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Saving Article V from Natelson: The First in a Series

Over a month ago, retired law professor Rob Natelson came out of the closet and published a report attacking the constitutionality of the Compact for America approach to Article V. In fact, for quite some time, Mr. Natelson had been privately sniping at the constitutionality of the Compact approach and undermining its acceptance among policy makers, academics, analysts, activists and donors. The sniping occurred despite the adoption of the Compact for America approach to Article V by the American Legislative Exchange Council as a model policy in 2012.

When we became aware of Natelson’s covert critiques, the Compact for America team immediately began a sustained effort to prompt Mr. Natelson to grapple with the latest Article V research and to engage in a public debate over the issues. These efforts were repeatedly rebuffed in private; and the sniping continued despite the constitutionality of the Compact for America approach having been assessed and affirmed in 2014 by retired Fifth Circuit Court of Appeals Judge Harold DeMoss II, Western Connecticut State University History Chairman Dr. Kevin Gutzman, JD, PhD, and Cato Institute constitutional scholar Ilya Shapiro, JD, among others.

But now the public debate has finally begun in earnest. We welcome it.

This blog series reveals that the incoherence of Natelson’s theory of Article V has led to his baseless attack on the constitutionality of the Compact for America approach to Article V. As will be discussed extensively in this series, Mr. Natelson’s opinions are not a straightforward interpretation of Article V based on its original meaning and public understanding. Rather, they largely reflect a non-litigator’s misunderstanding and misapplication of various court cases.

Natelson is Not Entirely Wrong about Article V

This does not mean that Mr. Natelson is entirely wrong about Article V from an originalist perspective. Far from it. Mr. Natelson has long and courageously advocated the correct general gist of Article V based on extensive historical investigations of interstate convention customs and practices. For example, Mr. Natelson remains steadfast that Congress was not meant to have a substantive role in the process, and that an Article V proposing convention was meant to be a “convention of the states” with limited authority to propose amendments, not to form a new constitution. He also holds fast to the principle that state legislatures have the right to control their convention delegates to bind them to a limited convention agenda, although he now prefers the term “commissioners.”

It is important to underscore that Mr. Natelson boldly asserted these conclusions when they were not fashionable, in a three-part series of Goldwater Institute policy reports commissioned and edited by the author of this blog. These conclusions, shared in their essence by most elements of the burgeoning Article V movement, are essential to maintaining the movement’s unity and momentum. Mr. Natelson should be honored for arriving at a destination towards which few dared to venture.

Although our disagreements have grown over the years, the author of this blog is proud to have had a small role in bringing Natelson’s early work to light. Even Natelson’s latest report attacking the Compact for America approach is not wholly without merit. It evidences that his opinions have also commendably evolved from claiming that only amendment “topics” or “subject matters” can be specified in an Article V application, to now accepting the proposition that Article V applications may constitutionally specify the desired amendment or amendments to be proposed by convention—which the latest research in the field clearly establishes.

Nevertheless, it is now inescapably apparent that Mr. Natelson’s underlying legal theory of Article V is logically inconsistent with his conclusions and, more importantly, with the original meaning of the Constitution itself. As a result, Mr. Natelson’s mostly laudable conclusions about Article V in general are suspended like a city in the clouds. However, unlike Lando Calrissian’s Tibanna gas mining colony, the mid-air suspension of Natelson’s Article V conclusions is not sustainable. Rather, like Wile E. Coyote, it will soon fall of its own weight. And, if the fallout is not carefully contained, the flaws in Natelson’s Article V theory will cause significant collateral damage to the wider Article V movement, not just Compact for America.

A Brief Look at the Compact for America Approach to Article V

Before turning to our rebuttal of Mr. Natelson, a brief look at Article V and the Compact for America approach is necessary. In addition to the direct Congressional proposal of amendments, Article V of the Constitution authorizes the proposal of amendments by application of two-thirds of the state legislatures through a convention for proposing amendments. Amendments proposed by either method require ratification by three-fourths of the states, either through their legislatures or in-state conventions, as selected by Congress. Stated succinctly, the Compact for America approach to Article V involves using a legally binding agreement among the states to commit the number of states needed to ratify an amendment to the entire amendment proposal and ratification process in advance. It is passed as a single bill that includes the necessary Article V application, a specification of the amendment to be proposed, all convention logistics (including the appointment of delegates and the specification of rules), and a prospective ratification of the specified amendment if it is proposed by the convention. The amendment process specified in the Compact is activated when (1) the agreement is joined by at least three-fourths of the states and (2) Congress passes a resolution both calling the necessary Article V proposing convention in accordance with the Compact and pre-selecting legislative ratification for the compact-specified amendment, if it is proposed.

The goal of the Compact for America approach is (1) to make the amendment process more user-friendly by consolidating the amendment process into just two overarching pieces of legislation, (2) to ensure that everyone knows up-front what to expect from the otherwise untested Article V application and convention mode of proposing amendments, and (3) to sidestep lingering disputes as to whether important elements of the process are controlled by Congress under Article I of the Constitution by encouraging Congress to yield to the states’ agreement on the process and precommit to an appropriately de minimus role.

The Essence of Natelson's Incoherent Theory of Article V

Natelson contends, however, that the states lack the sovereign power to reach a binding legal agreement over the deployment of the Article V amendment process in this way. Boiled down to its essence, Natelson’s legal theory of the Article V application and convention mode of proposing amendments asserts that state legislatures initiate and direct the process not as branches of state governments, but rather as “independent federal assemblies.” Natelson contends that a state legislature somehow exercises Article V power to the exclusion of any sovereign power enjoyed by the states under the Tenth Amendment. And yet, to maintain state legislative control over the resulting amendment process, Natelson claims that Article V is somehow still governed by pre-constitutional interstate convention customs and practices, which themselves arose as a function of the exercise of state sovereign powers.

The logical incoherence of Natelson’s Article V theory is manifest. If states totally lack sovereign power in connection with the Article V amendment process, as Natelson contends, then there is absolutely no reason why pre-constitutional customs and practices, which derive from the exercise of state sovereign power, would govern the Article V amendment process with the force of constitutional law.

Natelson cannot sidestep the logical incoherence of his legal theory of Article V by claiming that historical interstate convention custom and practice somehow directly defines the Article V power of state legislatures independently from the sovereign power of the states. This articulation is alien to everything the Founders said about the process, as demonstrated in Compact for America Policy Brief Nos. 4, 7 and 9. George Washington and James Madison, for example, respectively referred to “states” and “state governments” controlling the Article V application and convention mode of proposing amendments. Moreover, the Supreme Court has already rejected the argument that the pre-constitutional custom of state legislatures exercising control over convention delegates in and of itself proved a legally binding power to do so as a matter of constitutional law.

Specifically, in Cook v. Gralike, 531 U.S. 510, 520-21 (2001), the Supreme Court observed that historical evidence of the role that state legislature-issued “instructions played in the Second Continental Congress” and “the Constitutional Convention” fell “short of demonstrating that the people or the States had a right to give legally binding, i.e. nonadvisory instructions to their representatives.” This observation was in one in the series of cases dealing with congressional term limits efforts that Natelson cites as supposedly precluding the Compact for America approach to Article V. Ironically, such case law actually condemns Natelson’s notion that pre-constitutional historical custom and practice, shorn free of any linkage to constitutionally-protected sovereign rights or power, gives rise to constitutional law.

Contrary to Natelson’s theory of Article V, history is not law. Of course, this does not mean history is irrelevant to law. It simply underscores that historical custom and practice must be linked to constitutionally-protected sovereign rights or power to have the status of constitutional law. In other words, the Tenth Amendment must have a role in the interpretation of Article V in order for historical interstate convention custom and practice to attain the status of constitutional law. And yet, in his attack on the Compact for America approach, Natelson illogically disavows any role for sovereign power in the Article V application and convention process. In so doing, Natelson has cut himself off at the knees from logically reaching his desired conclusions about Article V based on pre-constitutional historical interstate convention custom and practice.

No doubt Natelson believed himself forced into such radical surgery because of his diagnosis that “settled” Article V case law rejects a role for state sovereignty in the amendment process. But Natelson is not and never has been an experienced litigator. Neither is he a judge. A jurist or experienced litigator would never make the claim that the law governing Article V is settled. Moreover, of all legal issues that might be deemed “settled,” no reasonable person would assert, as if returning from Mount Sinai, that the legal issues surrounding the application and convention mode of proposing amendments under Article V are settled.

Nothing's "Settled Law" When Amending by Application and Convention

The truth of the matter is that no federal constitutional issue is close to settled until the Supreme Court rules on it. Even then, every Supreme Court ruling is subject to reconsideration under the constraints of stare decisis. And, in any event, the Supreme Court has never reached a binding ruling on the Article V application and convention mode of proposing amendments. Not one.

However it may play in some circles, Mr. Natelson’s claim that the issues surrounding the Article V application and convention mode of proposing amendments are “settled” would not survive a straight-face test in any court. Neither would Natelson’s assessment of Article V case law as standing against the constitutionality of the Compact for America approach to Article V, as the next blog will demonstrate.

Stay tuned.

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