Saving Article V from Natelson: Rinse and Repeat
The second article in the “Saving Article V from Natelson” series revealed that not a single case supports Mr. Natelson’s attack on the Compact approach to Article V. Not one. Contrary to Natelson, courts have never precluded the states from autonomously exercising their sovereignty to supplement the text of Article V where doing so was consistent with its text and purpose. This expose of Mr. Natelson’s meritless legal analysis followed our first article in which we revealed the incoherence of Mr. Natelson’s underlying theory of Article V.
Ignoring our first two articles in this series, Mr. Natelson recently doubled-down on his attack on Compact for America: He wrote a short blog asserting Hawke v. Smith, 253 U.S. 221 (1920), supported his attack on Compact for America. To lend credence to his assertion, Mr. Natelson furnished the reader with a partial quote from the holding of Hawke. We quickly responded by furnishing the balance of the quote withheld by Mr. Natelson. This revealed that Mr. Natelson misrepresented the holding of Hawke by omission.
Rather than rejecting any and all role for the Tenth Amendment in the Article V amendment process, Hawke ruled only that there is no Tenth Amendment authority to override the mode of ratification specified in Article V of the U.S. Constitution. We pointed out that the Compact approach does no such thing and, therefore, is perfectly compliant with the actual ruling of Hawke. But Mr. Natelson’s continued misrepresentation of the state of Article V case law necessitates another look at the central issue in dispute and the relevant legal landscape.
There is More to the Tenth Amendment than Meets Mr. Natelson's Eye
Again, the central issue in contention 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 have the autonomous sovereign authority to enforce or fill the gaps of Article V consistently with its text. Mr. Natelson contends that settled case law holds that the Tenth Amendment is “irrelevant” to Article V; and that historical custom and practice alone, unconnected to the autonomous sovereign power of the states, serve as the basis of ensuring control over the amendment process by delegates appointed by state legislatures. We think Mr. Natelson's theory of "history as law" is wishful thinking at best.
Upon further reflection, it appears that Mr. Natelson’s rejection of the Tenth Amendment in Article V is best explained as the result of a truncated view of its guarantees. He seems to regard the Tenth Amendment as only reserving to the states specific substantive governing powers that existed prior to the Constitution. Because the power to amend the constitution did not predate the Constitution, Mr. Natelson concludes that the concept of “reserved power” is not relevant to Article V and, therefore, invoking the Tenth Amendment is a dead-end for the Article V movement. But there is more to the Tenth Amendment than apparently meets Mr. Natelson’s eye.
The Tenth Amendment does more than guarantee the preservation of reserved powers in the sense of protecting specific governing powers enjoyed by the states prior to the Constitution’s ratification. It also guarantees the federalist structure of the Constitution and the principle that states will continue to exist as autonomous sovereigns even when traditionally reserved substantive powers are not at issue. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2601-03 (2012); Alden v. Maine, 527 U.S. 706, 713-14 (1999); Printz v. U.S., 521 U.S. 898, 933 (1997); New York v. U.S., 505 U.S. 144, 174-75 (1992). In fact, for over a half-century, the Supreme Court has recognized the autonomous sovereign power of the states to fill the gaps of the Elections Clause (where Congress is silent) and the process of appointing Electors to the Electoral College. Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 135 S. Ct. 2652 (2015) (upholding constitutionality of ballot-measure-created redistricting agency); Ray v. Blair, 343 U.S. 214 (1952) (upholding constitutionality of state law requiring electors running in a primary to pledge to vote for a certain candidate). Relatedly, the Supreme Court and lower courts have long upheld the exertion of state executive, legislative and common law police power to enforce or supplement the U.S. Constitution and federal law. See, e.g., Miller v. United States, 357 U. S. 301, 305 (1958); United States v. Di Re, 332 U. S. 581, 589 (1948); Little v. Barreme, 6 U.S. 170, 179 (1804); Pennsylvania v. Porter, 659 F.2d 306, 317 (3rd Cir. 1981) (“the Commonwealth has the same interest in compliance with the standard of conduct laid down in the Fourteenth Amendment as it has in compliance with standards of conduct enacted by the Pennsylvania legislature”).
There is absolutely no reason to believe that states would have less autonomous sovereign authority to enforce or fill the gaps of Article V. Although the Supreme Court recently barred states from enacting laws to enforce certain federal immigration laws, it has only done so only when Congress passed legislation intending to occupy the field of law. Compare Arizona v. United States, 567 U.S. ___ (2012) with Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011). Moreover, in rejecting the asserted Tenth Amendment authority of states to impose term limits as a supplemental qualification to run for federal office, the Court in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 804-05 (1995), was very careful to emphasize both “[w]ith respect to setting qualifications for service in Congress, no such right existed before the Constitution was ratified,” and “the Qualifications Clauses were intended to preclude the States from exercising any such power and to fix as exclusive the qualifications in the Constitution.” No Supreme Court case has ever barred the states from exercising their autonomous sovereign powers in a supplementary fashion to enforce or implement the Constitution where its plain text does not preclude them from doing so and Congress has been silent. Instead, the Supreme Court has repeatedly recognized by deed and word that the default rule of our federalist system, as guaranteed by the Tenth Amendment, is that states have autonomous plenary governing authority even when specific reserved powers are not at issue, provided that the exercise of such authority is not directly precluded by the Supremacy Clause.
In fact, as discussed in our last article in the series, Mr. Natelson himself cites to numerous court decisions that have recognized the power of state legislatures to fill the gaps of Article V with the mechanics of the amendment process by both legislative rule and legislative enactment. Idaho v. Freeman, 529 F. Supp. 1107, 1112 (D. Idaho 1981) (upholding passage of legislative resolution rescinding prior ratification); Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (upholding adoption and enforcement of legislative rule requiring 3/5th majority for legislative ratification); State v. Myers, 127 Oh.St. 104, 105-06 (Ohio 1933) (upholding legislative enactment “setting up the machinery by which a convention may be assembled”); Opinion of the Justices, 148 So. 107 (Ala. 1933) (upholding legislative enactment requiring convention delegates to pledge to vote in accordance with results of state referendum). Significantly, these decisions upheld autonomous state action even with respect to the exercise of the ratification power—a power that is entirely conferred on designated state bodies by Article V and which did not exist before the Constitution existed. This devastates Mr. Natelson’s contention that courts have ruled the Tenth Amendment “irrelevant” to Article V.
Why? Because if the Tenth Amendment were truly irrelevant, there could be no ruling that a state legislature may autonomously fill the gaps of the ratification process with such creative details as the pledging of delegates to vote in accordance with a referendum to assess popular will (Justices and Myers), the establishment of supermajority voting thresholds for ratification (Dyer), or the rescission of a pending ratification resolution (Freeman). Instead, if the Tenth Amendment were irrelevant, as Mr. Natelson contends, courts should have ruled that Congress was solely responsible for furnishing the mechanics of the ratification process as an incident of its power to select the mode of ratification; or, at the very least, they should have ruled that states needed enabling authority from Congress to act in novel ways. But they did not.
Freeman, Dyer, Myers and Justices confirm that the authority to exercise traditionally reserved legislative power is not a constitutional prerequisite for states to autonomously fill the gaps of Article V. In other words, contrary to Mr. Natelson, the Tenth Amendment remains relevant even when reserved powers are not at issue and even when the text of Article V confers power on particular state assemblies rather than the state as a whole (we think the reserved powers of states as states are implicated by the application clause of Article V, but that discussion comes in the next article).
Even beyond this abstract point of law, a couple of examples should make it clear how Freeman, Dyer, Myers and Justices support the constitutionality of the Compact approach under the Tenth Amendment even if reserved legislative powers were not implicated by Article V. For example, a conditional enactment ensures the Balanced Budget Compact’s embedded applying resolution is not legally effective until three-fourths of the states join the compact; and the Balanced Budget Compact’s embedded ratification resolution is not legally effective until Congress refers a constitutional amendment for ratification by legislature. The exercise of such control over the effectiveness of an applying or ratifying resolution is directly supported by analogy to Freeman, 529 F. Supp. at 1112, and Dyer v. Blair, 390 F. Supp. at 1295, which respectively sustained the rescission of a ratifying resolution and a supermajority vote requirement to pass a ratifying resolution. These cases essentially held that a state legislature may constitutionally determine when its actions have legal effect in the Article V amendment process (at least before the process is consummated). This is also the underlying premise of the conditional enactments used by the Balanced Budget Compact.
Furthermore, to the exact extent that the application and ratification clauses of Article V are legally analogous (we don't think they are for all purposes), the constitutional authority for the Compact approach to use conditional enactments is also supported by Myers, 127 Oh.St. at 105-06, and Justices, 148 So. at 109. After all, requiring three-fourths of the states to join the Compact before the embedded applying resolution is legally effective makes it exceedingly likely that member states will represent both a majority of the states and a majority of the population. This will ensure member states control any conception of a quorum at the resulting proposing convention; and control over the quorum by member states, in turn, gives practical assurance that the convention will follow the agenda requested by the application. Likewise, a pre-commitment by these same member states to ratifying the contemplated amendment will dissuade those who might otherwise be tempted to deviate from the application’s requested amendment agenda. Such instrumental value to maintaining the integrity of the application’s request renders the Compact’s conditional enactments analogous to furnishing the mechanics needed to organize a ratification convention, which Myers and Justices sustained as impliedly authorized by Article V by virtue of their instrumental value.
By way of another example, consider that to ensure the convention stays on track, the Balanced Budget Compact designates known individuals to serve as delegates and instructs them to vote rules into place limiting the convention to a 24 hour affair that can only vote up or down the contemplated amendment (or else they lose their legal authority to act). The exercise of such detailed control over proposing convention delegates and logistics is directly supported by analogy to Justices and Myers, which upheld the power of states not only to furnish the straightforward mechanics of a convention, but also to bind convention delegates to pledge their vote in accordance with the results of a popular referendum, which certainly was not something the Founders would have anticipated.
In short, like the acts sustained in Freeman, Dyer, Myers and Justices, the Compact approach merely exercises autonomous sovereign powers in a supplementary fashion to enforce or implement Article V where its plain text does not preclude doing so and Congress has been silent. If anything, the outcome of these cases proves that the novelty of the Compact approach is no bar to its constitutionality.
Even if the whole power and authority of Article V did not implicate any reserved traditional power of the states acting as states (we don't think this is true), the sovereign autonomy guaranteed by the Tenth Amendment would still apply, and the Compact approach would remain perfectly consistent with current case law. But case law is the last place a constitutionalist should look for guidance on constitutional meaning. Especially in an unsettled field of law such as this one, we should first look to the original meaning and public understanding of the Constitution’s text. In the next and final article in the series, we explain why the Compact approach is fully authorized by the original meaning and public understanding of Article V—which Mr. Natelson's critique almost completely ignores.