Bringing Disagreement "Out of the Closet" is Good for the Article V Movement
Retired Law Professor Rob Natelson and the Independence Institute have finally published Rob's longstanding opinion that the Compact for America approach to Article V is "probably" unconstitutional.
I had heard rumors of this report (or one like it) circulating in private for some time now. We have had some direct evidence that Rob has been expressing these opinions in private discussions while publicly claiming to be neutral on the issue. For example, in mid-January 2016, we came into possession of emails sent by Rob to a private Article V yahoo group expressing essentially the same opinions.
But now Rob is fully "out of the closet" with his longstanding opposition to the merits of the Compact for America approach to Article V.
And we think that's good!
It is much more healthy for the Article V movement that our differences be aired and debated publicly. The issues involved in the movement are of the highest importance and magnitude. No one with serious doubts, however mistaken, about any part of the movement should feel forced to hide in the shadows, privately expressing those doubts, while publicly and disingenuously claiming neutrality.
For this reason, we welcome Rob's recent public candor.
But that does not mean we agree with Rob's conclusions.
Far from it.
Unfortunately, the report Rob and the Independence Institute have published does not appear to grapple with any of the research we’ve published since January 2016. This is not terribly surprising because, based on its website address (https://www.i2i.org/wp-content/uploads/2015/01/CFA-Report-final.pdf) the report was apparently uploaded to a slot designated for the year 2015, possibly in . . . 2015.
However outdated it may be, here are the basic problems with Rob's report:
First, Rob does not grapple with the mechanics of the Compact or the law of interstate compacts.
Second, Rob misunderstands the legal theory(ies) that sustain the Compact. The Compact is actually capable of working with just about any legal theory of Article V, even Rob's preferred theory, although we prefer the theory that the Founders’ intended and repeatedly articulated.
Third, Rob asserts that there is a body of binding case law governing the Compact approach to Article V, when in fact there is not. There is very little, if any, directly relevant persuasive precedent, much less binding precedent on the matter. That's why we prefer to resort to first principles.
Soon, our Council of Scholars will engage in a point-by-point rebuttal of every adverse argument made by Rob in his report.
In the meantime, we suggest reading the following policy briefs as a preview of what's to come:
Rooted in the Tenth Amendment: The Article V Convention: A shorter policy brief that examines the relationship between the reserved powers of state sovereignty and Article V's "convention of states."
A Guidebook for Deploying Article V as the Founders Actually Intended: The Application & Convention Mode of Proposing Amendments: This policy brief reveals that the meaning of Article V is straightforward and clear: states petition for one or more amendments to be proposed by convention; Congress must call the convention in accordance with the states' petition; and the convention's authority is limited to the requests made in the petition.
FAQ Series: Doesn't the Article V Convention Draft the Amendment? This policy brief furnishes the best evidence as to why the Founders meant for the states to use their Article V application to specify any desired amendment to be proposed by convention.
Let the better argument win!