” As also explained in Part I, “convention of the states” is a term with clear and longstanding content. Several rules follow:

o A convention for proposing amendments is a diplomatic meeting among
“committees” of state “commissioners” on the basis of semi-sovereign equality,
with an initial one state/ one vote suffrage rule.

o Each state committee is selected and commissioned as its state legislature
determines – probably by legislative resolution rather than by pre-existing state
law. State legislatures usually reserve the right to select their own commissioners, but they may delegate it to the governor or to the electorate, or they may adopt a nomination-and-confirmation approach.

o Each state committee, no matter how selected, is subject to legislative
instruction. Although the state legislature may not, in its applying capacity,
attempt to micromanage the convention, in its supervisory capacity it may
instruct its own committee. The difference can be justified in this way: The
convention should arrive at its conclusions through negotiation. To lay down
immutable conditions on the call is to forestall negotiations. However,
instructions issued after the call are alterable. In practice, they assure that
negotiations include the authorities back home and that the state legislatures
enjoy a co-equal position with Congress in the proposal procedure.

o The scope of the congressional call is limited to the traditional incidents of calls
for interstate conventions. It may set the initial time and location and specify
the applied-for subject matter; but may not dictate selection procedures, or
convention rules or other matters to the states or to the convention.

o The Necessary and Proper Clause does not empower Congress to regulate the
convention. There are several reasons for so concluding: (1) Allowing Congress
to do so would be inconsistent with the Constitution’s goal of providing a way to
bypass Congress; (2) the Necessary and Proper Clause is but a statement of
incidental powers, which in a call for an interstate convention are limited to
time, place and subject; and (3) the Necessary and Proper Clause, by its terms,
applies only to “foregoing Powers” and those vested either in the U.S.
“Government” and in “any Department or Officer thereof” – a description that
does not pertain to assemblies acting under Article V.

o The convention drafts its own rules and elects its own officers. Once an application campaign appears to have met the two-thirds threshold, Congress will have to determine whether the applications actually “aggregate” to 34. In the event of a dispute, the judiciary may be called upon to review the congressional decision.

As a general proposition, the congressional duty to call is ministerial in nature: The Constitution provides that when 34 states have demanded a convention on a particular topic, Congress “shall call” it. In the 1960s, some members of
Congress stated flatly that, despite what the Constitution said, they would never vote to call a convention. Other opponents, such as Professor Charles Black, contended that Congress should load the call with controlling terms and conditions. History and precedent suggests that the courts will not respond favorably to such tactics.

However, even ministerial duties may require a threshold exercise of discretion. For example, some applications, especially older ones, purport to restrict the convention to an amendment with prescribed wording. Congress will have to determine whether those applications are void or, if valid, the extent to which they can be aggregated with more inclusive applications covering the same general subject. Although the judiciary has firmly rejected suggestions that Congress is omnipotent in regulating the amendment process, the courts likely will defer to reasonable, good-faith exercises of discretion.

The Impending “Convention for Proposing Amendments” — Part III

December 23, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: This series of six articles originally appeared in the Washington Post’s “Volokh Conspiracy,” a leading constitutional law website. Parts I and II appear below this post, and Parts IV-VI will be posted in the near future.

How the States Have Used Article V and How They Have Continued to Meet in Convention

During the century and a half after the Constitution’s ratification, the states repeatedly applied to Congress for an amendments convention. Although they never reached the threshold of two thirds on any particular subject — and therefore never forced Congress to call a convention — they did enjoy some success in forcing constitutional change.

In 1788 and 1789, Virginia and New York filed applications for a convention to consider amendments to the new Constitution. Those applications enabled congressional advocates of a bill of rights to argue that if Congress did not propose a bill, the states might call a proposing convention.

Efforts by some Southern states to force a convention during the nullification controversy (1828-33) never gained much traction. Similarly, a convention of the New England states in Hartford (1814) and one of the Southern states in Nashville (1850) had little effect other than keeping the convention tradition alive. But a coordinated application campaign beginning at the end of the 19th century for an amendment transferring election of U.S. senators from the state legislatures to the people was much more successful. The campaign was only one or two states short when, in 1912, the formerly recalcitrant Senate, faced with the prospect of a federal convention, agreed with the House to propose the 17th amendment.

Early in the 20th century, Western states watered by the Colorado River became alarmed that Congress might impose water use rules on the stream. Accordingly, in 1922 they met in convention (although the gathering was called a “commission”) to negotiate their own settlement. The result of the meetings, most of which were held in Santa Fe, N.M., was the Colorado River Compact.

The 20th century witnessed other interstate meetings that, while not rising to the level of formal conventions, shared certain commonalities with them. In mid-century, an application campaign begun by Montana and some Midwestern states encouraged Congress to propose the 22nd amendment, which limited the president to two terms.

Perhaps the most instructive proceedings during the century and a half after the Constitution’s ratification were those involving the Washington Conference Convention of 1861 — informally known as the Washington Peace Conference. This conclave arose out of concerns that extremists on both sides were pushing the nation toward Civil War. Moderates thought the constitutional amendment process might be used to reconcile North and South. Among them was Sen. John J. Crittenden of Kentucky, who drafted a compromise that would have reassured the South by protecting slavery where it existed and allowing a limited expansion, while reassuring the North by barring “the peculiar institution” from most U.S. territories.

There was, however, no hope of the highly polarized Congress adopting such a proposal. Accordingly, in late 1860 and early 1861, both the outgoing president, James Buchanan, and his successor, Abraham Lincoln, urged the states to apply for an Article V convention. Some states applied, but progress was too slow. In January 1861, therefore, in a last-ditch effort to save the union, the Commonwealth of Virginia called a convention of states for Feb. 4 in Washington to consider an amendment similar to that advanced by Crittenden. The urgency was heightened when on the same date six Southern states also convened in Montgomery, Ala., to finalize plans for a new Confederacy.

The Montgomery convention, soon joined by a seventh state, Texas, followed all the traditional protocols for meetings of that type.

The promoters of the Washington conclave recognized that it would not have Article V powers, but they hoped that if it did reach agreement, the political pressure on Congress would be sufficient to induce it to respond in kind.

The Washington Conference Convention met for three weeks. Its attendance of 21 states represented the overwhelming majority of non-seceding states and marks it as the largest general convention in American history. It elected former president John Tyler of Virginia as its presiding officer, and like the assembly at Montgomery, adhered closely to the traditional protocols. It adopted a set of rules similar to those that had governed the Constitutional Convention.

The Washington Convention had been called on very short notice, and bitter national divisions rendered the sessions very hard-fought.

Nevertheless, by time of adjournment the assembly had recommended an amendment that looked much like the one proposed by Crittenden. That amendment, if adopted, may well have prevented the Civil War; and because it limited the expansion of slavery to territories not well suited for it, the amendment may have placed the “peculiar institution” on track toward extinction.

Congress did not act on the recommendation of the Washington Convention, so that recommendation did not abort the Civil War. When considered as an independent proceeding, however, the convention was a success. Despite almost insuperable difficulties, it did not deadlock or shatter in acrimony, but produced a workable compromise.

Furthermore, the Washington Conference Convention served as a rehearsal for an Article V convention.

The Impending “Convention for Proposing Amendments” — Part II

December 18, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: This series of six articles originally appeared in the Washington Post’s “Volokh Conspiracy,” a leading constitutional law website. Part I appears below, and Parts III-VI will be posted in the coming weeks.

How Article V was Drafted and Ratified

The commissioners who met in Philadelphia to propose a plan to render the American political system “adequate to the exigencies of the union” decided early in the proceedings to add a mechanism for amendment. Edmund Randolph’s Virginia Plan contemplated such a mechanism. The Virginia Plan did not specify what it would be, other than to provide that the consent of the national legislature should not be required.

The Constitution’s first draft, reported to the convention by the Committee of Detail on August 6, 1787, specified that amendments would be proposed, and presumably ratified, by a convention called by Congress on the application of two thirds of the states. Thus, in the framers’ deliberations, proposal by interstate convention preceded the decision to allow proposal by Congress.

During the ensuing discussion, the convention accepted a motion by Elbridge Gerry that amendments be subject to state ratification and a suggestion by Alexander Hamilton that Congress be allowed to propose. The result was a draft that (1) omitted the convention, (2) allowed Congress to propose sua sponte, and (3) required Congress to draft an amendment demanded by two thirds of the states.

George Mason of Virginia was dissatisfied. He argued that the draft’s language would enable Congress to block any amendment to correct federal abuse. Without dissent the convention altered the language to provide that a convention rather than Congress draft state-initiated amendments.

Article V does not expressly define the composition of an amendments convention. James Madison (whose draft of Article V Mason’s motion altered) initially questioned how it would be constituted. This has led some to suggest that its composition is a mystery or that the Constitution leaves the composition for Congress to determine.

No one who fairly examines the historical record can doubt, however, that the final understanding was that an amendments convention would be constituted as a convention of the states. This is nearly as clear as anything in history ever is. There are several reasons for so concluding.

First, the only model of an interstate convention known to the Founders was the “convention of the states” model.

Second, statements made during the ratification debates — by, among others, Hamilton, Tench Coxe, George Washington and Madison himself — reveal the assumption that the convention was to be a creature of the states.

Third, the initial Article V application, submitted by Virginia in 1788, explicitly identified the gathering as a “convention of the states.”

Fourth, various legislative resolutions and other legislative documents issued during the Founding Era in New York, Pennsylvania and Rhode Island specifically referred to an amendments convention as a convention of the states. A few decades later, the Supreme Court confirmed this designation.

So why did Article V not specify the convention’s composition? Because there was no need to. The framers’ method was not to recite in the Constitution matters that everyone knew. Their method was to focus on issues that might otherwise be in doubt. Everyone knew that an interstate convention was made up of commissioners in delegations (“committees”) from the several states; that the states were equal with respect to suffrage; that state legislatures determined how commissioners were selected and instructed them; that the call could be broad or narrow; and that the convention’s authority was limited to the scope of the call.

Article V did, however, address issues that existing practice had not resolved or could not resolve. They were as follows:

What was an “application,” and what was a “call?” During the Founding Era, either of those terms could designate the formal invitation to meet. Article V determined
that the former referred to a state legislature’s demand for a convention and the latter to the formal invitation.

When would a call issue? Article V required a call when two thirds of the states applied for (demanded) it.

What was the calling agency? During the Founding Era, interstate meetings could be called by Congress, by prior conventions or by individual states. Article V determined that the calling agency for an amendments convention would be Congress.

Could this convention adopt amendments, or would it merely propose? Article V determined that this convention would propose only, and that proposals would be subject to state ratification or rejection.

As Madison recognized in Federalist No. 39, Article V’s final text contained a careful blend of “national” and “federal” features. The proposal process was finely balanced to ensure equality between the national legislature and the states. As Madison observed in Federalist No. 43, Article V “equally enable[d] the general and the State governments to originate the amendment of errors.” One way the balance was achieved was allowing both the national legislature and the states (by convention) to propose amendments. Another was by offsetting supermajority requirements. For example, the states may consider an amendment informally at any time, but they may not initiate official consideration unless two thirds agree. Congress, on the other hand, may consider an amendment by a simple majority, or merely by a member introducing a resolution.

Offsetting this seeming asymmetry is another: A convention of the states may propose by a simple majority, but Congress may do so only with the agreement of two thirds.

Article V’s convention language was discussed during the ratification debates. When the Constitution’s opponents argued that the new federal government might overreach or abuse its powers, its advocates countered that the states could respond by adopting appropriate amendments. New York lawmaker and ratifier Samuel Jones pointed out that:

[It] could not be known to the framers of the constitution, whether there was too much power given by it or too little; they therefore prescribed a mode by which Congress might procure more, if in the operation of the government it was found necessary; and they prescribed for the states a mode of restraining the powers of the government, if upon trial it should be found they had given
too much.

Similarly, Tench Coxe reassured his wide readership that

two thirds of the states can always procure a general convention for the purpose of amending the constitution, and that three fourths of them can introduce those amendments into the constitution, although the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them.

Without the reassuring effect of the Article V convention process, ratification might not have occurred.

The Constitution’s Article V, Not the 10th Amendment, Gives State Legislatures Their Power in the Amendment Process

December 18, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, supreme court 
Rob with former US Senator Tom Coburn

Rob with former US Senator Tom Coburn

Note: An earlier version of this article appeared in The American Thinker.

Some advocates of a convention for proposing amendments are endangering the Article V movement by claiming the states can use the Tenth Amendment to control the convention process.

They are doing so even though the judiciary, including the U.S. Supreme Court, has held that state legislatures’ Article V powers come from the Constitution directly, not from the Tenth Amendment.

We have been down this road before: During the 1980s and 1990s, balanced budget and term limits activists adopted procedures based on the Tenth Amendment. The courts voided those procedures repeatedly.

Those resting new campaigns on the Tenth Amendment risk the same fate. They could set back the Article V process for decades, just as judicial defeats in the 1980s and ’90s stalled it for over 20 years.

Here’s the constitutional law background:

The Tenth Amendment provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

As I point out in my book, The Original Constitution, the Ninth Amendment was supposed to be the principal statement of federalism. The Tenth was designed chiefly to clarify that the federal government would not have any extra-constitutional powers of the kind that leaders such as James Wilson had claimed for the Confederation Congress under the supposed doctrine of “inherent sovereign authority.”

Nevertheless, both modern courts and modern commentators accept the Tenth as a broad statement of federalism, and the following discussion does so as well.

The Tenth Amendment is a rule of construction—that is, a clarifying rather than substantive amendment. It explains that “powers not delegated” are reserved. It obviously does not apply to powers that the Constitution DOES delegate. See U.S. v. Darby Lumber (1941).

In Hawke v. Smith No. 1 (1920), the U.S. Supreme Court held that the functions performed by Congress and state legislatures under Article V come directly from the Constitution—i.e., they are delegated by the people through that document. The Court confirmed this analysis shortly thereafter in a case called Leser v. Garnett (1922). Both cases invalidated efforts to control the amendment process though state law.

These cases clarified that when Congress, state legislatures, and conventions operate under Article V, they do so as independent assemblies, not as branches of government. This is the same approach the Supreme Court applies to the Electoral College. Ray v. Blair (1951). The Supreme Court says that non-governmental entities exercising authority directly under the Constitution perform “federal functions.” See Leser.

At this point, it should already be clear that the Tenth Amendment does not apply to the constitutional amendment process. Article V delegates power to entities (legislatures, conventions), which exercise them on behalf of “the United States” (although not on behalf of the government). But the Tenth Amendment applies only to powers “not delegated.”

Thus, in United States v. Thibault, a federal appeals court, using a slightly different analysis, held that the Tenth Amendment did not apply to the amendment process—that it “does not alter the fifth article.” Later that year, the Supreme Court held in United States v. Sprague (1931) that the Tenth Amendment had no application to Article V’s grants of power to Congress.

One might point out that the Thibault and Sprague cases involved Congress’s role in the process, not the role of the states. But the opinions in those cases make clear that the judges deciding them were applying the same principles to Congress that the Supreme Court had applied earlier to state legislatures.

If any doubt remained, the Supreme Court resolved it in 1995, when it decided U.S. Term Limits v. Thornton. In that case, Arkansas had tried to use powers reserved by the Tenth Amendment to force term limits on its congressional delegation. However, the Supreme Court held that the Tenth Amendment’s reservation of state authority applied only to authority the states enjoyed previous to the Constitution. The Court said the Tenth Amendment did not apply to authority created by the Constitution.

The Court said:

. . . [T]he power to add qualifications is not part of the original powers of sovereignty that the Tenth Amendment reserved to the States . . . [T]hat Amendment could only “reserve” that which existed before. As Justice Story recognized, “the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them. No state can say, that it has reserved, what it never possessed.”


This conclusion is consistent with our previous recognition that, in certain limited contexts, the power to regulate the incidents of the federal system is not a reserved power of the States, but rather is delegated by the Constitution. . . . Cf. Hawke v. Smith, No. 1, 253 U.S. 221, 230, 40 S.Ct. 495, 64 L.Ed. 871 (1920) (“[T]he power to ratify a proposed amendment to the Federal Constitution has its source in the Federal Constitution. The act of ratification by the State derives its authority from the Federal Constitution to which the State and its people have alike assented”).

Note the explicit comparison with the amendment process and the citation of Hawke v. Smith. The reason the Hawke case was relevant was that the state powers under Article V are conferred by the Constitution. They did not exist before that document came into effect. So the Tenth Amendment does not apply to them.

Recently, I’ve encountered yet another objection. It runs like this: “Well, granted that the power to propose comes from Article V, and the power to ratify comes from Article V. But can’t the states’ Tenth Amendment reserved powers at least govern the right to apply? Can’t they pass laws or adopt interstate compacts that control the process in advance? After all, states ‘applied’ for interstate conventions before the Constitution was adopted.”

There are two answers: First, it would violate normal rules of legal interpretation to construe Article V so that one of its procedures (application) was governed by principles different from all the other actions.

More importantly, the courts already have effectively rejected that argument. Several cases have held that the power of a state legislature to apply is not subject to states’ reserved (legislative) powers. In 1999, the California Supreme Court decided Bramberg v. Jones (1999). The court cited numerous prior cases on the point, and summed them up this way:

It is not the function of courts or legislative bodies, national or state, to alter the methods which the Constitution has fixed. . . [T]he decision in Leser [v. Garnett] makes clear that a state may not, through restrictions imposed by state law, interfere with a state legislature’s ability to fulfill its function and responsibilities as contemplated by Article V of the federal Constitution.

The Impending “Convention for Proposing Amendments” – Part I

December 13, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding 

2009 RGN

Note: This is Part I of a six-part series I wrote on Amendment Conventions for the Washington Post’s “Volokh Conspiracy,” a leading constitutional law website. Links have not been reproduced, because all supporting information is on this website and can be found with by word search.

* * * *
How Past Conventions Inspired the Constitution’s “Convention for Proposing Amendments”
You may have heard of campaigns to obtain constitutional amendments by persuading state legislatures to apply for what the Constitution calls a “Convention for proposing Amendments.” The movement for a balanced budget amendment is one such campaign, and it is well on the way toward enlisting enough state legislatures to trigger a convention. Several other campaigns are active as well, including the “Convention of States” movement, which seeks to limit the size and scope of the federal government, and the Wolf PAC drive to further regulate campaign funding.

These and other groups seek constitutional amendment as a method of reforming the federal government. All have concluded that since Congress is unlikely to propose any amendment to reform itself, the alternative convention method of proposal must be revived.

My own assessment is that there is a significant chance that an amendments convention will meet within the next few years. I am not alone in so concluding: Many political leaders agree. In fact, several organizations of state lawmakers are actively planning for a convention. Because such a “Convention for proposing Amendments” has never been held, many writers have posed questions about its composition, how its members would be selected, what its procedures would be and how much power it would have. This series of postings answers those questions and several others as well.

There are six installments in the series. This Part I thumbnails the historical background against which the framers drafted Article V. Part II examines the drafting and ratification of Article V’s convention language. Part III surveys its history from the time of the founding to the middle of the 19th and 20th centuries. Part IV summarizes the main holdings of Article V case law. Part V addresses misconceptions about the convention process that have entered popular mythology. Part VI predicts how the process will unfold when the first set of state applications passes the critical threshold.

Article V of the Constitution delineates the amendment process. To become part of the Constitution, an amendment must be ratified by legislatures or by conventions in three fourths of the states — that is, by 38 of 50. Congress chooses whether ratification will be by state conventions, as in the case of the 21st Amendment (repealing Prohibition), or by state legislatures (as in the case of all other amendments). Before being considered for ratification, the amendment first must be proposed. There are only two vehicles for proposing: (1) Congress and (2) a “Convention for proposing Amendments.” To date, all proposed amendments have come from Congress. As noted above, that may change within the next few years.

In traditional AngloAmerican political usage, a “convention” is an assembly, other than a legislature, convened to address short term political problems. The assembly that restored the English monarchy after a failed experiment in republicanism was styled a “convention parliament” (1660). So also was the assembly that invited William of Orange and his wife, Mary Stuart, to assume the throne after the ouster of James II (1688-89).

In America, conventions traditionally fall into one of two categories. The first category consists of those that address issues within particular polities — that is, within individual colonies or states. Their membership generally is elected directly by the people or by subdivisions within the polity, such as towns or counties. Immediately preceding the Revolutionary War, such conventions assumed the governance of the colonies and some of them wrote new state
constitutions. Other specimens within this category are the state conventions that ratified the Constitution and the 21st Amendment as well as modern state constitutional conventions.

The second category of American conventions consists of multi-government gatherings charged with addressing interstate issues. Before the creation of the Second Continental Congress, this kind of meeting was referred to by the word “congress” as well as “convention.” After “congress” became associated with the national legislature, interstate gatherings usually were called committees of states or conventions of states. The founders envisioned the “Convention for proposing Amendments” as one kind of convention of states.

A convention of states is a diplomatic meeting among equal semi-sovereigns. If the states invited are all in one region of the country, the gathering is a partial or regional convention. If states are invited from all regions, it is a general convention. Regional and general conventions traditionally have followed the same protocols, originally based on international practice.

The first American convention met in 1689 to oversee dissolution of James II’s hated “Dominion of New England.”

Multi-government conventions soon became popular for addressing intercolonial problems: Between 1689 and 1776, there were at least 20 of them. Benjamin Franklin represented Pennsylvania at one, and in his capacity as a printer he reproduced the minutes of several.

Before independence, the usual reasons for a multi-colony convention were to coordinate continental defense or to negotiate treaties with Indian tribes. Perhaps the most famous example before the Revolutionary Era was the Albany Congress of 1754, a general convention attended by seven or eight colonies (depending on how one counts) and by the Iroquois nations.

In 1765, the nine-colony convention known as the Stamp Act Congress convened, and in 1774 the 12 colony First Continental Congress met, both to coordinate common responses to British policy.

After independence, resort to the convention device accelerated. At least 11 met between 1776 and 1787. Their agendas included military supply and strategy, price inflation, trade and constitutional reform.

These conclaves included regional gatherings in Providence, R.I. (twice); Hartford, Conn. (twice); New Haven, Conn.; Yorktown, Pa.; and Springfield and Boston, Mass. They also included a general convention in Annapolis and two in Philadelphia. In addition, there were several unsuccessful calls: The Continental Congress called for conventions in Fredericksburg, Va., and Charleston, S.C. Massachusetts called for a meeting of New York and the New England states in Hartford. In 1786, the Chesapeake Bay states agreed to meet, but events outstripped their agenda.

In all, the century before adoption of the Constitution witnessed at least 30 multi-government conventions — an average of better than one every four years. Today some people assume the Constitutional Convention was a unique event. But it had at least 30 predecessors. Many of the Constitution’s framers were veterans of prior interstate gatherings. For Roger Sherman of Connecticut, the Constitutional Convention was his fifth time around.

By 1787, the protocols for interstate conventions had become standardized and generally accepted and understood. The procedure began when Congress, a prior convention, or (most commonly) a state drafted a document referred to as a “call” or “application.” This document specified the time and place of initial meeting and the subject matter. The sponsor directed the call or application to the states it wished to invite. The scope of the call might be, although usually was not, the subject of preliminary negotiation among the states concerned.

The legislature of each invited state determined whether to participate. If it decided to do so, the legislature determined how its representatives (“commissioners”) were to be appointed. Usually, the legislature elected them itself, and they were commissioned according to local state norms. The legislature or its designee also instructed them.

Upon convening, the group elected officers and adopted rules. Although participants occasionally flirted with other suffrage schemes, ultimately every convention seems to have retained the rule of “one state/one vote.” This formula reflected the participating governments’ status as coequal semi-sovereignties.

Today we might call a multi-state convention a “task force” — a group assigned one or more problems and commissioned to find solutions. In convention practice, the problems are identified in the call. During the Founding Era, the call could invite the states to proceed by “pledging their faith,” by which all states agreed to be bound by the convention’s resolutions. More often, the call asked only for recommendations subject to state approval.

The authority of a convention of states (or colonies) always has been limited to the scope of the call. State instructions to commissioners might effectively circumscribe it further. When the 1754 Albany Congress arguably exceeded its call by proposing a continental “Plan of Union,” most colonies rejected the plan without considering its merits. For reasons I have explained elsewhere, the common claim that the 1787 Constitutional Convention exceeded its call is substantially erroneous.

Rob Explains Why We Need a Convention of States

December 10, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V 

Soros-Funded Groups Attack the Article V Movement

December 5, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Article V activists have had to deal with the defamatory, and potentially actionable, charge that they are supported by socialist billionaire George Soros.

As far as I can determine, however, no one in the movement has been able to identify any pro-Article V Soros money at all.

On the contrary, Soros-funded groups have repeatedly assailed Article V and its activists. For example, the October 21, 2014 Washington Post featured an attack by the president of the Center on Budget and Policy Priorities, a Soros-funded group.

The latest example is a wide-ranging assault on Article V and its activists by Common Cause, a group that is not only supported by Soros, but is reputedly one of his favorite donees.

It is long past time for those who have claimed that Article V activists are supported by Soros to firmly and publicly apologize.

The Silver Lining in the Mistakes at the Assembly of State Legislatures

November 17, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: This article was first published in the American Thinker.

The Assembly of State Legislatures (ASL) has adjourned from its latest meeting, still without having produced a set of rules for an Article V amendments convention.

I have been an enthusiastic supporter of ASL. I have to acknowledge, however, that missteps have impeded its progress.

Fortunately, there is a very plush silver lining within the mistakes. For more on that, see below.

The latest missteps involved a set of rules proposed by the ASL executive committee. Some of these missteps involved procedure: Apparently there was insufficient consultation with professional drafters or with members of the ASL standing rules committee.

Not surprisingly, therefore, the product was marred by substantive deficiencies. Some of these were glaringly obvious to everyone except the drafters—specifically, a system of supermajority, weighted voting, and co-officer rules reminiscent of the political theories of John C. Calhoun. These devices directly violated the balance struck by the Constitution in Article V. They also would have rendered the convention unworkable by granting a veto at every stage to a minority unsympathetic with the convention’s goal.

The principal argument for this approach was that for an amendment to have a chance at ratification it had to enjoy supermajority support at the convention. But as I pointed out in two articles covering the subject (here and here), this argument is simply unsupported by actual convention experience.

I also predicted that the supermajority approach would promote extortion from the unsympathetic minority. As it turns out, my prediction was validated even earlier than I expected: During the ASL meeting itself, the supermajority/co-officer/weighted voting requirements encouraged minority lobbyists to demand, as the price of their support, that the convention agenda be expanded beyond the likely scope of its call. They demanded that the convention be designed to produce an amendment that very few states have applied for.

The general ASL membership attempted to address the glaring deficiencies by altering the executive committee draft. But in the pressure of time they largely overlooked something: That draft suffered from many other deficiencies as well.

These were not minor or merely typographical. They were of the type that would have impeded convention operations. A few days before the ASL meeting, another Article V scholar alerted me to the scope of the problem. The two of us, assisted by a third Article V specialist, soon identified at least 19 fundamental defects. They included:

* important omissions, such as failure to define the term “qualified majority,” the measure for electing co-presidents;

* oversights, such the one that rendered convention amendments to its rules unalterable;

* rules that flatly contradicted each other, such as two conflicting ways of electing the parliamentarian (or parliamentarians); and

* provisions that were legally void, such as an attempt to impose these rules as the initial pattern for future conventions.

Now the silver lining: These missteps happened only in planning sessions, not in the convention itself. To explain:

In the century before the Constitution was written, colonies and states met in convention at least 30 times—in other words, every 3-4 years. Not all of these gatherings was successful, but the failures of some laid the foundations for the success of others. The framers wrote Article V in the expectation, therefore, that state officials would be knowledgeable about, and comfortable with, the interstate convention process.

However, in the years since the Constitution was adopted, the states have met in convention only a handful of times. The last general convention was in 1861 and the last regional convention met in 1922. Hence, there is a lot of re-learning to be done.

Because it is so difficult to call an Article V convention, we have re-learn either through close study of the historical and legal record or through planning mistakes.

The ASL’s latest difficulties teach the following lessons:

* Don’t draft in secret or bypass normal processes;
* Don’t include provisions that impede the convention operations or contradict the balance struck by Article V;
* Obtain professional drafting assistance; and
* Remain non-partisan, but don’t try to forge an artificial bipartisanship with people who will oppose the goals of any convention likely in the near future.

On that last point: American history has included several events of significant constitutional reform. Some have been formal (the post-Civil War Amendments, the Progressive Era amendments). One has been informal (the New Deal).

The more important constitutional proposals did not result from compromise between parties with radically different visions. Significant reform came only after controversial proposals were presented for public consideration, and public consideration led to lopsided support.

But the proposals had to come first.

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