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.

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And Now For Something Completely Different

This is not a post about Monty Python (sorry), but a couple of thoughts on the word “amendment.” Over at The Originalism Blog, Professor Michael Ramsey discusses a debate regarding the meaning of the Origination Clause of the Constitution, which provides “All Bills for raising Revenue shall originate in the House of Representatives, but the Senate may propose or concur with Amendments as on other Bills.” A new constitutional challenge to the Affordable Care Act (aka Obamacare) contends that the statute was enacted in violation of this provision because although the bill had a House Bill number, it actually originated in the Senate. As explained in this Volokh Conspiracy post by Professor Randy Barnett, Senate Majority Leader Harry Reid simply took a House bill, struck out all of the text, and replaced it with a Senate-written bill. A new lawsuit now argues that this “strike and replace” procedure does not satisfy the requirements of the Origination Clause.

Professor Jack Balkin points out that using “strike and replace” or a “shell bill” as a means of formally satisfying the requirements of the Origination Clause has been done on a number of occasions in modern history, including the 1986 Tax Reform Act. He acknowledges that the “original expected application” of the Origination Clause probably did not include using the amendment process to substitute a completely different piece of legislation (after all, the Clause would seem to serve little purpose if this is allowed), but argues that it is literally consistent with the requirements of the Clause.

To which Professor Ramsey responds:

Professor Balkin further argues that strike-and-replace is “formally consistent with Article I, section 7, because the Senate has added an amendment to a tax bill that began in the House.”  I’m not sure that is right.  It depends on the meaning of the word “amendment.”  Is the deletion of one whole bill and the substitution of an entirely new bill properly defined (in ordinary use) as an “amendment”?  The dictionary I have closest to hand says that an “amendment” is “a correction or an alteration … [a] formal revision of, addition to, or change…”  In modern speech, I would think that the word “amendment” might contrast with “substitution” or “replacement.” (Of course, for original meaning what really matters is the 1787-88 definition, if it is different).

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Legislative Instructions and the Article V Convention

In thinking about the question of whether an Article V convention may be limited, it is helpful to distinguish between two types of limitations. The first goes to a limitation on the authority of the convention itself—this limitation would hold that proposed amendments outside the scope of the convention’s authority (as established by the states in their applications) are invalid and therefore without legal effect. This might be termed a corporate limitation.

The debate over the “runaway convention” has focused almost entirely on whether an Article V convention may be subject to such a corporate limitation. If such a limitation is permissible, then various constitutional actors, such as Congress, the courts, and the state legislatures, may be permitted or required to declare an out-of-scope amendment invalid. This would be the basis, for example, of a congressional rule that would prohibit the submission for ratification of an out-of-scope amendment.

But there is a second type of limitation that relates not to the authority of the Article V convention as a body, but to the authority of individual state delegations. This might be termed a constituent limitation. The basis of this limitation would be the authority of state legislatures to instruct their delegations as to what matters they are permitted to consider.

Interestingly, there has been little debate over the power of state legislatures to instruct their delegates to a convention. As noted in my last post, even Professor Paulsen, one of the leading proponents of the unlimited convention theory, acknowledges that convention delegates “might well operate to some extent” pursuant to instructions. Moreover, there seems to be little question that instructing delegates was the common if not invariable practice of the founding era. As Professor Rob Natelson, who has written extensively on the Article V convention process, observes: “As in all prior federal conventions, delegates to a convention for proposing amendments are representatives of the state legislatures, and therefore subject to instructions.” R. Natelson, Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693, 747 (Spring 2011).

Denying the power of state legislatures to instruct their convention delegates would seem to be extremely difficult. After all, it was a common, if controversial, practice for state legislatures to instruct their U.S. Senators in the founding era and for many years afterward. See C. Terranova, The Constitutional Life of Legislative Instructions in America, 84 N.Y. L. Rev. 1331, 1332 (Nov. 2009). Indeed, “[f]rom the beginning, state legislatures instructed their senators to propose or support constitutional amendments.” J. Bybee, Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment, 91 Nw. U. L. Rev. 500, 565 (1996-97).

Although the power of state legislatures to instruct senators was vigorously debated and never conclusively resolved, it would be much more difficult to argue that state legislatures lack the power to instruct convention delegates. After all, none of the indicia of senatorial independence (namely the fact that the Constitution provides specific, and presumably exclusive, criteria for their qualifications, term limits and procedures for removal) apply in the case of convention delegates. There are thus no grounds to infer that the Framers intended to deprive state legislatures of their power to instruct convention delegates.

Of course, there no doubt will be debate over exactly how far state legislatures may go in instructing delegates, as well as how such instructions may be enforced (hence Paulsen’s reference to delegates operating “to some extent” pursuant to instructions). Some may argue that legislatures may give general instructions (ie, confine your deliberations to this subject), but not instruct on specific wording or votes. But I would question whether such a distinction can be drawn in either practice or principle. After all, an instruction to confine deliberations to a particular subject is effectively an instruction to refuse to consider or support particular amendments which are deemed to be outside that subject. Nor does this distinction appear to comport with the general history of legislative instructions. See Terranova, supra, at 1331 (“Under the Articles of Confederation, state legislatures often formally instructed their federal representatives on particular votes, continuing a practice common in England and the American colonies”) (emphasis added).

The one exception would be whether the legislatures may instruct their delegates to vote to propose a particular amendment. This can be distinguished in practice and principle from other votes, and it may be argued that delegates retain the discretion to refuse to vote for any amendment at all. But if the legislatures have the power of instruction, it must extend to instructing delegates to vote against particular amendments (or voting against all amendments with specified exception(s)).

How to Count to 34: Paulsen on the Article V Convention

In the debate over the “runaway convention,” Professor Michael Stokes Paulsen occupies an unusual, and perhaps unique, position. In a seminal 1993 article, Paulsen argued that an Article V convention could not be limited, but that this wasn’t something that people should be worried about. He observed: “The power of the convention delegates to limit their own agenda at the convention (a power over which the applying states might well exercise considerable control by selecting delegates committed to enforcing a limitation on the agenda), combined with the power of the states to decline to ratify any unwanted amendment the convention proposes, should be regarded as a complete answer to fears that the convention wil generate popularly unacceptable results.” M. Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L.J. 677, 760 (1993).

Recently Paulsen has rejoined the Article V debate with an article entitled “How to Count to Thirty-Four: The Constitutional Case for a Constitutional Convention,” published in the Summer 2011 issue of the Harvard Journal of Law & Public Policy. In this article Paulsen revises and extends his previous remarks regarding the Article V convention. Although much of the article reiterates points he has made before, it is well worth reading (and quite a bit shorter than the 1993 article).

Paulsen argues that the Article V convention was not intended to be a limited one, at least in the sense of a formal limitation to its overall authority. He says that “[r]epresentatives or delegates to such a convention might well operate to some extent pursuant to the ‘instructions’ of the people thus represented, but a convention was not a pass-through or a cipher, but rather an agency- a deliberative political body.”

In this sentence Paulsen makes two assertions about the nature of an Article V convention. The first relates to the role of instructions in an Article V convention. The second relates to the nature of a “convention” as a deliberative body. I will address the second point in this post.

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Article V and the “Runaway Convention”

Article V requires Congress, “on the Application of the Legislatures of two thirds of the several States,” to “call a Convention for proposing Amendments.” This process for proposing constitutional amendments has never been used, in large part because of fears that it would lead to a “runaway convention.” The exact definition of a runaway convention depends on whom you ask, but most often it refers to a convention that proposes an amendment beyond the scope of what the states contemplated when they applied for the convention in the first place. The term also raises the specter of a radical and unexpected constitutional change, such as a proposal to repeal the Bill of Rights or the like.

My article on the subject, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765 (Spring 2011) appears in the Tennessee Law Review’s symposium issue on Article V conventions. I evaluate the risks of a runaway convention in light of the constitutional text, structure and purpose of Article V and suggest that these risks are much smaller than often suggested. I also suggest additional safeguards that can be put in place to further minimize any risk of a runaway convention.

One safeguard of particular relevance to this blog would be for the House or Senate (or both) to adopt a rule that would prohibit submitting an out of scope amendment to the states for ratification. Before an amendment proposed by a convention may be ratified by the states, Congress must select the method of ratification (i.e., whether the amendment will be ratified by state legislatures or by state conventions). If the proposed amendment is constitutionally invalid, Congress need not (and indeed should not) submit it to the states for ratification.

By adopting a rule that an out-of-scope amendment will not be submitted to the states for ratification, the House and/or Senate could do a great deal to calm fears of a runaway convention and thereby empower the states to exercise their Article V powers as the Framers intended. Of course, Congress may be reluctant to take this step for the same reasons that the Framers provided for the Article V convention in the first place- Congress has no desire to facilitate adoption of the type of amendments that the states are likely to propose. The phrase “term limits” comes to mind.

This weekend there will be a conference at Harvard Law School to discuss the Article V convention process. I will be having a discussion/debate with Professor Mary Margaret Penrose regarding the runaway convention. Professor Penrose’s response to my article may be found here. My brief reply (imaginatively entitled “A Brief Reply to Professor Penrose”) can be found here.