The first article in the Saving Article V from Natelson series highlighted the fundamental incoherence of Mr. Natelson’s theory of Article V. Specifically, we observed that it is patently illogical for Mr. Natelson to claim, on the one hand, that state legislatures exercise Article V power to the exclusion of any sovereign power enjoyed by the states under the Tenth Amendment, while claiming, on the other hand, that pre-constitutional interstate convention practices and customs (which themselves originate from the exercise of state sovereignty) govern the Article V amendment process. We are not the only observers to recognize the self-refuting nature of Natelson’s theory of Article V.
In this second article, we observe that none of the cases cited by Mr. Natelson actually support his claim that the Compact approach to Article V is unconstitutional. Mr. Natelson’s case law menagerie is either totally irrelevant or otherwise actually supportive of the Compact approach. The Compact’s mechanics do not usurp, limit or obstruct any provision of Article V. They only ensure the application and call agenda is strictly observed, and the convention is organized and conducted exactly as it was meant to be organized and conducted under the plain text of Article V with no wiggle room at all.
The central dispute between Compact for America and Mr. Natelson is whether Article V confers power on its various named bodies (state legislatures, Congress, conventions) to the total exclusion of all autonomous sovereign power retained by the states as guaranteed by the Tenth Amendment. Compact for America contends that states retain sovereign power to fill the gaps of Article V and ensure state control over the convention agenda through a legally binding agreement furnishing all particulars of the amendment by application and convention process. In attacking this "Compact approach" to Article V, Mr. Natelson declares that historical custom and practice alone serves as the basis of ensuring state control over the state-initiated amendment process. This is despite the fact that the Supreme Court recently declared that historical convention practices alone do not establish constitutional law. Cook v. Gralike, 531 U.S. 510, 520-21 (2001).
Despite the lack of clear case law support for his “history as law” theory of Article V, Mr. Natelson impressively cites to 41 cases as support for his conclusion that the Compact approach is “clearly” unconstitutional for presuming to exercise sovereign power in connection with the amendment process. These cases generally fall in three categories: 1) cases that supposedly reject state sovereign power to control or supplement the Article V process; 2) cases that reject state-based efforts to limit or obstruct the otherwise proper ratification of amendments; and 3) cases that reject state-based efforts to compel the initiation of the amendment process.
There is only one major problem. Not a single one of the cases cited by Mr. Natelson actually supports his ultimate conclusion. In fact, a number of Mr. Natelson’s cases actually support the Compact approach to Article V.
Mr. Natelson’s Fictional Legal Analysis
A fairly typical example of Mr. Natelson’s fictional legal analysis in the first category of cases can be found in his reference to Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975). Mr. Natelson claims the following holdings were rendered in the case.
“State law (including legislation such as that promoted by CFA) cannot control the ratification or proposal process”
“Standing legislative rules attempting to govern how a state ratifies do not control.”
Neither of Mr. Natelson’s claims about Dyer are true.
The only issue reached in Dyer was whether the Illinois legislature had the power to adopt and enforce a three-fifths vote requirement for ratifying a constitutional amendment by a rule adopted pursuant to a state constitutional provision. The three judge panel led by future Justice John Paul Stevens ruled that the Illinois legislature, indeed, had such power. To repeat, contrary to Mr. Natelson's representations, the court ruled that the Illinois legislature had the power to require a three-fifths vote to ratify an amendment.
In reaching this ruling, the Dyer court first articulated a thoughtful and straightforward statement of the issue at bar, observing:
[I]f the federal Constitution specifies that ratification shall be accomplished in a particular way, or by a particular vote of a state legislature or a state convention, no state may superimpose a more stringent requirement on that federal specification. The difficulty presented by the cases before us, however, results from the fact that neither the Constitution itself, nor the record of the deliberations of the constitutional convention which drafted it, contains any unambiguous description or definition of what the state legislature must do in order to perform its federal ratifying function.
Id. at 1304. In analyzing this issue, the Court favorably adopted the following scholarly opinion:
Although the state may not provide any other method of ratification or impose limitations upon the power to ratify, it does seem to be clearly within the power of the state through its constitution or otherwise to determine what shall be the organization of the state's representative legislative body, and what shall be the quorum for action by that body. It, of course, also rests within the power of the state itself as to when regular or special sessions of the state's representative body shall meet, and as to how that representative body shall be organized.
Id. at 1305. Given that “the Constitution is totally silent with respect to the procedure which each state convention or each state legislature, as the case may be, should follow in performing its ratifying function,” the Court ruled that the Illinois legislature had the power to require a supermajority vote to ratify a constitutional amendment. In so ruling, the Court expressly embraced a first principle of federalism:
This conclusion is consistent with — though by no means compelled by — the underlying philosophy of the framers with regard to the respective roles of the central government and the several state governments. Madison expressed the thought in urging ratification of the Constitution in The Federalist No. 45: The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.
Id. at 1307.
The Court in Dyer recognized that although the ratifying power was not itself a reserved power, legislatures could rely on their traditional rulemaking powers as legislative bodies in exercising such power where the Constitution was silent. The Court specifically held:
the failure to prescribe any particular ratification procedure, or required vote to effectuate a ratification, is certainly consistent with the basic understanding that state legislatures should have the power and the discretion to determine for themselves how they should discharge the responsibilities committed to them by the federal government.
Dyer v. Blair is illustrative of the fact that Mr. Natelson’s first category of cases actually affirm the existence of autonomous sovereign state power over the machinery of the amendment process where Article V and Congress is otherwise silent—even with respect to the ratification power (which is not itself a reserved power). For example, Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981), held that state legislatures possessed the implied autonomous sovereign power to rescind their earlier ratification of a constitutional amendment before the amendment was fully ratified by three-fourths of the states. Freeman did not, as Mr. Natelson claims, rule that “standing legislative rules attempting to govern how a state ratifies do not control.” Likewise, United States v. Thibault, 47 F.2d 169 (2nd Cir. 1931), did not hold the Tenth Amendment totally “irrelevant” to Article V, as Mr. Natelson claims. Rather, the court rejected the rather bizarre legal theory that the Tenth Amendment “altered” Article V by precluding legislative ratification of a constitutional amendment. The court otherwise affirmed implied state control over the mechanics of the ratification process, ruling “the national government is not concerned in the control or the method whereby the elections of members of the legislature or members of the constitutional convention may be conducted.” Id. at 170-71.
Still more examples of cases affirming autonomous state sovereign power over Article V mechanics are tucked away in various footnotes to Natelson’s attack on the Compact approach. For example, in Opinion of the Justices, 148 So. 107 (Ala. 1933), the Alabama Supreme Court ruled that the state had the sovereign power to enact a state law requiring delegates to a ratifying convention to pledge to vote in accordance with the will of the people as revealed by a referendum on the ratification question. The Court reasoned that the pledging process facilitated the purpose of the convention mode of ratification by ensuring the will of the people was followed at the convention. Another example is Donnelly v. Myers, 127 Oh. 104, 105-06 (Ohio 1933), in which the Ohio Supreme Court specifically ruled, like the Alabama Supreme Court, that the state legislature was authorized to pass legislation “setting up the machinery by which a convention may be assembled.” These cases collectively affirm the proposition that states have autonomous sovereign power to fill-in the gaps of Article V to ensure that the amendment process is implemented and proceeds in an orderly fashion—even with respect to the ratification power which is a power entirely conferred by the Constitution.
While it is true that these cases hesitate to label the exercise of state-based legislative control and gap-filling an exercise of “reserved power,” the invocation of Tenth Amendment principles is obvious (why else would Dyer v. Blair reference Federalist 45?). The Tenth Amendment, after all, is about more than reserved powers. It also guarantees the continued existence of states as autonomous sovereigns. For this reason, it does not matter whether the power exercised in the Compact approach is labeled as “reserved” to state legislatures by virtue of the residual governing sovereignty of the states (as articulated in Federalist No. 45) or whether such autonomous power is regarded as “impliedly” conferred on state legislatures by the nature of our federalist system. Both concepts invoke the principle of state sovereignty guaranteed by the Tenth Amendment and the net effect is the same: whether regarded as invoking “implied” or “reserved” power, the case law relied upon by Mr. Natelson directly supports the Compact approach to Article V.
In the final analysis, the Compact approach simply furnishes all of the mechanics needed to implement the state-initiated amendment process. Because the Constitution is otherwise silent in this space, the Compact legislation is no different in principle than legislation furnishing the mechanics of an Article V ratifying convention, directing electors to vote a certain way at the Electoral College (Ray v. Blair, 343 U.S. 214 (1952)), or specifying election laws and agencies (Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 135 S. Ct. 2652 (2015)). However one labels the power being exercised, the Compact approach to Article V is fully constitutional because autonomous state sovereign power over the mechanics of the amendment process exists where Article V’s text is silent.
Mr. Natelson’s Irrelevant Legal Analysis
Apart from the category of cases that support the Compact approach to Article V, Mr. Natelson’s supposedly adverse case law menagerie consists primarily of two other categories, both of which are totally irrelevant. The first of these categories includes cases that reject efforts to limit or obstruct the otherwise proper ratification of amendments. These cases typically involve efforts to use popular referenda or state constitutional provisions to prevent or overturn the state ratification of amendments by the state legislatures or state conventions. The second category encompasses cases that reject efforts to usurp Article V authority by compelling or coercing the initiation of the amendment process. These cases typically involve popular initiatives to establish laws or constitutional amendments that compel or coerce the state legislative passage of an application for a convention or the congressional proposal of an amendment.
On their face, neither of these remaining categories of cases have the least relevancy to the Compact approach. Unlike the state referenda and constitutional provisions rejected in the first category, the Compact approach affirmatively protects Congress’s power to select the mode of ratification by including a specific provision that its embedded legislative ratification “does not take effect until Congress effectively refers the Balanced Budget Amendment to the States for ratification by three-fourths of the Legislatures of the several States under Article V of the Constitution of the United States.” Further, unlike the popular initiatives rejected in the second category, the Compact’s amendment process is appropriately initiated by the body authorized to do so by Article V. This is because the Compact must be enacted by a state legislature and, therefore, the Compact’s embedded application is necessarily made by a state legislature.
Nevertheless, Mr. Natelson perceives in these two categories of cases a “settled” legal landscape that somehow precludes the Compact approach. But the vast majority of supposedly adverse cases cited by Mr. Natelson are not binding outside of their particular state or federal circuit (having been issued by a state supreme court or federal court of appeals), not binding because they represent the opinions of a federal district court, not binding because they are merely non-binding, non-precedential advisory opinions issued by state supreme courts, or not binding because the perceived ruling is actually dicta because it was not necessary to outcome of the case. Such cases cannot possibly constitute governing, much less “settled” law. Neither are they persuasive support for Natelson’s ultimate assertion that the Compact approach is “clearly” unconstitutional.
Mr. Natelson dramatically claims that the universal binding rationale upheld by every single case in the field of Article V law declares the Tenth Amendment “irrelevant” to Article V or that states have no reserved power to “alter or conflate the procedures of Article V.” But not one of the cases cited by Mr. Natelson actually says this. In fact, the common rationale of the cases cited by Mr. Natelson is simply that there is no reserved state or popular power under the Tenth Amendment to usurp, limit or obstruct the authority recognized by the plain text of Article V. Hence, because Article V plainly gives Congress the power to determine the mode of ratification, courts have deemed unconstitutional state constitutional provisions requiring only the convention mode of ratifying amendments. Hence, because Article V only articulates a role for legislatures and conventions in the ratification process, courts have deemed unconstitutional state referenda that involve the people directly exercising sovereign power to overturn the legislative ratification of an amendment. Hence, because Article V only articulates a role for legislatures and Congress in initiating the amendment process, courts have ruled the people directly exercising sovereign power via popular initiative cannot compel or coerce the initiation of the amendment process.
The rationale underlying these holdings represents nothing more than an application of lessons from “Supremacy Clause 101:” that the states and the people must yield to the plain text of the Constitution. It does not threaten the Compact approach in the least because the Compact approach neither disregards, limits nor obstructs the plain text of Article V.
The Compact Approach Fills the Gaps of Article V in Accordance with its Text
The “assemblies” authorized by the plain text of Article V to initiate and consummate the amendment process are the same “assemblies” exercising such power in the Compact approach to Article V. The Compact approach does not yield an amendment to the U.S. Constitution until an application for a proposing convention is passed by at least two-thirds of the legislatures of the several states, Congress calls the proposing convention, the convention proposes the amendment, Congress refers the amendment to state legislatures for ratification, and at least three-fourths of the legislatures ratify the amendment. It just so happens that the Compact approach consolidates into a single, legally binding interstate agreement all of the amendment mechanics that state legislatures control and also seeks to consolidate into a single resolution all of the amendment mechanics that Congress controls.
Yes, the Compact approach will result in the same legislature that initiates the amendment process also ratifying the contemplated amendment (if it is effectively referred by Congress for legislative ratification); and the same Congress that calls the proposing convention is also committing, in advance, to a specific mode of ratification. But such consolidation does not contradict the text of Article V because the Compact uses conditional enactments to ensure all constitutional thresholds are met before any of its terms are legally effective. The mechanism of using conditional enactments to achieve such consolidation is consistent with the overwhelming rule in existing case law sustaining the use of conditional enactments in nearly every conceivable legislative or quasi-legislative context. SeeUsing a Compact for Article V Amendments: Experts Answer FAQs, Answer to FAQ #1 (Goldwater Institute/Compact for America Educational Foundation Jan. 24, 2014, rev. ed. March 24, 2014). Furthermore, such consolidation is consistent with the spirit of Article V as articulated by Founders, such as George Nicholas who contemplated the states agreeing on the amendment process from beginning to end. See Id., Answer to FAQ #3. And it is consistent with the Supreme Court’s observation that the goal of amendment process is to reflect the contemporaneous will of the people. As observed by the Supreme Court in Dillon v. Gloss, 265 U.S. 368 (1921), which sustained a sunset placed by Congress on ratification referral of a proposed amendment:
We do not find anything in the Article which suggests that an amendment once proposed is to be open to ratification for all time, or that ratification in some of the States may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary. First, proposal and ratification are not treated as unrelated acts but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the States, there is a fair implication that it must be sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do.
Id. at 375.
Furthermore, nothing in the Compact approach inappropriately usurps, limits or alters the deliberative power or authority of any “assembly” designated by Article V. Simply put, there is no direct or indirect sanction imposed on any legislature for rejecting the compact and its embedded application and ratification resolution. Indeed, when considering the adoption of the Compact, each legislature is fully in control and free to deliberate over whether to make application to Congress for a proposing convention and whether it wishes to ratify the application’s contemplated amendment (if it is effectively referred by Congress for legislative ratification). Congress is likewise free to fully deliberate over whether to enact a resolution that selects legislative ratification of the contemplated amendment.
Yes, an Article V proposing convention organized as a consequence of the compact’s application is not free to disregard the limited agenda specified in that application; and convention delegates from compacting states are not free to disregard their compact-embedded instructions to adopt and enforce convention rules to maintain that limited agenda. Yes, this means compacting states designate and instruct their delegates to vote convention rules into place that limit the agenda to a 24 hour up-or-down vote on proposing a specific balanced budget amendment. Yes, this means that compacting states deem “ultra vires” and agree to refuse to participate in a proposing convention that would expand the agenda and propose an amendment not contemplated by the application that triggered the convention call. Yes, this means that compacting states agree to a common litigation venue for all enforcement efforts to ensure the application’s agenda is followed. But none of these provisions usurp, limit or obstruct the plain text of Article V. They implement Article V's text by filling in the gaps that must be filled to ensure that the convention actually does what the application requests and its call entails.
In other words, the Compact’s deliberative limitations on the proposing convention result from the fact that the Founders meant for the application to determine the agenda of the convention. The Compact approach simply ensures a supermajority of states, sufficient to control any conception of a quorum at the convention, agree to all incidentals needed to ensure the application of the state legislatures does just that. And even if Congress were deemed to possess authority to limit the convention agenda by virtue of its call duty or Article I powers (as suggested in Opinion of Justices to the Senate, 373 Mass. 877, 882 (Mass. 1977) (“it is for Congress or for the convention to decide whether and to what extent to limit the agenda of the convention”)), the Compact’s deliberative limitations on the proposing convention would enjoy the status of federal law. This is because the congressional resolution calling the convention in accordance with the Compact furnishes congressional consent that would transform the Compact’s terms into the functional equivalent of federal law under current precedent. See, e.g., New Jersey v. New York, 523 U.S. 767, 811 (1988) (holding that congressional approval “transforms an interstate compact within [the Compact Clause] into a law of the United States”).
The bottom line is that the Compact’s mechanics do not usurp, limit or obstruct any provision of Article V. They only ensure the application and call agenda is strictly observed, and the convention is organized and conducted exactly as it was meant to be organized and conducted under the plain text of Article V with no wiggle room at all. Tenth Amendment principles are not being invoked to concoct some bizarre theory that the plain text of Article V does not mean what it says, as in United States v. Sprague, 282 U.S. 716 (1931) (rejecting claim that ratification by convention is somehow mandated by the Tenth Amendment). Rather, the same principles of federalism articulated in Dyer v. Blair and Federalist 45 underpin the Compact approach—that the states enjoy the reserved or implied autonomous sovereign power to furnish the governing mechanics of the amendment process where Article V is silent. That’s about as constitutional as anything in law gets, notwithstanding Mr. Natelson’s strident assertions to the contrary.
The next blog in the series will take a deeper dive into why Mr. Natelson’s sustained refusal to grapple with the Founding-era evidence supporting the Compact approach to Article V gravely threatens the principle of state control over the convention process.