How the Hamilton Electors Show that an Article V Convention Cannot Run Away

Back in 2011, I wrote a law review article discussing concerns that a limited convention for proposing amendments called under Article V could propose one or more amendments outside the scope of the application upon which it was called. Among the many safeguards against such a “runaway convention,” I pointed to the ability of a state legislature to restrict the authority of its delegates to an Article V convention, to require from its delegates an oath or pledge to restrict their deliberations to the subject of the application, and to provide for disqualification of and/or sanctions against any delegate who violates these restrictions. See Michael L. Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765, 786 (Spring 2011). Since that time, at least seven states have passed such “delegate limitation acts” or “faithless delegate” laws. See David F. Guldenschuh, The Article V Movement: A Comprehensive Assessment to Date and Suggested Approach for State Legislators and Advocacy Groups Moving Forward 19 & n. 77 (Nov. 2015).

The concept of DLAs (as I shall refer to them collectively) was in part based on analogous laws that had been passed or proposed to bind presidential electors. See Stern, 78 Tenn. L. Rev. at 786 n. 111. For example, the Uniform Faithful Presidential Electors Act (UFPEA), completed by the Uniform Law Commission in 2010, “provides a statutory remedy in the event a state presidential elector fails to vote in accordance with the voters of his or her state.” The UFPEA provides “a state-administered pledge of faithfulness, with any attempt by an elector to submit a vote in violation of that pledge, effectively constituting resignation from the office of elector.” While only a handful of states have passed the UFPEA thus far, a total of 30 states plus the District of Columbia have some sort of law purporting to bind presidential electors to vote for their state’s popular vote winner.

The constitutionality of the UFPEA and other “faithless elector” laws has been debated and litigated over the past several months. Following the November 8, 2016 presidential election, a concerted effort was made by the “Hamilton electors” to argue that (a) presidential electors are free, as a constitutional matter, to vote in accordance with their own judgment and conscience; and (b) whatever norms might ordinarily compel electors to vote in accordance with the popular vote in their state were overcome by the unique and extraordinary facts of this election. These facts fell into three categories: (1) the failure of Donald Trump to win a majority or plurality of the national popular vote; (2) facts which allegedly showed Trump’s unfitness for office (some of which cannot be mentioned on this family-friendly blog); and (3) facts which allegedly showed foreign interference in the election.

As best you can, clear your mind of any passion these arguments may incite in it. Our objective here is not to pass judgment on President Trump, the Hamilton electors, or even the merits of their respective legal arguments per se. Instead, it is to see what the effort to secure an unbound electoral college, a “runaway college” if you will, tells us about the practical, real-world prospects for an analogous effort with regard to an Article V convention.

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Would a Court Hear a Challenge to Congress’s Article V Convention Call?

Having reviewed the most prominent cases regarding the justiciability of Article V claims, today I will analyze how a court would approach the hypothetical lawsuit discussed in an earlier post. In that case Congress calls a convention based on 34 applications for a balanced budget amendment convention and the validity of this congressional action is challenged in federal court. As this recent New York Times article notes, such a “court battle” is likely to ensue once Congress calls a convention. But how would this lawsuit arise and would a court reach the merits of the claims?

Below I address justiciability hurdles and related pitfalls that such a lawsuit would face.

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Still More on Article V Justiciability: Idaho v. Freeman

The second important district court opinion on the justiciability of Article V claims is Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho 1981), judgment stayed sub nom. Natl Org. of Women v. Freeman, 455 U.S. 918 (1982), vacated as moot and remanded to dismiss, 459 U.S. 809 (1982). Before turning to Freeman’s justiciability analysis, it is important to understand the facts before the court. In March 1972, Congress proposed the Equal Rights Amendment (acting, of course, by a two-thirds vote in each house as required by Article V) and set a seven-year period for ratification by state legislatures. Congress is not required to set a time limit for ratification, but it has customarily done so since it proposed the 18th amendment in 1917. This practice was upheld by the Supreme Court in Dillon v. Gloss, 256 U.S. 368 (1921).

The Idaho legislature ratified the ERA almost immediately after it was proposed. The resolution ratifying the amendment recited the seven-year time limit for ratification contained in the congressional resolution. By 1977, however, with the ERA not having received the requisite ratification by three-quarters of the state legislatures, Idaho changed its mind and rescinded its prior ratification.

By late 1978, the ERA had still not been ratified by the required supermajority. 35 states had ratified the amendment (three short of the required 38). Moreover, five of those states, including Idaho, had rescinded their ratifications. Faced with this situation, Congress acted to extend the ratification deadline until June 39, 1982, just over three years after the original deadline would expire on March 22, 1979.

A lawsuit challenging this action was brought by the states of Idaho and Arizona, as well as the legislative leadership and individual legislators from those states (joined by some individual legislators from the state of Washington). In essence, Idaho argued that (1) Congress could not extend the deadline for ratification of the ERA; (2) Congress could not count Idaho’s ratification of the ERA because it was predicated on a seven-year ratification period; and (3) Congress certainly could not extend the ratification period and then ignore Idaho’s rescission of its ratification. (A subsidiary issue was whether Congress could extend the deadline by a simple majority vote).

On the merits, these arguments seem extremely powerful. It is hard to see how Congress can set a seven-year ratification period and then unilaterally extend that period, at least without starting ratifications over at zero. It is inconceivable to me that Congress could extend the ratification period and at the same time prohibit states like Idaho, which ratified based on an understanding of a seven-year ratification period, from rescinding their prior ratifications. This would amount to a constitutional fraud on the states. Or so it seems to me and, I suspect, seemed to the district court in Freeman, which was unusually motivated to reach the merits.

It is worth mentioning that the defendants in Freeman twice sought to disqualify the district judge on the grounds that his leadership position in the Mormon Church (which officially opposed both the ERA and Congress’s extension of the ratification deadline) could cause his impartiality to be questioned. See Idaho v. Freeman, 507 F. Supp. 706 (D. Idaho 1981); Idaho v. Freeman, 478 F. Supp. 33 (D. Idaho 1979). In response to the first motion, brought by the Department of Justice, the court observed:

It is rather ironic that defendant should raise the issue of judicial prejudice in this particular action. It is apparent that in this case the district court is only a conduit for passing these issues on to the circuit court and ultimately, the Supreme Court of the United States. It is obvious from the pleadings that the evidence will almost entirely consist of public documents and records about which there is no dispute. In such a case, the rules which the appellate courts follow permit them to utterly disregard the district court’s decision and to review the evidence and the law as if the case had been initially tried before them.

478 F. Supp. at 37.

While this observation is accurate as a practical matter, it might be seen to indicate the mindset of a judge who expects to issue what in effect is an advisory opinion, rather than a binding resolution of a dispute between the parties. It provides some further evidence, along with the issues discussed in this post and the fact that the district court’s ruling was ultimately vacated by the Supreme Court, that the Freeman decision not only lacks any formal precedential authority, but is likely to be seen as an outlier with regard to its analysis of justiciability. Continue reading “Still More on Article V Justiciability: Idaho v. Freeman”

More on Article V Justiciability: Dyer v. Blair

In my last post on the justiciability of Article V cases, we discussed the Supreme Court’s 1939 decision in Coleman v. Miller and whether that decision would be applied broadly to block most or all Article V claims as nonjusticiable political questions. Those who would read Coleman narrowly often cite two district court decisions from the 1970s which addressed justiciability of claims related to the ratification of the Equal Rights Amendment. While these cases do provide some support for a narrower application of the political question doctrine, they also illustrate other justiciability issues which may be equally if not more problematic for an Article V plaintiff.

Today I will discuss one of those cases, Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975), which was brought by members of the Illinois General Assembly seeking declaratory and injunctive relief regarding the attempt to ratify the ERA during the 78th Session of the General Assembly. During that session, votes in both the house and senate resulted in a majority, but less than three-fifths, supporting ratification of the amendment. Neither house deemed this vote sufficient to pass the ratification resolution. In the house, the speaker ruled that a supermajority was necessary under both a provision of the Illinois constitution and a house rule, each of which declared a three-fifths vote was required to ratify amendments. The senate presiding officer also ruled that a three-fifths vote was needed for ratification, despite a recently adopted senate rule allowing a simple majority vote, presumably on the basis that the state constitutional provision took precedence.

The plaintiffs sought declaratory relief that the Illinois constitutional provision and similar house rule were void and of no legal effect under Article V, which (they argued) requires that ratification of proposed amendments be by a simple majority. The also sought injunctive relief against the house speaker and senate president, prohibiting these officers from applying any supermajority requirement to ratification votes and ordering them to sign and certify the ratification resolutions that had previously received majority approval.

A three-judge court was convened, including then-Judge (and future Justice) John Paul Stevens, who wrote the court’s opinion.

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Coleman v. Miller and the Political Question Doctrine

Following on my last post, our analysis of the justiciability of claims related to the Article V convention will begin with Coleman v. Miller, 307 U.S. 433 (1939) and the political question doctrine. Coleman involved the purported ratification by the Kansas legislature of a child labor constitutional amendment proposed by Congress in 1924. After both houses of the Kansas legislature had rejected the proposed amendment in 1925, the Kansas house passed a resolution of ratification in 1937. The Kansas senate then equally divided (20-20) on the resolution, and the Lieutenant Governor, over the objections of those who opposed the amendment, broke the tie in favor of ratification.

Kansas legislators, including the 20 senators who voted against ratification, challenged this action in state court, and the case was ultimately appealed to the U.S. Supreme Court. The plaintiffs advanced three grounds for invalidating the purported ratification: (1) that the 13 years between proposal and ratification was too long; (2) that the prior rejection of the amendment by the Kansas legislature precluded subsequent ratification and (3) that the Lieutenant Governor was not part of the “legislature” under Article V and therefore could not vote on ratification.

In a famously splintered opinion, the Coleman Court declined to reach the merits of any of these issues. In an opinion by Chief Justice Hughes designated as the “Opinion of the Court” (but joined by only two other justices), the Court held the Kansas legislators had standing to bring the suit, but found that two of the plaintiffs’ claims raised political questions that could only be resolved by Congress.

With respect to the whether the Kansas legislature’s previous rejection of the child labor amendment precluded its subsequent ratification, the Court stated that this “should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the amendment.” 307 U.S. at 450. The Court found no basis for the proposition that it “should restrain the state officers from certifying the ratification to the Secretary of State because of an earlier rejection, and thus prevent the question from coming before the political departments.” Id.

Although the Supreme Court had previously held that ratification of amendments must take place within a reasonable time, the Coleman Court rejected the notion that “in the absence of a limitation by the Congress, the Court can and should decide what is a reasonable period within which ratification may be had.” 307 U.S. at 452. Determining what constitutes a reasonable time for ratification in any particular case would require “an appraisal of a great variety of relevant conditions, political, social, and economic,” which according to Chief Justice Hughes would involve questions that are “essentially political, and not justiciable.” Id. at 453-54.

With regard to the issue of the Lieutenant Governor’s participation in the ratification process, the Coleman Court declared: “Whether this contention presents a justiciable controversy, or a question which is political in its nature and hence not justiciable, is a question upon which the Court is equally divided, and therefore the Court expresses no opinion upon that point.” Id. at 447. (If you wonder how a 9-member Court came to be “equally divided,” the answer, though not relevant to our analysis, may be found here)

In his concurrence (joined by Justices Frankfurter, Roberts and Douglas), Justice Black suggested that the Court had not gone far enough in denying judicial power to resolve Article V controversies. While agreeing with the Court that Congress has the “exclusive power” to resolve “political questions” such the validity of ratification after prior rejection and the length of time within which an amendment could be ratified, Black criticized the Court for leaving an opening for any judicial resolution of Article V questions. See Coleman, 307 U.S. at 458 (“To the extent that the Court’s opinion in the present case even impliedly assumes a power to make judicial determination of the exclusive constitutional authority of Congress over submission and ratification of amendments, we are unable to agree.”). Instead, Black stressed that all Article V questions should be considered political and not justiciable:

Such a division between the political and judicial branches of the government is made by Article V, which grants power over the amending of the Constitution to Congress alone. Undivided control of that process has been given by the Article exclusively and completely to Congress.  The process itself is “political” in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control, or interference at any point.

Coleman, 307 U.S. at 458-59 (Black, J., concurring).

Two additional opinions were written in Coleman. Justice Frankfurter wrote for himself and Justices Black, Roberts and Douglas in a separate opinion rejecting the Court’s conclusion that the Kansas legislators had standing to sue. See Coleman, 307 U.S. at 460 (Frankfurter, J., concurring). Frankfurter argued that the injury asserted by the plaintiffs, namely that the Kansas legislature had followed unconstitutional procedures in ratifying the child labor amendment, was not the type traditionally redressed by the judiciary and would open the federal courts to “sit[ting] in judgment on the manifold disputes engendered by procedures for voting in legislative assemblies.” Id. at 469-70.

Finally, Justice Butler authored a dissent, for himself and Justice McReynolds, arguing that the Court should have reached the merits and struck down Kansas’s ratification as untimely. Coleman, 307 U.S. at 470 (Butler, J., dissenting). It should be noted, however, that Butler did not actually express an opinion on whether the timeliness of ratification was a political question. Instead, he pointed to the fact that the Court had previously treated it as a justiciable question, and he argued that the Court should not have reversed itself on this point without argument or briefing.

Continue reading “Coleman v. Miller and the Political Question Doctrine”

The Justiciability of Controversies Related to the Article V Convention

As you may know, there is increasing chatter about the possibility of Congress calling an Article V “convention for proposing amendments” (sometimes referred to, inaccurately, as a “constitutional convention”).

Recently the New York Times featured a front page article by Michael Wines entitled “Inside the Conservative Push for States to Amend the Constitution.” The focus of the article is on the effort to call a convention to propose a federal balanced budget amendment, which I know something about through my association with with the Balanced Budget Amendment Task Force (BBATF), one of the three groups featured in the piece.

If I might digress for a moment, I note that Wines’s suggestion that the balanced budget amendment effort is “often funded by corporations and deeply conservative supporters like the billionaire Koch brothers and Donors Trust” is, unfortunately, not true, certainly with respect to the BBATF. To the contrary, the BBATF operates with little outside funding of any kind and depends on the work of citizen activists who volunteer their time and often pay their own travel expenses. (No need to mention that last part to my wife, though). But if you happen to be a wealthy donor, feel free to click through to the BBATF website and look for the donate button. . .

Anyway, as Wines notes, “Article 5 of the Constitution . . . allows the states to sidestep Congress and draft their own constitutional amendments whenever two-thirds of their legislatures demand it.” Thus far, “28 states have adopted resolutions calling for a convention on a balanced-budget amendment, including 10 in the past three years, and two, Oklahoma and West Virginia, this spring.” Thus, only six additional states are needed to trigger an Article V balanced budget amendment convention.

Wines is also correct that there are substantive legal issues which will undoubtedly be raised if and when the states reach the magic number of 34. For example, Wines says that “[e]ven if the two-thirds threshold were reached, a convention would probably face a court battle over whether the legislatures’ calls for a convention were sufficiently similar.”

What he refers to is the fact that the 28 existing applications for a balanced budget amendment convention do not use identical language, and it can be argued (and undoubtedly will be argued) that some of them are substantively different from the others in terms of the scope of the convention they seek. If Congress calls a convention based upon these applications, someone is likely to go to court to stop the convention from being held. Thus, Wines is right that there probably will be a “court battle” of some kind.

This doesn’t mean, however, that a court would actually consider such a case on its merits. Before doing so, it will have to answer a novel question: when (if ever) are claims related to the Article V convention justiciable?

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Antonin Scalia on the “Minimal Risk” of an Article V Convention

When state legislatures consider whether to apply for an Article V convention for proposing amendments, the primary argument in opposition is invariably that such an application poses an intolerable risk of a “runaway convention,” i.e., a convention that proposes amendments outside the scope of the subject matter for which it was called. This question was considered by a panel of distinguished scholars (Paul Bator, Walter Berns, Gerald Gunther and Antonin Scalia) at an AEI forum held on May 23, 1979. The transcript of this forum has just been posted online (hat tip: Josh Blackman and Adam White).

Three panelists agreed that while the matter was not free from doubt, the best view of the Constitution is that an Article V convention may be limited as a matter of law. One panelist, Professor Gunther, contended that such a limitation was merely a “moral exhortation” that was not legally binding. Tr. 8.

Then-Professor Scalia agreed with Professors Bator and Berns that Article V was best interpreted to permit a limited convention. See Tr. 12 (“There is no reason not to interpret it to allow a limited call, if that is what the states desire.”) (Scalia); see also Tr. 7-8, 11 (Bator); Tr. 4-5 (Berns).

Scalia, however, mostly concentrated his remarks on debunking the practical reasoning of the “runaway convention” argument. Acknowledging the theoretical possibility that an Article V convention could propose an extreme or unpalatable amendment, he noted that this possibility could equally be employed as a reason against convening Congress (or any legislative authority). Tr. 5. The right question to ask is “how high we think the risk is and how necessary we think the convention is.” Id.

As far as the risk, Scalia made clear he had “no fear” that “extreme proposals” would come out of an Article V convention. Tr. 5. The risk of a convention exceeding its mandate “was not much of a risk.” Tr. 23. After all: “Three-quarters of the states would have to ratify whatever came out of the convention; therefore, I don’t worry about it too much.” Id.

On the need for a convention, Scalia noted:

The founders inserted this alternative method of obtaining constitutional amendments because they knew the Congress would be unwilling to give attention to many issues the people are concerned with, particularly those involving restrictions on the federal government’s own power. The founders foresaw that and they provided the convention as a remedy. If the only way to get that convention is to take this minimal risk, then it is a reasonable one.

Tr. 6.

He went on to explain that the argument against calling a convention effectively gives Congress a monopoly over amendments, contrary to the Framers’ intent: “The alternative is continuing with a system that provides no means of obtaining a constitutional amendment, except through the kindness of the Congress, which has demonstrated that it will not propose amendments—no matter how generally desired—of certain types.” Tr. 12. Indeed, Congress “likes the existing confusion, because that deters resort to the convention process.” Id.

Scalia left no doubt as to how he weighted the risk and reward in calling a balanced budget amendment convention: “The Congress knows that the people want more fiscal responsibility, but it is unwilling to oblige it. A means comparable to [California’s] Proposition 13 is needed at the federal level. The Constitution had provided it. If the only way to clarify the law, if the only way to remove us from utter bondage to the Congress, is to take what I think to be a minimal risk on this limited convention, then let’s take it.” Tr. 13.

Finally, Scalia put the point in the broader context of a constitutional system that was badly out of kilter: “I am not sure how long a people can accommodate to directives from a legislature it feels is no longer responsive, and to directives from a life-tenured judiciary that was never meant to be responsive, without losing its will to control its own destiny.” Tr. 18.

Though uttered 37 years ago, these words don’t seem the least bit out of date today.

Addition and Subtraction in Article V Counting

Yesterday Representative Duncan Hunter (R-Ca.) sent a letter to the Speaker asking for the House to determine how many states have applied for an Article V convention to propose a balanced budget amendment. Hunter’s letter was prompted by Michigan’s passage last week of a resolution applying for such a convention. With the addition of Michigan, 34 states have applied for a convention limited to this purpose at one point in time. If one counts all of these applications, Congress would be obligated to call a convention under Article V.

Most observers, however, would not count all of these applications. That’s because a number of states have rescinded after initially applying for a convention. If these rescissions are valid, then only 23 states currently have applied for a convention, or, in Professor Michael Paulsen’s phrase, have their lights “on” for an Article V convention. Another 11 states would have to apply in order to trigger a convention call by Congress.

Although the question of whether states may rescind their applications is a legal question, I am not sure how much lawyers can add to common sense here. To prohibit state legislatures from rescinding their applications would mean that any applying state would be bound forever (since the Constitution provides no expiration date on applications). If this were the case, no sensible state would apply for a convention except simultaneously with the requisite number of other states needed to trigger a convention call; to apply “early” would leave all of the discretion in the hands of the non-applying states. This seems like an exceedingly odd result, to say the least. And general legal principles, such as the contract law doctrine of offer and acceptance, would tend to support the conclusion that states may withdraw their applications until Congress actually calls the convention (or, perhaps, until the magic two-thirds number is reached).

Note, however, that if Congress wanted to call a convention today (which it most certainly does not), it could easily do so. First, Congress might disagree with my (admittedly cursory) analysis and conclude that the requisite number of states have in fact applied for a convention. Second, Congress might find that it has discretionary authority to call a convention under Article V even under circumstances when it is not compelled to do so. Article V, after all, does not say anything about when Congress may call a convention, only when it must.

Indeed, there would seem to be little doubt that Congress, or for that matter the states themselves, may call a convention even if the technical requirements of Article V are not (or arguably not) satisfied. The Washington Peace Conference of 1861, called to consider potential constitutional amendments to avoid civil war, was not initiated by Article V applications. If a convention does not qualify under Article V, however, it presumably could not propose amendments directly to the states, but only make recommendations to Congress, which would then have to use its own Article V power of proposal. As Professor Natelson explains, this is what happened in the case of the Washington Peace Conference.

Article V and the Single Amendment Convention

Can an Article V convention for proposing amendments be limited to considering a single amendment specified by the state legislatures in their applications? Even within the relatively sparse literature on the Article V convention, little attention has been paid to this question. Professor Rob Natelson, who has written extensively in support of the proposition that a convention may be limited to a particular subject, has expressed skepticism regarding the viability of a “single amendment convention.” Natelson’s view, however, is less a firm conclusion about the original meaning of Article V than a prediction regarding the practical difficulties likely to attend an effort to hold a single amendment convention, including the possibility that Congress or the courts would refuse to recognize it.

Recently a prominent originalist scholar, Professor Michael Rappaport (well known to the readers of this blog), has concluded that Article V permits a convention for proposing amendments to be limited by either subject or the wording of a particular amendment. See Michael B. Rappaport, The Constitutionality of a Limited Convention: An Originalist Analysis, 81 Const. Comm. 53, 56 (2012) (“The Constitution allows the state legislatures to apply not merely for a convention limited to a specific subject matter [but allows them] to draft a specially worded amendment and then to apply for a convention limited to deciding only whether to propose that amendment.”).

Although the issue is not free from doubt, I agree with Rappaport that the state legislatures have the power to limit an Article V convention to a single amendment. This is so for five reasons: Continue reading “Article V and the Single Amendment Convention”

Rob Natelson on the Article V Convention

In an article recently published in the Harvard Journal of Law and Public Policy, Professor Rob Natelson provides a brief but illuminating summary of how the Article V convention fits within the constitutional plan designed by the Founders. Natelson, the nation’s foremost expert on state initiation of constitutional amendments, explains that the Article V convention played a pivotal role in addressing two main arguments made by anti-Federalists, who predicted that the Constitution would undermine the sovereignty and autonomy of the states:

The first argument was that the Constitution granted too much power to the federal government, which could lead to abuse of that power. The second argument was more subtle but ultimately proved more prescient: Even if the Constitution, when honestly, fairly, and objectively read, did not give the federal government excessive power, ambitious and clever people would nonetheless twist its language to justify the seizure by the central government of enormous power, regardless of the understanding of those who wrote and ratified the instrument.

R. Natelson, The Article V Convention Process and the Restoration of Federalism, 36 Harv. J. Law & Pub. Pol’y 955, 956 (Spring 2013).

The Article V convention responded to both of these arguments, as Madison and Hamilton took pains to point out in The Federalist. First, thanks to the convention process, Article V “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.” Federalist No. 43 (Madison). Thus, to the extent the Constitution proved to give too much power to the “general government,” the states could “originate the amendment of errors” without being subject to a congressional veto. This addressed the fear that any excessive national power would be permanently entrenched.

Second, the Article V convention process gave the state legislatures a significant constitutional power to counteract overreach by Congress or the federal government. Hamilton explained in Federalist No. 85 that, as a consequence of Article V’s design, “[w]e may safely rely on the disposition of the state legislators to erect barriers against the encroachments of the national authority.” Thus, Natelson observes: “[T]he Founders saw the amendment procedure as more than a way of responding to changed circumstances. They saw it as a tool for curbing excesses and abuses.” 36 Harv. J. Law & Pub. Pol’y at 957.

While no Article V convention has ever been called, Natelson points out that state legislatures can use their power short of actually calling a convention. Id. at 959. If “state legislatures flex[] their Article V muscles by applying, in a concerted manner, for a convention to propose amendments,” they can force Congress to propose an amendment as the price of not actually triggering the convention call. Id. Thus, “the States forced the United States Senate to agree to the Seventeenth Amendment . . . when thirty-one of the necessary thirty-two [at the time] applied for a convention limited to proposing a direct election amendment.” Id. at 959-60.

Continue reading “Rob Natelson on the Article V Convention”