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| documents:external:compendium [2015/11/21 09:48] – [§ 3.8.3.State Legislatures May Limit Their Applications to a Single Subject.] Oliver Wolcott | documents:cosproject:compendium [2016/07/11 00:00] – Oliver Wolcott |
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| Article V Legislative Compendium | Article V Legislative Compendium |
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| | /* for .../responses to opposition , was https://www.dropbox.com/s/muot3rb7puavb8g/Compendium%203.1.pdf?dl=0 */ |
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| ====== State Initiation of Constitutional Amendments: ====== | ====== State Initiation of Constitutional Amendments: ====== |
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| Professor of Law (ret.) \\ | Professor of Law (ret.) \\ |
| The University of Montana \\ | The University of Montana \\ |
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| ===== Foreword by Michael Farris ===== | ===== Foreword by Michael Farris ===== |
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| ===== Executive Summary ===== | ===== Executive Summary ===== |
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| ===== Table of Contents ===== | ===== Table of Contents ===== |
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| **[[documents:external:compendium#foreword_by_michael_farris|Foreword by Michael Farris]]** | **[[documents:cosproject:compendium#foreword_by_michael_farris|Foreword by Michael Farris]]** |
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| **[[documents:external:compendium#executive_summary|Executive Summary]]** | **[[documents:cosproject:compendium#executive_summary|Executive Summary]]** |
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| [[documents:external:compendium#part_i_sources_science_fiction_and_article_v_bibliography|Part I.]] **Sources, "Science Fiction," and Article V Bibliography** | [[documents:cosproject:compendium#part_i_sources_science_fiction_and_article_v_bibliography|Part I.]] **Sources, "Science Fiction," and Article V Bibliography** |
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| [[documents:external:compendium#sources|1.1.]] //Sources// | [[documents:cosproject:compendium#sources|§ 1.1.]] //Sources// |
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| [[documents:external:compendium#science_fiction|§ 1.2.]] //"Science Fiction"// | [[documents:cosproject:compendium#science_fiction|§ 1.2.]] //"Science Fiction"// |
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| [[documents:external:compendium#the_three_waves_of_modern_article_v_bibliography|§ 1.3.]] //The Three Waves of Modern Article V Bibliography// | [[documents:cosproject:compendium#the_three_waves_of_modern_article_v_bibliography|§ 1.3.]] //The Three Waves of Modern Article V Bibliography// |
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| [[documents:external:compendium#major_publications|§ 1.4.]] //Major Publications// | [[documents:cosproject:compendium#major_publications|§ 1.4.]] //Major Publications// |
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| **[[documents:external:compendium#part_ii_table_of_cases|Part II.]] Table of Cases** | **[[documents:cosproject:compendium#part_ii_table_of_cases|Part II.]] Table of Cases** |
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| **[[documents:external:compendium#part_iii_explanatory_text_with_footnotes|Part III.]] Explanatory Text with Footnotes** | **[[documents:cosproject:compendium#part_iii_explanatory_text_with_footnotes|Part III.]] Explanatory Text with Footnotes** |
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| [[documents:external:compendium#historical_background|§ 3.1.]] //Historical Background// | [[documents:cosproject:compendium#historical_background|§ 3.1.]] //Historical Background// |
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| [[documents:external:compendium#types_of_conventions|§ 3.2.]] //Types of Conventions// | [[documents:cosproject:compendium#types_of_conventions|§ 3.2.]] //Types of Conventions// |
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| [[documents:external:compendium#in-state_and_multi-state_conventions|§ 3.2.1.]] //In-State and Multi-State Conventions// | [[documents:cosproject:compendium#in-state_and_multi-state_conventions|§ 3.2.1.]] //In-State and Multi-State Conventions// |
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| [[documents:external:compendium#proposing_and_ratifying_conventions|§ 3.2.2.]] //Proposing and Ratifying Conventions// | [[documents:cosproject:compendium#proposing_and_ratifying_conventions|§ 3.2.2.]] //Proposing and Ratifying Conventions// |
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| [[documents:external:compendium#plenipotentiary_and_limited_conventions|§ 3.2.3.]] //Plenipotentiary and Limited Conventions// | [[documents:cosproject:compendium#plenipotentiary_and_limited_conventions|§ 3.2.3.]] //Plenipotentiary and Limited Conventions// |
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| [[documents:external:compendium#categorizing_the_constitutional_convention_and_the_convention_for_proposing_amendments|§ 3.2.4.]] //Categorizing the Constitutional Convention and the Convention for Proposing Amendments// | [[documents:cosproject:compendium#categorizing_the_constitutional_convention_and_the_convention_for_proposing_amendments|§ 3.2.4.]] //Categorizing the Constitutional Convention and the Convention for Proposing Amendments// |
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| [[documents:external:compendium#why_the_founders_adopted_the_proposal_convention_in_article_v|§ 3.3.]] //Why the Founders Adopted the Proposal Convention in Article V.// | [[documents:cosproject:compendium#why_the_founders_adopted_the_proposal_convention_in_article_v|§ 3.3.]] //Why the Founders Adopted the Proposal Convention in Article V.// |
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| [[documents:external:compendium#analyzing_the_text_of_article_v|§ 3.4.]] //Analyzing the Text of Article V// | [[documents:cosproject:compendium#analyzing_the_text_of_article_v|§ 3.4.]] //Analyzing the Text of Article V// |
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| [[documents:external:compendium#applicable_legal_principlesinterpretation_incidental_powers_and_fiduciary_obligations|§ 3.5.]] //Applicable Legal Principles: Interpretation, Incidental Powers, and Fiduciary Obligations// | [[documents:cosproject:compendium#applicable_legal_principlesinterpretation_incidental_powers_and_fiduciary_obligations|§ 3.5.]] //Applicable Legal Principles: Interpretation, Incidental Powers, and Fiduciary Obligations// |
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| [[documents:external:compendium#assemblies_acting_under_article_v_do_so_solely_by_virtue_of_powers_granted_by_article_v|§ 3.6.]] //Assemblies Acting under Article V Do So Solely by Virtue of Powers Granted by Article V.// | [[documents:cosproject:compendium#assemblies_acting_under_article_v_do_so_solely_by_virtue_of_powers_granted_by_article_v|§ 3.6.]] //Assemblies Acting under Article V Do So Solely by Virtue of Powers Granted by Article V.// |
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| [[documents:external:compendium#under_article_v_a_state_legislature_means_the_state_s_representative_assembly_without_participation_by_the_governor_or_by_any_reserved_power_of_initiative_or_referendum|§ 3.7.]] //Under Article V, a State "Legislature" Means the State's Representative Assembly, without Participation by the Governor or by Any Reserved Power of Initiative or Referendum.// | [[documents:cosproject:compendium#under_article_v_a_state_legislature_means_the_state_s_representative_assembly_without_participation_by_the_governor_or_by_any_reserved_power_of_initiative_or_referendum|§ 3.7.]] //Under Article V, a State "Legislature" Means the State's Representative Assembly, without Participation by the Governor or by Any Reserved Power of Initiative or Referendum.// |
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| [[documents:external:compendium#the_state_legislatures_applications|§ 3.8.]] //The State Legislatures' Applications// | [[documents:cosproject:compendium#the_state_legislatures_applications|§ 3.8.]] //The State Legislatures' Applications// |
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| [[documents:external:compendium#background|§ 3.8.1.]] // Background// | [[documents:cosproject:compendium#background|§ 3.8.1.]] // Background// |
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| [[documents:external:compendium#what_is_an_application_and_how_is_it_adopted|§ 3.8.2.]] // What Is an Application and How Is It Adopted?// | [[documents:cosproject:compendium#what_is_an_application_and_how_is_it_adopted|§ 3.8.2.]] // What Is an Application and How Is It Adopted?// |
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| [[documents:external:compendium#state_legislatures_may_limit_their_applications_to_a_single_subject|§ 3.8.3.]] //State Legislatures May Limit Their Applications to a Single Subject.// | [[documents:cosproject:compendium#state_legislatures_may_limit_their_applications_to_a_single_subject|§ 3.8.3.]] //State Legislatures May Limit Their Applications to a Single Subject.// |
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| [[documents:external:compendium#application_format_conditions_and_subject_matter|§ 3.8.4.]] //Application Format, Conditions, and Subject Matter// | [[documents:cosproject:compendium#application_format_conditions_and_subject_matter|§ 3.8.4.]] //Application Format, Conditions, and Subject Matter// |
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| [[documents:external:compendium#state_legislatures_may_rescind_applications|§ 3.8.5.]] //State Legislatures May Rescind Applications.// | [[documents:cosproject:compendium#state_legislatures_may_rescind_applications|§ 3.8.5.]] //State Legislatures May Rescind Applications.// |
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| [[documents:external:compendium#unrescinded_applications_do_not_grow_stale_with_the_passage_of_time|§ 3.8.6.]] //Unrescinded Applications Do Not Grow "Stale" with the Passage of Time.// | [[documents:cosproject:compendium#unrescinded_applications_do_not_grow_stale_with_the_passage_of_time|§ 3.8.6.]] //Unrescinded Applications Do Not Grow "Stale" with the Passage of Time.// |
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| [[documents:external:compendium#the_congressional_role_in_calling_the_convention|§ 3.9.]] //The Congressional Role in Calling the Convention// | [[documents:cosproject:compendium#the_congressional_role_in_calling_the_convention|§ 3.9.]] //The Congressional Role in Calling the Convention// |
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| [[documents:external:compendium#the_meaning_of_call|§ 3.9.1.]] //The Meaning of "Call"// | [[documents:cosproject:compendium#the_meaning_of_call|§ 3.9.1.]] //The Meaning of "Call"// |
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| [[documents:external:compendium#contents_of_the_call|§ 3.9.2.]] //Contents of the Call// | [[documents:cosproject:compendium#contents_of_the_call|§ 3.9.2.]] //Contents of the Call// |
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| [[documents:external:compendium#congressional_powers_incidental_to_the_call|§ 3.9.3.]] //Congressional Powers Incidental to the Call// | [[documents:cosproject:compendium#congressional_powers_incidental_to_the_call|§ 3.9.3.]] //Congressional Powers Incidental to the Call// |
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| [[documents:external:compendium#the_necessary_and_proper_clause_does_not_authorize_congress_to_structure_the_convention|§ 3.9.4.]] //The Necessary and Proper Clause Does Not Authorize Congress to Structure the Convention.// | [[documents:cosproject:compendium#the_necessary_and_proper_clause_does_not_authorize_congress_to_structure_the_convention|§ 3.9.4.]] //The Necessary and Proper Clause Does Not Authorize Congress to Structure the Convention.// |
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| [[documents:external:compendium#if_thirty-four_applications_on_the_same_subject_are_received_the_call_is_mandatory|§ 3.9.5.]] //If Thirty-Four Applications on the Same Subject Are Received, the Call Is Mandatory.// | [[documents:cosproject:compendium#if_thirty-four_applications_on_the_same_subject_are_received_the_call_is_mandatory|§ 3.9.5.]] //If Thirty-Four Applications on the Same Subject Are Received, the Call Is Mandatory.// |
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| [[documents:external:compendium#counting_applications|§ 3.9.6.]] //Counting Applications// | [[documents:cosproject:compendium#counting_applications|§ 3.9.6.]] //Counting Applications// |
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| [[documents:external:compendium#appendix_to_section_39historic_examples_of_multi-state_convention_calls|§ 3.9.7.]] //Appendix to Section 3.9: Historic Examples of Multi-State Convention Calls// | [[documents:cosproject:compendium#appendix_to_section_39historic_examples_of_multi-state_convention_calls|§ 3.9.7.]] //Appendix to Section 3.9: Historic Examples of Multi-State Convention Calls// |
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| [[documents:external:compendium#selecting_commissioners|§ 3.10.]] //Selecting Commissioners// | [[documents:cosproject:compendium#selecting_commissioners|§ 3.10.]] //Selecting Commissioners// |
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| [[documents:external:compendium#empowering_commissioners|§ 3.11.]] //Empowering Commissioners// | [[documents:cosproject:compendium#empowering_commissioners|§ 3.11.]] //Empowering Commissioners// |
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| [[documents:external:compendium#instructing_and_supervising_commissioners|§ 3.12.]] //Instructing and Supervising Commissioners// | [[documents:cosproject:compendium#instructing_and_supervising_commissioners|§ 3.12.]] //Instructing and Supervising Commissioners// |
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| [[documents:external:compendium#no_runaway_acts_and_similar_laws|§ 3.13.]] //"No Runaway" Acts and Similar Laws// | [[documents:cosproject:compendium#no_runaway_acts_and_similar_laws|§ 3.13.]] //"No Runaway" Acts and Similar Laws// |
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| [[documents:external:compendium#convention_rules|§ 3.14.]] //Convention Rules// | [[documents:cosproject:compendium#convention_rules|§ 3.14.]] //Convention Rules// |
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| [[documents:external:compendium#the_legal_environment|§ 3.14.1.]] //The Legal Environment// | [[documents:cosproject:compendium#the_legal_environment|§ 3.14.1.]] //The Legal Environment// |
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| [[documents:external:compendium#historical_resources|§ 3.14.2.]] //Historical Resources// | [[documents:cosproject:compendium#historical_resources|§ 3.14.2.]] //Historical Resources// |
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| [[documents:external:compendium#formalities_before_adoption_of_rules|§ 3.14.3.]] //Formalities before Adoption of Rules// | [[documents:cosproject:compendium#formalities_before_adoption_of_rules|§ 3.14.3.]] //Formalities before Adoption of Rules// |
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| [[documents:external:compendium#recommended_rules_not_pertaining_to_debate_or_decorum|§ 3.14.4.]] //Recommended Rules Not Pertaining to Debate or Decorum// | [[documents:cosproject:compendium#recommended_rules_not_pertaining_to_debate_or_decorum|§ 3.14.4.]] //Recommended Rules Not Pertaining to Debate or Decorum// |
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| [[documents:external:compendium#rules_of_debate_and_decorum|§ 3.14.5.]] //Rules of Debate and Decorum// | [[documents:cosproject:compendium#rules_of_debate_and_decorum|§ 3.14.5.]] //Rules of Debate and Decorum// |
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| **[[documents:external:compendium#part_ivforms|Part IV:]] Forms** | **[[documents:cosproject:compendium#part_ivforms|Part IV:]] Forms** |
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| [[documents:external:compendium#citizens_for_self-governance_form_application|§ 4.1.]] //Citizens for Self-Governance Form Application// | [[documents:cosproject:compendium#citizens_for_self-governance_form_application|§ 4.1.]] //Citizens for Self-Governance Form Application// |
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| [[documents:external:compendium#sample_form_electing_commissioners|§ 4.2.]] //Sample Form Electing Commissioners// | [[documents:cosproject:compendium#sample_form_electing_commissioners|§ 4.2.]] //Sample Form Electing Commissioners// |
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| [[documents:external:compendium#sample_commissions|§ 4.3.]] //Sample Commissions// | [[documents:cosproject:compendium#sample_commissions|§ 4.3.]] //Sample Commissions// |
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| [[documents:external:compendium#sample_instructions|§ 4.4.]] //Sample Instructions// | [[documents:cosproject:compendium#sample_instructions|§ 4.4.]] //Sample Instructions// |
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| [[documents:external:compendium#no_runaway_acts|§ 4.5.]] //"No Runaway" Acts// | [[documents:cosproject:compendium#no_runaway_acts|§ 4.5.]] //"No Runaway" Acts// |
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| [[documents:external:compendium#uniform_interstate_convention_act|§ 4.5.1.]] //Uniform Interstate Convention Act// | [[documents:cosproject:compendium#uniform_interstate_convention_act|§ 4.5.1.]] //Uniform Interstate Convention Act// |
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| [[documents:external:compendium#indiana_acts_limiting_commissioners|§ 4.5.2.]] //Indiana Acts Limiting Commissioners// | [[documents:cosproject:compendium#indiana_acts_limiting_commissioners|§ 4.5.2.]] //Indiana Acts Limiting Commissioners// |
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| **[[documents:external:compendium#part_vfull-text_source_materials|Part V:]] Full-Text Source Materials** | **[[documents:cosproject:compendium#part_vfull-text_source_materials|Part V:]] Full-Text Source Materials** |
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| [[documents:external:compendium#robert_natelson_founding-era_conventions|§ 5.1.]] //Robert Natelson, Founding-Era Conventions// | [[documents:cosproject:compendium#robert_natelson_founding-era_conventions|§ 5.1.]] //Robert Natelson, Founding-Era Conventions// |
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| [[documents:external:compendium#robert_natelson_rules_governing_the_process|§ 5.2.]] //Robert Natelson, Rules Governing the Process// | [[documents:cosproject:compendium#robert_natelson_rules_governing_the_process|§ 5.2.]] //Robert Natelson, Rules Governing the Process// |
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| [[documents:external:compendium#michael_rappaport_the_constitutionality_of_a_limited_convention|§ 5.3.]] //Michael Rappaport, The Constitutionality of a Limited Convention// | [[documents:cosproject:compendium#michael_rappaport_the_constitutionality_of_a_limited_convention|§ 5.3.]] //Michael Rappaport, The Constitutionality of a Limited Convention// |
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| [[documents:external:compendium#michael_stern_toward_a_safeguarded_article_v_convention|§ 5.4.]] //Michael Stern, Toward a Safeguarded Article V Convention// | [[documents:cosproject:compendium#michael_stern_toward_a_safeguarded_article_v_convention|§ 5.4.]] //Michael Stern, Toward a Safeguarded Article V Convention// |
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| ===== Part I. Sources, "Science Fiction," and Article V Bibliography ===== | ===== Part I. Sources, "Science Fiction," and Article V Bibliography ===== |
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| The reason why there are two modes of obtaining amendments prescribed by the constitution I suppose to be this—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 government, if upon trial it should be found that they had given too much.((# 23 The Documentary History of the Ratification of the Constitution 2520–22 (Merrill Jensen, John P. Kaminsky, & Gaspare J. Saladino eds., 2009).)) | The reason why there are two modes of obtaining amendments prescribed by the constitution I suppose to be this—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 government, if upon trial it should be found that they had given too much.((# 23 The Documentary History of the Ratification of the Constitution 2520–22 (Merrill Jensen, John P. Kaminsky, & Gaspare J. Saladino eds., 2009).)) |
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| James Madison stated it more succinctly in //The Federalist No. 43//: The Constitution "equally enables the General, and the State Governments, to originate the amendment of errors, as they may be pointed out by the experience on one side or on the other." | James Madison stated it more succinctly in //[[historicaldocuments:fedpapers:federalist43#i|The Federalist No. 43]]//: The Constitution "equally enables the General, and the State Governments, to originate the amendment of errors, as they may be pointed out by the experience on one side or on the other." |
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| The normal practice of political bodies suggests power to define the scope of their resolutions. There should be, therefore, a presumption that a state legislature may apply for a convention to consider only certain topics rather than be required to apply only for an unlimited convention.((# Cf. Opinion of the Justices to the Senate, 366 N.E.2d 1226 (Mass. 1977) (holding that a single-subject application is valid, although not dealing with the issue as to whether the limitation is enforceable).)) Nevertheless, during the 1960s and 1970s various legal writers (predominantly those opposing a convention) argued that all conventions must be unlimited. Some even contended that limited applications were void by reason of their limits. | The normal practice of political bodies suggests power to define the scope of their resolutions. There should be, therefore, a presumption that a state legislature may apply for a convention to consider only certain topics rather than be required to apply only for an unlimited convention.((# Cf. Opinion of the Justices to the Senate, 366 N.E.2d 1226 (Mass. 1977) (holding that a single-subject application is valid, although not dealing with the issue as to whether the limitation is enforceable).)) Nevertheless, during the 1960s and 1970s various legal writers (predominantly those opposing a convention) argued that all conventions must be unlimited. Some even contended that limited applications were void by reason of their limits. |
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| These contentions were made on very slender evidence, and subsequent research has discredited them.((# See, e.g., Michael B. Rappaport, The Constitutionality of a Limited Convention: An Originalist Analysis, 28 Const. Comment. 53 (2012) [hereinafter Rappaport, Limited Convention], reprinted infra § 5.3.; Michael Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765 (2011) [hereinafter Stern, Reopening], reprinted infra § 5.4.)) Founding-Era practice, upon which the Constitution's amendment convention was based, was to limit in advance the topic and scope of multi-government conventions.((# See generally Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments,” 65 Fla. L. Rev. 615 (2013) [hereinafter Natelson, Conventions], reprinted infra [[documents:external:compendium#robert_natelson_founding-era_conventions|§ 5.1.]])) Discussions from the Founding Era reveal a universal assumption that applications would be made to promote amendments addressing prescribed problems.((# Robert G. Natelson, Proposing Constitutional Amendments by Convention: [[documents:external:compendium#robert_natelson_rules_governing_the_process|Rules Governing the Process]], 78 Tenn. L. Rev. 693, 723–31 (2011) [hereinafter Natelson, Rules], reprinted infra [[documents:external:compendium#michael_rappaport_the_constitutionality_of_a_limited_convention|§ 5.2; Rappaport, Limited Convention]], at 83–89; Stern, Reopening, at 771.)) The first application ever issued, that of Virginia in 1788,((# This application is substantially reproduced in [[documents:external:compendium#robert_natelson_rules_governing_the_process|Natelson, Rules]], at 739, along with its unlimited New York counterpart.)) was arguably limited as to subject, and hundreds of later applications have been limited as well.((# [[documents:external:compendium#robert_natelson_rules_governing_the_process|Natelson, Rules]], at 731–32.)) Indeed, the central purpose of the state application and convention procedure—to grant state legislatures parity with Congress in the proposal process—would be largely defeated unless those legislatures had the same power Congress does to define an amendment's scope in advance. | These contentions were made on very slender evidence, and subsequent research has discredited them.((# See, e.g., Michael B. Rappaport, The Constitutionality of a Limited Convention: An Originalist Analysis, 28 Const. Comment. 53 (2012) [hereinafter Rappaport, Limited Convention], reprinted infra § 5.3.; Michael Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765 (2011) [hereinafter Stern, Reopening], reprinted infra § 5.4.)) Founding-Era practice, upon which the Constitution's amendment convention was based, was to limit in advance the topic and scope of multi-government conventions.((# See generally Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments,” 65 Fla. L. Rev. 615 (2013) [hereinafter Natelson, Conventions], reprinted infra [[documents:cosproject:compendium#robert_natelson_founding-era_conventions|§ 5.1.]])) Discussions from the Founding Era reveal a universal assumption that applications would be made to promote amendments addressing prescribed problems.((# Robert G. Natelson, Proposing Constitutional Amendments by Convention: [[documents:cosproject:compendium#robert_natelson_rules_governing_the_process|Rules Governing the Process]], 78 Tenn. L. Rev. 693, 723–31 (2011) [hereinafter Natelson, Rules], reprinted infra [[documents:cosproject:compendium#michael_rappaport_the_constitutionality_of_a_limited_convention|§ 5.2; Rappaport, Limited Convention]], at 83–89; Stern, Reopening, at 771.)) The first application ever issued, that of Virginia in 1788,((# This application is substantially reproduced in [[documents:cosproject:compendium#robert_natelson_rules_governing_the_process|Natelson, Rules]], at 739, along with its unlimited New York counterpart.)) was arguably limited as to subject, and hundreds of later applications have been limited as well.((# [[documents:cosproject:compendium#robert_natelson_rules_governing_the_process|Natelson, Rules]], at 731–32.)) Indeed, the central purpose of the state application and convention procedure—to grant state legislatures parity with Congress in the proposal process—would be largely defeated unless those legislatures had the same power Congress does to define an amendment's scope in advance. |
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| It also follows from historical practice, not to mention common sense, that Congress should aggregate together towards the two-thirds threshold only those applications that address the same general topic.((#See infra [[documents:external:compendium#counting_applications|§ 3.9.6.]])) | It also follows from historical practice, not to mention common sense, that Congress should aggregate together towards the two-thirds threshold only those applications that address the same general topic.((#See infra [[documents:cosproject:compendium#counting_applications|§ 3.9.6.]])) |
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| The limits on the ability of the convention to "run away"—that is, exceed the scope of the applications and call—is not within the present scope of this work. Suffice to say that no prior American inter-governmental conventions have run away, and contrary to some claims, this is also true of the 1787 Constitutional Convention.((#See generally Natelson, Conventions. On the Constitutional Convention, see id. at 674; Natelson, Rules, at 719–23.)) There are numerous and redundant legal checks on an Article V convention exceeding its authority.((#Robert G. Natelson, Proposing Constitutional Amendments by a Convention of the States: [[documents:external:articlev-handbook|A Handbook for State Lawmakers]] 17–18 (Am. Legislative Exch. Council, 2d ed. 2013), available at http://www.alec.org/wp-content/uploads/article-five-handbook-1.pdf; see also [[documents:external:compendium#michael_rappaport_the_constitutionality_of_a_limited_convention|Rappaport, Limited Convention]], at 81–82; [[documents:external:compendium#michael_stern_toward_a_safeguarded_article_v_convention|Stern, Reopening]], at 781–87.)) | The limits on the ability of the convention to "run away"—that is, exceed the scope of the applications and call—is not within the present scope of this work. Suffice to say that no prior American inter-governmental conventions have run away, and contrary to some claims, this is also true of the 1787 Constitutional Convention.((#See generally Natelson, Conventions. On the Constitutional Convention, see id. at 674; Natelson, Rules, at 719–23.)) There are numerous and redundant legal checks on an Article V convention exceeding its authority.((#Robert G. Natelson, Proposing Constitutional Amendments by a Convention of the States: [[documents:external:articlev-handbook|A Handbook for State Lawmakers]] 17–18 (Am. Legislative Exch. Council, 2d ed. 2013), available at http://www.alec.org/wp-content/uploads/article-five-handbook-1.pdf; see also [[documents:cosproject:compendium#michael_rappaport_the_constitutionality_of_a_limited_convention|Rappaport, Limited Convention]], at 81–82; [[documents:cosproject:compendium#michael_stern_toward_a_safeguarded_article_v_convention|Stern, Reopening]], at 781–87.)) |
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| The Necessary and Proper Clause appears in Article I, Section 8 at the end of an (incomplete) list of congressional powers. It reads: | The Necessary and Proper Clause appears in Article I, Section 8 at the end of an (incomplete) list of congressional powers. It reads: |
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| The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.((#U.S. Const. art. I, § 8, cl. 18.)) | The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.((#U.S. [[historicaldocuments:constitution#section_8|Const. art. I, § 8, cl. 18]].)) |
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| To be sure, all of these persons and entities receive their authority from the Constitution and therefore are said to exercise "federal functions."((# See section 3.6; see also Ray v. Blair, 343 U.S. 214 (1952).)) But exercise of a federal function does not render an independent actor part of, or an agent of, the U.S. Government.((# Ray, supra, 343 U.S. at 224-25 (“The presidential electors exercise a federal function in balloting for President and Vice-President but they are not federal officers or agents any more than the state elector who votes for congressmen. They act by authority of the state that in turn receives its authority from the federal constitution.”) )) | To be sure, all of these persons and entities receive their authority from the Constitution and therefore are said to exercise "federal functions."((# See section 3.6; see also Ray v. Blair, 343 U.S. 214 (1952).)) But exercise of a federal function does not render an independent actor part of, or an agent of, the U.S. Government.((# Ray, supra, 343 U.S. at 224-25 (“The presidential electors exercise a federal function in balloting for President and Vice-President but they are not federal officers or agents any more than the state elector who votes for congressmen. They act by authority of the state that in turn receives its authority from the federal constitution.”) )) |
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| For this reason the Necessary and Proper Clause does not encompass the independent assemblies empowered by Article V, even if, like Congress, they serve as part of government when acting in other capacities.((# The non-applicability of the Necessary and Proper Clause help explains why the Times, Places and Manner Clause (also called the Elections Clause) includes a specific term permitting Congress to act in the area. U.S. Const., art. I, § 4, cl. 1. | For this reason the Necessary and Proper Clause does not encompass the independent assemblies empowered by Article V, even if, like Congress, they serve as part of government when acting in other capacities.((# The non-applicability of the Necessary and Proper Clause help explains why the Times, Places and Manner Clause (also called the Elections Clause) includes a specific term permitting Congress to act in the area. [[historicaldocuments:constitution#section_4|U.S. Const., art. I, § 4, cl. 1.]] |
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| Another grant of power to Congress to act in an independent capacity—that is, outside its normal role as the legislature of the U.S. Government—is U.S. Const., amend. XII (providing for the Senate and House of Representatives to serve as witnesses to the count of electoral votes in presidential elections). )) | Another grant of power to Congress to act in an independent capacity—that is, outside its normal role as the legislature of the U.S. Government—is U.S. Const., amend. XII (providing for the Senate and House of Representatives to serve as witnesses to the count of electoral votes in presidential elections). )) |
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| There is no direct judicial authority interpreting the Constitution on these points, and little, if any, reliable scholarly analysis of them. We do know, however, that the Founders expected the document to be interpreted in the larger common law context, and that in interpreting the document themselves they freely resorted to analogies from both private and public law.((#For example, during the ratification process, James Iredell, a leading North Carolina attorney and subsequently associate justice of the Supreme Court, likened the Constitution’s scheme of enumerated powers to a “great power of attorney,” 4 The Debates in the Several State Conventions of the Adoption of the Federal Constitution 148–49, (Jonathan Elliot ed., 2d ed. 1827) [hereinafter Elliot’s Debates], while Edmund Pendleton explained the Constitution’s delegation of powers by referring to (a) conveyance of a term of years, (b) conveyance of a fee tail or life estate, (c) conveyance of a fee simple, and (d) agency. Letter from Edmund Pendleton to Richard Henry Lee (Jun. 14, 1788), reprinted in 10 Documentary History of the Ratification of the Constitution 1625–26 (Merrill Jensen et al. eds., 1976). )) | There is no direct judicial authority interpreting the Constitution on these points, and little, if any, reliable scholarly analysis of them. We do know, however, that the Founders expected the document to be interpreted in the larger common law context, and that in interpreting the document themselves they freely resorted to analogies from both private and public law.((#For example, during the ratification process, James Iredell, a leading North Carolina attorney and subsequently associate justice of the Supreme Court, likened the Constitution’s scheme of enumerated powers to a “great power of attorney,” 4 The Debates in the Several State Conventions of the Adoption of the Federal Constitution 148–49, (Jonathan Elliot ed., 2d ed. 1827) [hereinafter Elliot’s Debates], while Edmund Pendleton explained the Constitution’s delegation of powers by referring to (a) conveyance of a term of years, (b) conveyance of a fee tail or life estate, %%(c)%% conveyance of a fee simple, and (d) agency. Letter from Edmund Pendleton to Richard Henry Lee (Jun. 14, 1788), reprinted in 10 Documentary History of the Ratification of the Constitution 1625–26 (Merrill Jensen et al. eds., 1976). )) |
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| In this instance, the closest analogue may be the law of contracts. Nearly all the Founders were social contractarians, and they frequently referred to the Constitution as a "compact."((#The examples are many. See, e.g., 3 Elliot’s Debates, at 384, 445, 591 (quoting Patrick Henry, an anti-federalist, at the Virginia ratifying convention); id. at 467 (quoting Edmund Randolph, a federalist, at the same convention).)) The application process itself is closely akin to the kind of group offer and acceptance that leads to such legal relationships as partnerships and joint ventures. Like offers, applications may be rescinded. Like offers, they become binding on the parties when the conditions for acceptance are satisfied. Contract principles provide some guidance for all four of the situations outlined above.((#The contract analogy occurred to me in part because I did extensive work in contracts while in law practice and occasionally taught the subject as a law professor. More importantly, in writing this I have had the advantage of guidance by Scott Burnham, the Frederick N. & Barbara T. Curley Professor of Law at Gonzaga University, who is one of the nation’s premier scholars on the law of contracts.)) | In this instance, the closest analogue may be the law of contracts. Nearly all the Founders were social contractarians, and they frequently referred to the Constitution as a "compact."((#The examples are many. See, e.g., 3 Elliot’s Debates, at 384, 445, 591 (quoting Patrick Henry, an anti-federalist, at the Virginia ratifying convention); id. at 467 (quoting Edmund Randolph, a federalist, at the same convention).)) The application process itself is closely akin to the kind of group offer and acceptance that leads to such legal relationships as partnerships and joint ventures. Like offers, applications may be rescinded. Like offers, they become binding on the parties when the conditions for acceptance are satisfied. Contract principles provide some guidance for all four of the situations outlined above.((#The contract analogy occurred to me in part because I did extensive work in contracts while in law practice and occasionally taught the subject as a law professor. More importantly, in writing this I have had the advantage of guidance by Scott Burnham, the Frederick N. & Barbara T. Curley Professor of Law at Gonzaga University, who is one of the nation’s premier scholars on the law of contracts.)) |
| (b) "Commission" means the document or documents whereby the state, state legislature, or duly authorized officer of the state empowers a commissioner to an interstate convention and fixes the scope of his or her authority.((#This term is taken from previous interstate convention practice.)) | (b) "Commission" means the document or documents whereby the state, state legislature, or duly authorized officer of the state empowers a commissioner to an interstate convention and fixes the scope of his or her authority.((#This term is taken from previous interstate convention practice.)) |
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| (c) "Committee" means a delegation of persons commissioned to an interstate convention.((#This term is taken from previous interstate convention practice.)) | %%(c)%% "Committee" means a delegation of persons commissioned to an interstate convention.((#This term is taken from previous interstate convention practice.)) |
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| (d) "Convention for proposing amendments"((#This is the official name given in Article V of the Constitution.)) means an interstate convention consisting of committees commissioned by the legislatures of the several states and called by Congress on the application of at least two thirds of such legislatures under the authority of Article V of the United States Constitution. | (d) "Convention for proposing amendments"((#This is the official name given in Article V of the Constitution.)) means an interstate convention consisting of committees commissioned by the legislatures of the several states and called by Congress on the application of at least two thirds of such legislatures under the authority of Article V of the United States Constitution. |
| (b) The United States Constitution recognizes the authority of states and state legislatures to commission commissioners to interstate conventions, subject to the limitations set forth in the Constitution. It does so implicitly in Article I, Section 10 (recognizing to interstate compacts, subject to congressional approval), explicitly though Article V (authorizing conventions for proposing amendments), and by reserving this previously-existing state power to the states through the Tenth Amendment. | (b) The United States Constitution recognizes the authority of states and state legislatures to commission commissioners to interstate conventions, subject to the limitations set forth in the Constitution. It does so implicitly in Article I, Section 10 (recognizing to interstate compacts, subject to congressional approval), explicitly though Article V (authorizing conventions for proposing amendments), and by reserving this previously-existing state power to the states through the Tenth Amendment. |
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| (c) Although the authority to meet in convention is generally a power reserved to the states by the Constitution, in the case of a convention for proposing amendments the power is granted to the several state legislatures through the Article V of the Constitution.((#On the last clause, see United States v. Sprague, 282 U.S. 716, 733 (1931), Hawke v. Smith, 253 U.S. 221 (1920), and Dyer v. Blair, 390 F. Supp. 1291, 1308 (N.D. Ill. 1975) (Stevens, J.) (“[T]he delegation [from Article V] is not to the states but rather to the designated ratifying bodies . . . .”).)) | %%(c)%% Although the authority to meet in convention is generally a power reserved to the states by the Constitution, in the case of a convention for proposing amendments the power is granted to the several state legislatures through the Article V of the Constitution.((#On the last clause, see United States v. Sprague, 282 U.S. 716, 733 (1931), Hawke v. Smith, 253 U.S. 221 (1920), and Dyer v. Blair, 390 F. Supp. 1291, 1308 (N.D. Ill. 1975) (Stevens, J.) (“[T]he delegation [from Article V] is not to the states but rather to the designated ratifying bodies . . . .”).)) |
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| (d) Leading American Founders, among them James Madison, recognized the authority of states to coordinate their efforts in ways that necessarily or properly included interstate conventions.((#See, e.g., The Federalist No. 46 (James Madison).)) | (d) Leading American Founders, among them James Madison, recognized the authority of states to coordinate their efforts in ways that necessarily or properly included interstate conventions.((#See, e.g., The Federalist No. 46 (James Madison).)) |
| (b) to provide for enforcing limits on such authority; | (b) to provide for enforcing limits on such authority; |
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| (c) to provide methods of selecting and replacing commissioners to conventions; and | %%(c)%% to provide methods of selecting and replacing commissioners to conventions; and |
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| (d) to prescribe an oath to be taken by interstate convention commissioners. | (d) to prescribe an oath to be taken by interstate convention commissioners. |
