Use it or Lose it: Why States Should Not Hesitate to Wield their Article V Powers

In response to: The Failure of the Constitutional Amendment Process to Protect Federalism: A Diagnosis and Treatment Plan

A Thought Experiment Inspired by James Madison and Michael B. Rappaport

More than two hundred years ago, in his report on the Virginia Resolutions, James Madison observed that the states could have overturned the Alien and Sedition Acts by exercising their Article V power to seek a constitutional amendment for that “object.” Later, in his 1830 “Letter on Nullification,” Madison urged states to use their Article V power to protect their sovereignty against federal overreach rather than employing the futile gesture of nullification.

Just imagine if the 28 states currently challenging the constitutionality of the Patient Protection and Affordable Care Act (PPACA) had not only followed Madison’s advice, but institutionalized it by forming an interstate compact requiring them to use their Article V powers systematically to prevent or overturn the enactment of any unconstitutional federal law. Such a compact could conceivably require states to send delegates periodically or on demand to a central location (physical or virtual) to meet, debate, and vote on model Article V applications, which could then be introduced in their respective legislatures in a coordinated fashion. Regardless of whether this meeting was called a “convention,” “conference,” or a “task force,” it would greatly streamline the logistics of disseminating and introducing sufficient numbers of identical Article V applications to maximize the chances of triggering Congress’ mandatory obligation to call a convention. The underlying compact could also contain provisions cementing the moral, legal and political authority for limiting any eventual Article V convention to a specific purpose—at least as much as any state statute or informal political movement could. Moreover, because such a compact would merely exercise sovereign powers already vested in the states, and not necessarily displace federal power, congressional consent would not be necessary for its lawful formation.

If they had been parties to such a compact, the states that are now suing the federal government over PPACA in federal court could have instead responded to the preceding congressional debate by jointly introducing Article V applications aimed at prohibiting the federal government from regulating freedom of choice in health plans. And with the concurrent introduction and likely approval of identical Article V applications in 28 state legislatures (only six short of the 34 state threshold needed to trigger the call for a convention), it is entirely conceivable that the resulting political threat would have influenced enough votes in Congress to block the passage of PPACA.

As this thought experiment suggests, the power of states to check and balance an overreaching federal government would be vastly increased if states regularized and streamlined the use of Article V. Indeed, the mere existence of an organized approach to Article V among the states would substantially influence congressional behavior without a convention ever being convened—whether or not one believes that an Article V convention can be limited to specific amendment ideas. This prognostication is justified by more than hypothetical reasoning. Congress famously proposed the 17th Amendment, establishing the popular election of U.S. Senators, only after a carefully coordinated effort came within one state of reaching the threshold needed to compel Congress to convene an Article V convention for the same purpose.

Professor Rappaport is thus entirely correct that the states could restore balance to our system of dual sovereignty if they organized regular advisory conventions for the purpose of crafting and proposing specific ideas for federal constitutional amendments. However, much of what Rappaport would like to accomplish can already be achieved without a constitutional amendment also giving states the power to propose specific amendments directly for ratification. Constitutionalists should therefore embrace the general thrust of Rappaport’s “state drafting reform” to the extent that it inspires collective action among the states to streamline and regularize the use of Article V. But fear of a “runaway convention” should never compel them to stand down from substantively using what Federalist No. 85 called the states’ ultimate power “to erect barriers against the encroachments of the national authority.”

There is Nothing to Fear about Article V But Fear Itself

Rappaport describes the fear of a runaway convention as arising from the belief that an Article V convention cannot be limited to a particular amendment idea. This fear should be examined more closely before taking it seriously. As previously intimated, James Madison certainly had the belief that states could target the Article V process to specific reforms. That belief was rooted in the text of Article V, which requires Congress to call an Article V convention upon “application” of state legislatures. Contemporaneous legal dictionaries reveal that the word “application” was a legal term of art that described a written means of petitioning a court for specific relief. The historical record of “applications” to the Continental Congress confirms that this meaning extended to legislative bodies as well. Its usage thus plainly grants to state legislatures the power to specify that Congress call an Article V convention for a specific purpose. Indeed, it was customary during the colonial and founding era for interstate conventions to be called for specified purposes. Finally, Federalist No. 43 emphasizes that 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.”

In short, the belief that an Article V convention must be unlimited in scope is textually and historically unsupported. But even if courts refused to enforce subject matter limitations on an Article V convention, that risk hardly presents the kind of terrifying bogeyman that justifies constructing a “spheres within spheres” legal framework before using Article V substantively. The checks and balances built into Article V are daunting. Thirteen states can block any proposed amendment from ever becoming constitutional law. That means 13 out of 99 legislative chambers could block any proposed amendment if Congress requires ratification by thirty-eight state legislatures.

Even if proposed amendments never go stale, it is doubtful radical ideas could ever surmount this high hurdle unless the political will already existed for them to become law. And if the political will existed to ratify a radical policy by way of the state-initiated Article V process, there is every reason to believe that the Executive, Judicial and Legislative Branches of the federal government would have long ago beat any runaway convention to the punch through administrative rulemaking, ordinary laws, treaties or congressionally-proposed constitutional amendments. A runaway federal government renders any concern about a runaway Article V convention essentially moot.

Don’t Forget the Current Constitutional Crisis

In the final analysis, whatever risk might be associated with states substantively using their Article V power must be considered relative to the reality that Washington, D.C. already is a “runaway convention.” It is for this fundamental reason that Prof. Rappaport is mistaken to construct his policy recommendations upon a foundation that takes for granted fears about a runaway convention.

There is no such thing as a risk-free decision in life, much less a risk-free constitutional process. Rather than devising a reform that is premised on avoiding the real or imagined risks of using Article V, constitutionalists should instead encourage policy makers to assess those supposed risks against the clear and present danger of inaction. A reasonable assessment reveals that time is growing short for citizens and states to check and balance federal power.

Under these circumstances, a constitutional crisis will not be averted if advocates of substantive reform stand down under Article V. Standing down will only enable the continuation of the current constitutional crisis caused by the unceasing and increasingly dangerous expansion of federal power. Article V as it currently exists gives states the ability to threaten the status quo with a fundamental decentralization of power. If used effectively, that threat at the very least would force Congress to look in its rear view mirror and hesitate before exceeding constitutional limits.

Fortunately, there is no reason to view Rappaport’s “state drafting reform” idea as necessarily incompatible with concurrently building a more substantive Article V movement. Not only would the same social and political networks naturally be leveraged for both efforts, the investment of time and effort in organizing and promoting the “state drafting reform” is precisely the kind of collective effort that must be made to persuade and organize states to use their existing Article V power substantively. The concurrency of both efforts could even inspire the formation of the previously described interstate compact. But for such synergies to be preserved, it is absolutely critical that any “state drafting reform” be presented as a means of streamlining and enhancing the power of states to achieve constitutional reform. It must not appease or legitimize unreasonable fear of a runaway convention.