Republicans and Democrats Working Together to Rewrite the Constitution

On June 12-13, 2014, the Indiana State Legislature hosted what its organizers termed a “write the rules convention,” composed of both Republicans and progressive Democrats, to prepare for a future Article V “convention of the states.”

This “rules convention” was the product of the Assembly of State Legislatures (ASL), which describes itself as “a bipartisan group of currently serving state legislators from across the country who recognize that the states have a responsibility under federalism to work together to solve problems of national concern.”

Formerly known as the Mount Vernon Assembly and renamed at the June meeting, ASL appears to be the brainchild of Republican State Representative Chris Kapenga of Wisconsin. Both Kapenga’s and ASL’s desired goal is to bring about an amendments convention as provided for in the Constitution’s Article V: “The Congress … 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 by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress.” (Emphasis added.)

Said and Unsaid

The June 12 ASL session opened with prayer and pledge in the House of Representatives Chamber of the Indiana Statehouse, followed by elaboration by Kapenga on some of the background of Article V and how the states can utilize it to amend the Constitution. Asserting that this would be a purely state-led and state-directed process, Kapenga proceeded to quote from Alexander Hamilton’s The Federalist, No. 85, which addresses Article V: “The words of this article are peremptory. The Congress ‘shall call a convention.’ Nothing in this particular is left to the discretion of that body.”

Since “The Federalist Papers are not [the] governing documents of our country,” as Democratic State Representative Raymond Dehn of Minnesota pointed out, Kapenga and other pro Article V convention advocates cannot use the above quote from Hamilton to definitively lay to rest any concerns or fears of potential congressional involvement and influence over an actual Article V convention.

Article I, Section 8, Clause 18 of the Constitution, which unlike the Federalist Papers is the nation’s primary governing document, specifically states: “The Congress shall have Power … To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof.” (Emphasis added.)

Article I, Section 8 of the Constitution lists the various powers specifically granted to Congress, among which are the power to “establish Post Offices and post Roads,” “declare war,” and “provide and maintain a Navy.” Regarding the latter, since Congress has the power to “provide and maintain a Navy,” Article I, Section 8, Clause 18 grants Congress the power to do what is “necessary and proper” to exercise this power ­— meaning the establishment of naval academies to train officers and sailors; the creation of shipyards to construct, refit, and repair warships; and the hiring and training of engineers to build, design, and operate those vessels. Clause 18 is not limited to only those “foregoing powers” listed in Article I, Section 8, but to “all other powers vested by this Constitution,” including Article V.

This means that under Article I, Section 8, Clause 18 Congress is granted the power to “make all laws which shall be necessary and proper for carrying into execution” Article V’s constitutional mandate that Congress, “on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments.” 

Constitutionally, Congress has and will execute all the powers it deems necessary for calling a convention. This would likely include choosing the location and date of the convention, allocation of delegates from the states (whether proportional by population, congressional district, one per state, etc.), the method of ratification for any proposed amendments to the Constitution, and all other preliminary rules associated with the convention.

Put simply, the power to establish such rules resides exclusively with Congress. It is not a state-led process as Kapenga and others in the pro-Article V camp maintain.

Of course, once an Article V convention actually convenes, it would then be free to create its own agenda, including possibly even coming up with a new ratification process, as was the case with the Constitutional Convention of 1787. But this historical fact underscores even more the fact that the states cannot bind the work of the convention.

Speaking about the nature and purpose of the two-day Indianapolis meeting, Kapenga told the state legislators in attendance that their current assembly meeting “does not trigger Article V authority or involvement of Congress, because remember the Article V authority is to amend.” 

Kapenga continued, “We are not touching amendments at this convention. This is a write the rules convention.” (Emphasis added.)

Kapenga and the other state legislators behind the ASL view their two-day gathering in Indianapolis as already being a “new legislative body” or “convention,” the same type of convention as an Article V convention, which they claim is not a one-time meeting but an ongoing assembly or continuous series of “Conventions of the States.”