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| documents:external:articlev-handbook [2020/02/18 23:26] – Oliver Wolcott | documents:external:articlev-handbook [2020/02/18 23:27] – Oliver Wolcott |
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| This second group of studies largely corroborates the conclusions of those dating from the 1970s and 1980s, but they also make some corrections to earlier work. The accompanying endnote tells the reader where to obtain these studies.((The studies by the author of this Handbook are available at http:%%//%%constitution.i2i.org/articles-books-on-the-constitution-by-rob-natelson/ (second topic). The Rappaport study is Michael B. Rappaport, //The Constitutionality of a Limited Convention: An Originalist Analysis, //28 Const. Comment. 53 (2012).)) | This second group of studies largely corroborates the conclusions of those dating from the 1970s and 1980s, but they also make some corrections to earlier work. The accompanying endnote tells the reader where to obtain these studies.((The studies by the author of this Handbook are available at http:%%//%%constitution.i2i.org/articles-books-on-the-constitution-by-rob-natelson/ (second topic). The Rappaport study is Michael B. Rappaport, //The Constitutionality of a Limited Convention: An Originalist Analysis, //28 Const. Comment. 53 (2012).)) |
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| <BOOKMARK:i>1 The Fourteenth Amendment extended certain federal guarantees to all citizens; the Fifteenth Amendment protected the right to vote, despite "race, color, or previous condition of servitude;" and the Twenty-Fourth Amendment eliminated the poll tax system sometimes used to suppress voting by minorities. | |
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| <BOOKMARK:ii>2 ALEC has also recommended, among others, (1) a general BBA application (2011), (2) the Vote on Taxes Amendment (2010), (3) the National Debt Relief Amendment (2011) (which requires approval by a majority of the state legislatures before the federal government can go deeper into debt), (4) the Repeal Amendment (2011) (permitting two-thirds of state legislatures to invalidate federal laws and regulations), (5) An Accountability in Government Amendment (1996) (limiting federal mandates on states), (6) a Government of the People Amendment (1996) (similar to the Repeal Amendment, but with a seven-year repeal limit), and (7) a States' Initiative Amendment (1996) (permitting three quarters of the states to propose amendments without a convention, subject to congressional veto). To see model legislation on any of these bills, contact Jonathan Williams at 202-466-3800 or [[mailto:jwilliams@alec.org?subject=Model legislation on amendment bills|jwilliams@alec.org]]. | |
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| <BOOKMARK:iii>3 For a survey of 18th century conventions, including the rules that governed them, see Robert G. Natelson, //Founding-Era Conventions and the Meaning of the Constitution's "Convention for Proposing Amendments," 65 Fla. L. Rev. 615 (2013).// | |
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| <BOOKMARK:iv>4 The Founding-Era evidence for distinguishing an Article V convention from a "constitutional convention" is overwhelming. //See// Robert G. Natelson, //Amending the Constitution by Convention: A More Complete View of the Founders' Plan// (Independence Institute, 2010) (updated and amended version of an earlier paper published by the Goldwater Institute), available at [[http://constitution.i2i.org/files/2010/12/IP_7_2010_a.pdf|http://constitution.i2i.org/files/2010/12/IP_7_2010_a.pdf]]. | |
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| <BOOKMARK:v>5 [[historicaldocuments:constitution#article_v|U.S. Const., Art. V]]. | |
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| <BOOKMARK:vi>6 The courts, including the Supreme Court, have affirmed this repeatedly. | |
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| Note that Article V grants eight distinct enumerated powers, four powers at the //proposal //stage and four at the //ratification //stage. At the proposal stage, the Constitution (1) grants to two-thirds of each house of Congress authority to propose amendments; (2) grants to two-thirds of the state legislatures power to require Congress to call a convention to propose amendments; (3) then empowers (and requires) Congress to call that convention; and (4) authorizes that convention to propose amendments. | |
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| At the ratification stage, (1) the Constitution authorizes Congress to select whether ratification shall be by state legislatures or state conventions; (2) if Congress selects the former method, the Constitution authorizes three fourths of state legislatures to ratify; (3) if Congress selects the latter method, the Constitution empowers (and requires) each state to call a ratifying convention; and (4) the Constitution further empowers three-fourths of those conventions to ratify. | |
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| <BOOKMARK:vii>7 Coleman v. Miller, 307 U.S. 433 (1939). That language actually was not part of the ruling, but only //dicta// (non-authoritative side comments) by four justices. | |
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| <BOOKMARK:viii>8 Appendix A contains model legislation that can be used to apply for a convention to discuss a balanced budget amendment. | |
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| <BOOKMARK:ix>9 Exactly when the power to rescind ends has not been determined judicially, but presumably it ends when the application triggers larger legal consequences—i.e., when the 34-state threshold is reached, Congress calls the convention, or the convention actually meets. Once the 34-state threshold is reached, the call and meeting become merely "ministerial" (not discretionary), which would suggest that the power to rescind ends as soon as 34 states have applied. | |
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| <BOOKMARK:x>10 The late Senator Sam Ervin (D.-N.C.) reported disapprovingly on the obstructionism of some of his senatorial colleagues during the 1960s. Sam J. Ervin, Jr., //Proposed Legislation to Implement the Convention Method of Amending the Constitution//, 66 Mich. L. Rev. 875, 878 (1968-68). | |
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| <BOOKMARK:xi>11 An "incidental" power is an unmentioned and subordinate power implicitly granted along with a power expressly granted. The link is created by the intent behind the document, generally shown by custom or necessity. When the Constitution grants a specified power it generally grants incidentals as well. The Constitution's direction to Congress to call a convention of the states includes authority to set the time and place because that authority is properly incidental. On the other hand, some powers are too substantial to be incidents of a mere power to call, such as prescribing convention rules and methods of delegate selection. On incidental powers and the Constitution, see Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, and Guy I. Seidman, The Origins of the Necessary and Proper Clause (Cambridge University Press, 2010). Chief Justice Roberts followed this analysis of incidental powers in NFIB v. Sebelius, 132 S.Ct. 2566, 2591-93 (2012) (the "ObamaCare" case). | |
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| <BOOKMARK:xii>12 U.S. Const., Art. V. ("Provided that . . . no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."). This means that an amendment may not alter the Constitution's rule that each state has equal weight in the U.S. Senate. An amendment could increase the number of Senators from each state to three, or require voting by state delegations. But it could not, for example, give New York more voting power than Nebraska. | |
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| <BOOKMARK:xiii>13 //Id. ("which//, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Convention in three fourths thereof"). | |
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| <BOOKMARK:xiv>14 State legislative authority to instruct state commissioners has been universal to all interstate conventions, both during the Founding Era and at the 1861 Washington Conference Convention. See also Ray v. Blair, 343 U.S. 214 (1952) (upholding state authority to instruct members of the electoral college). | |
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| <BOOKMARK:xv>15 Notable among those publicizing the scenario were Yale's Charles Black and Harvard's Lawrence Tribe; Supreme Court Justices Warren Burger and Arthur Goldberg; Senators Joseph Tidings (D.-Md.) and Robert F. Kennedy (D.-N.Y); and individuals within the "Kennedy circle," such as Goldberg and speechwriter Theodore Sorensen. | |
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| <BOOKMARK:xvi>16 Among the cases emphasizing that assemblies (legislatures and conventions) meeting under Article V must have a certain amount of deliberative freedom are Hawke v. Smith, 253 U.S. 221 (1920); In Re Opinion of the Justices, 132 Me. 491, 167 A. 176 (1933); State ex rel. Harper v. Waltermire, 213 Mont. 425, 691 P.2d 826 (1984); AFL-CIO v. Eu, 36 Cal.3d 687, 206 Cal. Rptr. 89 (1984), //stay denied sub nom//. Uhler v. AFL-CIO, 468 U.S. 1310 (1984); Donovan v. Priest, 931 S.W. 2d 119 (Ark. 1996), //cert. denied//, 117 S.Ct. 181 (1997) (no official report) (requiring an assembly that can engage in "intellectual debate, deliberation, or consideration"); League of Women Voters of Maine v. Gwadosky, 966 F.Supp. 52 (D. Me. 1997); Barker v. Hazetine, 3 F. Supp. 2d 1088, 1094 (D.S.D. 1998) ("Without doubt, Initiated Measure 1 brings to bear an undue influence on South Dakota's congressional candidates, and the deliberative and independent amendment process envisioned by the Framers when they drafted Article V is lost."); Gralike v. Cooke, 191 F.3d 911, 924-25 (8<sup>th</sup> Cir. 1999), //aff'd on other grounds sub nom//. Cook v. Gralike, 531 U.S. 510 (2001); Miller v. Moore, 169 F.3d 1119 (8<sup>th</sup> Cir. 1999). //Cf. //Kimble v. Swackhamer, 439 U.S. 1385, //appeal dismissed//, 439 U.S. 1041 (1978) (Rehnquist, J.) (upholding a referendum on an Article V question because it was advisory rather than mandatory); Dyer v. Blair, 390 F.Supp. 1291, 1308 (N.D. Ill. 1975) (Justice Stevens) (upholding a rule of state law on an Article V assembly, but only because the assembly voluntarily adopted it). | |
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| <BOOKMARK:xvii>17 //See //Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (Stevens, J.) | |
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| <BOOKMARK:xviii>18 The form was developed by the Minnesota legislature, and originally read as follows: | |
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| SECTION 1. The legislature of the State of Minnesota hereby makes application to the Congress, under the provisions of Article V of the Constitution of the United States, for the calling of a convention to propose an amendment to the Constitution of the United States //making United States Senators elective in the several States by direct vote of the people//. | |
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| Notice how simple and direct the italicized wording is; drafting details are left to the convention. As it turned out, however, Congress rather than a convention drafted the details. After 31 states (one short of the needed 32 of the then 48) had approved similar applications, the U.S. Senate, which had resisted the change, finally consented to congressional proposal of what became the [[historicaldocuments:constitution-lateramendments#amendment_xvii|17th Amendment]]. | |
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| <BOOKMARK:xix>19 In proposing other amendments, it is equally important to avoid trying to mandate particular wording. For example, the proposed National Debt Relief Amendment (which ALEC has endorsed), provides that "An increase in the federal debt requires approval from a majority of the legislatures of the separate States." An application might describe the subject matter as "an amendment to the Constitution of the United States forbidding increases in the debt of the United States unless approved by a specified proportion of state legislatures." | |
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| <BOOKMARK:xx>20 See [[documents:external:articlev-handbook#v_the_myth_of_a_runaway_convention|Part V: "The Myth of a Runaway Convention.]]" | |
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| <BOOKMARK:xxi>21 Thus, one list trumpets: "If these questions cannot be answered (and they CANNOT!), then why would any state legislator even consider voting for such an uncertain event as an Article V Constitutional Convention?" | |
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| <BOOKMARK:xxii>22 Lawrence H. Tribe, //Issues Raised by Requesting Congress to Call a Constitutional [sic] Convention to Propose a Balanced Budget Amendment//, 10 Pac. L.J. 627 (1979) (republishing earlier legislative testimony). This article offers virtually no supporting evidence from the historical record or case law. | |
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| <BOOKMARK:xxiii>23 The facts appear in Robert G. Natelson, //Proposing Constitutional Amendments by Conventions: Rules Governing the Process//, 78 Tenn. L. Rev. 693, 719-23 (2011), available at [[http://constitution.i2i.org/files/2011/10/Rules_for_Art_V_Conventions.pdf|http://constitution.i2i.org/files/2011/10/Rules_for_Art_V_Conventions.pdf]]. | |
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| <BOOKMARK:xxiv>24 William Russell Pullen, //The Application Clause of the Amending Provision of the Constitution// (Univ. of North Carolina, 1951) (unpublished). Pullen worked largely from the long-collected files of his mentor, Professor W.S. Jenkins. Pullen later became a distinguished academic librarian. | |
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| <BOOKMARK:xxv>25 The citations of the studies are as follows: //Amendment of the Constitution by the Convention Method Under Article V// (American Bar Ass'n, 1974); John M. Harmon, //Constitutional Convention: Limitation of Power to Propose Amendments to the Constitution//, 3 Op. Off. Legal Counsel 390 (1979); Russell Caplan, //Constitutional Brinksmanship// (Oxford University Press, 1988). | |
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| <BOOKMARK:xxvi>26 The studies by the author of this Handbook are available at http:%%//%%constitution.i2i.org/articles-books-on-the-constitution-by-rob-natelson/ (second topic). The Rappaport study is Michael B. Rappaport, //The Constitutionality of a Limited Convention: An Originalist Analysis, //28 Const. Comment. 53 (2012). | |
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