User Tools

Site Tools


documents:external:articlev-handbook

Differences

This shows you the differences between two versions of the page.

Link to this comparison view

Both sides previous revision Previous revision
documents:external:articlev-handbook [2015/11/01 02:48]
Oliver Wolcott ↷ Page moved from documents:answers:external:articlev-handbook to documents:external:articlev-handbook
documents:external:articlev-handbook [2015/11/01 02:48] (current)
Oliver Wolcott ↷ Links adapted because of a move operation
Line 5: Line 5:
 AMERICAN LEGISLATIVE EXCHANGE COUNCIL ​ AMERICAN LEGISLATIVE EXCHANGE COUNCIL ​
 <WRAP round download 50%> <WRAP round download 50%>
-{{:​documents:answers:​external:​articlevhandbook.pdf |Download:​Article V Handbook}}+{{:​documents:​external:​articlevhandbook.pdf |Download:​Article V Handbook}}
 </​WRAP>​ </​WRAP>​
  
  
-{{:​documents:answers:​external:​articlev-handbook-cover.png?​direct&​400 |}}+{{:​documents:​external:​articlev-handbook-cover.png?​direct&​400 |}}
 <wrap pagebreak /> <wrap pagebreak />
 ---- ----
Line 47: Line 47:
 ===== About the Author ===== ===== About the Author =====
  
-{{:​documents:answers:​external:​articlev-handbook-natelson.png?​nolink&​100|}}+{{:​documents:​external:​articlev-handbook-natelson.png?​nolink&​100|}}
  
 Rob Natelson is one of America'​s best known constitutional scholars. He served as a law professor for 25 years at three different universities. Among other subjects, he taught Constitutional Law and became a recognized national expert on the framing and adoption of the United States Constitution. He pioneered the use of source material, such as important Founding Era law books, overlooked by other writers, and he has been the first to uncover key facts about some of the most significant parts of the Constitution. Rob has written for some of the most prestigious academic publishers, including Cambridge University Press, the //Harvard Journal of Law// //and Public Policy,// and //Texas Law Review.// Rob Natelson is one of America'​s best known constitutional scholars. He served as a law professor for 25 years at three different universities. Among other subjects, he taught Constitutional Law and became a recognized national expert on the framing and adoption of the United States Constitution. He pioneered the use of source material, such as important Founding Era law books, overlooked by other writers, and he has been the first to uncover key facts about some of the most significant parts of the Constitution. Rob has written for some of the most prestigious academic publishers, including Cambridge University Press, the //Harvard Journal of Law// //and Public Policy,// and //Texas Law Review.//
Line 89: Line 89:
 Sincerely, Sincerely,
  
-{{:​documents:answers:​external:​jimbucksig.jpg?​nolink&​100 |}}+{{:​documents:​external:​jimbucksig.jpg?​nolink&​100 |}}
  
  
Line 127: Line 127:
  
  
-**[[documents:answers:​external:​articlev-handbook#​i_introduction|I. Introduction]] **+**[[documents:​external:​articlev-handbook#​i_introduction|I. Introduction]] **
  
-**[[documents:answers:​external:​articlev-handbook#​ii_the_constitution_s_state_application_and_convention_processwhat_it_is|II. The Constitution'​s State Application and Convention Process]] **+**[[documents:​external:​articlev-handbook#​ii_the_constitution_s_state_application_and_convention_processwhat_it_is|II. The Constitution'​s State Application and Convention Process]] **
  
-**[[documents:answers:​external:​articlev-handbook#​iii_judicial_review|III. Judicial Review]] **+**[[documents:​external:​articlev-handbook#​iii_judicial_review|III. Judicial Review]] **
  
-**[[documents:answers:​external:​articlev-handbook#​iv_the_state_application_and_convention_processstep-by-step|IV. The State Application and Convention Process: Step-By-Step]] ** +**[[documents:​external:​articlev-handbook#​iv_the_state_application_and_convention_processstep-by-step|IV. The State Application and Convention Process: Step-By-Step]] ** 
  
-[[documents:answers:​external:​articlev-handbook#​a_making_an_application|A. Making an application]]+[[documents:​external:​articlev-handbook#​a_making_an_application|A. Making an application]]
  
-[[documents:answers:​external:​articlev-handbook#​b_how_long_does_an_application_last|B. How long does an application last?]]+[[documents:​external:​articlev-handbook#​b_how_long_does_an_application_last|B. How long does an application last?]]
  
-[[documents:answers:​external:​articlev-handbook#​c_the_applications_in_congress_and_the_call|C. The applications in Congress and the "​call"​]]+[[documents:​external:​articlev-handbook#​c_the_applications_in_congress_and_the_call|C. The applications in Congress and the "​call"​]]
  
-[[documents:answers:​external:​articlev-handbook#​d_delegate_selection|D. Selection of delegates ("​commissioners"​)]]+[[documents:​external:​articlev-handbook#​d_delegate_selection|D. Selection of delegates ("​commissioners"​)]]
  
-[[documents:answers:​external:​articlev-handbook#​e_the_convention|E. The Convention]]+[[documents:​external:​articlev-handbook#​e_the_convention|E. The Convention]]
  
-[[documents:answers:​external:​articlev-handbook#​f_ratification|F. Ratification]] ​+[[documents:​external:​articlev-handbook#​f_ratification|F. Ratification]] ​
  
-**[[documents:answers:​external:​articlev-handbook#​v_the_myth_of_a_runaway_convention|V. The Myth of a Runaway Convention]] ** +**[[documents:​external:​articlev-handbook#​v_the_myth_of_a_runaway_convention|V. The Myth of a Runaway Convention]] ** 
  
-**[[documents:answers:​external:​articlev-handbook#​vi_practical_recommendations_for_the_state_application_and_convention_process|VI. Practical Recommendations for the State Application and Convention Process]] **+**[[documents:​external:​articlev-handbook#​vi_practical_recommendations_for_the_state_application_and_convention_process|VI. Practical Recommendations for the State Application and Convention Process]] **
  
-**[[documents:answers:​external:​articlev-handbook#​vii_conclusion|VII. Conclusion]] ** +**[[documents:​external:​articlev-handbook#​vii_conclusion|VII. Conclusion]] ** 
  
-[[documents:answers:​external:​articlev-handbook#​appendix_a|Appendix A]]: Annotated Forms for a Balanced Budget Amendment+[[documents:​external:​articlev-handbook#​appendix_a|Appendix A]]: Annotated Forms for a Balanced Budget Amendment
  
-[[documents:answers:​external:​articlev-handbook#​appendix_b|Appendix B]]: Definitions of Terms+[[documents:​external:​articlev-handbook#​appendix_b|Appendix B]]: Definitions of Terms
  
-[[documents:answers:​external:​articlev-handbook#​appendix_c|Appendix C]]: Answers to Criticisms+[[documents:​external:​articlev-handbook#​appendix_c|Appendix C]]: Answers to Criticisms
  
-[[documents:answers:​external:​articlev-handbook#​appendix_d|Appendix D]]: Where Does this Handbook Get Its Information?​+[[documents:​external:​articlev-handbook#​appendix_d|Appendix D]]: Where Does this Handbook Get Its Information?​
  
  
Line 465: Line 465:
 </​WRAP>​ </​WRAP>​
  
-{{:​documents:answers:​external:​gear.png?​direct&​20 |}} //**Promote the right amendments.**//​+{{:​documents:​external:​gear.png?​direct&​20 |}} //**Promote the right amendments.**//​
  
 Most people have one or more causes dear to their hearts that they would love to see written into the Constitution. But the state application and convention process is no place for unpopular, ineffective,​ or idiosyncratic causes. Each potential amendment should comply with at least four criteria: Most people have one or more causes dear to their hearts that they would love to see written into the Constitution. But the state application and convention process is no place for unpopular, ineffective,​ or idiosyncratic causes. Each potential amendment should comply with at least four criteria:
Line 481: Line 481:
 As of this writing, a balanced budget amendment probably meets all four criteria; an amendment to abolish the income tax probably does not. As of this writing, a balanced budget amendment probably meets all four criteria; an amendment to abolish the income tax probably does not.
  
-{{:​documents:answers:​external:​gear.png?​direct&​20 |}}  //​**Don'​t work alone**//​**.**+{{:​documents:​external:​gear.png?​direct&​20 |}}  //​**Don'​t work alone**//​**.**
  
 Some of America'​s most successful reform campaigns were based on close cooperation among states. For example, the American Revolution was coordinated first through interstate "​committees of correspondence."​ Congress proposed direct election of Senators only after 31 of the then-48 states (one shy of two-thirds) had submitted closely similar applications for a convention. In the latter instance, the legislatures of several states coordinated the national effort by erecting standing legislative committees—that is, funded command centers that prepared common forms and assisted the common effort. Some of America'​s most successful reform campaigns were based on close cooperation among states. For example, the American Revolution was coordinated first through interstate "​committees of correspondence."​ Congress proposed direct election of Senators only after 31 of the then-48 states (one shy of two-thirds) had submitted closely similar applications for a convention. In the latter instance, the legislatures of several states coordinated the national effort by erecting standing legislative committees—that is, funded command centers that prepared common forms and assisted the common effort.
Line 489: Line 489:
 All applications should be sent to as many recipients as possible, especially (of course) Congress. As the campaign builds, state legislatures should communicate with each other on such issues as how they will choose their commissioners,​ what the convention rules will be, and the size of state delegations. The exchange of information will enable states to address differences in advance of the amendments convention, maintain momentum and control over the process, and protect it from congressional interference. All applications should be sent to as many recipients as possible, especially (of course) Congress. As the campaign builds, state legislatures should communicate with each other on such issues as how they will choose their commissioners,​ what the convention rules will be, and the size of state delegations. The exchange of information will enable states to address differences in advance of the amendments convention, maintain momentum and control over the process, and protect it from congressional interference.
  
-{{:​documents:answers:​external:​gear.png?​direct&​20 |}}  //​**Don'​t make applications too general.**//​+{{:​documents:​external:​gear.png?​direct&​20 |}}  //​**Don'​t make applications too general.**//​
  
 A convention for proposing amendments is basically a problem solving task force, and it rarely makes sense to tell a task force to find any problems in anything they choose. Moreover, few lawmakers want a convention merely for the sake of a convention or because they think the Constitution needs a complete overhaul. Therefore, applications should specify the subject of the proposed convention. If the legislature wishes to address several subjects, those subjects should be in separate applications. In that way, the defeat of one application will not compromise others. A convention for proposing amendments is basically a problem solving task force, and it rarely makes sense to tell a task force to find any problems in anything they choose. Moreover, few lawmakers want a convention merely for the sake of a convention or because they think the Constitution needs a complete overhaul. Therefore, applications should specify the subject of the proposed convention. If the legislature wishes to address several subjects, those subjects should be in separate applications. In that way, the defeat of one application will not compromise others.
  
-{{:​documents:answers:​external:​gear.png?​direct&​20 |}}  //​**Don'​t make applications too specific; let the convention do its work.**//+{{:​documents:​external:​gear.png?​direct&​20 |}}  //​**Don'​t make applications too specific; let the convention do its work.**//
  
 Once a task force is told the problem to address, it should be allowed to do its job. In other words, although the task is preset, the precise solution cannot be. Both Founding Era practice and modern court decisions tell us that it is unconstitutional for some assemblies working under Article V (such as the legislatures) to try to dictate a solution to others (such as the convention). The courts may invalidate any applications that limit the convention to an up or down vote on specific wording.<​sup>​[[#​xvi|16]]</​sup>​ Once a task force is told the problem to address, it should be allowed to do its job. In other words, although the task is preset, the precise solution cannot be. Both Founding Era practice and modern court decisions tell us that it is unconstitutional for some assemblies working under Article V (such as the legislatures) to try to dictate a solution to others (such as the convention). The courts may invalidate any applications that limit the convention to an up or down vote on specific wording.<​sup>​[[#​xvi|16]]</​sup>​
Line 501: Line 501:
 Consider a balanced budget application as an example. An application could seek to dictate detailed terms to the convention (spending caps, rules for tax increases, planning or appropriation details) or it could call simply for "a balanced budget amendment with any appropriate limitations on revenue and/or expenditures."​ If the former route is followed, not only does it become difficult to garner sufficient political support for the application,​ but Congress or the courts may treat it as invalid. If the latter route is followed, neither Congress nor the courts have any such excuse, but the convention still may include the desired terms in any amendment it proposes. Consider a balanced budget application as an example. An application could seek to dictate detailed terms to the convention (spending caps, rules for tax increases, planning or appropriation details) or it could call simply for "a balanced budget amendment with any appropriate limitations on revenue and/or expenditures."​ If the former route is followed, not only does it become difficult to garner sufficient political support for the application,​ but Congress or the courts may treat it as invalid. If the latter route is followed, neither Congress nor the courts have any such excuse, but the convention still may include the desired terms in any amendment it proposes.
  
-{{:​documents:answers:​external:​gear.png?​direct&​20 |}}  //​**Don'​t make applications conditional.**//​+{{:​documents:​external:​gear.png?​direct&​20 |}}  //​**Don'​t make applications conditional.**//​
  
 Some applications are conditional on a prior event (e.g., congressional failure to report a similar amendment). These are probably valid, but in the absence of a court decision on point, we cannot be certain. Applications that use conditions to try to coerce other bodies in the Article V process are more surely invalid. Thus, the application should not assert that it is void unless the convention adopts particular wording or a particular rule, or unless Congress adopts a particular mode of ratification. Some applications are conditional on a prior event (e.g., congressional failure to report a similar amendment). These are probably valid, but in the absence of a court decision on point, we cannot be certain. Applications that use conditions to try to coerce other bodies in the Article V process are more surely invalid. Thus, the application should not assert that it is void unless the convention adopts particular wording or a particular rule, or unless Congress adopts a particular mode of ratification.
Line 507: Line 507:
 An application stating that it is void after a particular date or if a particular (non-coercive) event has occurred is probably acceptable legally. However, it would be better to leave out conditions entirely. The legislature can rescind the application later, if necessary. An application stating that it is void after a particular date or if a particular (non-coercive) event has occurred is probably acceptable legally. However, it would be better to leave out conditions entirely. The legislature can rescind the application later, if necessary.
  
-{{:​documents:answers:​external:​gear.png?​direct&​20 |}}  //**Move fast**//​**.**+{{:​documents:​external:​gear.png?​direct&​20 |}}  //**Move fast**//​**.**
  
 America is in serious trouble; don't be sidetracked by alarmism or by hope that Congress may propose an amendment limiting its own power. History shows this is unlikely. America is in serious trouble; don't be sidetracked by alarmism or by hope that Congress may propose an amendment limiting its own power. History shows this is unlikely.
Line 513: Line 513:
 Older applications should be renewed from time to time. Some people have argued that applications automatically expire or "grow stale" with the passage of time. There is little constitutional basis for this argument, but some in Congress have advanced it to weaken the state application and convention process. If possible, an entire application campaign should be planned for completion in three to four years. Older applications should be renewed from time to time. Some people have argued that applications automatically expire or "grow stale" with the passage of time. There is little constitutional basis for this argument, but some in Congress have advanced it to weaken the state application and convention process. If possible, an entire application campaign should be planned for completion in three to four years.
  
-{{:​documents:answers:​external:​gear.png?​direct&​20 |}}  //**Keep the application as simple as possible**//​**.**+{{:​documents:​external:​gear.png?​direct&​20 |}}  //**Keep the application as simple as possible**//​**.**
  
 As previously noted, an application should not be overly specific: State the problem and let the convention do its job. Do not try to dictate particular wording or specific approaches to the problem. As previously noted, an application should not be overly specific: State the problem and let the convention do its job. Do not try to dictate particular wording or specific approaches to the problem.
Line 523: Line 523:
 Therefore, recommendations,​ declarations,​ and statements of understanding always should be adopted in resolutions separate from the application. Appendix A provides a form resolution for that purpose. Therefore, recommendations,​ declarations,​ and statements of understanding always should be adopted in resolutions separate from the application. Appendix A provides a form resolution for that purpose.
  
-{{:​documents:answers:​external:​gear.png?​direct&​20 |}}  //**Retain state control over the convention.**//​+{{:​documents:​external:​gear.png?​direct&​20 |}}  //**Retain state control over the convention.**//​
  
 The state application and convention process was designed specifically as a way for state legislatures to bypass Congress. Unfortunately,​ some past members of Congress have expressed willingness to interfere with or control the process. For the sake of the Constitution,​ this must not be allowed to happen. The state application and convention process was designed specifically as a way for state legislatures to bypass Congress. Unfortunately,​ some past members of Congress have expressed willingness to interfere with or control the process. For the sake of the Constitution,​ this must not be allowed to happen.
Line 529: Line 529:
 State legislators applying for a convention must send a clear message to Congress that this procedure is within the control of the states. Congress'​s obligations are to count the applications,​ call the convention on the states'​ behalf, and choose a mode of ratification. Congress has no authority to define the convention'​s scope, its rules, or the selection of its commissioners. Those are the prerogatives of the state legislatures and of the convention commissioners responsible to the state legislatures. State legislators applying for a convention must send a clear message to Congress that this procedure is within the control of the states. Congress'​s obligations are to count the applications,​ call the convention on the states'​ behalf, and choose a mode of ratification. Congress has no authority to define the convention'​s scope, its rules, or the selection of its commissioners. Those are the prerogatives of the state legislatures and of the convention commissioners responsible to the state legislatures.
  
-{{:​documents:answers:​external:​gear.png?​direct&​20 |}}  //**The state legislature should choose its own commissioners**//​**.**+{{:​documents:​external:​gear.png?​direct&​20 |}}  //**The state legislature should choose its own commissioners**//​**.**
  
 The Founding Era record, supplemented by subsequent practice, tells us that when an interstate convention is called, each state decides, under its own laws, how many representatives will make up its delegation or "​committee,"​ and how they are selected. The Founding Era record, supplemented by subsequent practice, tells us that when an interstate convention is called, each state decides, under its own laws, how many representatives will make up its delegation or "​committee,"​ and how they are selected.
Line 541: Line 541:
 Some have suggested that states adopt statutes providing that commissioners who exceed the scope of the convention or disregard legislative instructions are deemed immediately recalled. It is uncertain whether such a law would be enforceable against a state legislature acting within Article V. However, such a law can serve an educational function, and may act as an implicit legislative rule.<​sup>​[[#​xvii|17]]</​sup> ​ Some have suggested that states adopt statutes providing that commissioners who exceed the scope of the convention or disregard legislative instructions are deemed immediately recalled. It is uncertain whether such a law would be enforceable against a state legislature acting within Article V. However, such a law can serve an educational function, and may act as an implicit legislative rule.<​sup>​[[#​xvii|17]]</​sup> ​
  
-{{:​documents:answers:​external:​gear.png?​direct&​20 |}}  //**Respond to the "​minority rule" argument.**//​+{{:​documents:​external:​gear.png?​direct&​20 |}}  //**Respond to the "​minority rule" argument.**//​
  
 If history is any guide, opponents will claim the state application and convention process is a license for "​minority rule" because, in theory, states with a minority of the American population could trigger a convention. Advocates should respond by pointing out that this is improbable as a practical matter because political realities will place some larger states on the same side as smaller states. A heavily populated state like Texas is much more politically akin to a sparsely populated state like South Dakota than to another heavily populated state like Massachusetts. Further, the application stage is only an initial step in a three-step process. Once the convention meets, a majority of state delegations will have to approve any amendment, and in the glare of publicity the commissioners are unlikely to propose measures most Americans find distasteful. After the convention issues the proposal, that proposal will have to be ratified by 38 states—including,​ in all probability,​ some states that failed to apply. The ratifying states will almost certainly represent a supermajority of the American people. If history is any guide, opponents will claim the state application and convention process is a license for "​minority rule" because, in theory, states with a minority of the American population could trigger a convention. Advocates should respond by pointing out that this is improbable as a practical matter because political realities will place some larger states on the same side as smaller states. A heavily populated state like Texas is much more politically akin to a sparsely populated state like South Dakota than to another heavily populated state like Massachusetts. Further, the application stage is only an initial step in a three-step process. Once the convention meets, a majority of state delegations will have to approve any amendment, and in the glare of publicity the commissioners are unlikely to propose measures most Americans find distasteful. After the convention issues the proposal, that proposal will have to be ratified by 38 states—including,​ in all probability,​ some states that failed to apply. The ratifying states will almost certainly represent a supermajority of the American people.
Line 935: Line 935:
  
  
-As observed in [[documents:answers:​external:​articlev-handbook#​i_introduction|Part I (Introduction)]],​ most writing on the state application and convention process has been poorly-researched,​ agenda-driven,​ or both. However, not everything published on the subject has been biased or shallow. ​+As observed in [[documents:​external:​articlev-handbook#​i_introduction|Part I (Introduction)]],​ most writing on the state application and convention process has been poorly-researched,​ agenda-driven,​ or both. However, not everything published on the subject has been biased or shallow. ​
  
 Serious scholarship on the topic began in 1951 with an extraordinary Ph.D. thesis written by the late William Russell Pullen, then a political science graduate student at the University of North Carolina. The Pullen study suffered from the author'​s lack of legal or historical training (Pullen was a political science graduate student, not a historical or legal scholar), but it presented an excellent and thorough summary of applications and history up to that time.<​sup>​[[#​xxiv|24]]</​sup>​ Serious scholarship on the topic began in 1951 with an extraordinary Ph.D. thesis written by the late William Russell Pullen, then a political science graduate student at the University of North Carolina. The Pullen study suffered from the author'​s lack of legal or historical training (Pullen was a political science graduate student, not a historical or legal scholar), but it presented an excellent and thorough summary of applications and history up to that time.<​sup>​[[#​xxiv|24]]</​sup>​
Line 997: Line 997:
 <​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."​ <​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."​
  
-<​BOOKMARK:​xx>​20 See [[documents:answers:​external:​articlev-handbook#​v_the_myth_of_a_runaway_convention|Part V: "The Myth of a Runaway Convention.]]"​+<​BOOKMARK:​xx>​20 See [[documents:​external:​articlev-handbook#​v_the_myth_of_a_runaway_convention|Part V: "The Myth of a Runaway Convention.]]"​
  
 <​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?"​ <​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?"​
documents/external/articlev-handbook.txt · Last modified: 2015/11/01 02:48 by Oliver Wolcott