A Final Vindication of the Principle of State Sovereignty in Article V
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Article V: Tool or Obstacle Course?
October 7, 2014
Some people look at the text of Article V and declare that it was meant to impose an incredibly difficult and uncoordinated obstacle course in front of any state-originated amendment effort. They contend this intention is simply self-evident from Article V’s requirements of two-thirds of the states to apply for a convention, Congress to call, the convention to propose amendments, Congress to refer out for ratification, and three-fourths of the states to ratify any amendment.
It is Compact for America’s contention that advocates of this view are interpreting Article V anachronistically through modern eyes, rather than seeing what is actually there through the eyes of the Founders.
The truth is that the text of Article V does not actually prohibit the states and Congress from coordinating the various stages in the amendment process (application, call, convention, referral, ratification) so that they facilitate, rather than impede, the amendments desired by a supermajority of the states.
An alternative interpretation of Article V, which is perfectly consistent with its text, is that the staging of the amendment process was intended primarily to serve a coordinating function necessitated by the limitations of 18th Century technology, rather than designed to mandate a series of independently deliberative sequential steps. Consequently, if such coordination can be done without independently deliberative sequential steps, that would be entirely consistent with Article V.
Indeed, that is the premise of the Compact for a Balanced Budget. By using conditional enactments that trigger each stage of the amendment process at the right time, the Compact approach to Article V is able to consolidate everything the states and Congress do in the Article V amendment process into just two overarching pieces of legislation—one interstate agreement, joined by three-fourths of the states, and one congressional resolution, passed once. As a result, in 60% fewer legislative enactments than would otherwise be the case, the Compact approach can deliver the amendments that supermajorities of the states want with relative ease, while still fulfilling the application, call, convention, referral, and ratification requirements of Article V.
What that means in practical terms is that, with Alaska and Georgia already on board, the Compact for a Balanced Budget is only 36 state enactments, one 24 hour convention, and 1 congressional resolution away from delivering a federal Balanced Budget Amendment.
No other Article V effort comes anywhere near as close to delivering on constitutional reform.
But what would the Founders say about the Compact's coordinated and streamlined approach to state-originated constitutional amendments?
First off, the Founders never told the ratifying states that the Article V amendment process would be incredibly difficult. Here’s what they actually said:
James Madison (Federalist No. 43): Article V “guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.”
Alexander Hamilton (Federalist No. 85): There is “no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete Constitution.”
Secondly, the notion that the staging of the amendment process in Article V was meant to mandate a redundantly and uncoordinated deliberative process was never articulated by the Founders. Here’s what they actually said:
Alexander Hamilton (Federalist No. 85): “Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.”
Tench Coxe (Pro-Ratification Pamphlet): “Three fourths of the states concurring will ensure any amendments, after the adoption of nine or more.”
George Nicholas (Virginia Ratification Convention): “[i]t is natural to conclude that those States who will apply for calling the Convention, will concur in the ratification of the proposed amendments.”
These representations demonstrate that the Founders conceived of the state-originated amendment process as designed to secure with relative ease those amendments upon which supermajorities of the states agreed.
That is precisely what the Compact for a Balanced Budget does.
Far from deviating from the original meaning or intent of Article V, the Compact for a Balanced Budget finally fulfills the Founders’ promise.