Oklahoma Has TWO Con-Con Bills Set For Committee Vote! Article V On The Ropes, Call Today, Contacts Are Here

The arguments made in this post are ridiculous. It is important to first emphasize that whatever special legal significance attaches to it under the U.S. Constitution, an Article V convention is, in the most concrete terms, simply a gathering of people. Thus, in asking whether the states can constitutionally limit the Article V convention process, one is essentially asking whether states have the power to regulate the organization of a particular, albeit very special, gathering of people through an interstate compact. Viewed in this light, it is important to recall that the states do not have the burden of affirmatively proving their general governing authority by reference to specific provisions in the U.S. Constitution. The default assumption of the Constitution, as evidenced by the Tenth Amendment, is that all powers not delegated to the federal government are reserved to the states or the People. The states retain general and indefinite powers of governance subject only to such limitations as required by the Constitution’s language and structure.[i]

Accordingly, absent a clash with one or more affirmative provisions of the U.S. Constitution, if a gathering of individuals that happens to be an “Article V convention” is organized from or is located within the boundaries of the states, it follows that each such state will respectively have governing authority over so much of that gathering and its organization as fall within its jurisdiction. In other words, based on the Constitution’s design, the states should be assumed to have the power to direct and regulate the Article V convention process under their reserved general powers of governance with or without an interstate compact—unless there is a cogent reason to believe that such power was exclusively delegated to some other body or is otherwise limited by the Constitution’s language or structure.

In view of this basic assumption about the relationship between states and the Constitution, the burden of proving that states lack constitutional authority to direct and regulate an Article V convention through an interstate compact should more properly be placed on the person advancing that proposition. To demand, instead, that the states shoulder that burden of proof inverts the Constitution’s power structure. Nevertheless, by process of elimination we can say with certainty that there is no question the states have the power to direct and regulate the Article V convention process through the CFA. This is because there are only three possible repositories of sovereign power in our federal republic that could direct and regulate the Article V convention process: the People, Congress, as agent of the People as a Whole, and the States, as agents of the People within their respective boundaries. As discussed below, we can exclude the possibilities that the People or Congress were meant to direct and regulate the Article V convention process, which necessarily leaves such power in the hands of the states as a reserved power under the Tenth Amendment, the exercise of which can be coordinated collectively through an interstate compact.

An Article V Convention is Not a Revolutionary Convention of the People

The text of Article V articulates no role for the People in advancing constitutional amendments whatsoever. In view of this fact, the U.S. Supreme Court specifically observed in Dodge v. Woolsey, 59 U.S. 331, 348 (1855), that the people of the United States, aggregately and in their separate sovereignties “have excluded themselves from any direct or immediate agency in making amendments.” For this reason, an Article V convention is not analogous to a state constitutional convention, which directly exercises the People’s sovereignty as a convention of the People.

But even if one were to analogize an Article V convention to a state constitutional convention, it is important to emphasize that, with respect to such conventions, state courts have long distinguished between conventions that are “revolutionary” in nature and those that are not. If a state constitution expressly authorizes the abolition or replacement of the existing state government, then the constitutional convention process it outlines has been deemed “revolutionary” and intended to directly represent the People as an independent sovereign body, which cannot be constrained by a limited agenda set by the state Legislature.[ii] In contrast, if the state constitution does not expressly authorize the abolition or replacement of the existing state government or if the state constitution imposes Legislative call or ratification requirements, then the state constitutional convention process is not “revolutionary” and a limited agenda can be imposed on the convention by bodies that only indirectly represent the People, such as the Legislature.[iii]

In view of this distinction between revolutionary and non-revolutionary state constitutional conventions, it is clear that an Article V convention cannot possibly be regarded as a “revolutionary” convention of the People, even if it were somehow considered analogous to a state “constitutional convention.” This is because: 1) there is no textual authority given to an Article V convention to “abolish” or “replace” the U.S. Constitution, as is found in many state constitutions; and 2) the proposals of an Article V convention are subject to specific application, call and ratification requirements, all of which imply that the convention operates with the strictures of the Constitution as an extension of existing governmental bodies.

Indeed, there is abundant direct evidence that the Article V convention process was intended to operate within the strictures of the Constitution in proposing amendments, rather than directly invoke the People’s revolutionary sovereignty in establishing a new form of government. This evidence includes: 1) the Report of Proceedings from the Philadelphia Convention on September 15, 1787, in which authority to hold a general convention, which could make any constitutional proposal without any ratification requirement whatsoever, like a revolutionary convention, was considered and repeatedly rejected; and 2) the textual fact that an Article V convention’s amendment power is defined and limited by the same constitutional provisions as Congress’ amendment process, which indicates that both processes wield the same non-revolutionary amendment power.

In short, even if one were to attempt to analogize the Article V convention process to a state-level constitutional convention, no precedent deems a convention that shares the characteristics of an Article V convention to be an independently sovereign popular body that is revolutionary in nature and capable of forming a new government. Notably, both Congress’ amendment power and the Article V convention’s amendment power refer to proposing “amendments.” In view of the fact that Congress has proposed singular amendments, it is clear that the plural use of “amendments” was not meant or understood to signify that only more than one amendment can be proposed. Rather, the plural form was used to include the singular, which is a style utilized throughout the Constitution.

The understanding that an Article V convention may propose a single amendment and is not comparable to revolutionary state constitutional convention is confirmed by Federalist No. 85, which was published in book form in May 28, 1788 and again as a newspaper column on August 16, 1788. There, Alexander Hamilton observed:

But every Amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. There would then be no necessity for management or compromise, in relation to any other point; no giving, nor taking. The will of the requisite number would at once bring the matter to a decisive issue. And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place. There can, therefore, be no comparison between the facility of effecting an amendment, and that of establishing in the first instance a complete Constitution.[iv]

For this reason, there is no merit to the theory that an Article V convention is a convention of the People that cannot be directed or regulated by the states.

An Article V Convention is Not a Convention of Congress

There is also no merit to any contention that the Article V convention process was meant to be directed and regulated by the federal government as a Convention of Congress. Investing Congress with a substantive role in directing or regulating the Article V convention process would render it redundant of Congress’ existing amendment power, which is contrary to standard rules of constitutional interpretation. Moreover, it would also contradict contemporaneous understandings of Article V at the time the Constitution was ratified. As discussed below, the central arguments of Federalist Nos. 43 and 85 (which were repeated by George Washington in his personal correspondence and by others at the Virginia ratification convention) underscore that the Article V convention process was meant to furnish the states with an independent and parallel means of amending the Constitution alongside Congress’ amendment power.

An Article V Convention is a Convention of the States

At the time the U.S. Constitution was proposed for ratification, the Founders repeatedly represented to the public that any future Article V convention would be constituted by the states as a gathering point for their respective delegates to advance a specific state-selected constitutional amendment agenda. In particular, on January 23, 1788, Federalist No. 43 was published with James Madison’s attributed observation 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.” Similarly, George Washington wrote on April 25, 1788, “[i]t should be remembered that a constitutional door is open for such amendments as shall be thought necessary by nine States.” On June 6, 1788, George Nicholas reiterated the same points at the Virginia ratification convention, observing that state legislatures may apply for an Article V convention confined to a “few points;” and that “[i]t is natural to conclude that those States who will apply for calling the Convention, will concur in the ratification of the proposed amendments.” Finally, this public understanding of Article V was confirmed by the last of the Federalist Papers, Federalist No. 85, in which Alexander Hamilton concluded: “We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority” by using their amendment power under Article V.

These representations about how the states would organize and target the Article V convention process did not occur in a vacuum. They reflected the custom and practice of the dozen or more interstate and intercolonial conventions that were organized prior to the ratification of the U.S. Constitution.[vi] Simply put, it was usual and customary for states to set the agenda for any such convention and to instruct their delegates specifically on what to advance and address at the convention.[vii] Delegates were regarded as “servants” of the states that sent them.[viii] Naturally, the Founders repeatedly represented to the public that an Article V convention would operate in the same way. In fact, for decades after the Constitution’s ratification, it was an uncontroversial proposition that the states could organize the Article V convention process to consider desired amendment proposals.[ix] For example, James Madison’s Report on the Virginia Resolutions observed in January 1800 that the states could organize an Article V convention for the specific “object” of repealing the Alien and Sedition Acts. Correspondingly, the U.S. Supreme Court in Smith v. Union Bank, 30 U.S. 518, 528 (1831), specifically referenced the Article V process as authorizing a “convention of the states” that could be directed to propose amendments to overturn authority for specific laws.

As the Article V convention process was meant to be a “convention of the states”—not of the People or of Congress—it follows that states are not somehow preempted or otherwise disabled in exercising their reserved sovereign power under the Tenth Amendment to determine who will represent them at the convention, how they will represent them, how they will run the convention, what they will propose, and how the states will respond to those proposals.

It is time for states to use their most effective means to restrain the federal government–their power to originate constitutional amendments by a convention of the states.

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[i] Gregory v. Ashcroft, 501 U.S. 452, 457 (1991) (citing Federalist No. 45).

[ii] See, e.g., Snow v. City of Memphis, 527 S.W.2d 55 (Tenn. 1975).

[iii] See, e.g., State ex rel. Kvaalen v. Graybill, 159 Mont. 190, 496 P.2d 1127 (Mont. 1972) (“There is some authoritative support for the doctrine of inherent, plenary, and sovereign power of a constitutional convention; however it is derived from early cases during the American Revolution and in the reconstruction era following the Civil War where there was no effective or established government to supervise the work of the convention. In our view, this doctrine is not applicable to present conditions where, as here, the constitutional convention is called pursuant to the provisions of an existing constitution, and by enabling legislation enacted thereunder. Even in situations where the existing constitution provided no means for calling a constitutional convention, the Pennsylvania court refused to apply this doctrine of inherent plenary power.”) (citing Woods’s Appeal, 75 Pa. 59 (1874); Wells v. Bain, 75 Pa. 39 (1874)); accord Gaines v. O’Connell, 305 Ky. 397, 204 S.W.2d 425 (Ky. 1947) (citing Staples v. Gilmer, 183 Va. 613, 33 S.E.2d 49 (1945)).

[iv] Likewise, in his famous April 1830 letter on nullification, James Madison observed: “final resort within the purview of the Constitution, lies in an amendment of the Constitution, according to a process applicable by the states.”

[vi] Robert Natelson, Amending the Constitution by Convention: Practical Guidance for Citizens and Policymakers, Goldwater Institute Policy Brief No. 11-02 4 n.15 (Feb. 22, 2011)

[vii] Roger Sherman Hoar, Constitutional Conventions: The Nature, Powers, and Limitations 127-29 (1917).

[viii] 3 Op. Off. Legal Counsel 390 (1979).

[ix] See inter alia Robert Natelson, Amending the Constitution by Convention: A Complete View of the Founders’ Plan, Goldwater Institute Policy Report No. 241 (Sept. 16, 2010); Robert Natelson, Learning from Experience: How the States Used Article V Applications in America’s First Century, Goldwater Institute Policy Brief No. 10-06 (Nov. 4, 2010).