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«~1~ Foreword by Michael Farris This Compendium is written by the nation’s foremost scholar on Article V, Professor Robert G. Natelson. It is ...»

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State Initiation of Constitutional Amendments:

A Guide for Lawyers and Legislative Drafters

Robert G. Natelson

Senior Fellow in Constitutional Jurisprudence

The Independence Institute

Denver, Colorado

Professor of Law (ret.)

The University of Montana

~1~

Foreword by Michael Farris

This Compendium is written by the nation’s foremost scholar on Article V,

Professor Robert G. Natelson. It is designed to assist both legislators and legislative

counsel with the legal issues most likely to arise in the process of calling for a Convention of the States under Article V.

Mark Levin’s book, The Liberty Amendments, has focused a great deal of attention on the possibility of using Article V to rein in the growth of federal power.

Many different proposals are being advanced by a variety of organizations. This Compendium should serve as a valuable tool to assist with the legal analysis of all of these different Article V proposals.

In general terms, supporters of Article V advocate three basic approaches.

Some proposals call for a single amendment (e.g., a Balanced Budget Amendment).

Some proposals call for an unlimited convention. We propose a convention for a single topic, rather than a single amendment.

The approach being advanced by Citizens for Self-Governance is essentially identical to the one advanced by Mark Levin. We seek a Convention of States that is limited to restraining the power and jurisdiction of the federal government and imposing fiscal restraints on Washington, D.C. Our proposal would also permit consideration of term limits on members of Congress, the judiciary, and other federal officials.

When state applications approach the same general subject, but differ in the operative language, it opens up the prospect of legal challenges when trying to determine whether thirty-four applications have been passed on the same subject.

The Convention of States Project seeks to ensure that thirty-four states enact the exact same language in the operative sections. Language in preambles and introductory paragraphs can vary, but we are in the best possible legal situation when the formal resolution stating the purpose for the convention is uniform in all states.

The Bill of Rights was a package of amendments designed to preserve the rights of the people. Our Convention of States Project will allow the states to ~2~ propose a package of amendments designed to limit the growth and curb the fiscal irresponsibility of the federal government. Other solutions have good attributes.

But our solution is the only approach that offers a solution that is as big as the problem. We need a comprehensive solution to the mess in Washington, D.C.

We invite your careful consideration to the Convention of States model. But, again, this Compendium should be of value in assessing all Article V proposals.

Thank you for your service to your state and our nation.

–  –  –

~3~ Executive Summary Article V of the United States Constitution prescribes methods of amending the instrument. It tells us that all amendments must be ratified by legislatures or conventions in three-fourths of the states—but that before they can be ratified, they must be duly proposed.

The Constitution provides for two modes of proposal: by Congress and by a “Convention for proposing Amendments.” A convention must be called by Congress on “application” of two-thirds of the states.

Because a convention for proposing amendments has never been held, some commentators believe little is known about it or about the procedures leading to it.

As a matter of fact, quite the contrary is true: We know a great deal about those subjects.

Our sources include convention practice both before and after the Constitution was adopted; numerous observations by leading Founders; hundreds of applications from state legislatures; two centuries of public discussion, resolutions, and legislation; and, finally, a string of court cases stretching from 1798 into the twenty-first century in which the judiciary has elucidated the principles and rules of Article V with satisfying clarity and consistency.

This Compendium is designed for lawyers involved in activities preparatory to the calling of a convention for proposing amendments. It contains textual exegesis, relevant legal authorities, and sample forms.

This book is divided into five Parts. Part I, which discusses bibliography, lists the major writings on Article V and classifies them into three groups or “waves,” according to chronology and accuracy. It is designed to alert the reader at the outset as to which writings are generally reliable and which suffer from misunderstandings that were almost universal during the 1960s and 1970s.

~4~ Part II is a Table of Cases. Part III contains exegesis on the procedure, including extensive footnoting, in the manner of a legal treatise. Part IV is a collection of forms, and Part V reproduces some of the most recent scholarly treatments of the subject. I hope you find this material interesting and useful.

–  –  –

~5~ Table of Contents Foreword by Michael Farris

Executive Summary

Part I. Sources, “Science Fiction,” and Article V Bibliography





§ 1.1. Sources

§ 1.2. “Science Fiction”

§ 1.3. The Three Waves of Modern Article V Bibliography

§ 1.4. Major Publications

Part II. Table of Cases

Part III. Explanatory Text with Footnotes

§ 3.1. Historical Background

§ 3.2. Types of Conventions

§ 3.2.1. In-State versus Multi-State Conventions

§ 3.2.2. Proposing and Ratifying Conventions

§ 3.2.3. Plenipotentiary and Limited Conventions

§ 3.2.4. Categorizing the Constitutional Convention and the Convention for Proposing Amendments

§ 3.3. Why the Founders Adopted the Proposal Convention in Article V.. 29 § 3.4. Analyzing the Text of Article V

§ 3.5. Applicable Legal Principles: Interpretation, Incidental Powers, and Fiduciary Obligations

§ 3.6. Assemblies Acting under Article V Do So Solely by Virtue of Powers Granted by Article V.

§ 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

§ 3.8. The State Legislatures’ Applications

§ 3.8.1. Background

§ 3.8.2. What Is an Application and How Is It Adopted?............. 40

–  –  –

~7~ § 4.2. Sample Form Electing Commissioners

§ 4.3. Sample Commissions

§ 4.4. Sample Instructions

§ 4.5. “No Runaway” Acts

§ 4.5.1. Uniform Interstate Convention Act

§ 4.5.2. Indiana Acts Limiting Commissioners

Part V: Full-Text Source Materials

§ 5.1. Robert Natelson, Founding-Era Conventions

§ 5.2. Robert Natelson, Rules Governing the Process

–  –  –

~8~ Part I. Sources, “Science Fiction,” and Article V Bibliography § 1.1. Sources Many sources offer insight into the meaning of Article V. One’s first inquiry is, of course, to the constitutional text. However, as is true on other questions of constitutional law, the meaning of the text of Article V is not always self-evident. In such instances, the courts typically rely on Founding-Era or other historical evidence of meaning. 1 Historical evidence of the meaning of Article V is largely of the same kind used for other parts of the Constitution. It includes usages in eighteenth century dictionaries and other contemporaneous sources, the records left by the Constitution’s drafters, the ratification debates in the state conventions and in public venues (such as newspapers), material from the first session of the First Congress, including the first two state applications for an amendments convention, and eighteenth century law and legal documents. In the case of Article V, another important source of information consists of extant records from approximately thirty conventions held among the colonies and states in the century before the Constitution was written. 2 Additional light is shed by a mass of material illuminating how the Article V convention—then usually called a “convention of the states”—was understood in the century subsequent to the Founding—that is, from the 1790s through the end of the nineteenth century. Three Supreme Court decisions cast light on the procedure. 3 State legislatures issued applications and also issued resolutions responding to

–  –  –

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 § 5.1.

Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798) (holding that the President has no role in the amending process, and relying on the procedures used in proposing the first ten amendments);

Smith v. Union Bank, 30 U.S. 518 (1831) (referring to a convention for proposing amendments as a convention of the states); Dodge v. Woolsey, 59 U.S. 331 (1855) (noting that the electorate has no direct role in the amending process).

~9~ other states’ applications.

During the century after the Founding, there were several further multi-state conventions. 4 Regional meetings were held in Hartford, Connecticut in 1814 and in Nashville, Tennessee in 1850. The states held a general convention in Washington, D.C. in 1861 in an effort to ward off the Civil War. These conclaves did not qualify as Article V conventions for proposing amendments, but they were close relatives.

Indeed, the Washington gathering was a fraternal twin: Although called by Virginia rather than by Congress to propose an amendment to Congress rather than to the states, in every other particular it mimicked an Article V convention. It followed the long-standard convention rules, and produced a proposed amendment. Although Congress remained deadlocked, the Washington gathering itself was a successful dress rehearsal for an amendments convention under Article V.

The twentieth century witnessed at least one multi-state convention, a sevenstate “commission” held primarily at Santa Fe, New Mexico in 1922 to negotiate the Colorado River Compact. In addition, much of the twentieth century was marked by intense Article V activity. State legislatures produced scores of applications. 5 Twenty-nine were issued for a convention to propose an amendment providing for direct election of Senators. 6 Congress rendered further proceedings unnecessary by proposing the Seventeenth Amendment in 1912, which three-fourths of the states had ratified by the following year. During the 1940s, five states applied for a convention for proposing an amendment limiting the President to two terms. 7 Again, Congress responded by proposing the Twenty-Second Amendment in 1947.

–  –  –

Applications are collected at The Article V Library, http://article5library.org/ (last visited Apr. 2, 2014), and one may undertake subject searches there. Another site collecting applications, Friends of the Article V Convention, http://www.foavc.org/ (last visited Apr. 2, 2014), is less reliable and must be used cautiously.

State Article V Applications—By Subject, THE ARTICLE V LIBRARY, http://article5library.org/ apptable_by_subject.php (screen by “Direct election of Senators”) (last visited Apr. 2, 2014).

Id. (screen by “Limit Presidential Tenure”).

~10~ Congress proved less responsive to later application campaigns, particularly those to limit its own power or the power of federal judges. For example, Congress stonewalled when, during the 1960s, thirty-three states applied for a convention to partially reverse Supreme Court decisions requiring all state legislative chambers to be apportioned solely by population. 8 Congress was similarly unmoved when state legislatures repeatedly applied for an amendment requiring a balanced federal budget. 9 The twentieth century also witnessed the first-ever ratification of a constitutional amendment (the Twenty-First) by state ratifying conventions rather than by state legislatures. Congress opted for that “mode of ratification” despite some forebodings of doom; as matters turned out, the procedure worked reasonably well.

Finally, there were nearly forty reported court cases construing Article V during the twentieth century, including some key decisions from the U.S. Supreme Court. 10 Clearly, there is no lack for material for guidance on the procedures in Article V.

§ 1.2. “Science Fiction” If an American Founder such as John Dickinson or Alexander Hamilton were to visit us today, he no doubt would be astonished at how little most Americans— This campaign died out partly as a result of the passing of its leader, Senator Everett Dirksen (RIL) and partly because liberal opponents widely disseminated fears that an Article V convention was a “con-con” that might “run away.” Although similar claims arose late in the nineteenth century, this seems to have been the first application campaign in which those claims had a significant political impact.

The applications differed in wording sufficiently that it might have been impossible to aggregate all thirty-three. See id. The same cannot be said of the applications for direct election of Senators. Id.

(screen by “Direct election of Senators”).

Thirty-two of the necessary thirty-four states were at one time on record for a balanced budget

convention. See id. (screen by “Balanced budget”). See infra Part II.

~11~ even those working in constitutional law—know about the convention procedure of Article V. To the Founders, interstate convention protocols were familiar and wellunderstood, and they fully expected the application and convention process to be employed.



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