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--- documents:cosproject:surge:article_6-howthecourts [2018/03/24 17:01] – Oliver Wolcott
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+{{:documents:cosproject:surge:surge-6-1.png?800|One source of security we have... is the courts’ long history of protecting the integrity of the [amendment] procedure.}}
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-One source of security we have... is the courts’ long history of protecting the integrity of the [amendment] procedure.
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+//One source of security we have... is the courts’ long history of protecting the integrity of the [amendment] procedure.//
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 ===== How the Courts have Clarified the Constitution’s Amendment Process =====
 **Robert Natelson, Independence Institute’s Senior Fellow in Constitutional Jurisprudence and Head of the Institute’s Article V Information Center**
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   * Article V grants enumerated powers to named assemblies—that is, to Congress, state legislatures, conventions for proposing amendments, and state conventions. When an assembly acts under Article V, that assembly executes a “federal function” different from whatever other responsibilities it may have. //Hawke v.////Smith, //253U.S.221 (1920);// Leser v. Garnett, //258 U.S. 130 (1922);// State ex rel. Donnelly v. Myers, //127Ohio St.104, 186 N.E. 918 (1933); //Dyer v. Blair,//390 F. Supp. 1291 (N.D. Ill. 1975) (Justice Stevens).
   * Article V gives authority to named assemblies, without participation by the executive. //Hollingsworth v. Virginia//, 3 U.S. (3 Dall.) 378 (1798).
   * Where the language of Article V is clear, it must be enforced as written. //United////States v. Sprague, //282U.S.716 (1931).
   * That does not mean, as some have claimed, that judges may never go beyond reading the words and guessing what they signify. Rather, a court may consider the history underlying Article V. //Dyer v. Blair, //390F. Supp.1291(N.D. Ill.1975) (Justice Stevens). It may also consider what is implied as well as what is expressed. //Dillon v. Gloss,//256 U.S. 368 (1921). In other words, courts apply the same rules of interpretation to Article V as elsewhere.
   * Just as other enumerated powers in the Constitution bring with them certain incidental authority, so also do the powers enumerated in Article V. //State ex rel.////Donnelly v. Myers, //127Ohio St.104, 186N.E. 918 (1933). This point and the one previous are important in determining the scope of such Article V words as “call,” “convention,” and “application.”
   * The two - thirds vote required in Congress for proposing amendments is two thirds of a quorum present and voting, not of the entire membership. //State of Rhode Island v. Palmer//, 253 U.S. 320 (1920).
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+{{:documents:cosproject:surge:surge-6-2.png?800|The courts are very much in the business of protecting Article V procedures, and they have done so for more than two centuries.}}
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-The courts are very much in the business of protecting Article V procedures, and they have done so for more than two centuries.
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+//The courts are very much in the business of protecting Article V procedures, and they have done so for more than two centuries.//
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   * A convention for proposing amendments is, like all of its predecessors, a “convention of the states.” //Smith v. Union////Bank, //30 U.S. 518, 528 (1831). The national government is not concerned with how Article V conventions or state legislatures are constituted. //United States v.////Thibault//,47 F.2d169(2d Cir.1931).
   * No legislature or convention has power to alter the ratification procedure. That is fixed by Article V. //Hawke v. Smith,//253U.S. 221 (1920);//United States v. Sprague//, 282 U.S. 716 (1931). Some “runaway”alarmists have suggested that a convention for proposing amendments could decree ratification by national referendum, but the Supreme Court has ruled this out. //Dodge////v. Woolsey//,59 U.S. 331 (1855). Neithercan a state mutate its own ratifying procedure into a referendum. //State of Rhode////Island v. Palmer, //253 U.S. 320 (1920).
   * Congress may not try to manipulate the ratification procedure, other than by choosing one of two specified “modes of ratification.” //Idaho v. Freeman,//529 F. Supp. 1107 (D. Idaho 1981), a judgment vacated as moot by Carmen v. Idaho, 459 U.S. 809 (1982); compare//United States////v. Sprague, //282 U.S. 716 (1931).
   * A convention meeting under Article V may be limited to its purpose. //In Re////Opinion of the Justices, //204 N.C. 306, 172 S.E. 474 (1933).
   * But an outside body may not dictate an Article V assembly’s rules and procedures. //Leser v. Garnett, //258 U.S. 130 (1922);// Dyer v. Blair, //390F. Supp.1291(N.D. Ill.1975) (Justice Stevens).
   * Nor may the assembly be compelled to resolve the issue presented to it in a particular way. //State ex rel. Harper v. Waltermire//,691P.2d826(1984);// AFL-CIO v. Eu, //686P.2d609(Cal.1984);// Miller v. Moore, //169F.3d1119(8th Cir.1999);// Gralike v. Cook, //191F.3d911, 924-25 (8<sup>th</sup>Cir. 1999), affirmed on other grounds sub nom. //Cook v. Gralike,//531 U.S. 510 (2001); //Barker v. Hazeltine, //3F. Supp. 2d1088,1094 (D.S.D. 1998);//League of Women Voters of Maine v. Gwadosky//,966F. Supp.52 (D. Me. 1997);//Donovan v. Priest,// 931 S.W.2d 119 (Ark. 1996).
   * Article V functions are complete when a convention or legislature has acted. There is no need for other officials to pro-claim the action. //United States ex rel. Widenmann v. Colby, //265 F.398(D.C. Cir. 1920), affirmed 257 U.S. 619 (1921).