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Clearly Constitutional: the Article V Compact a Vindication of the Principle of State Sovereignty Against Natelson’S Attack by Judge Harold R

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Clearly Constitutional: the Article V Compact a Vindication of the Principle of State Sovereignty Against Natelson’S Attack by Judge Harold R Policy Brief August 22, 2016 - No. 11 Clearly Constitutional: The Article V Compact A Vindication of the Principle of State Sovereignty Against Natelson’s Attack By Judge Harold R. DeMoss, Jr. (ret.); Nick Dranias, JD; Dr. John Eastman, JD, PhD; Dr. Kevin Gutzman, JD, PhD; Ilya Shapiro, JD; and Hon. Gregory Snowden, JD “[Article V] equally enables the general and the cy, the John Locke Foundation, the Georgia Public State governments to originate the amendment Policy Foundation, the Alaska Policy Forum, the of errors, as they may be pointed out by the experi- Mackinac Center for Public Policy, and many others. ence on one side, or on the other.” Additionally, Judge Andrew Napolitano, Grover - Federalist No. 43 (James Madison) Norquist, George Will, Professor Lawrence Lessig, Stephen Moore, and many other luminaries from Introduction across the ideological spectrum have endorsed or vouched for the constitutionality of the effort. Compact for America Educational Foundation is proud of educating the American public about the With the support of our policy allies, this initiative power and promise of using an agreement among has resulted in four states joining the Balanced the states—an interstate “compact”—to advance and Budget Compact. Seven chambers in seven more ratify constitutional amendments under Article V of states have passed the Compact as well. The consti- the U.S. Constitution. But we are far from alone in tutionality of the Compact approach was vetted and this educational mission. sustained by rules committees and their attorneys in at least one chamber of 11 state legislatures. We More than 20 esteemed policy organizations have have successfully organized the first functioning in- vetted or lent educational support to the Balanced terstate agency to oversee the Article V amendment Budget Compact effort by furnishing letters of en- process—the Compact Commission of the Compact dorsement, supportive testimony, and venues for for a Balanced Budget—consisting of gubernatorial lectures, debates, and publications. These organiza- appointees from the states of Alaska, Georgia and tions have included such leading institutions as the Mississippi. And on May 25, 2016, the Compact Cato Institute, the Federalist Society, the Goldwater Commission held its historic first full meeting in the Institute, the Heartland Institute, Texas Public Policy Rayburn House Office Building at the invitation of Foundation, the Mississippi Center for Public Poli- members of Congress. ABOUT THE AUTHORS But not everyone is celebrating such progress. In the spring of 2016 and in a “corrected” version in early The extensive credentials of each author are summer 2016, retired law professor Robert Natelson detailed in the body of this policy brief. published a report posing the question, “Is the Com- pact for America Plan to Amend the Constitution Constitutional?” In those reports, Natelson rather corners of our respective publications. aggressively declares the answer to his question is “unfortunately not.”1 During the Spring of 2014, all known major objec- tions to the constitutionality of the Compact ap- Significantly, Natelson published his critique of the proach were addressed in a detailed analysis jointly Compact approach to Article V more than 3 years published with the Goldwater Institute: Using a after it was vetted and approved as a model policy Compact for Article V Amendments: Experts Answer by the American Legislative Exchange Council—de- FAQs (Goldwater Institute/Compact for America spite the fact he served as an advisor to ALEC during Jan. 24, 2014, rev. ed. March 24, 2014).2 The report the same period of time. Natelson’s unexplained was joined by then-Fifth Circuit Court of Appeals lengthy delay in publishing his critique is curious to Senior Judge Harold DeMoss (in a personal capaci- say the least. It is made more curious by virtue of the ty), Cato Institute constitutional scholar Ilya Shapiro, fact that neither “I am now even more confident in the ability Western Connecti- the Constitution cut State University nor a single case of the states to use the Compact approach to History Department on which he re- making the Article V process safe and certain Chairman Dr. Kevin lies even remotely so that necessary structural constitutional Gutzman, and supports his posi- reforms can be achieved on a timely basis.” then-Goldwater tion. As discussed Institute Constitution- below, both the al Policy Director plain text of Article Judge Harold R. DeMoss, Jr. (ret.) Nick Dranias. In V and all relevant U.S. Court of Appeals, Fifth Circuit July 2014, Dranias case law sustain the further described conclusion that the Compact approach to Article the constitutionality of the Compact approach in V is clearly constitutional. Natelson’s claims to the his peer-reviewed “Article V 2.0” report published contrary are utterly without merit; even worse, they by the Heartland Institute3 and the Federalist Soci- threaten the whole idea of a “convention of states” ety (in an abridged version).4 Since the summer of by repudiating the principle of state sovereignty in 2015, eight peer-reviewed policy briefs have also the state-initiated amendment process. addressed all aspects of the constitutionality of the Compact approach.5 Dozens of blogposts and Unsurpassed Expertise Backs the online articles publicly addressing every conceiv- Constitutionality of the Compact Approach able legal issue are available online.6 These include our Article V Legislative Guidebook, which was Natelson begins his original and revised reports joined by Chapman University Law Professor and with a recitation of his credentials. We assume that former Dean Dr. John Eastman, Dr. Gutzman, Judge this was not meant to intimidate the reader with an DeMoss, Ilya Shapiro, and Nick Dranias.7 This implied argument from authority. Nevertheless, to policy brief is joined by the same team of experts, neutralize any such unintended effect, it is important in addition to Compact Commissioner and Missis- to include an overview of the vetting process behind sippi Speaker Pro Tempore Gregory Snowden. Our the Compact approach and the credentials of those credentials are detailed below. joining in this policy brief. Our intention is to give readers comfort in applying their own judgment, not Judge Harold R. DeMoss, Jr. is a recently retired to induce genuflection. We hope each reader will senior federal appellate judge and sat on the US feel completely comfortable assessing the merits of Fifth Circuit Court of Appeals. He was appointed to our refutation of Natelson’s opinions based on the the court in 1991 by President George H. W. Bush, strength of the arguments presented within the four and took senior status in 2007. Judge DeMoss grad- 2 COMPACT FOR AMERICA EDUCATIONAL FOUNDATION uated from Rice University in 1952 and the Univer- Nick Dranias currently serves as the President and sity of Texas Law School in 1955. After serving in Executive Director in the Office of the President of the United States Army from 1955 to 1957, Judge the Foundation. Nick also serves as Policy Advisor DeMoss joined the Houston law firm of Bracewell and Research Fellow with the Heartland Institute and Reynolds & Patterson (now known as Bracewell), an expert with the Federalist Society, as well as an where he became a partner and remained until Advisory Council member for Our America Initiative. his appointment to the federal bench. In 1988, he Over a legal career spanning nearly two decades, took a six-month sabbatical from the firm to work Dranias has litigated well over one hundred cases. as a senior advisor to President Bush (41) during Dranias has appeared as a constitutional expert his successful campaign for President. Judge DeM- on Fox News, MSN-NBC, NPR, and many other oss is known as a strict constructionist and believes local and regional media outlets. He has written and the words of the U.S. Constitution mean what they published over fifty articles in law and public policy, say and should not be “interpreted”. Over the past including law review articles, public policy reports, several years, “Nothing in the text, drafting history, or the- and opinion edi- Judge DeMoss has ory underlying the option for state-proposed torials. Previously, become frustrated Dranias served as with the state of af- constitutional amendments suggests that the General Counsel, fairs in our country, Compact approach to Article V is anything but Policy Develop- and believes that perfectly constitutional. I regret to say that ment Director and the uncontrolled Professor Natelson’s own opinion to the con- Constitutional expansion of the trary is based on a misreading of relatively Policy Director at federal govern- the Goldwater ment, accom- sparse case law that is not even directly on Institute, where panied by the point. But the fact of the matter is that every he commissioned approval of the aspect of the constitutional amendments pro- and edited Robert Supreme Court, cess mandated by the Constitution is given full Natelson’s original made it next to three part series impossible for him effect by the Compact, and there is no court on the Article V to apply his con- decision holding that anything in the Consti- amendment pro- stitutional philos- tution prohibits the States from exercising its cess. Dranias led ophy in many of express powers in this fashion.” the Goldwater his cases. He is Institute’s success- also concerned ful challenge to with the unwilling- John C. Eastman, JD, PhD Arizona’s system of ness of Congress Henry Salvatori
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