A Limited Article V Convention

Readers of this blog may remember that I have argued that the Constitution allows for the states to call for a limited Article V convention and that this convention can even be limited to deciding whether to propose a specific amendment.  See also here and here.  Under this legal regime, a runaway convention would be unconstitutional.

Two interesting posts on this subject have been recently written.  First, Michael Stern, a former House of Representatives Senior Counsel, agrees that the states can apply for an Article V convention limited to deciding whether to propose a specific amendment.  Relying on scholarship from yours truly, from Robert Natelson and from himself, Stern argues that text, structure, purpose, and history support this conclusion.  Stern’s post is an excellent summary of the scholarship and itself is a form of blogging scholarship.

Second,  Robert Natelson describes three different waves of constitutional scholarship on the subject of limited conventions.  The first wave:

consisted of publications from the 1960s and 1970s, typically by liberal academics who opposed conservative efforts to trigger a convention. Examples include articles by Yale’s Charles Black, William and Mary’s William Swindler . . . and Harvard’s Lawrence Tribe.

Typically, these authors concluded that an Article V “constitutional convention” (as they called it) could not be limited to a single subject.  The mistakes these authors made can be attributed partly to the agenda-driven nature of their writings, and their failure to examine many historical sources. They seldom ventured beyond The Federalist Papers and a few pages from the transcript of the 1787 Constitutional Convention.

I would add that these authors did not engage in a careful effort to read the constitutional text

The second wave:

began in 1979 with the publication of an [opinion] issued by President Carter’s U.S. Office of Legal Counsel and written by attorney John Harmon. For its time, it was a particularly thorough piece of work. Among the other authors in this wave were Grover Rees III, and the University of Minnesota’s Michael Stokes Paulsen. The most elaborate publication of this era was by Russell Caplan, whose book, Constitutional Brinksmanship, was released by Oxford University Press in 1988.

Second Wave authors accessed far more material than their predecessors. They paid more attention to the 1787-90 ratification debates. Caplan even made some reference to earlier interstate conventions. Most of them (Paulsen was an exception) correctly concluded that an Article V gathering could be limited.

The third wave:

began in the 21st century. Its contributing authors include the University of San Diego’s Michael Rappaport, former House of Representatives Senior Counsel Mike Stern, the Goldwater Institute’s Nick Dranias, and myself. We have been able to place the Article V convention into its larger legal and historical context.

Like most of the Second Wave writers, we understand that an Article V convention can be limited. But we also have learned a lot of other things: the gathering is not a constitutional convention, it was modeled after a long tradition of limited-purpose gatherings, and it is governed by a rich history of practice and case law.

I generally agree with Natelson on the original meaning matters with two main exceptions.  First, I believe, along with Stern, that a convention can be limited to a single amendment, whereas Natelson seems not to.  On this, see Stern’s post.  Second, Natelson’s methodology relies primarily on historical sources, whereas I believe the principal source is text.  Some of the historical evidence he relies on, again see Stern, I would regard as ambiguous.  Perhaps he believes some of the textual evidence that I rely upon is ambiguous (although I don’t know for sure).

But these are small issues.  I agree with both Natelson and Stern on virtually all of the important matters, and recommend both their posts and their scholarship.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, will be published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

About the Author

Comments

  1. Kevin R. Hardwick says

    Mike–

    My primary reservation with your idea of a limited convention is precedent. The Philadelphia convention abandoned its mandate right from the start. I find it easy to imagine that the pressures, felt urgency, and ambitions that led the delegates in Philadelphia to jettison their charge and radically to revise the existing constitution could easily lead to the same result in a contemporary convention.

    All best wishes,
    Kevin

  2. Mike Rappaport says

    The Philadelphia Convention is not a precedent UNDER the Constitution. But it is true that is a prior example of a convention not following its mandate. That they did it did not make their actions legal. They justified their action in part as necessary to deal with a very bad situation — in other words, they broke the law, but were justified in doing so. A limited convention today might do the same, but it would not be legal.

    • gabe says

      Mike:

      Have bookmarked your piece at SSRN but have not yet had time to read it. I assume that you discuss why it would not be legal to exceed mandate. But why would anyone today feel compelled to adhere to what is “proper”? – and how do you think the Court would react?

      (BTW thx for the Prakash link – was worth the read)

      gabe

    • Kevin R. Hardwick says

      Mike–

      I am not at all certain that the framers broke any law. They broke their trust, but that is not the same thing. Congress entrusted the members of the Philadelphia Convention with the charge of suggesting revision of the Articles, and the Convention, pretty much from the get go, chose to abandon that charge.

      Constitutional Conventions are wild cards. It is very easy for people to assert prudential necessity, but the test of that is very often not discernable in the present. We can only say conclusively in retrospect that the founders were correct–at the time, it was no where near so evident. Two states refused to ratify, and three of the most important states ratified by only the narrowest of margins. At the time, this waas a matter of politics, not merely prudence.

      I think it is a really bad idea to neglect the politics of constitutional debate. It leads to unrealistic expectations in the present. Were we to have a second convention, the debate to implement whatever suggestions it made would be every bit as political as it was in 1787 and 1788.

      All best,
      Kevin

  3. Kevin R. Hardwick says

    Mike–

    A quick followup: I think you are probably correct that Congress could bind a convention only to consider certain revisions. That has been done at the state level, I am pretty sure anyway–I would need to review stuff I read some time ago to say with 100% conviction. My issue is more with the prudence of doing so.

    All best,
    Kevin

  4. David Upham says

    Mike,

    I think there’s a major gap in the discussion–the failure to address the Tenth Amendment: where the Constitution is silent, that’s a red light to the federal government and a green light to the states.

    The “powers” set forth in Article V are not, except for ratification, governmental powers. Free citizens may “propose,” may “call,” may “apply,” and may “convene,” exercising their fundamental freedoms of locomotion and speech. But any governmental power to “bind” a convention is reserved to the states. Individual states may bind their own delegates, much as they may bind their own members of the electoral college–perhaps even through criminal or civil liability. But neither two-thirds of the state legislatures–as a corporate entity, nor Congress, has any delegated power to bind delegates at a convention, especially the delegates from the other one-third of the states.

    For the record, I favor an Article V convention to address the fiscal and federalism crisis, and do not fear a runaway convention, because a convention can run only as far as (1) the delegates may be permitted by their respective states, and (2) more importantly, only as far as 3/4 of the states will permit. And if good constitutional sense is gone from 3/4 of the states (which must include alot of both red and blue states), we’ve already lost our Constitution anyway.

  5. says

    One basic question. As the Constitution empowers the convention to be a “convention for proposing amendments” (plural) under what constitutional authority do you suggest the states can limit the convention to proposing “amendment”? Also how do you reconcile that such a position would be a clear violation of equal protection in that the federal government would have the power to propose “amendments” while the states can only propose “amendment.”

    As the Court ruled in U.S. v Sprague in discussing the proposal part of Article V and used at least ten previous cases to back this point, that there was to be no “rules of construction, interpolation OR ADDITION” [emphasis added] how can you explain such power when it is not stated in Article V nor can it be added.

    Would care to explain how your interpretation remains in effect given the Founders, by affirmative vote, in the 1787 convention removed the authority of the states to propose an amendment by application and instead CLEARLY made the purpose of the application a convention call. See Farrand Vol II, 557-59 and 630-31.

    Please confine your comments or response to these particular points.

    By the way for all. You can read the 746 applications from 49 states at http://www.foavc.org along with the latest information regarding a convention including the fact the House and Senate Judiciary Committees will be deciding the issue next week and as admitted by the House Legal Counsel in writing the reason there has never been a convention call is because Congress has never consented to obeying article V and counted the applications. The counsel never raised nor even discussed the issue of same amendment subject as the government, despite numerous legal opportunities to do so in recent years, has never asserted this position, not now and never in its history. In short, if your position is correct, how come the government is not asserting it but instead states a call is based on a simple count albeit something they have not done.

  6. Kevin R. Hardwick says

    Bill–

    The framers lacked either the authority or the power to remove any authority or power from the states. *ALL* they could do, and all they did, was to propose an alternative frame of government to the existing Articles, and to recommend that Congress and the States adopt ratifying conventions as the best institutional form for approving implementation. One state, Rhode Island, chose to forgo a ratifying convention and to ratify (or not) by alternate means.

    • says

      I’m sorry but you are historically incorrect. Rhode Island at first did ratify the proposed (by then in force) constitution by referendum. However, President George Washington personally rejected this and demanded the state follow the convention method specified in the Constitution. He did this, most likely, to prevent Rhode Island from ever being able to assert it was not actually a member of the Union as it had not consented to the Constitution as prescribed.

      In any event, on May 29, 1790, Rhode Island ratified by convention. Here is a link to the actual text of the ratification document done in convention.

      http://www.usconstitution.net/rat_ri.html

      • Kevin R. Hardwick says

        Your account is incorrect. Rhode Island ratified by convention in 1790, after the United States congress voted to impose sanctions on trade with the state. Since the entire RI economy depended on its export trade, and since much of that trade was with other states, this in effect was an action that would have eviscerated the state’s economy. In response, several of the RI ports threatened to secede from the state, and to join the union. The threatened dissolution of the state was sufficient to persuade the state to call for a convention, which in turn, by a narrow margin, voted to join the union.

        There is, however, considerable difference between a vote to join the union *after* the Constitution was already in effect, and a vote by referendum to reject ratification, which was what the state initially did. The politics of the two situations are entirely different. In 1790, RI faced considerable pressure from a hostile government–the government of the United States under a ratified Constitution. In 1787 and 1788, however, the Constitution was not in effect, and the opposition of the state had the potential to force amendments to the proposed Constitution, or to force Congress to call for a second convention to revise the draft proposed by the Philadelphia Convention.

        What mattered in 1790 was that RI ratify the constitution and join the union. The precise form by which the state did that was irrelevant. Congress’ action in 1790 to impose trade sanctions was emphatically not about the form of ratification, and entirely about the *fact* of ratification.

        Further, President George Washington lacked legal authority to force the sovereign state of Rhode Island to do anything. He could and did voice his disapproval, but that alone was hardly sufficient to change the position of the people of the state.

        How the states ratified was entirely up to the states. Most chose to follow the recommendation of the Philadelphia Convention, in large part because it was a sensible and responsible recommendation. But it was not and could not be binding on the state governments, just as the authority of the federal government could not by itself impose binding conditions on a sovereign state outside of the union. It took action by the people of the state to do that.

        And finally, by nit picking about a point of fact that is subordinate to the argument I was making, you distract attention from my main criticism of your initial argument. Please refer to the first sentence of my Sept. 5 post, above.

      • Kevin R. Hardwick says

        I am annoyed with myself for engaging on the minor issue, rather than keeping attention focused on what is important.

        The main point I wish to assert here is that the framers of the Philadelphia Convention lacked any legal or constitutional authority whatsoever other than to write a report. They chose to ignore their charge, to draft an entirely revised constitution, and to appeal directly to the people of the states (although formally, the first thing they did was to submit the draft constitution that was the fruits of their labor to Congress, and to recommend that Congress pass it along to the state governments). But their decision to abandon their charge and to report back something other than what Congress authorized them to do did not change the legal nature of their action.

        Bill Walker writes above that the Philadelphia convention imposed limitations on the power of the states, by prescribing the method of ratification. But of course they did nothing of the sort, because they lacked both legal authority and coercive means to impose anything on the state governments. In 1787 and 1788, all of the states but one chose to follow the convention’s recommendation, and to determine whether or not to ratify by means of special ratifying conventions. The sole exception, Rhode Island, rejected ratification, and did so by referendum. That decision, and that method, was entirely appropriate and legal, because in the end, it was up to the people of the state to determine what to do with the proposal that resulted from the Philadelphia Convention.

        Or, to put this simply, the United States Constitution lacked any binding legal authority or power in October of 1787, when the Philadelphia Convention concluded its work. It only acquired binding legal authority and power *after* it had been ratified. This is a pretty elementary point, and should be non-controversial.

  7. says

    I agree with Mike that Amendment V, enumerated as it is, may be limited to a specific subject matter. The enumeration, to my reasoning, is that whatever was debated at the Federal Convention of 1787, regardless of the member commentator’s individual premise – arrived at the original wording to be enumerated, collectively, as Article V. This is purely a constituted legislative Article constituting one of two methods to get to a resolution of a volatile subject consensus by either the current Congress, or the States and the people. I have limited my own conversation here, with all due respect to other bloggers. My comments to each would only lead me back to the original worded enumeration of Article V.

    Article V: The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified …

    • says

      John,
      I would ask you then to answer my above questions. But first, explain what you mean by “enumerated.” I think you’re mixing up the enumerated powers of Article I, Section 8 with Article V. Article V lays out a specific procedure of who proposes an amendment and how it will be ratified and describes the terms of each action by a numeric ratio of the body concerned. True, there are powers but if so, then you defeat your own assertion. The enumerated power of proposal is specified to a Congress and to a convention. The enumerated power of application for a convention call to the state legislatures. The enumerated power of ratification to either conventions for that purpose or state legislatures. The enumerated power of choosing which mode of ratification of a proposed amendment will be used by legislature or convention, to a Congress. Oh yes, if as you say proposal may be limited to a single subject for a convention then it follows the states have the identical power over the Congress. Obviously you will say no because obviously the Congress proposed a multitude of amendments with various subjects at one time in its history. Both Congress and convention have the power to propose amendments. Explain then how the power to propose amendments is different than the power to propose amendments.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>