Am e n d i n g t h e Constitution b y Co n v e n t i o n : Pr ac t i ca l Gu i d a n c e f o r Citizens a n d Po l i c y m a k e r s

by Robert G. Natelson*

IP-6-2012 May 2012

727 East 16th Avenue • Denver, Colorado 80203 www.IndependenceInstitute.org • 303-279-6536 • 303-279-4176 fax Am e n d i n g t h e Co n s t i t u t i o n b y Co n v e n t i o n : Pr ac t i ca l Gu i d a n c e f o r Citizens a n d Po l i c y m a k e r s

In t r o d u c t i o n 1 subject, and partly from misinformation campaigns Article V of the United States Constitution allows waged by opponents of change. either Congress or what the Constitution labels a “Convention for proposing Amendments” to This is the third in a series of three Issue Papers formally propose constitutional amendments providing objective, accurate information about for ratification. A convention for proposing the state application and convention process. The amendments also has been called an Article V first Paper, entitled Amending the Constitution convention,2 an amendments convention, or a by Convention: A More Complete View of the convention of the states. The common practice of Founders’ Plan, undertook the most thorough referring to it as a “constitutional convention” or examination to date of relevant Founding-Era “con-con,” is inaccurate and improper.3 sources and explained how the Founders intended the process to work. Among its many conclusions When two thirds of the state legislatures apply was that a convention for proposing amendments to Congress for a convention for proposing was to be a limited-purpose assembly composed amendments, the Constitution requires Congress of delegates acting as agents of the The Constitution, to call one. This Issue Paper refers to the procedure state legislatures. The Constitution, as understood as the state application and convention process. as understood by the Founders, by the Founders, The Framers inserted it, and the Ratifiers approved permits state legislatures to apply for permits state leg- it, primarily to enable the people, a convention unlimited as to subject islatures to apply When two thirds through their state legislatures, to matter, but it also permits the state for a convention of the state leg- amend the Constitution without legislatures to define the topic unlimited as islatures apply the consent of Congress. They the convention is to address. The to subject mat- to Congress for contemplated that it would be used Founders believed the latter would ter, but it also a convention if the people concluded the federal be the more common practice. permits the state for proposing government had too much power or if legislatures to amendments, it should exceed or abuse its powers.4 The first Issue Paper further define the topic the Constitution concluded that under the Founders’ the convention is requires Congress In some ways, the state application design, state applications cannot to address. to call one. and convention process is a federal limit the convention to specific analogue of state constitutional amendment language. Rather, the procedures allowing voter initiatives. Both serve as convention is a deliberative body that drafts and ways of bypassing the legislature if lawmakers fail to proposes (or opts not to propose) amendments. adopt needed reforms. However, as explained in this third Paper, delegates are subject to instructions from their home states Although the state application and convention while the convention is in session. process has not been carried to completion, throughout American history there have been many Finally, the first Issue Paper concluded that under efforts to obtain an amendments convention.5 the Founders’ plan, convention proposals within the Some failed only because Congress responded scope of the prescribed subject are eligible for state by proposing the sought-for amendments. Other ratification or rejection; those outside that scope are efforts enjoyed insufficient popular support. recommendations for future action only, not subject In recent years, a principal deterrent has been to ratification. uncertainty about the governing law and how the process is supposed to work. The uncertainty arises The second Issue Paper in the series was Amending partly from a lack of reliable scholarship on the the Constitution by Convention: Lessons for Today

1 from the Constitution’s First Century. It surveyed returned to other assertions of uncertainty. This actual practice from the time of the Founding Issue Paper recommends ways to anticipate, through adoption of the Seventeenth Amendment and avoid, some of those objections; it also in 1913. During this time, there were dozens of recommends ways to respond to others. state applications, accompanied by revealing public discussion and relevant Supreme Court cases. The 2. The reader should rely on this document only second Issue Paper showed that from 1789 through for general background. It is not a substitute 1913, prevailing practice and understanding for legal advice. Those seeking legislative remained consistent with the Founders’ views. Most applications for a convention for proposing policymakers continued to think of a convention amendments should consult competent legal for proposing amendments as a “convention of counsel qualified to practice within their own the states.” Most applications contemplated a state, and ask counsel to respond only after convention limited to one or more issues, but reading all three Issue Papers. none tried to restrict the convention to particular amendment language. Most applications identified Th e Ar t i c l e V Co n v e n t i o n in subjects that Congress had failed to address Co n t e x t effectively. Some applications sought conventions Some people believe that the only The Constitution, that would propose amendments to clarify precedent for a convention for as understood constitutional meaning, resolve constitutional crises, proposing amendments is the 1787 by the Founders, or both. gathering in Philadelphia that wrote permits state leg- the Constitution. From that, they islatures to apply This third Issue Paper offers guidance and characterize an Article V convention for a convention recommendations for those seeking to implement as a “constitutional convention.” The unlimited as the state application and convention process. The truth is quite different. to subject mat- guidance and recommendations are based on ter, but it also the findings of the two earlier Papers, additional At the time of the Founding, a permits the state Founding-Era evidence unearthed since the first “convention” was any assembly, legislatures to Paper was published, and on authoritative court other than the legislature, designed define the topic cases issued at all stages of our history. to serve a governmental function.6 the convention is Although convention practice began to address. Two caveats for the reader: in Great Britain during the 17th century, Americans put it to very wide 1. Recent history shows that as promoters of the use. During the 18th century there were dozens of process approach success, supporters of the conventions. status quo will campaign furiously to abort it. In the past, powerful opposition has come Some conventions were held purely within a single from key figures in Congress, in colony or state. They represented the towns, the judiciary, in the media, and in 7 In the past, pow- counties, or people of the colony or state. Others academia. Opponents have advanced erful opposition were meetings of colonial or state governments. legal objections designed to induce has come from They consisted of “commissioners” (delegates) Congress to disregard applications key figures in sent by the respective state legislatures to consult and to persuade the courts to Congress, in the on problems prescribed by the commissions that invalidate them. The claim that judiciary, in the empowered them. Each state delegation formed a a convention would be inherently media, and in unit, often called a “committee,” and the gathering uncontrollable usually has been the academia. as a whole sometimes was referred to a convention most prominent weapon in their of “the states”8 or a convention of “committees.”9 arsenal. More recently, however, Each delegation represented its state and was as the claim of uncontrollability have become subject to instructions from the state legislature or increasingly untenable, some opponents have

2 the legislature’s designate. The powers and duties [i.e., deliberate] with the Commissioners or of the delegates toward the state legislatures were Committees of the several English Colonies in regulated by well-accepted principles laid down by America, on proper measures for advancing the the law of agency.10 best good of the Colonies.”18 The 1787 Philadelphia gathering (contrary to common belief) was nearly Within the limits of pre-set subject matter and plenipotentiary: It enjoyed very broad power to subsequent instruction, conventions enjoyed suggest a new form of government, and was not, as considerable deliberative freedom: they were, after so often claimed, a “runaway” convention.19 all, convened to act as problem- Within the limits solvers. They elected their own Most interstate conventions, however, were far more of pre-set subject officers and adopted their own rules. limited—that is, they were targeted at particular matter and sub- In general, interstate conventions problems. The delegates deliberated on the subject sequent instruc- were modeled on those attended by or subjects they were empowered to consider, tion, conventions international diplomats.11 perhaps issued recommendations, and then went enjoyed consider- home.20 Thus, the famous Annapolis Convention of able deliberative Although there were many inter- 1786 was to focus on “the trade and Commerce freedom: they colonial conventions earlier in the of the United States”21—whose important but were, after all, century, the initial multi-government limited scope induced James Madison explicitly to convened to act convention of the Founding Era distinguish it from a plenipotentiary convention.22 as problem- was the First Continental Congress The first assembly at Providence (1776-77) was solvers. (1774), which despite being denoted restricted to currency and defense measures,23 a “Congress,”12 both qualified as a and the second (1781) was entrusted only with convention and was understood to be ascertaining how to provide army supplies in a one.13 There were at least ten interstate conventions single year.24 The gatherings at New Haven and held between the Declaration of Independence Philadelphia (1780) dealt with to price regulation and 1787: two in Providence, Rhode Island (1776- only.25 The first Hartford Convention was empowered 77 and 1781); one in Springfield, Massachusetts to address currency and trade,26 and the second (1777); one in York Town, Pennsylvania (1777); one met “for the purpose of advising and consulting in New Haven, Connecticut (1778); two in Hartford, upon measures for furnishing the necessary supplies Connecticut (1779 and 1780); one in Philadelphia of men and provision for the army.”27 In 1777, (1780), one in Boston (1780),and one in Annapolis Congress recommended to the states (1786).15 that they sponsor conventions in York The records Town, Pennsylvania and Charlestown, left from the Some single-state conventions served only a narrow South Carolina to consider price- Founders’ fre- purpose. For example, the Georgia Constitution of stabilization measures.28 quent conven- 1777 authorized an intrastate convention solely to tions, both within draft constitutional amendments suggested by a The records left from the Founders’ states and colo- majority of counties.16 This provision may have been frequent conventions, both within nies and among the direct inspiration for the U.S. Constitution’s states and colonies and among polities, are “Convention for proposing Amendments.”17 Other polities, are sources of convention sources of con- conventions served broad, constitutive purposes. customs, protocols, and usage. As vention customs, They were called “plenipotentiary” conventions. explained below, these customs, protocols, and Among these were the bodies that erected protocols, and usages are of distinct usage. independent state governments after eviction of the value in clarifying and explaining the colonial governors. legal rules laid down by Article V.

Among interstate conventions, the First Continental Significantly, the convention journals reveal that all Congress was the most nearly plenipotentiary: of these assemblies remained essentially within the It was empowered to “to consult and advise scope of their calls.”29 There were no “runaways.”

3 The Constitution authorized three kinds of 2. to two thirds of the state legislatures power conventions, all serving limited purposes. Two to require Congress to call a convention for kinds are intrastate: (1) conventions to ratify the proposing amendments; Constitution and (2) conventions 3. to Congress power to call that convention (and to ratify particular amendments.30 requires it to do so); and Like all federal The other is interstate or federal: 4. to the convention authority to propose conventions, its the convention for proposing amendments. members are del- amendments.31 Its purpose is to egates sent by the draft and propose for ratification At the ratification stage, the Constitution state legislatures, constitutional amendments and they serve as addressing subjects designated by 1. authorizes Congress to select whether agents for those applying states.32 It pinch-hits for ratification shall be by state legislatures or state legislatures. Congress when Congress refuses to conventions; act. Like all federal conventions, its 2. if Congress selects the former method, members are delegates sent by the state legislatures, authorizes three fourths of state legislatures to and they serve as agents for those legislatures.33 ratify; 3. if Congress selects the latter method, Th e Co n s t i t u t i o n ’s Ex p r e s s Gr a n t s empowers (and requires) each state to call a o f Am e n d i n g Po w e r ratifying convention; and Article V of the Constitution reads in relevant part: 4. further empowers three fourths of those conventions to ratify. The Congress, whenever two thirds of both When a state leg- Houses shall deem it necessary, shall propose Note that in each of these grants, islature or state Amendments to this Constitution, or, on the the people bestow on one of these convention per- Application of the Legislatures of two thirds assemblies authority to perform forms an Article of the several States, shall call a Convention a specific function. When a state V function, it for proposing Amendments, which, in either legislature or state convention does not act as Case, shall be valid to all Intents and Purposes, performs an Article V function, it an organ of the as Part of this Constitution, when ratified by does not act as an organ of the state, nor does it the Legislatures of three fourths of the several state, nor does it exercise powers exercise powers States, or by Conventions in three fourths reserved to the states under the reserved to the 35 thereof, as the one or the other Mode of Ninth and Tenth Amendments. states under the Ratification may be proposed by the Congress. . Each amendment task is bestowed Ninth and Tenth . .34 by Article V alone. It is what the Amendments. Supreme Court calls a “federal 36 Article V envisions roles in the amendment process function.” Similarly, under Article V for four distinct sorts of assemblies: Congress does not act as the federal legislature, but • Congress; as an assenting body. In the amendment context, • state legislatures; therefore, this Issue Paper designates all four bodies • state ratifying conventions; and by the label Article V assemblies. • conventions for proposing amendments. Ar t i c l e V’s Gr a n t s o f “In c i d e n t a l ” Article V grants eight distinct enumerated powers Po w e r s to these assemblies. Four powers are granted at the Unlike the Articles of Confederation,37 the proposal stage and four at the ratification stage. At Constitution recognized and incorporated the the proposal stage the Constitution grants: agency-law rule of incidental powers.38 Under the 1. to two thirds of each house of Congress doctrine of incidental powers, unless there are authority to propose amendments; words to the contrary, a grant of an express or

4 “principal” power carries with it a grant of implied The Constitution expressly acknowledges the grant or “incidental” powers. The doctrine of incidental of incidental powers to Congress by the Necessary powers assures that an agent receive sufficient and Proper Clause.45 (The word “necessary” in the authority to carry out the intent or purpose behind Clause is a legal term of art meaning “incidental.”)46 the grant.39 For example, an agency document The Founders explained that the Necessary and entrusting a person with “management of my store, Proper Clause bestowed no authority. It was including the power to hire personnel merely an acknowledgment—in the language of The doctrine and purchase inventory” generally the law, a “recital”47—that, unlike the Articles of of incidental includes incidental authority to fire Confederation, the Constitution included incidental authority was a personnel and sell inventory. powers. Those powers would have been included well-developed even if there were no Necessary and Proper Clause.48 component of The doctrine of incidental authority Founding-Era was a well-developed component of Accordingly, incidental powers also accompany jurisprudence. Founding-Era jurisprudence. That is grants not within the literal scope of the Necessary That is the doc- the doctrine that defines the outer and Proper Clause. For example, that Clause does trine that defines limits of the Constitution’s granted not cover the President’s powers, but it always the outer limits of powers. Under the law of the time, has been understood that the President enjoys the Constitution’s for Power B to be incidental to a incidental authority.49 The Necessary and Proper granted powers. principal power (Power A), Power B Clause does not embrace the grants to conventions had meet certain requirements. It and state legislatures in Article V, because that had to be less “worthy” than Power Clause applies only to the “Government of the A40—less valuable, less important, subsidiary. Thus, United States” and “Department[s] authority to manage a store would include authority or Officer[s] thereof”).50 Those grants When we cannot to sell inventory in the ordinary course of business, carry incidental powers with them find a relevant but not to sell the entire enterprise. In addition, one nevertheless.51 custom, we must of two other requirements had to be met. Power B ask what the had to either (1) allow only actions customary for How can we define the incidental underlying pur- exercising Power A or (2) be so necessary to exercise powers of each Article V assembly? poses of a provi- of Power A that the agent’s work would be crippled By referring to Founding-Era sion are, and how (subject to “great prejudice”41) unless Power B were custom. The many conventions and requisite a pro- included.42 For example, under the Founders’ law, convention calls during the Founding posed power is to the sale of inventory would be incidental to the Era left us a record of practices and those purposes. management of a store, because it is customarily customs. By virtue of the incidental part of store management. Whether the power to powers doctrine, those practices and advertise was incidental to management required customs are literally part of the Article V.52 When we that it be customary for store managers to cannot find a relevant custom, we must ask what advertise—or that the circumstances be such that the underlying purposes of a provision are, and how otherwise the store could not prosper. Note also requisite a proposed power is to those purposes. that either custom or “great prejudice” was not enough. To be incidental, Power B had to be both Ju d i c ia l Re v i e w subsidiary AND customary or reasonably necessary History is not the only guide in this area. Court to the exercise of Power A.43 decisions assist us as well. At one time, some argued that the courts should take no jurisdiction Outside of the anomalous world of the Supreme over Article V matters—that Congress, not the Court’s Commerce Power and Taxing Power judiciary, should referee the process. Article V jurisdiction, pretty much the same standards of matters, it was said, were “political questions” of incidence apply today.44 the kind inappropriate for the judiciary. Support for this view came from a four-justice concurring opinion and a brief dictum (uncontrolling side

5 opinion) in a 1939 Supreme Court case, Coleman v. Ap p l i c a t i o n s f o r a Co n v e n t i o n f o r 53 Miller. Pr o p o s i n g Am e n d m e n t s Wh a t is a n app l i cat i o n , a n d h o w is it a d o p t e d ? In Coleman, a six-judge majority of an eight-justice Article V gives the name “Application” to the bench refused to review whether Kansas had ratified resolution by which a state legislature demands a proposed “anti-child labor” amendment. Doing that Congress call a convention for proposing so would have required the Court to disregard amendments. As an Article V assembly, a state the official state certification of ratification and legislature is generally free to adopt its own delve into potentially unsolvable issues of Kansas procedures for issuing an application.59 There legislative procedure. The Court’s dictum added are some basic rules, however. Both Founding- that Congress, not the courts, should determine Era precedent60 and modern case law61 tell us that whether a state could ratify an amendment after the governor has no role in the process. He need earlier rejecting it. Four of the six justices separately not sign the application, and may not veto it—no concurred. They contended that all questions of matter what the local state law is on the subject. proper ratification should be left to Congress. This is consistent with a very early Supreme Court case dealing with another Article V assembly— The Coleman dictum and the four-justice Congress.62 That case held that the President is not concurrence violated a famous aphorism of Chief part of the procedure by which Congress proposes Justice John Marshall: “It is emphatically the amendments. province and duty of the judicial department to 54 say what the law is.” This “province and duty” The reason state and federal executives are excluded necessarily includes an obligation to say what from the amendment process is that Article V the Constitution is, including any amendments. confers powers on the named assemblies, not on That, in turn, requires the Court to determine the lawmaking apparatus per se.63 Resolutions whether a putative amendment is really part of the pursuant to Article V, including votes approving 55 Constitution. applications, are not legislative in nature.64 Restrictions on Fortunately for our inquiry, Coleman has not been how an Article followed. As Professor Walter Dellinger once wrote, For the same reason, state V assembly 56 the case is an “aberration.” Today the courts constitutional provisions governing approves resolu- consciously reject the “hands-off” rule of the dictum the legislative process do not apply tions are valid 57 and concurrence. Although the judiciary has to an Article V application. The only if freely applied the “political question” doctrine to some courts have invalidated as to Article adopted by the Article V cases, in each of those cases, special facts V resolutions state requirements assembly itself. 58 called for abstention. There is no of legislative super-majorities65 and Today the courts general principle that Article V issues referenda.66 Restrictions on how an consciously reject are not justiciable. Article V assembly approves resolutions are valid the “hands-off” only if freely adopted by the assembly itself.67 rule of the dictum The proof has been a respectably- and concurrence. long series of court rulings on Article Ma y a n app l i cat i o n b e limited t o pa r t i c u l a r V extending from 1798 to modern s u b j e c t m at t e r ? times. For the most part the results The history of the state application and convention are consistent with the intended force of Article V, process firmly supports the conclusion that an even if the reasoning sometimes is different. application may request a convention unlimited as to subject.68 That conclusion is uncontroversial, but many have claimed that the applying states do not have the complementary power of limiting a convention to one or more subjects. However, the same history that confirms the states’ power

6 to apply for an open convention even more clearly Such limitations are constrained by both practical confirms their power to apply for a convention and legal restrictions. As a practical matter, the limited in subject matter. Before and during the more terms and conditions placed in applications, Founding Era, the overwhelming majority of inter- the less likely they will match each other sufficiently colonial and interstate conventions were limited to to be aggregated together to reach the two thirds one or more prescribed subjects. During the debates threshold. If Congress or the courts dislike the over ratification of the Constitution, participants contemplated amendments, they may well seize frequently referred to the prospect of states applying upon wording differences to justify refusal to for an Article V convention focusing on prescribed aggregate..77 reforms.69 The conclusion is clear: The Constitution’s grant of power to apply for a convention carries The courts also are likely to reject any effort by with it the incidental power to limit the subject state legislatures to impose rules on the convention. matter of the convention.70 Before and during the Founding Era, conventions The conclusion enjoyed the power to enact their own rules,78 is clear: The Early post-ratification practice was suggesting that such is an incident of an Article V Constitution’s consistent with the view at the convention’s authority to convene, deliberate, and grant of power Founding. Applications limited as to propose. The same practice has prevailed in later to apply for a subject matter included the 1832 years with intrastate conventions.79 The issue has not convention car- application from South Carolina, been presented squarely to the courts because an ries with it the the petition from Alabama the Article V convention has been held. However, the incidental power following year, the 1864 application courts have protected the right of state legislatures, to limit the sub- from Oregon and arguably the 1789 when acting under Article V, to make their own ject matter of the application from Virginia. The ensuing rules,80 and they have defended the deliberative convention. decades witnessed a veritable flood independence of state ratifying conventions in of single-subject applications on such other ways.81 Opponents may well argue that if topics as direct election of U.S. Senators and control an application purports to prescribe rules to the of polygamy.71 convention, it is void for attempting to obtain an illegal result.82 Although up- Case law in the subject is scanty, but what is or-down votes available also is consistent with the power of Another issue is how far applying occasionally were legislatures to limit convention subject matter.72 legislatures can go in restricting required of intra- the convention’s deliberations state gatherings, Ma y a n app l i cat i o n limit t h e c o n v e n t i o n t o and discretion in advance83—by, interstate conven- pa r t i c u l a r l a n g u a g e ? for example, requiring an up-and- tions invariably Some comparatively recent applications have down vote on particular wording were deliberative tried to impose restrictions beyond subject-matter or imposing conditions on entities, if not limits. For example, some have sought to require applications. History provides a always among the convention to take an up-or-down vote on an short answer: Although up-or- delegates, then at amendment whose precise wording is set forth in down votes occasionally were least among state 73 the application. Applications also have imposed required of intrastate gatherings, delegations. conditions the effectiveness of the application. interstate conventions invariably These have included conditions precedent (providing were deliberative entities, if not that the application becomes effective only when always among delegates, then at least among state a certain event or events occur)74 and conditions delegations. They were assemblies to which were subsequent (providing that the application becomes presented one or more problems (i.e., subjects), with ineffective if a particular event or events intervene).75 a request that the assembly propose solutions. The Some have imposed both kinds of conditions.76 power to deliberate was, and is, an incident of the There also have been suggestions that applications power to propose. And the text of the Constitution might impose operating rules for the convention. grants the convention, not the state legislatures, the

7 power “for proposing Amendments.” The Framers Prohibition. The statute provided that an elector’s could have drafted the language otherwise, but vote for convention delegates would not be they did not. The state legislatures were to enjoy counted unless the elector first voted “yes” or “no” their amendment power not directly, but through on the question of whether Prohibition should be a gathering in which the delegates represented repealed. The law required delegates to take an oath them, and while in session were subject to their promising to support the result of the referendum. instructions.84 The court sustained this procedure as promoting the popular will. The court gave little or no weight to Why did the Framers insert a convention in the the goal of assuring a deliberative process. process? Presumably because it was a proven device for collective deliberation, compromise, If Assembly X effectively restricts the deliberation of and conciliation. By deliberation I mean common Assembly Y, some of Assembly Y’s decision-making consideration and weighing of possible alternatives. authority is transferred to Assembly X. By absolutely By compromise and conciliation, I mean hearing and binding the convention to the popular will, the responding to the viewpoints of all states, including Alabama statute effectively transferred ratification those that did not apply for the convention. It is from the convention to the voters. They became the true that a large number of applications with similar true ratifiers. For this reason, other courts have not restrictions also are likely to be the product of followed the rule of In Re Opinion of the Justices. considerable deliberation and some compromise and conciliation. But the convention setting encourages Even before that case, the Supreme Court had more, and includes the non-applying states. An decided that legislative ratification could not independent level between state applications and be displaced by a referendum88—that the state state ratification subjects the process of decision to legislature’s discretion could not be compromised by additional “refinement,” to use James Madison’s extraneous rules.89 Further, in the same year as In Re term.85 Opinion of the Justices, the Supreme Court of Maine ruled that a referendum cannot bind a ratifying An independent This is another topic on which most convention because the “convention must be free level between subsequent history is consistent with to exercise the essential and characteristic function state applications the Founders’ vision. Throughout of rational deliberation.”90 (Obviously, however, the and state ratifica- the 19th and early 20th centuries scope of convention deliberation ...the Supreme tion subjects the there were many applications for cannot exceed the subject-matter Court had decid- process of deci- conventions limited as to subject for which it is empowered.) Since ed that legislative sion to additional matter, but none sought to dictate that time, a string of cases have ratification could “refinement,” precise wording or terms to the recognized explicitly the connection not be displaced to use James convention. At least one application between control and deliberation, by a referen- Madison’s term. was subject to a condition: An 1861 and have done so in the context of dum88—that the New Jersey resolution was to be state applications as well as in the state legislature’s effective only if Congress did not act.86 But that context of ratification. In 1978 Justice discretion could condition did not infringe the assembly’s deliberative Rehnquist upheld a referendum to not be compro- freedom once the convention had been called. influence the application process mised by extrane- while emphasizing that the ous rules. In the 1930s, state legislatures did try to restrict referendum was purely advisory.91 Six the deliberative freedom of Article V assemblies to years later, the Montana Supreme assure adherence to the popular will. This effort Court voided an initiative that would have required won judicial approval in 1933 in the Alabama state lawmakers to apply for a convention for Supreme Court advisory opinion, In Re Opinion of proposing a balanced budget amendment. Relying the Justices.87 The issue was a state law governing on the U.S. Supreme Court cases disallowing the convention called for ratifying or rejecting transfer of ratification power to the voters, the the Twenty-First Amendment, which repealed Montana tribunal held that, “[a] legislature making

8 an application to Congress for a constitutional As explained below, during the sitting of the [sic] convention under Article V must be a freely convention the individual delegates can be governed deliberating representative body. The deliberative by instructions from the state legislatures they process must be unfettered by any limitations represent. (If instructions clash, the process becomes imposed by the people of the state.”92 one of deliberation among states.) Instead of imposing detailed restrictions in the applications, The same year, the California Supreme Court therefore, legislatures should wait until the invalidated a voter initiative imposing financial convention opens.99 penalties on lawmakers who failed to support an application for a balanced budget amendment.93 Ma y s t a t e s r e s c i n d app l i cat i o n s ? The court observed that this was inconsistent with a Some have argued that states cannot rescind goal of Article V, which “envisions legislators free to applications, and that once adopted an application vote their best judgment.”94 continues in effect forever, unless a convention is called. This position is contrary to the principles During the 1990s battle for federal term limits, of agency the Founders incorporated into the activists used the state initiative process to induce process. An application is a deputation from the lawmakers to support term limits. Members of state legislature to Congress to call a convention. Congress were instructed to support congressional Just as one may withdraw authority proposal of a term limits amendment. State from an agent before the interest Just as one may lawmakers were instructed to support applications of other parties “vests,” so may the withdraw author- for a convention that would propose term limits. state legislature withdraw authority ity from an agent Voter-adopted initiatives inflicted negative ballot from Congress before the two thirds before the interest language on politicians who refused. Again and threshold is reached. of other parties again courts invalidated these measures, because by “vests,” so may impeding the deliberative function they transferred As author Russell Caplan has shown, the state legis- discretion from Article V assemblies to other actors.95 the power of a state to rescind its lature withdraw Although one could interpret those measures as resolutions, offers, and ratifications authority from a form of aggressive advice rather than actual was well established when Article Congress before coercion, the courts consistently invalidated them. V was adopted.100 This power ends the two thirds only when the culmination of a threshold is As an application campaign nears apparent success, joint process was reached. Thus, a reached. it will be opposed by hostile opinion state may rescind ratification of a As an application makers, judges, and members of constitutional amendment any time campaign nears Congress. They will contend that before three fourths of the states have ratified, apparent success, applications restricting convention but not after. Similarly, a state can withdraw its it will be opposed discretion are inherently void.96 application any time before two thirds of states have by hostile opinion As to the specification of subject applied. At least one modern court has agreed.101 makers, judges, matter, there is ample response: The and members of interstate convention was created as Ca n a n app l i cat i o n g r o w “s t a l e ” w i t h t h e Congress. a body to recommend resolutions pa s s a g e o f t i m e ? for specifically-identified issues, Some have argued that applications automatically and was expected to limit its recommendations become “stale” after an unspecified period of to those issues.97 It also is clear that a state may time, and no longer count toward a two thirds go beyond specifying subject matter by offering majority. There are several reasons for concluding recommendations in its application.98 However, that applications do not become stale. First, as far legislatures that go much beyond that place their as I have discovered, there is no evidence from the applications at risk. Founding Era or from early American practice that applications can become stale. Second, although a 1921 Supreme Court case, Dillon v. Gloss,

9 suggesting that ratifications, to be valid, must be In the final analysis, the only proper judge of issued within reasonable time of each other,102 the whether an application is fresh or stale is the Court essentially disavowed much of the Dillon legislature that adopted it. Any time a legislature “staleness” language eighteen years later.103 Third, deems an application (or a ratification) outdated, the staleness issue pertaining to ratification seems the legislature may rescind it, as many have done. to have been resolved by the universally-recognized adoption of the Twenty-Seventh Amendment, based Th e Co n v e n t i o n Ca l l on ratifications stretching over two centuries.104 Wh a t Po w e r d o e s Co n g r e s s h a v e w h e n ca l l i n g t h e Co n v e n t i o n ? Fourth, even if ratifications can become stale, it The central purpose of the state application does not follow that applications should follow and convention process—to enable the states the same rule. One reason for the “staleness” to promote amendments without congressional discussion in Dillon was the Court’s interpretation obstruction—is reflected in Article V’s requirement of congressional power to choose a mode of that after two thirds of states have applied, ratification.105 However, congressional authority Congress “shall” call a convention. over the calling of a convention is narrower than the power over ratification: Congress’s mode-of- The Constitution occasionally bestows authority of ratification decision is partly discretionary; its duty to a kind normally exercised by one branch on another call a convention is ministerial.106 branch. The President is the chief executive, but he may veto bills, which is essentially a legislative Finally, there is the problem of who is to judge power.111 The Senate is usually a legislative body, staleness. Because the Constitution but it tries impeachments, a judicial power,112 Because the prescribes no time period, whether and approves nominations, an executive power.113 Constitution pre- an application is “stale” is a matter of Congress usually exercises legislative authority, scribes no time judgment. As the Supreme Court has but the Constitution grants it authority to declare period, whether noted, the courts are not in a position war, which previous to Independence had been an application is to make this judgment, because considered an executive power.114 “stale” is a mat- they have no legal criteria by which ter of judgment. to judge.107 Leaving the decision to The Founding-Era record establishes Congress would be the worst possible that the role of Congress in calling an The Founding- solution,108 because doing so could defeat the central amendments convention is to serve Era record estab- purpose of the state application and convention as a ministerial agent for the state lishes that the process—that is, to allow the states to bypass legislatures.115 In this role, Congress role of Congress Congress. Comparatively recent history strongly acts in an executive rather than a in calling an suggests that Congress would manipulate the period legislative capacity. Because calling a amendments con- to interfere with the process. For example, during convention is a mandatory executive vention is to serve the 1960s Senators opposed to state-suggested duty, it should be enforceable as a ministerial amendments argued that all applications should be judicially. One potential remedy agent for the state deemed stale (and therefore invalid) after a period against a recalcitrant Congress is a legislatures.115 of no more than two or three years.109 Because of declaratory judgment.116 Furthermore, the biennial schedule of many state legislatures, this because the duty is “plain, imperative, would have effectively excised the state application and entirely ministerial” a writ of mandamus is and convention process from the Constitution. On appropriate.117 Courts also may grant equitable relief, the other hand, a decade later, when many states such as an injunction, even against a legislature, if it balked at approving a congressionally-proposed is violating the Constitution.118 amendment Congress purported to intervene by extending the ratification period from seven to ten To assure that Congress does not “gerrymander” years.110 the process to defeat its central purpose, powers incidental to its call must be minimal. They certainly

10 do not include broad authority, as some have Th e Co n v e n t i o n suggested,119 to determine how many delegates Wh o e s ta b l i s h e s t h e r u l e s f o r s e l e c t i n g there will be, how they will be apportioned, d e l e g at e s ? and what the rules of the convention will be. Some have suggested that, under the Necessary During the Founding Era, an entity asking for an and Proper Clause, Congress might specify how interstate (federal) convention requested states to delegates to an Article V convention are to be send delegates of their own choosing. The states chosen.123 However, Founding-Era practice informs themselves, not the “caller,” determined how the us that delegate selection is incidental to the powers delegates were chosen. Conventions elected their of the state legislature, not to the own officers, decided after they convened where powers of Congress. Subsequent ...Founding-Era they would meet, and adopted their own rules, history is fully consistent: Applications practice informs including voting rules.120 In interstate conventions, and other documents from the us that delegate the default rule of suffrage was “one state, one Founding through the 19th century selection is inci- vote,” although the convention theoretically had generally referred to Article V dental to the pow- power to alter this. In modern times, the general conventions as “federal conventions” ers of the state rule that a convention, or a legislature, operating and “conventions of the states,” legislature, not under Article V controls its own voting rules and rather than as conventions of the to the powers of procedures was applied by the future Justice Stevens people.124 The Supreme Court also Congress. in his much-quoted opinion in Dyer v. Blair.121 has used the term “convention of the states.”125 On the one occasion when Congress Based on Founding-era custom, the powers of opted for a proposed constitutional amendment to Congress incidental to the call are to determine be ratified by state conventions rather than state if the two thirds threshold has been met, and legislatures, the states were left in full command of to specify the time and initial place of meeting, delegate-selection.126 and any subject-matter restrictions The Supreme imposed by the applications. The Of course, state legislative decisions are subject Court has held decisions over other matters are to general rules imposed on the states by the that Congress the prerogatives of other Article V Constitution, particularly the guarantees of due may propose assemblies. process, equal protection, and voting rights defined amendments by a by the Fourteenth,127 Fifteenth,128 Nineteenth,129 two thirds vote of Wh a t o t h e r f o r m a l i t i e s a r e and Twenty-Sixth Amendments.130 The Twenty- members present r e q u i r e d f o r t h e ca l l ? Fourth Amendment, prohibiting requirements that (assuming a quo- The Supreme Court has held that electors be taxpayers, does not apply to voting for rum), not of the Congress may propose amendments conventions under Article V.131 entire member- by a two thirds vote of members ship.122 present (assuming a quorum), not Wh o s e t s t h e r u l e s o f t h e Co n v e n t i o n ? of the entire membership.122 By As noted above, Founding-era custom and parity of reasoning, Congress should be able to call modern case law both hold that control over the the convention by majority of members present, convention’s proceedings is its own prerogative. assuming a quorum. As incidents to its power to propose amendments, the convention may establish its own rules, elect As noted above, the evidence strongly supports its own officers, determine where it continues to the view that the President has no role in the sit, fix the hours of sitting, judge the credentials of amendment process. This is because, as explained members, and otherwise oversee housekeeping.132 If earlier, Article V bestows power on particular the convention wishes to alter the “one state, one assemblies, not on the entire legislative apparatus. vote” rule, it may do so. During the Founding Era, conventions could punish members of the general public for such “breaches of privilege” as slander of the convention or of members, but this power

11 was removed by the Due Process Clause of the Fifth vires; only those within the scope of authority, Amendment. as fixed by the applications, have legal force.137 Under agency law (both at the Founding and Ho w a r e d e l e g at e s t o d e l i b e r at e a n d w h a t is t h e today), an agent may suggest to his principal a r o l e o f s t a t e i n s t r u c t i o n s ? course of action outside the agent’s sphere of The Constitution grants the convention, not the authority—but it has no legal effect. For example, if states, the power to propose Amendments. This a convention called to consider a balanced budget suggests that, within its prescribed subject, the amendment recommends both a balanced budget convention has full authority to draft and propose, amendment and a term limits amendment, only or refuse to propose, one or more amendments. It the former is a “proposal” within the meaning of need not adopt specific language set forth in state Article V. The latter is merely a recommendation applications. for future consideration. Congress may specify a “Mode of Ratification” only for the balanced This conclusion is strengthened by important budget amendment, and states may ratify only comments in the Founding-era record—such as that proposal.138 If Congress, the legislatures, or Madison’s observation that the convention could the public agrees with the convention’s term limits refuse to propose anything,133 by contemporaneous recommendation, the states may apply anew for a practice,134 by how the states drafted their convention with authority to propose it, or Congress applications in the subsequent 125 years,135 and itself may propose it. (as explained above) by a string of court decisions designed to protect the deliberative freedom of Tr a n s m i t t a l o f Pr o p o s a l s t o t h e Article V assemblies. St a t e s Although a convention’s proposal does not Yet the deliberative quality of the convention does technically pass through Congress to the states, the not mean that the delegates are Constitution does require and empower Congress completely free actors. American American con- to select one of two “Modes of convention delegates have long been Although a con- vention delegates Ratification.” Congress’s power in subject to instructions from those vention’s pro- have long been this regard is the same as if it had they represent.136 As in all prior federal posal does not subject to instruc- proposed the amendment. conventions, they are representatives technically pass tions from those of the state legislatures, and therefore through Congress they represent.136 Congress has no choice as to whether subject to instructions. This is not at to the states, the As in all prior to choose a “Mode.” The Constitution all inconsistent with the deliberative Constitution federal conven- requires it to do so. Because quality of the convention: Delegates does require tions, they are selecting, like calling an Article V will discuss issues among themselves and empower representatives convention, is a mandatory rather and with officials back home, and Congress to of the state leg- than discretionary duty (see above), officials back home will discuss select one of islatures, and it should be enforceable judicially. On issues with their counterparts in two “Modes of therefore subject the other hand, the congressional other states. The result will be a Ratification.” to instructions. decision to select one mode rather textured, multi-layered deliberation than the other is unreviewable.139 likely superior to anything that either the state legislators or the delegates could have Congress may enjoy some powers incidental to produced alone. selecting the mode of ratification. But as explained earlier, a power incidental to selecting the mode Wh a t h app e n s if t h e c o n v e n t i o n “p r o p o s e s ” a n of ratification must be both subsidiary to it and a m e n d m e n t o u t s i d e t h e s u b j e c t -m at t e r a s s i g n e d coupled with it by custom or strong necessity. The b y t h e app l i cat i o n s ? power to select the mode is obviously a limited Because the convention ultimately serves the state and discrete choice, and certainly does not justify legislatures, proposals outside the call are ultra sprawling congressional authority over the state

12 ratification process. The Supreme Court’s holding and personal abuse and to tell the public that a in Dillon v. Gloss140— that Congress may specify successful convention will rob them a time period for ratification as an incident of of jobs and government benefits. ...we can expect selecting the mode—may or may not be correct, them to subject but it should apply only when the proposal comes In addition to summoning the leaders of the from Congress. Congress may specify a time period ghoul of the “runaway convention,” application pro- for its own proposed amendments, since proposers opponents may claim that the process cess to harass- generally may impose time limits on their proposals. is “minority rule” because if all the ment and per- But when a convention proposes amendments, the least-populous states—and only the sonal abuse and convention, not Congress, is the correct agency for least populous states—applied for to tell the public setting the time limit. Vesting the power in Congress a convention, then one could be that a successful would be inconsistent with the purpose of the state- called at the behest of states with less convention will application-and-amendment process, since it would than a third of the population. (The rob them of jobs enable Congress to throttle proposals it disliked by implausibility of that scenario has and government imposing very short time limits.141 not deterred some from raising it in benefits. the past.)142 Opponents also will raise Re c o m m e n d a t i o n s f o r a d v o c a t e s legal objections. Politicians, lawyers, An t i c i pat e o b j e c t i o n s and academics who would never apply the same In recent years, most of the visible opposition to the standard to amendments increasing federal power, state application and convention process has some will assert that to be valid the state application and from small political groups claiming the convention convention process must be legally picture-perfect.143 would be uncontrollable and might even stage a They will sue to invalidate state applications, and coup d’etat. My previous two Issue perhaps sue to prevent Congress from aggregating Opponents will Papers have demonstrated that such applications or issuing a call. They also will rely include members claims are insubstantial, and can be on legal grounds to induce Congress to disregard of Congress and disregarded. Much more threatening applications. the executive will be the potent and sophisticated branch, media opposition that will mobilize as the It follows that advocates must proceed in a manner apologists for state application and convention that is as legally bulletproof as is consistent with the federal gov- process gains ground. Opponents will success. That requires advocates to anticipate legal ernment, and include members of Congress and the obstacles, avoid those that can be avoided, and representatives of executive branch, media apologists prepare defenses against those that are unavoidable. the far-flung web for the federal government, and Some impediments are unforeseeable, and will have of interests now representatives of the far-flung web to be met as they arise.144 enjoying access to of interests now enjoying access to federal power or federal power or receiving federal Legal arguments, of course, vary in their degree of receiving federal largess: tax-supported foundations credibility. Among the more specious objections largess: tax-sup- and policy centers, lobbyists, raised against the application campaigns of the ported founda- academics, and others. They will be 1960s and 1970s were the following: (1) Despite the tions and policy well funded and aggressive. Constitution’s use of the word “shall,” Congress has centers, lobbyists, no obligation to call a convention when it receives academics, and We can predict some of their proper applications from two thirds of the states,145 others. They will tactics from how they resisted state (2) the state application and convention process be well funded application campaigns in the latter is no longer part of the Constitution and may be and aggressive. half of the 20th century, as well ignored,146 (3) applications from “mal-apportioned” as from ways in which entrenched legislatures do not count,147 (4) applications dating special interests battle citizen initiatives at the state from before a legislature is re-apportioned do not level. For example, we can expect them to subject count,148 (5) applications more than a few years leaders of the application process to harassment old are “stale,”149 (6) single subject applications are

13 invalid,150 and Congress may use its power under the As of this writing, an amendment addressing Necessary and Proper Clause to control delegate- federal deficit spending or imposing a single-subject selection and convention rules.151 Reliance by rule on Congress probably meets all four criteria; Congress or the courts on such arguments to abort an amendment to abolish the income tax or ban or hobble a convention could ignite a constitutional abortion probably does not. crisis of the first magnitude. Co o r d i n a t e Potential legal objections with more merit include: Some of America’s most successful reform (1) A rescinded application is no longer valid; (2) campaigns took advantage of close cooperation varying and inartfully-drawn applications, even if among states. The American Revolution was targeted at the same subject, are too imprecise coordinated first through “committees of to be aggregated;152 and (3) applications are void correspondence” and later by if they try to control the convention unduly—if, the Continental Congress. Other Some of for example, they mandate precise interstate campaigns failed for lack America’s most ...the state appli- language or convention rules. of coordination, notably the effort to successful reform cation and con- call an Article V convention to stave campaigns took vention process Pr o m o t e t h e r i g h t a m e n d m e n t s off the Civil War.154 advantage of is no place for Most people have one or more close cooperation unpopular, inef- causes dear to their hearts that During the battle for direct election among states. fective, or idio- they would love to see written of senators, the legislatures of several The American syncratic causes. into the Constitution. But the state states erected standing committees Revolution was application and convention process with funded command centers to coordinated first is no place for unpopular, ineffective, prepare common forms and assist the through “com- or idiosyncratic causes. Each potential amendment common effort. In future application mittees of cor- should comply with at least four criteria: campaigns, state legislatures may respondence” do the same, or an independent and later by 1. Like most amendments already adopted, it organization may take the lead. There the Continental should move America back toward Founding should be a common presence on Congress. principles. the World Wide Web. Each applying 2. It should promise substantial, rather than legislature should designate a contact person for merely symbolic or marginal, effect on public official communications from other states. Each policy. applying legislature should notify all other state 3. It should be widely popular. legislatures of its actions. All applications should be 4. It should be a subject that most state sent to as many recipients as possible, especially (of lawmakers, of any political party, can course) Congress. understand and appreciate. As the campaign builds steam, states should History’s most successful application campaign— communicate on such subjects as: how they will for direct election of U.S. Senators—met all of choose their delegates, what the convention rules these criteria. The proposal was widely popular will be, and the size of state delegations. The and well understood by state lawmakers because exchange of information, including information year after year legislative election of senators had about America’s long history of conventions, will fostered legislative deadlocks, corruption, and enable states to address differences in advance submersion of state elections by federal issues. of the meeting, maintain momentum and control Direct-election advocates represented the campaign over the process, and protect it from congressional as necessary to restore Founding principles, and interference. predicted substantial improvement in the quality of government.153 Ad o p t s i m p l e c o m m o n f o r m s History shows that legislative resolutions applying

14 for a convention must be carefully and simply otherwise common with other applications. worded and follow a common formula.155 This reduces the risk of the kind of misunderstandings I recommend that each application state a single that plagued the application subject, with wording identical to, or as close as History shows process during the nullification possible to, the applications on that subject issued that legisla- controversy.156 It also reduces the risk by other states. Legislatures adopting tive resolutions that different applications will be resolutions after a number of other I recommend that applying for a deemed to cover different subjects. states already have applied may wish each application convention must The resolutions (in most states, to designate previous applications state a single sub- be carefully and probably concurrent rather than it considers as addressing the same ject, with wording simply worded joint, since the governor’s signature subject.158 If the state legislature identical to, or as and follow a com- is unnecessary) should be relatively wishes to apply for a convention 155 close as possible mon formula. short. Each resolution should say to consider several issues, it should to, the applica- that it is an application pursuant to approve one application for each. tions on that Article V and clearly call for (not just recommend) Otherwise, Congress may refuse to subject issued by a “convention for proposing amendments” rather aggregate applications because of other states. than a “constitutional” or some other kind of disparate terms. convention. Lengthy or argumentative “whereas” clauses are inadvisable. If political conditions call The 1901 Minnesota form of application for direct for explanations, they can be inserted into an election of senators is probably a good model. It accompanying document, such as an explanatory applied “for the calling of a convention to propose resolution. an amendment to the Constitution of the United States making United States Senators elective in The organizers of the campaign for direct election of the several States by direct vote of the people.”159 Senators understood these rules. Their “Minnesota That clearly delineated the subject, but left to the form,” used widely in that campaign, remains an convention such details as “grandfathering” of excellent starting point for drafters,157 both because sitting Senators, qualifications of electors, election at it meets the most important criteria and because it large or by districts, filling of vacancies, and whether enjoys the imprimatur of historical usage. to specify requirements for plurality or majority voting.160 I recommend that drafters avoid precatory and recommendatory language. If, however, the Op e r at e c o n t e m p o r a n e o u s l y a n d q u i c k l y legislature wishes to recommend particular terms As discussed earlier, by a proper interpretation of or wording in the application, the application the law, state applications do not grow “stale.” They should be clear that (1) the amendment is remain effective until either rescinded or two thirds being recommended, but (2) the convention of states have applied for a convention on the same is being demanded. Ideally, though, legislative subject. Because the Supreme Court never has ruled recommendations should be in a separate authoritatively on the point, advocates must take resolution, adopted either at the time of application care to give opponents no grounds for plausible or, preferably, after the convention has been called. objection on the basis of time. If possible, the entire campaign must be planned for completion in three En s u r e t h a t t h e app l i cat i o n s p e c i f i e s t h e s u b j e c t to four years. o f t h e a m e n d m e n t w i t h o u t dictating t h e w o r d i n g Ma k e c l e a r t h a t t h e p r o c e s s is a s t a t e , n o t a For reasons already explained, an application should f e d e r a l , p r o c e d u r e not require or be conditional on the convention Advocates must be very clear that congressional proposing precise wording. This may be construed intervention into this state-based procedure is as an impermissible infringement of the convention’s unwelcome, and will be resisted. From the very legal prerogatives or as a narrowing of a subject beginning, advocates must announce clearly that

15 state legislatures will govern the application process, better way than popular election to select designees Congress has no discretion over whether to call for what is essentially a large legal and political the convention, the states will determine how their drafting committee. In addition, delegates will be delegates are chosen, and the convention itself will subject to legislative instruction, and are more likely determine its own rules, including its voting rules. to respond to that instruction if the legislature selected them and can The principal Re s p o n d t o t h e “minority r u l e ” a r g u m e n t replace them. objection to leg- As in the past, opponents will claim the state islative selection application and convention process is a license for The principal objection to legislative will be that it is “minority rule” because, in theory, states with a selection will be that it is not as not as democratic minority of the American population democratic as direct election. In one as direct election. could trigger a convention. sense this is true, but in another A majority of Advocates should respond by it is not: Delegates amendable to states at the pointing out that this is improbable legislative instruction can be guided according to convention will as a practical matter because political their state legislature’s sense of evolving public have to propose realities will put larger states on opinion. Delegates elected directly, and presumably any suggested the same side as smaller states: not subject to replacement, may pursue their own amendments; Texas, for example, is much more agenda irrespective of how public opinion evolves. in the glare of politically akin to a small state like public view they South Dakota than to a large state Of course, however the delegates are chosen, their are unlikely to like Massachusetts. Further, the work will be subject to popular review through the advance pro- application stage is only an initial step difficult ratification process. posals most in a three-step process. A majority of Americans find states at the convention will have to Where political conditions require that delegates be distasteful. propose any suggested amendments; elected directly, each state legislature will have to in the glare of public view they are determine whether election at-large or in districts is unlikely to advance proposals most Americans find most appropriate. distasteful. Finally, any proposal will have to be ratified by 38 states—including, in all probability, As to the size of delegations: The delegations at the some that failed to apply. They will almost certainly 1787 ranged from two (New Hampshire) to eight represent a super-majority of the American people. (Pennsylvania). Several factors argue for limiting the size of modern delegations to three or at most Co n s i d e r ca r e f u l ly h o w , a n d h o w m a n y , five per state. (An odd number will tend to avoid d e l e g at e s a r e t o b e c h o s e n . deadlock within a state delegation and resultant Under a proper interpretation of Article V, each loss of that state’s vote.) One factor is that while state legislature determines how delegates are to be the delegates in Philadelphia needed to assess chosen and how many will be chosen. These should fundamental principles of American government, be matters of interstate discussion once it appears those in a convention for proposing amendments an application campaign will be successful. will face a much more limited task. Another is that there are now far more states to be represented. The three most obvious methods of selection Delegates today are less likely to be absent due to are designation by the governor, selection by the transportation difficulties and bad health, and if legislature, and election by the people. The force a delegate can no longer serve, he or she can be of uniform historical precedent favors selection by replaced almost instantly. the legislature, and under Article V it is the state legislatures rather than the governor or the people Consultation among the states well in advance that are immediate participants in the amendment of the convention probably will result in general process. Furthermore, legislative selection is more agreement on the proper size of delegations. If democratic than gubernatorial choice, but may be a some states, either through an abundance of

16 enthusiasm or a desire to cripple the process, send * Robert G. Natelson, the author of The Original delegations of excessive size, the convention may Constitution: What It Actually Said and Meant adopting a rule limiting the number on the floor (2d ed. 2011) and co-author of The Origins of from each state at any time. the Necessary and Proper Clause (Cambridge Univ. Press 2010), is a constitutional Co n c l u s i o n historian. He is Senior Fellow in Constitutional The Founders inserted the state application and Jurisprudence at the Independence Institute in convention process to be used, especially when Denver, Colorado and at the Montana Policy the federal government has abused or exceeded its Institute in Bozeman, Montana, and Senior authority. Not employing it in such circumstances Fellow at the Goldwater Institute in Phoenix is literally to dishonor and threaten the Founders’ Arizona. He served as Professor of Law at design. The University of Montana for a quarter of a The Founders century. He is best known for his studies of the inserted the Because a convention for proposing Constitution’s original understanding, and for state application amendments has never been called, bringing formerly-neglected sources of evidence and convention the process seems mysterious to to the attention of constitutional scholars. His process to be some. Some have taken advantage of works are listed at http://constitution.i2i.org/ used, especially the mystery by calling up specters of about/. when the federal their own devising. government has We acknowledge the Goldwater Institute for abused or exceed- There need be no mystery. The nature publishing an earlier version of this Issue Paper. ed its authority. of the process is recoverable from Not employing it American history and American This Paper provides some background on legal in such circum- law. We know how other federal issues, but is not intended to be legal advice. stances is liter- conventions worked during the Local counsel should be consulted before ally to dishonor Founding, and we have nearly two taking action. and threaten the centuries of experience after the Founders’ design. Founding with state applications En d n o t e s and with other kinds of conventions. 1 Bibliographical Note: These Issue Papers have largely recovered that The information in this Issue Paper not otherwise history, and while they do not answer all questions, footnoted is documented in Professor Natelson’s scholarly they do answer the fundamental ones. treatment, Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693 (2011), available at the II website at http:// The issues that remain will be resolved as state constitution.i2i.org/files/2011/10/Rules_for_Art_V_ lawmakers and other citizens invoke the process. Conventions.pdf and in Robert G. Natelson, Founding- Those issues will be resolved by mutual consultation Era Conventions and the Meaning of the Constitution’s and, perhaps in a few instances, by judicial decision. “Convention for Proposing Amendments,” available at http://papers.ssrn.com/sol3/papers.cfm?abstract_ There is nothing unusual in this: As the Founders id=2044296. A particularly accessible version of the recognized, some constitutional questions can same material is the pamphlet by the same author and be elucidated only through practice. The venture published by the American Legislative Exchange Council: Proposing Constitutional Amendments by a Convention is worth the price, for as events over the past of the States, http://www.alec.org/publications/article-v- few decades have shown, without a vigorous handbook/. state application and convention procedure, our Constitution is not fully effective after all. In addition, this Paper includes many more specific citations. Works referred to more than once are as follows: Charles L. Black, Jr., The Proposed Amendment of Article V: A Threatened Disaster, 72 Yale. L.J. 957 (1963) [hereinafter Black]

Arthur E. Bonfield, The Dirksen Amendment and the

17 Article V Convention Process, 66 Mich. L. Rev. 949 (1967-1968) [hereinafter Bonfield] 3 See generally, Natelson, Founders’ Plan, supra note 1.

Ru s s e l l L. Ca p l a n , Constitutional Br i n k m a n s h i p : Am e n d i n g t h e 4 It may also serve to give “political cover” to those Constitution b y Na t i o n a l Co n v e n t i o n (Oxford Univ. Press, in Congress who believe change necessary, but who 1988) [hereinafter Caplan] dare not act to promote it. For example, a member of Congress may believe that “earmarks” are wrong—but Th e Pu b l i c Re c o r d s o f t h e St a t e o f Co n n e c t i c u t - Fr o m without a constitutional ban on earmarks he cannot Oc t o b e r , 1776, t o Fe br u a r y , 1778, In c l u s i v e (Charles J. abstain from seeking them without endangering Hoadley, ed., 1894) [hereinafter 1 Ho a d l e y ];Th e Pu b l i c re-election. Re c o r d s o f t h e St a t e o f Co n n e c t i c u t - Fr o m Ma y , 1778, t o Ap r i l , 1780, In c l u s i v e (Charles J. Hoadley, ed., 1895) 5 See generally, Natelson, First Century, supra note 1. [hereinafter 2 Ho a d l e y ]; and Th e Pu b l i c Re c o r d s o f t h e St a t e o f Co n n e c t i c u t - Fr o m Ma y , 1780, t o Oc t o b e r , 1781, 6 Natelson, Founders’ Plan, supra note 1. See also In Re In c l u s i v e (Charles J. Hoadley, ed., 1922) [hereinafter 3 Opinion of the Justices, 132 Me. 491, 167 A. 176 (1933) Ho a d l e y ] (“The principal distinction between a convention and a Legislature is that the former is called for a specific Jo n a t h a n El l i o t , Th e De b a t e s in t h e Se v e r a l St a t e Co n v e n t i o n s purpose, the latter for general purposes”). Id., 167 A. at o n t h e Ad o p t i o n o f t h e Fe d e r a l Constitution (5 vols; 1941 179. ed. inserted in 2 vols.) (2d ed. 1836) [hereinafter El l i o t ’s De b a t e s ] 7 Natelson, Founders’ Plan, supra note 1. See also Ho a r ,

supra note 1, at 2-10 (describing state constitutional Ro g e r Sh e r m a n Ho a r , Constitutional Co n v e n t i o n s : Th e conventions at the Founding); In Re Opinion of the Na t u r e , Po w e r s , a n d Limitations (1917) [hereinafter Hoar] Justices, 132 Me. 491, 167 A. 176, 179 (1933) (noting

that conventions within states directly represented the Jo u r n a l s o f t h e Co n t i n e n t a l Co n g r e s s (34 vols., various people). dates) [hereinafter JCC]

8 Paul G. Kauper, The Alternative Amendment Process, 66 E.g., 2 Ho a d l e y , supra note 1, at 578 (reproducing a Mi c h . L. Re v . 903 (1967-68) [hereinafter Kauper] resolution of the 1780 Philadelphia convention, referring to it as a “meeting of the several states”). After the Ga r y La w s o n , Ge o f f r e y P. Mi l l e r , Ro b e r t G. Na t e l s o n & Gu y Constitution was ratified, early state applications applied I. Se i d m a n , Th e Origins o f t h e Ne c e s s a r y a n d Pr o p e r Cl a u s e similar nomenclature to a convention for proposing (2010) [hereinafter Origins o f t h e Ne c e s s a r y a n d Pr o p e r amendments. Natelson, First Century, supra note 1. Cl a u s e ] 9 E.g., 17 JCC, supra note 1, at 790 (Aug. 29, 1780). Robert G. Natelson, Amending the Constitution by Convention: A More Complete View of the Founders’ 10 Natelson, Founders’ Plan, supra note 1. Plan (2010), http://liberty.i2i.org/2010/12/03/amending- the-constitution-by-convention-a-more-complete-view- 11 Caplan, supra note 1, at 95-96. of-the-founders-plan/ [hereinafter Natelson, Founders’ Plan] 12 The term was commonly used to denote a meeting of sovereignties. See, e.g., Th o m a s Sh e r i d a n , A Co m p l e t e Robert G. Natelson, Amending the Constitution by Dictionary o f t h e En g l i s h La n g u a g e (1789) (unpaginated) Convention: Lessons for Today from the Constitution’s (defining “congress” in part as “an appointed meeting for First Century (2011), http://liberty.i2i.org/files/2012/03/ settlement of affairs between different nations”). IP_5_ 2011_c.pdf [hereinafter Natelson, First Century] 13 E.g., 1 JCC, supra note 1, at 17 (quoting the credentials Ro b e r t G. Na t e l s o n , Th e Original Constitution : Wh a t it of the Connecticut delegates, empowering them to Re a l l y Sa i d a n d Me a n t (2d ed, 2011) [hereinafter Na t e l s o n , attend the “congress, or convention of commissioners, or Original Constitution ] committees of the several Colonies in British America”). The Second Continental Congress (1775-81) arguably Michael Stokes Paulsen, A General Theory of Article also was a convention, but because it acted as a regular V: The Constitutional Lessons of the Twenty-seventh government for more than six years, I have not treated Amendment, 103 Yale L.J. 677 (1993-94) [hereinafter it as such. The Confederation Congress (1781-89) was a Pa u l s e n ] regularly-established government.

Grover Joseph Rees, The Amendment Process and Limited 14 See 17 JCC, supra note 1, at 790 (Aug. 29, 1780) & 18 Constitutional Conventions 2 Benchmark 66 (1986) id., at 932 (Oct. 16, 1780) (referring to the three-state [hereinafter Rees]. convention, which met in August of that year).

2 Technically, however, state ratifying conventions also are 15 For a summary of multi-colony and multi-state “Article V conventions.” conventions through 1787, see Robert G. Natelson,

18 Founding-Era Conventions and the Meaning of the 27 3 Ho a d l e y , supra note 1, at 565 (commission of New Constitution’s “Convention for Proposing Amendments,” Hampshire delegate). http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=2044296. That article can also be consulted as an 28 Ca p l a n , supra note 1, at 17. 7 JCC, supra note 1, at additional source for the footnotes immediately following 124-25 (Feb. 15, 1777) (reproducing the congressional this footnote (i.e., those that deal with 18th-century call, together with a like convention in Charlestown, conventions). apparently never held). In 1777, Congress also recommended price conventions in Charleston and 16 Ga. Co n s t . (1777), art. LXIII: Frederickburg, Virginia for the following year. No alteration shall be made in this constitution without petitions from a majority of the 29 To anticipate objections: The founding generation counties . . . at which time the assembly would have seen the first Providence Convention’s shall order a convention to be called for that decision to recommend a day of prayer 1 Ho a d l e y , supra purpose, specifying the alterations to be made, note 1, at 598-99, as well within its charge to consult according to the petitions preferred to the for the common defense. The Boston Convention’s assembly by the majority of the counties as liberality in construing its commission to advise on all aforesaid. affairs “related to the war” was understandable given the broad scope. 3 Ho a d l e y , supra note 1, at 561-64. As 17 The Committee of Detail’s draft at the 1787 convention noted above, the 1787 convention was not a runaway, as looked rather like the Georgia provision. 2 Th e Re c o r d s o f often charged, except perhaps as to a small minority of t h e Fe d e r a l Co n v e n t i o n o f 1787, at 188 (Max Farrand, ed., delegates. 1937). The strongest case for a runaway involves the Annapolis 18 1 JCC, supra note 1, at 18 (commission of Connecticut Convention, convened to consider issues of commerce, delegates). The Second Continental Congress (1775-81) but soon adjourned because of poor attendance. It arguably also was a convention, but because it acted as recommended that a plenipotentiary convention be a regular government for more than six years, I have not held the following year. However, agents may make treated it as such. The Confederation Congress (1781-89) recommendations outside their commissions, although was a regularly-established government. those recommendations have no legal force. Natelson, Founders’ Plan, supra note 1. 19 The charge that the 1787 Philadelphia Convention was a “runaway” is based on misunderstandings of Founding- 30 U.S. Const., art. V. Era law and vocabulary, Natelson, Founders’ Plan, supra note 1, and of the sequence of events: Congress did not 31 Id. initiate the process, and its resolution for a narrow call was only a non-binding “opinion.” Seven states gave 32 Natelson, Founders’ Plan, supra note 1. their delegates very broad authority before Congress acted, and ultimately only two of the twelve participating 33 Id. states followed the narrower congressional formula.

34 U.S. Co n s t . art. V. 20 Id. 35 United States v. Sprague, 282 U.S. 716, 733 (1931); 21 Proceedings of Commissioners to Remedy Defects of Hawke v. Smith (“Hawke I”), 253 U.S. 221 (1920); Dyer the Federal Government (Annapolis, Sep. 11, 1786), v. Blair, 390 F.Supp. 1291, 1308 (N.D. Ill. 1975) (Justice available at http://avalon.law.yale.edu/18th_century/ Stevens) (“the delegation [from Article V] is not to the annapoli.asp. Because only five states were present, the states but rather to the designated ratifying bodies.”). Cf. delegates voted not to proceed with their charge and United States v. Sprague, 282 U.S. 716 (1931) (Article suggested to Congress that it call a convention with a V a grant to Congress qua Congress, not to the U.S. broader charge. government).

22 Ca p l a n , supra note 1, at 23. On this usage, see also id., 36 Leser v. Garnett, 258 U.S. 130, 137 (1922). See also at xx-xxi (explaining usage) & 20 (quoting Hamilton). Opinion of the Justices to the Senate, 373 Mass. 877, 366 N.E.2d 1226 (1977); State ex rel. Donnelly v. Myers, 23 1 Ho a d l e y , supra note 1, at 585-86. 127 Ohio St. 104, 186 N.E. 918 (1933); In Re Opinion of the Justices, 204 N.C. 306, 172 S.E. 474 (1933); Prior v. 24 3 Ho a d l e y , supra note 1, at 575-76. Norland, 68 Colo. 263, 188 P. 727 (1920).

25 Id. at 607 (New Haven) & 2 Ho a d l e y , supra note 1, at 37 Article II of the Articles of Confederation excluded the 572 (Philadelphia). doctrine of incidental (implied) powers by this language:

26 2 Ho a d l e y , supra note 1, at 562. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction,

19 and right, which is not by this Confederation V was not open to construction, and so granted no expressly delegated to the United States, in incidental powers. However, Sprague involved not the Congress assembled. entirety of Article V, but only unambiguous language where no construction or supplementation was necessary. 38 This subject is fully developed in a new Cambridge Id. at 732. University Press book on the Constitution’s Necessary and Proper Clause, Lawson, et al., supra note 1, and the 52 Cf. In Re Opinion of the Justices, 132 Me. 491, discussion here follows that treatment. 167 A. 176 (1933) (relying on custom to determine permissible apportionment of delegates for state ratifying 39 Id., at 82-83. convention).

40 Id. at 61-62. 53 307 U.S. 438 (1939).

41 Id. at 65. 54 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). 42 Id. at 64-66. 55 As the court did in United States v. Chambers, 291 U.S. 43 As Chief Justice Marshall pointed out, the goal for 217 (1934) (taking judicial notice of the ratification of the exercising the incIdental power had to really be to Twenty-First Amendment). further the principal—an incidental power could not be exercised for its own sake on the “pretext” of seeking 56 Walter Dellinger, The Legitimacy of Constitutional an authorized goal. McCulloch v. Maryland, 17 U.S. (4 Change: Rethinking the Amendment Process, 97 Ha r v a r d Wheat.) 316, 423 (1819). Today, Congress frequently L. Re v . 386, 389 (1983). regulates matters, allegedly as incidents of the power to regulate “Commerce . . . among the several States,” that 57 E.g., AFL-CIO v. Eu, 36 Cal. 3d 687, 206 Cal. Rept. it really is regulating for their own sake, not because they 89 (1984) (declining to follow the “political question” are tied to commerce. Robert G. Natelson, Tempering the doctrine from Coleman); Dyer v. Blair, 390 F. Supp. 1291 Commerce Power, 68 Mont. L. Rev. 95 (2007). (N.D. Ill. 1975) (upholding, in a three-judge decision written by the future Justice Stevens, an Illinois legislative 44 Id. at 113-15. decision that a three fifths vote would be necessary to ratify a federal constitutional amendment). Justice 45 U.S. Co n s t . art. I, § 8, cl. 18. Stevens explicitly rejected the “political question” portion of Coleman. See also Kimble v. Swackhamer, 439 U.S. 46 Lawson et al., supra note 1, at 64. 1385 (1978) (Rehnquist, J., sitting as a circuit judge, upheld Nevada’s use of non-binding referenda on pending constitutional amendments); Idaho v. Freeman, 47 Id. at 97-108. 529 F.Supp. 1107 (D. Idaho 1981), judgment vacated as moot, Carmen v. Idaho, 459 U.S. 809 (1982). 48 Chief Justice John Marshall, who wrote McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), the greatest A reason sometimes given is the Supreme Court’s of cases on the Clause, fully agreed with this. Natelson, subsequent decision in Powell v. McCormick, 395 U.S. Tempering, 101-02. 486 (1969), where the Court eschewed the political question doctrine, and issued a decision directly against 49 The famous debate in the First Congress over whether Congress. the President could remove federal officers without senatorial consent was won by those who claimed that 58 Coleman itself was in this category, for investigation the power to remove was either incidental to the power would have required that the Court look behind a state’s to appoint or incidental to the executive power generally. certification of ratification. See also Leser v. Garnett, 258 The debate is found at 1 Annals of Cong. 473-608 (June U.S. 130 (1922) (suggesting that validity of the Fifteenth 16-23, 1789), available at http://international.loc.gov/ Amendment was no longer open to question, but cgi-bin/ampage?collId=llac&fileName=001/llac001. resolving the validity of the Nineteenth); White v. Hart, db&recNum=51. 80 U.S. 646 (1871) (refusing to hear the argument that a provision of the Reconstruction-Era Georgia Constitution 50 United States v. Sprague, 282 U.S. 716 (1931) had not been freely adopted, when the state professed (“the fifth article does not purport to delegate any to adopt that provision voluntarily, and opening the governmental power to the United States . . . On the issue would unsettle several ratified constitutional contrary . . . that article is a grant of authority by the amendments). people to Congress, and not to the United States.”). 59 E.g., Dyer v. Blair, 390 F.Supp. 1291, 1307 (N.D. Ill. 51 At a conference at Cooley Law School on September 1975) (Stevens, J.). 16, 2010, a participant cited United States v. Sprague, 282 U.S. 716 (1931) for the proposition that Article 60 Natelson, Founders’ Plan, supra note 1.

20 61 Opinion of the Justices to the Senate, 373 Mass. 877, expected the states to specify subject matter in their 366 N.E.2d 1226 (1977) (application not subject to applications). gubernatorial veto). 73 E.g., 133 Co n g . Re c . 7299 (Mar. 30, 1987) (reproducing 62 Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798). Utah application specifying precise text of amendment).

63 United States v. Sprague, 282 U.S. 716 (1931) 74 Co n g . Gl o b e , 36th Cong., 680 (Feb. 1, 1861) (“unless (bestowal of power on Congress); Hawke v. Smith the remedies before suggested be speedily adopted, then, (“Hawke I”), 253 U.S. 221 (1920) (bestowal of power on as a last resort, the State of New Jersey hereby makes state legislature). See also Hawke v. Smith (“Hawke II”), application, according to the terms of the Constitution, 253 U.S. 231 (1920). of the Congress of the United States, to call a convention (of the States) to propose amendments”). 64 Hawke v. Smith (“Hawke I”), 253 U.S. 221 (1920), citing Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 75 Supra note 73 (Utah application stating that it becomes (1798). Thus, the term “legislature” in Article V represents void if Congress proposes an identical amendment). a usage similar to that by which the Constitution provided for the election of U.S. Senators by the state 76 139 Co n g . Re c .-Se n a t e 14565 (Jun. 29, 1993) legislatures, U.S. Co n s t ., art. I, §3, cl. 1, and different (Missouri application containing condition precedent from the reference to the lawmaking process of the of congressional non-action, followed by condition “Legislature” in the Times, Places, and Manner Clause, subsequent of congressional action). U.S. Co n s t . art. I, §4, cl.1. Smiley v. Holm, 285 U.S. 355 (1932); Davis v. Hildebrant, 241 U.S. 565 (1916). 77 Ca p l a n , supra note 1, at 107-08, suggests that refusal to aggregate would be improper, and that applications 65 Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975) could be amended to comply with each other. (refusing to apply state constitutional requirement of a supermajority vote). 78 E.g., 1 Th e Re c o r d s o f t h e Fe d e r a l Co n v e n t i o n o f 1787 (Max Farrand ed., 1937), at 7-9 & 14-16 (discussion 66 Leser v. Garnett, 258 U.S. 130 (1922); Hawke v. Smith and agreement to rules of Constitutional Convention); 2 (“Hawke I”), 253 U.S. 221 (1920). See also State ex Ho a d l e y , supra note 1, at 577 (recording the first [1780] rel. Donnelly v. Myers, 127 Ohio St. 104, 186 N.E. 918 Philadelphia convention as adopting its own rule for (1933); In Re Opinion of the Justices, 132 Me. 491, 167 succession of officers); 2 El l i o t ’s De b a t e s , supra note 1, A. 176 (1933); In Re Opinion of the Justices, 204 N.C. at 1 (appointment of rules committee at Massachusetts 306, 172 S.E. 474 (1933); State ex rel. Tate v. Sevier, 333 ratifying convention; 3 Id. at 3 (recording Virginia Mo. 662, 62 S.W.2d 895 (1933), cert. denied, 290 U.S. ratifying convention as adopting rules of state House 679 (1933); Prior v. Norland, 68 Colo. 263, 188 P. 727 of Delegates); Pr o c e e d i n g s o f t h e Co n v e n t i o n s o f t h e (1920). Pr o v i n c e o f Ma r y l a n d 3 (James Lucas & E.K. Deaver, 1836) (reporting that 1774 provincial convention adopted its But see Kimble v. Swackhamer, 439 U.S. 1385, appeal own voting rule). dismissed, 439 U.S. 1041 (1978) (Rehnquist, J.) (permitting non-binding referendum). 79 Ho a r , supra note 1, at 170-84 (discussing the rule- making power of conventions). 67 Dyer, supra. 80 E.g., Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975). 68 Such applications were submitted by New York in 1789, by Georgia in 1832, and by several other states in 81 E.g., In Re Opinion of the Justices, 132 Me. 491, 167 the run-up to the Civil War. Natelson, First Century, supra A. 176, 180 (1933). note 1. 82 Cf. Bonfield, supra note 1, at 959 (arguing that 69 Natelson, Founders’ Plan, supra note 1, at 15-18. applications seeking ratification by state legislatures rather than state convention see an illegitimate end and 70 On custom as defining incidental powers, see the should be disregarded). section on the subject above. 83 As explained below, state legislatures may send 71 Natelson, First Century, supra note 1. instructions to delegates while the convention is in process. 72 E.g., In Re Opinion of the Justices, 204 N.C. 306, 172 S.E. 474, 477 (1933) (state may limit authority 84 Infra. of a ratifying convention). See also Opinion of the Justices to the Senate, 373 Mass. 877, 366 N.E.2d 1226 85 See, E.g., Th e Fe d e r a l i s t No. 10 (Madison). (1977) (holding that a single-subject application is a valid application, and although refusing to hold that it 86 Co n g . Gl o b e , 36th Co n g ., 680 (Feb. 1, 1861) (“unless would restrict the convention, noting that the Founders

21 the remedies before suggested be speedily adopted, then, 98 The state ratifying conventions made extensive as a last resort, the State of New Jersey hereby makes recommendations for amendments to be acted on application, according to the terms of the Constitution, either by Congress or by an Article V convention. See of the Congress of the United States, to call a convention also Kimble v. Swackhamer, 439 U.S. 1385, appeal (of the States) to propose amendments”). dismissed, 439 U.S. 1041 (1978) (Rehnquist, J.) (advisory referendum); AFL-CIO v. Eu, 36 Cal.3d 687, 206 Cal. Rptr. 87 148 So. 107 (Ala. 1933). 89 (1984), stay denied sub nom. Uhler v. AFL-CIO, 468 U.S. 1310 (1984) (advisory resolution). 88 Hawke I, supra. 99 See below. 89 Leser, supra. 100 Ca p l a n , supra note 1, at 108-110. 90 In Re Opinion of the Justices, 132 Me. 491, 167 A. 176, 180 (1933). See also Dyer, supra, 390 F. Supp. 101 Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho 1981), 1291, 1307 (N.D. Ill. 1975) (“Article V identifies the judgment vacated as moot, Carmen v. Idaho, 459 U.S. body—either a legislature or a convention—which must 809 (1982). ratify a proposed amendment. The act of ratification is an expression of consent to the amendment by that body. 102 Dillon v. Gloss, 256 U.S. 368 (1921). By what means that body shall decide to consent or not to consent is a matter for that body to determine for 103 Coleman v. Miller, 307 U.S. 438, 452-53 (1939): itself.”). (Italics added.) But it does not follow that, whenever Congress has not exercised that power, the Court should 91 Kimble v. Swackhamer, 439 U.S. 1385, appeal take upon itself the responsibility of deciding dismissed, 439 U.S. 1041 (1978) (Rehnquist, J.). See also what constitutes a reasonable time and determine AFL-CIO v. Eu, 36 Cal.3d 687, 206 Cal. Rptr. 89 (1984), accordingly the validity of ratifications. stay denied sub nom. Uhler v. AFL-CIO, 468 U.S. 1310 (1984) (advisory resolution). 104 See Paulsen, supra note 1.

92 State ex rel. Harper v. Waltermire, 213 Mont. 425, 691 105 Dillon, 256 U.S. at 376. P.2d 826, 830 (1984). 106 See United States v. Sprague, 282 U.S. 716 (1931) 93 AFL-CIO v. Eu, 36 Cal.3d 687, 206 Cal. Rptr. 89 (1984), (discussing congressional discretion at to mode); stay denied sub nom. Uhler v. AFL-CIO, 468 U.S. 1310 Natelson, Founders’ Plan, supra note 1 (discussing (1984). ministerial nature of call after applications).

94 686 P.2d at 613. 107 Coleman v. Miller, 307 U.S. 438, 453-54 (1939).

95 E.g., Donovan v. Priest, 931 S.W. 2d 119 (Ark. 1996), 108 Cf. Paulsen, supra note 1, at 717 (“the least defensible cert. denied, 117 S.Ct. 181 (1997) (no official report) position would seem to be one of plenary congressional (requiring an assembly that can engage in “intellectual power”). debate, deliberation, or consideration”); League of Women Voters of Maine v. Gwadosky, 966 F.Supp. 52 109 Ca p l a n , supra note 1, at 75-76 (quoting Senator (D. Me. 1997); Barker v. Hazetine, 3 F. Supp. 2d 1088, Robert Kennedy). 1094 (D.S.D. 1998) (“Without doubt, Initiated Measure 1 brings to bear an undue influence on South Dakota’s 110 Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho 1981), congressional candidates, and the deliberative and judgment vacated as moot, Carmen v. Idaho, 459 U.S. independent amendment process envisioned by the 809 (1982) (ruling on the action of Congress purporting Framers when they drafted Article V is lost.”); Gralike v. to extent the ratification period for the “Equal Rights Cooke, 191 F.3d 911, 924-25 (8th Cir. 1999), aff’d on Amendment”). other grounds sub nom. Cook v. Gralike, 531 U.S. 510 (2001) (“Article V envisions legislatures acting as freely 111 U.S. Co n s t . art. I, § 7, cls. 2 & 3. deliberative bodies in the amendment process and resists any attempt by the people of a state to restrict the 112 legislatures’ actions.”); Miller v. Moore, 169 F.3d 1119 Id., art. I, § 3, cl. 6. (8th Cir. 1999). 113 Id., art. II, § 2, cl. 2. 96 See, E.g., Black, supra note 1, at 962-64 (arguing that 114 an application referencing specific language should be Id., art. I, §8, cl. 11. On the King’s power to declare disregarded). war, see Na t e l s o n , Original Constitution , supra note 1, at 124. 97 See Natelson, Founders’ Plan, supra note 1; Natelson, 115 First Century, supra note 1, and discussion above. Natelson, Founders’ Plan, supra note 1.

22 116 Powell v. McCormick, 395 U.S. 486 (1969) (issuing o f t h e Tw e n t y -Fi r s t Am e n d m e n t t o t h e Constitution o f t h e a declaratory judgment retroactively reinstating an Un i t e d St a t e s (1938). improperly evicted member of Congress). 127 Prohibiting states from violating the “privileges or 117 Roberts v. U.S. ex rel. Valentine, 176 U.S. 221, immunities” of U.S. citizens or depriving persons of due 232 (1900). Cf. Powell v. McCormick, 395 U.S. 486, process of law or equal protection of the law. 502 n.16, 517, 550 (1969) (not ruling out such relief against the relevant congressional officer). Rep. 128 Banning denial of the vote due to race. Theodore Sedgwick, an attorney speaking the First Congress, noted the possibility of mandamus against 129 Prohibiting denial of the vote based on sex. Congress or the Senate. 1 An n a l s o f Co n g . 544 (June 18, 1789), available at http://international.loc.gov/ 130 Prohibiting denial of the vote based on age, if over the cgi-bin/ampage?collId=llac&fileName=001/llac001. age of eighteen. db&recNum=51.

131 U.S. Co n s t . amend. XXIV reads as follows: 118 E.g., Cooper v. Aaron, 358 U.S. 1 (1958) (rejecting a The right of citizens of the United States to vote state’s contention that its legislature and governor were in any primary or other election for President or not bound by federal court injunction). Vice President, for electors for President or Vice President, or for Senator or Representative in 119 E.g., Charles L. Black, Jr., The Proposed Amendment of Congress, shall not be denied or abridged by the Article V: A Threatened Disaster, 72 Yale. L.J. 957, 964 United States or any State by reason of failure to (1963). The contrary position on this point was adopted pay any poll tax or other tax. in Gerald Gunther, The Convention Method of Amending the United States Constitution, 14 Ga. L. Re v . 1, 23-24 The Congress shall have power to enforce this (1979), although Professor Gunther, like most academics article by appropriate legislation. who addressed the issue in the 1960s and 1970s, opposed a convention. 132 See also In Re Opinion of the Justices, 132 Me. 491, 167 A. 176 (1933) (holding that state ratifying 120 E.g. 1 Ho a d l e y , supra note 1, at 589 (recording the convention governs questions of qualifications and filling first Providence Convention as electing its own officers); of vacancies). id. at 611 (recording the New Haven Convention as setting its voting rule as “one state, one vote”). 2 El l i o t ’s 133 James Madison to Philip Mazzei, Dec. 10, 1988, in 11 De b a t e s , supra note 1, at 3 (recording the Massachusetts Th e Pa p e r s o f Ja m e s Ma d i s o n 388, 389 (Robert A. Rutland ratifying convention as judging credentials and deciding & Charles F. Hobson eds., 1977). where to meet). 134 For example, the Annapolis Convention adjourned 121 390 F.Supp. 1291, 1307 (N.D. Ill. 1975) (“Article V without making a recommendation related to its charge. identifies the body—either a legislature or a convention— See http://avalon.law.yale.edu/18th_century/annapoli.asp. which must ratify a proposed amendment. The act of ratification is an expression of consent to the amendment 135 See generally Natelson, First Century (reproducing by that body. By what means that body shall decide to various applications, all of which left the convention with consent or not to consent is a matter for that body to considerable drafting discretion). determine for itself.”). Although Justice Stevens was referring to a ratifying body, there is no reason this rule 136 Hoar, supra note 1, at 127-29. should not apply to an amendments convention. 137 Natelson, Founders’ Plan, supra note 1, at 5 & 9. 122 Rhode Island v. Palmer (National Prohibition Cases),

253 U.S. 350 (1920). This case was foreshadowed by a 138 similar holding in State ex rel. Erkenbrecher v. Cox, 257 F. Natelson, Founders’ Plan, supra note 1, at 24 (quoting 334 (D.C. Ohio 1919). the conclusion of a study by President Carter’s assistant attorney general, John Harmon).

123 This has been the apparent justification of proposed 139 congressional legislation. See, e.g., Sam J. Ervin, Jr., United States v. Sprague, 282 U.S. 716 (1931). Proposed Legislation to Implement the Convention 140 Method of Amending the Constitution, 66 Mich. L. Rev. 256 U.S. 368 (1921). 875 (1967-68). See also Kauper, supra note 1, at 906-07. 141 Rees, supra note 1, at 93-94. 124 Natelson, First Century, supra note 1. 142 See, e.g., Charles L. Black, Jr., The Proposed 125 Smith v. Union Bank, 30 U.S. 518, 528 (1831). Amendment of Article V: A Threatened Disaster, 72 Yale. L.J. 957, 960 (1963); Kauper, supra note 1, at 914 (referencing argument of Theodore Sorenson). See 126 See generally Ev e r e t t So m e r v i l l e Br o w n , Ratification

23 Natelson, Founders’ Plan, supra note 1, and infra for duration, and the compensation of delegates. responses to this argument. Moreover, some questions, such as the composition of the convention, the method of selecting the 143 E.g., Black, supra note 1, at 963 (“Generally, a high delegates, and whether each state shall vote degree of adherence to exact form, at least in matters as a unit as opposed to voting by individual of importance, is desirable in this ultimate legitimating delegates, are fundamental questions which process; a constitutional amendment ought to go cannot be resolved by the delegates themselves. A through a process unequivocally binding on all.”); broad supervisory role of Congress inheres in the Bonfield, supra note 1, at 952 (following Black). situation.

There is a delicious irony behind Professor Black’s 152 This problem is discussed in Walter E. Dellinger, 88 position: Black achieved national notice with Yale L.J. 1623, 1636-38 (1979). See also Natelson, First constitutional arguments based on the Fourteenth Century, supra note 1 (describing confusion over the Amendment, an amendment whose ratification was a 1832 South Carolina application). particularly messy affair. 153 See Natelson, First Century, supra note 1. The author is 144 A number of unforeseeable legal obstacles have been not commenting on the advisability of direct election, but imposed on the initiative process at the state level. See, is discussing public perceptions during the direct-election E.g., Marshall v. State ex rel. Cooney, 293 Mont. 274, campaign. 975 P.2d 325 (1999) (overruling pre-existing election laws after the election and imposing the change retroactively 154 Natelson, First Century, supra note 1. to invalidate adoption of a tax-limitation initiative). 155 Thus, confusion among applicants and potential 145 To his irritation, the late Senator Sam Ervin applicants during the Nullification Crisis was succeeded encountered this attitude among some of his colleagues. by more clarity and standardization during the direct- Sam J. Ervin, Jr., Proposed Legislation to Implement the election campaign. Id. Convention Method of Amending the Constitution, 66 Mich. L. Rev. 875, 878 (1967-1968). 156 Natelson, First Century, supra note 1.

146 William F. Swindler, The Current Challenge to 157 34 Co n g . Re c . 2560 (Feb. 18, 1901): Federalism: The Confederating Proposals, 52 Geo. L. J. 1 Be it enacted by the legislature of the State of (1963-1964). Minnesota:

147 Ca p l a n , supra note 1, at 75 (paraphrasing Sen. Joseph SECTION 1. The legislature of the State of Tydings). Minnesota hereby makes application to the Congress, under the provisions of Article V of the 148 Bonfield, , supra note 1, at 961-92. Constitution of the United States, for the calling of a convention to propose an amendment to the 149 Ca p l a n , supra note 1, at 75-76 (paraphrasing Sen. Constitution of the United States making United Robert Kennedy). See also id. at 110-14 (discussing States Senators elective in the several States by this issue). Ca p l a n paraphrases Professor Paul Freund direct vote of the people. of Harvard Law School as arguing that shorter time limits should be imposed on states applying for a SEC. 2. The secretary of state is hereby directed to convention than for ratifying an amendment approved by transmit copies of this application to the Senate, Congress. The opinion illustrates an elite view, but seems House of Representatives of the Congress and indefensible. Id. at 112-13. See also Bonfield, supra copies to the members of the said Senate and note 1, at 963-65 (arguing that applications more than House of Representatives from this State; also to about two-and-a-half years old should be disregarded); transmit copies hereof to the presIding officers Le s t e r Be r n h a r d Or f i e l d , Th e Am e n d i n g o f t h e Am e r i c a n of each of the legislatures now in session in the Constitution 41-42 (1942) (suggesting possible time several States, requesting their cooperation. limits). 158 Rees, supra note 1, at 90 (discussing proposal by Sen. 150 E.g., Charles L. Black, Amending the Constitution: A Orin Hatch). Letter to a Congressman, 82 Yale L.J. 189, 198 (1972). Compare Wi l l i a m Ru s s e l l Pu l l e n , Th e Ap p l i c at i o n Cl a u s e o f 159 Id. t h e Am e n d i n g Provision o f t h e Constitution 55-57 (Chapel Hill, 1951) (quoting the governor of New Jersey, arguing 160 The Seventeenth Amendment ultimately dealt with that a 1832 South Carolina application was too broad). several, but not all, of those issues. U.S. Co n s t ., amend. XVII reads as follows: 151 See, E.g., Kauper, supra note 1, at 907: The Senate of the United States shall be composed Similarly, the power to issue a call for a convention of two Senators from each State, elected by the implies the power to fix its time, place, and people thereof, for six years; and each Senator shall

24 have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointment until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

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ROBERT NATELSON is a Senior Fellow in Constitutional Jurisprudence.

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