Where's the Beef, Mr. Natelson?


Retired law professor Robert Natelson's latest blog claims that the Supreme Court case of Hawke v. Smith, 253 U.S. 221 (1920), stands against the constitutionality of the Compact approach to Article V.

As per usual, Mr. Natelson's interpretation of case law is wrong.

The holding of Hawke is simply that a popular referendum cannot overturn the ratification of an amendment by a state legislature when Congress chooses ratification by state legislature.

Although Mr. Natelson prefers to furnish the reader with a partial quote, here's what the Court actually said:

The framers of the Constitution might have adopted a different method. Ratification might have been left to a vote of the people, or to some authority of government other than that selected. The language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed.

Hawke was a straight-up Supremacy Clause decision striking down an effort to disregard the plain language of Article V. Nothing more. Nothing less. So...

Does the Compact approach use a popular referendum to overturn the ratification of an amendment by a state legislature?

Nope.

Article IX of the Balanced Budget Compact contemplates ratification by a state legislature when Congress chooses ratification by state legislature.

Therefore, the Compact approach respects the plain language of Article V and is perfectly compliant with the ruling of Hawke.

Mr. Natelson's legal analysis is all bun.

#articleveducation

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