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- The President and the Purposes of the Foreign Emoluments Clause (Part II): Titles of Nobility - March 16, 2017
- The President and the Purposes of the Foreign Emoluments Clause (Part I) - March 15, 2017
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:
1. Constitutional Text. Although some commentators suggest that the term “Convention for proposing Amendments” in Article V implies that the convention must at least have discretion over the specific wording of an amendment, nothing in the constitutional language itself supports that conclusion. The “proposing” of an amendment occurs when it is formally offered for adoption. See Rappaport, 81 Const. Comm. at 65 (“The proposing convention has the formal power to offer an amendment for adoption by the ratifiers.”). The ordinary meaning of the word does not imply that the amendment was originated or drafted by those doing the “proposing.”
Similarly, the word “convention” does not imply discretion beyond holding an up-or-down vote on whether to propose a specific amendment. Indeed, Article V provides for state ratifying conventions, which are limited to holding an up-or-down vote on whether to accept a specific amendment. Thus, “a convention can be limited as to whether or not to propose a specific amendment and still be a convention.” Id. at 70.
This point is bolstered by looking at the state resolutions leading up to the Philadelphia Convention of 1787. Many of these resolutions explicitly referred to the Convention’s function of “devising” (e.g., New Jersey), or “devising and discussing” (e.g., Virginia and New Hampshire), or “devising, deliberating on and discussing” (e.g., Pennsylvania and Delaware), alterations and provisions related to the federal constitution. If the Framers had wanted to specify that the Article V convention would be drafting or originating the amendments it proposed, they could have easily incorporated such terms.
2. Equality of the Federal and State Governments in Proposing Amendments. A key precept of Article V, reflected in constitutional structure, drafting history and contemporaneous statements of the Framers, is that Congress and the state legislatures are to have an equal ability to originate constitutional amendments. Thus, two-thirds of each house of Congress or two-thirds of the state legislatures is required to initiate the amendment process. As James Madison explained in Federalist No. 43, 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 the other.”
Natelson argues persuasively that this equality principle strongly supports the authority of the state legislatures to specify the subject matter on which the Article V convention will deliberate. See Robert G. Natelson, Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693, 726-27 (2011) (Federalist representations of equality suggest that in construing Article V, preference should be given to interpretations that raise the states toward the congressional level and treat the convention as their joint assembly. This, in turn, suggests that if Congress may specify a subject when it proposes amendments, the states may do do as well,”); see also Rappaport, 81 Const. Comm. at 90 (“[T]he limited convention view will further the constitutional purpose of permitting the convention method to be an effective alternative to the congressional proposal method.”).
This argument applies at least as forcefully to a single amendment convention. Congress, after all, drafts the actual wording of a proposed amendment; it does not merely identify the subject matter. Thus, if the state legislatures are to be treated equally to Congress, they must have the power to draft a specific amendment, just as Congress does. It is difficult to explain why the equality principle requires that the state legislatures be able to limit the convention to a particular subject, but not to a particular amendment.
3. Constitutional Purpose. As Natelson explains, the state-initiated method of amendment was created specifically in contemplation of amendments needed to limit the power of and/or curb abuses by Congress and the federal government. The Framers believed the state legislatures were best able to decide when such amendments were needed. Thus, in Federalist No. 85, Alexander Hamilton said that “[w]e may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.”
Both common sense and the record of the framing and ratification periods indicate that the Framers expected the state legislatures to act in response to some particular congressional abuse or to obtain a particular desired amendment. See, e.g., William W. Van Alstyne, The Limited Constitutional Convention- The Recurring Answer, 1979 Duke L. J. 985, 990 (1979) (Article V convention most likely will be called to address “particular usurpations” by Congress) (emphasis in original), Thus, Hamilton stated in Federalist No. 85 that “every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. . . . And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.” As Natelson observes, Hamilton’s reference to nine states “represented the two thirds then necessary to force a convention” (while 10 were needed to ratify). Natelson, 78 Tenn. L. Rev. at 727. This in turn indicates that two thirds of the states could initiate the amendment process when they were already “united in the desire of a particular amendment.”
If the applying states have already decided that they desire a particular amendment (including, perhaps, the exact wording of the amendment), there are significant costs to allowing the convention to propose other amendments. This rule would impose an “uncertainty tax” on the state initiation of amendments and make it less likely that state legislatures will apply for a convention in the first place. Rappaport, 81 Const. Comm. at 89. It also may make it less likely that the convention, if called, will be able to reach consensus on the desired amendment. Id. at 90. In either case it would tend to undercut Hamilton’s assurance that the amendment “must infallibly take place.”
By contrast, what purpose is served if the convention, called at the behest of state legislatures “united in the desire of a particular amendment,” is free to propose a different amendment? See Michael Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765, 774 (2011) (“Scholars who believe that an Article V Convention must be unlimited have struggled to explain the constitutional purposes that would be advanced by this interpretation.”). Hypotheses have been offered to the effect that the Article V convention would serve as a check on the state legislatures, but these claims make little sense (the convention can provide a check by refusing to propose the desired amendment and does not need the power to propose an alternative). In any event, they have no foundation in the actual purposes of Article V discussed during the Philadelphia Convention and the ratification period. See Rappaport, 81 Const. Comm. at 90-91; Stern, 78 Tenn. L. Rev. at 775-78.
Once it is accepted that the state legislatures have the power to limit an Article V convention, “[n]o constitutional principle appears to support distinguishing a convention limited to a single subject from one limited to a single amendment.” Stern, 78 Tenn. L. Rev. at 785. There may be reasons of pragmatism or efficiency that militate against seeking a convention limited to a single amendment, but these are questions that state legislators themselves, not courts or constitutional scholars, are in the best position to evaluate. There is little reason, either in 1787 or today, to constitutionalize the answers to these questions.
4. Contemporaneous Statements. We have already discussed statements by Madison and Hamilton which support the limited convention view. Other contemporaneous statements, compiled by Natelson, provide additional support for a limited convention, including one limited to a single amendment.
For example, Natelson cites 1788 letter by George Washington, in which he explained that “a constitutional door is open for such amendments as shall be thought necessary by nine States.” Natelson, 78 Tenn. L. Rev. at 727 & n.230 (quoting Letter of Apr. 25, 1788 from George Washington to John Armstrong). Again the implication is that the applying states would identify the amendments they thought necessary, not merely a subject matter or a problem to be solved, prior to the convention.
Even more strikingly, the Federalist writer Tench Coxe wrote in 1788:
If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such proposed amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.
Natelson, 78 Tenn. L. Rev. at 727 & n.232 (quoting A Pennsylvanian to the New York Convention, PA Gazette, June 11, 1788)).
As Natelson notes, Coxe’s statement “reveals an assumption that states would make application explicitly to promote particular amendments,” which would be known (and possibly disliked) by Congress before the Article V convention. Natelson, 78 Tenn. L. Rev. at 728. He cites several others, including Patrick Henry, who shared the same assumption and spoke as if “the states rather than the convention would do the proposing.” Id. at 730.
One might argue that these statements were imprecise and that the Founders only anticipated that the state legislatures would identify the substance, rather than the exact wording, of a desired amendment. But even if that is so, this evidence shows that the Founders did not assume the Article V convention would necessarily be originating or devising the amendments it proposed. All of these statements are therefore consistent with the view that the state legislatures may prescribe the wording of a particular amendment in the applications and confine the deliberations of the convention to whether to propose that amendment.
5. Background Law. Much of Natelson’s work in this area is devoted to showing that the Founders understood there to be a principal-agent relationship between the state legislatures and the convention, which relationship was governed by well-established principles of fiduciary law. See, e.g., Robert G. Natelson, Amending the Constitution by Convention: Lessons for Today from the Constitution’s First Century 2 (Independence Inst. 2011) (“Conventions for proposing amendments, like other federal conventions, are made up of delegates who are agents of the state legislatures. In effect, the entire convention is a collective agent of the state legislatures.”). It follows that the Article V convention is bound to comply with the limitations placed upon it by the state legislatures, unless the Constitution affirmatively prohibits those limitations.
As we have seen, nothing in the constitutional text, structure or purpose forbids the state legislatures from limiting the convention to a single amendment. It is true that those interstate conventions held before 1787 had discretion beyond an up-or-down vote on a single text (although there were intrastate conventions of this nature), but this may simply reflect the fact that there was no occasion to hold a more limited convention. By itself, this fact cannot provide the basis for finding an affirmative constitutional prohibition. See also Rappaport, 81 Const. Comm. at 71 (“[T]he question is not whether some conventions had discretion. Rather, it is whether all conventions must have discretion and, most importantly, whether a proposing convention must have discretion. The answer to those questions is no.”).
Thus, despite Natelson’s own reservations about the single amendment convention, I think his work as a whole supports the constitutionality, if not the wisdom, of such a convention. I explain more fully here why this is the more “Natelsonian” position.
[First published at Point of Order at http://www.pointoforder.com/]