Saving Article V from Natelson: A "Convention of States" Requires States

Recap and Overview

Mr. Natelson has attacked the Compact approach to Article V because he denies that the Tenth Amendment guarantees a role for state sovereignty in enforcing and filling the gaps of Article V. As explained in our second and third articles in this series, he has arrived at this position by misinterpreting cases as ruling state sovereignty has no role in Article V when, in fact, those cases only say that states cannot claim sovereign power to contradict the mode of application or ratification specified in Article V.

To sidestep what he wrongly perceives as an adverse legal landscape, Mr. Natelson has concocted a legal theory of Article V that attempts to bind the convention agenda to the desires of state legislatures with the slender reed of honor, custom and practice—despite the logical incoherence of relying on customs and practices that arose as a result of the exertion of state sovereignty while simultaneously insisting state sovereignty has no role in Article V.

Mr. Natelson claims that an Article V convention is a “convention of states” only because “the only model of an interstate convention known to the Founders was the ‘convention of the states’ model.” Sadly, this historical claim is easily disproven. For example, our Policy Brief No. 9 highlights a Founding-era interstate convention involving the Continental Congress, an Indian tribe and at least one state delegation. That’s quite a bit different than a “Convention of States.” But we don’t have to challenge Mr. Natelson’s expertise as an amateur historian to reject his conclusions.

To arrive at his opinions, Mr. Natelson has somehow forgotten that states, as autonomous sovereigns, have default plenary governing power in our system of federalism, including the power to enforce or consistently supplement the Constitution through judicial, executive and legislative action. Howlett v. Rose, 496 U.S. 356, 367 (1990) (“the Constitution and laws passed pursuant to it are as much laws in the States as laws passed by the state legislature”); United States v. Di Re, 332 U. S. 581, 589 (1948) (recognizing that the lawfulness of an arrest under the Fourth Amendment is to be determined by reference to state law); 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”); see also Federalist No. 45 ("The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain to the state governments are numerous and indefinite . . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order improvement, and prosperity of the State").

Mr. Natelson has misread cases that only reject various kooky efforts to invoke the Tenth Amendment to override the plain text of Article V as instead somehow rejecting the Tenth Amendment altogether. United States v. Sprague, 282 U.S. 716 (1931) (rejecting claim that ratification by convention is somehow mandated by the Tenth Amendment); United States v. Thibault, 47 F.2d 169 (2nd Cir. 1931) (id). He has misrepresented court decisions as opposing states filling the gaps of Article V when they actually embrace states doing so in extremely novel ways. See Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981); Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975); Opinion of the Justices, 148 So. 107 (Ala. 1933); State v. Myers, 186 N.E. 918, 127 Oh. 104, 105-06 (Ohio 1933).

For example, Opinion of the Justices and Myers sustained states in passing statutes that bound ratification convention delegates to the outcome of popular referenda. Unlike interstate agreements, this is clearly something that is not to be found in Founding-era history, custom and practice. And yet, such a legal regime is fully consistent with the more fundamental principle clearly embraced by the Founders that states have default autonomous governing power as sovereigns even to do novel things. Such governing power, guaranteed by the Tenth Amendment, is a natural and obvious touchstone for ensuring a proposing convention is a “convention of states.”

It is easy to reject the foregoing erroneous legal premises of Mr. Natelson’s incoherent theory of Article V and meritless attack on Compact for America. It is much harder to understand why Mr. Natelson would have blundered so terribly in his approach to Article V. One innocent explanation is that Mr. Natelson was spooked by a misunderstanding of various court decisions. This possibility is plausible in light of his lack of significant litigation experience. Academia is not the best training ground for developing an expertise in distinguishing between dicta and holdings, or between binding case law and advisory opinions. No doubt seeing a few motions shot down in court based on the kind of reasoning found in Mr. Natelson’s attack on Compact for America would help clarify the distinction.

The only problem with viewing Mr. Natelson’s errors as innocent blunders is that the hypothesis does not explain why Mr. Natelson has repeatedly furnished his audience with misleading partial quotes from Hawke v. Smith and factually incorrect descriptions of case holdings from Dyer v. Blair and Idaho v. Freeman. But we won't speculate beyond this observation.

Whatever the motive for Mr. Natelson’s attack, it is a fact that the principle of state sovereignty is the glue that holds the Article V movement together in the face of not insignificant opposition by those who fear the process. To put it bluntly, the Article V movement’s claim that a convention for proposing amendments is a “convention of states” would be a fraud if, as claimed by Mr. Natelson, state sovereignty has nothing to do with Article V. The Article V movement’s claim that the agenda of the convention for proposing amendments can be reliably limited would also be a fraud, if as claimed by Mr. Natelson, states have no sovereign power to enforce those limits.

If the day comes when the Article V movement discards the principle of state sovereignty, as urged by Mr. Natelson, that day will signal the beginning of the end of the Article V movement. Opponents will shred Mr. Natelson’s quaint notion that honor, custom and practice are sufficient to bind the process to desired outcomes as a matter of law—especially when his principal historical claims are so easily refuted. Both the paranoid and the reasonable will see Mr. Natelson’s notion of a “convention of honor-bound delegates” as oxymoronic in today’s political culture.

And if the Article V movement somehow succeeded in reaching the call threshold under Mr. Natelson's leadership, no doubt Congress will feel obliged and empowered to fill the void of state sovereignty and “protect” (i.e. assume control over) the process—as it has tried to do repeatedly in the past. Thomas H. Neale, The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress, R42589, 36 (C.R.S., April 11, 2014) (“Between 1973 and 1992, 22 bills were introduced in the House and 19 in the Senate that sought to establish a procedural framework that would apply to an Article V Convention . . . The Senate, in fact, passed constitutional convention procedures bills, the “Federal Constitutional Convention Procedures Act,” on two separate occasions: as S. 215 in 1971 in the 92nd Congress, and as S. 1272 in 1983, in the 98th Congress”).

Such congressional intervention would predictably dash the prospects of meaningful reform of the federal government.

That’s why this series has been titled “Saving Article V from Natelson.” Mr. Natelson’s attack on Compact for America is actually an attack on the viability of the entire Article V movement. A “convention of states” requires “states” to be involved in the amendment process as states. Fortunately, that is precisely what Article V and the Tenth Amendment guarantee.

Introduction

This last article in the series turns to first principles—the original meaning and public understanding of Article V and the Constitution—to refute Mr. Natelson. The Compact approach to Article V ensures the proposing 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. It achieves this goal by: (a) ensuring that state legislatures join in an identical application requesting that the proposing convention agenda be limited to the consideration of one or more specific amendments; and (b) consolidating all of the mechanics needed to maximize the chances of this outcome into a single, legally binding interstate agreement joined by three-fourths of the states. To ensure Congress yields to the states, as it should, the Compact approach also involves the passage of a single congressional resolution pre-committing Congress to calling the convention in accordance with the compact and selecting legislative ratification of the contemplated amendment if it is proposed.

The Compact approach to Article V is thus supported by the principal legal theory that: (a) the authority of the proposing convention is determined by the application that triggers the call; and (b) the states are free under Article V to exert their default sovereign powers, including the power to enter into legally binding agreements, to ensure the proposing convention does not stray from the application. Therefore, the principal defense of the Compact approach begins with our interpretation of the application clause as determining the proposing convention’s authority.

The Text of Article V Sustains the Determinative Role of the Application

Article V states in relevant part:

on the Application of the legislatures of two thirds of the several states, [Congress] shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress

A close textual analysis establishes that the authority of the proposing convention is determined by the application. How do we know this? The short answer is that nothing in Article V gives Congress any power to determine the content of the call independently from the application. Instead, the grammar and structure of Article V yields the content of the call to the application. This conclusion follows from a close reading of Article V’s application and call clauses (and it is confirmed by the legislative history of Article V, historical practice, and by everything the Founders ever said about the process).

First of all, as discussed in our Policy Brief No. 7, contemporaneous usage establishes that “application” simply means “petition.” A “petition” is a formal means of requesting something. What is the “something” being requested in Article V by way of the application? Given that the application clause states “on the Application” Congress “shall call a convention,” the text of Article V indicates that the “something” being requested by the application is the calling of a convention for proposing amendments by Congress. Is there any textual limit on the “something” that may be requested in the application? There is no express textual restriction on the content of an application. Article V simply states that the convention call shall be “on the Application.” Implicitly, because it is aimed at triggering a convention call, to be recognized as an "Article V application," the application must contain a request that is relevant to calling a proposing convention and not something irrelevant like requesting a pepperoni pizza. This is the only necessary content requirement that can be gleaned from the text of Article V. No other textual guidance or restriction is provided on the content of the application.

Consequently, there is absolutely no textual reason why the state legislatures could not exercise their respective state's default plenary governing power and ask in their application for the calling of a convention limited to a binary choice over proposing a specific amendment. After all, this degree of specificity is certainly how the like application process for securing federal help in suppressing domestic violence in Article IV, section IV is interpreted. Nobody claims that states can only apply for a help topic and then sit back and hope the feds figure out where to send the National Guard. Nobody claims that states must wait for congressional enabling legislation to craft the contents of an Article IV application. Everyone understands that states have the reserved or implied sovereign power to specify in their Article IV application where help is needed and what help is desired. There is no textual reason to treat an Article V application differently and states somehow incapable of making a specific and detailed request for the calling of a proposing convention for an agenda strictly limited to proposing a specific amendment—especially in view of the fact revealed by our Policy Brief No. 9 that states clearly had the traditional power to request specific things in their applications.

Congress’s Call Duty Does Not Displace the Application’s Request

But is the content of application’s request for a specific amendment modified or displaced and state sovereignty preempted by Congress in its intermediary role of calling the convention? Not if the text governs one’s interpretation of Article V. To suggest that Congress could modify or displace the application’s request in its call or preempt state sovereignty in calling a convention with a different agenda than requested in the application is to presume Article V confers power on Congress to add or subtract from the application’s request when calling the proposing convention. That presumption is textually invalid because the call clause of Article V is not couched in the language of a grant of power to Congress. On its face, Congress simply has a duty to call a convention in accordance with the states’ application automatically when the necessary constitutional threshold of at least two-thirds of the legislatures joining in the application is met. Nothing in the call clause replicates the phraseology of power grants in other phrases in the Constitution, such as Article I, section 8, which states “Congress shall have Power,” or Article II, section 2, which states, “[t]he President shall have Power to fill up all Vacancies,” or Article III, section 3, which states, “Congress shall have Power to declare the Punishment of Treason.”

Textually and contextually, the call clause is not a conferral of power on Congress; it is a mandatory duty imposed on Congress to call a proposing convention “on the Application.” In the absence of a grant of power to Congress to displace, modify or supplement the application’s request, the call is best construed as embracing the request of the application for no other reason than Congress's lack of any conferred power to do otherwise. It is thus fully consistent with the text of Article V that both the call and the convention’s authority would be limited to the application’s request, which essentially yields to state sovereignty.

The Text of Article V Does Not Sustain the Notion that the Content of the Application is Furnished through an Exercise of Conferred Federal Power

But is the power to supply the content of the application’s request one that is exclusively conferred by the Constitution on state legislatures as independent federal assemblies? If so, does that mean that states as states have no sovereign power to enforce or supplement the application with laws or interstate compacts supplementing the application with convention and enforcement mechanics? Contrary to Mr. Natelson, the answer is no. A close textual analysis confirms that the power to supply the content of the application’s request can only be viewed as originating from state sovereignty and not as a power conferred by the Constitution on state legislatures. After all, nothing in the application clause says anything like, “states are hereby granted the power to make an application.” Neither is the conferral of power by the Constitution on state legislatures suggested by the context of the application clause.

Nothing in the application clause replicates the phraseology of power grants in other phrases in the Constitution, such as Article I, section 8, which states “Congress shall have Power,” or Article II, section 2, which states, “[t]he President shall have Power to fill up all Vacancies,” or Article III, section 3, which states, “Congress shall have Power to declare the Punishment of Treason.” Likewise, nothing in the application clause replicates the “may” and “shall” language of authority grants or mandates in other phrases in the Constitution, such as Article I, section 4, which states “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” or Article II, section 1, which states “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct.”

In short, a close textual analysis reveals that neither power, authority nor a duty is being conferred on state legislatures by Article V to make an application. But is the state legislature’s power to make an Article V application, like the power to ratify, nevertheless textually dependent on exercise of some other power or authority created by the Constitution? In other words, are the state legislatures referenced in the application clause nevertheless exclusively acting as creatures of the Constitution through the indirect exercise of a power, authority or duty created by the Constitution, just as state legislatures are in ratifying an amendment? Again, not grammatically. The text of application clause indicates the opposite, but parallel relationship exists between the application clause, Congress and the Constitution as compared to the ratification clause.

In connection with this observation, it should be recalled that the exercise of Congress’s power to select the mode of ratification is the predicate of the exercise of any ratification authority of the states. How states ratify an amendment proposal is thereby textually constrained by Congress’s choice, just as an offeror determines the mode of acceptance. Thus, the ratification authority exercised by state legislatures or conventions is properly viewed as the product of the exercise of a power created by the Constitution. It is entirely a creation of the Constitution, not itself legislative in nature, and subordinate to Congress’s choice of ratification modes under the Supremacy Clause. The Tenth Amendment still applies to authorize states to supply the mechanics of the ratification process, but the Tenth Amendment cannot be interpreted as allowing states to deviate from the mode of ratification selected by Congress or to change the content of what is being ratified. Congress is constitutionally in the driver’s seat when it comes to the ratification clause.

In contrast, the prepositional phrase “on the Application” in the application clause serves only as a procedural trigger for requiring that Congress “shall call a convention.” It presumes an extra-constitutional source for the power to make the requisite application in the first place. Because state sovereignty is the only extra-constitutional source of power for state legislatures to do anything in our system of federalism, a textual analysis thus confirms that states as states are in the driver’s seat when it comes to the application clause.

Legislative History Sustains the Determinative Role of the Application and State Sovereignty

The legislative history of Article V further indicates that the content of the Article V application was ordinarily expected both to determine the authority of the proposing convention and to request the proposal of specified amendments as a function of state sovereignty. Why? Because the next-to-last version of Article V had Congress proposing amendments on “like application” of two thirds of the legislatures of the several states. The ultimate version merely replaced Congress with a convention as the proposing body. The sole reason for this change was to better secure the proposal of desired amendments. The function of the application in specifying the desired amendment to be proposed otherwise remained the same (it is unreasonable to construe the application in the next-to-last version of Article V as merely triggering a duty for Congress to draft amendments because that would be redundant of Congress’s existing authority to draft amendments).

How do we know the application would have the same function in the final version of Article V? Because Madison objected to the reconfiguration of Article V by questioning why on “like application” would Congress call a convention for proposing amendments more reliably than directly proposing the required amendments. The reference to “like application,” which was not challenged, indicated that Madison and the Founders understood that the application would have the same function in both the next-to-last and final version of Article V—namely, that of furnishing the text of the amendment to be proposed (or as close to it as was practical in the 18th century). Further, our extensive historical analysis in Policy Brief No. 9 shows that states during the founding era traditionally had the power to make extensive and very specific requests in their applications—even in regard to conventions. There is every reason to believe that this traditional sovereign power was meant to be embraced by Article V to the very extent that the content of an “application” is not expressly defined. The traditional application power of the states is the only possible referent for the otherwise undefined term.

The Founders Sustain the Determinative Role of the Application and State Sovereignty

In short, a close analysis of the text, context and legislative history of Article V validates the principal premise of the Compact approach that the application determines the legal authority of the proposing convention, and that such authority can be finely tuned by state legislatures to exclusively proposing or not proposing a specific amendment. This interpretation is confirmed by repeated and prominent statements by the Founders discussed extensively in our Policy Brief Nos. 7 and 9—not isolated statements, as claimed by Mr. Natelson.

For example, it is confirmed by George Washington himself in his April 25, 1788 letter to John Armstrong that “nine states” can get the amendments they desire, which indicates that two-thirds of the states would specify the desired amendments in their Article V application and target the convention agenda accordingly. It is also confirmed by Alexander Hamilton’s representations in Federalist No. 85 that “nine” states [two-thirds] would effect “alterations,” that “nine” states would effect “subsequent amendment” by setting “on foot the measure,” and that we can rely on state “legislatures” to erect barriers. These statements all anticipate the amendment-specifying power of an Article V application, which alone is entirely controlled by two-thirds of the states through their legislatures; as well as a narrow and preset agenda for an Article V convention determined by the application.

But we must highlight one public statement in particular which has no other possible interpretation than that the application was meant to specify desired applications and determine the authority of the convention. It is Tench Coxe’s June 11, 1788 statement in a pamphlet advocating ratification of the Constitution, which observed plainly that: “If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such proposed amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.” Coxe further explained, “[t]hree fourths of the states concurring will ensure any amendments, after the adoption of nine or more.”

Notice that both of these statements clearly indicate that two-thirds of the states would specify and agree on the desired amendments in their Article V application before any convention was called. There is no other explanation for Coxe referring to the “adoption” of “amendments” by “nine or more” states except in reference to the two-thirds threshold for the application (then nine) and thus confirming the application was expected to request the proposal of amendments, not just request a convention. There is no other way to interpret Coxe’s statement that Congress might dislike “the proposed amendments” before calling the convention. The only possible explanation of Coxe’s statement is that he recognized what our textual and legislative history analysis shows: the application would specify the proposed amendments in its request for a convention and the call and the convention would be bound to its request. These statements also plainly regard the role of the convention as simply that of a handmaiden or instrumentality for proposing the desired amendments specified in the application.

Although Mr. Natelson has occasionally acknowledged the fact that Coxe thought the application would specify the amendments to be proposed, Mr. Natelson still contends that “the design [of Article V] was not for the states to dictate particular language in their applications, thereby requiring the convention to vote merely ‘yes’ or ‘no.’” To support this claim, Mr. Natelson cites to his own work, which contains no convincing evidence justifying his conclusion that all of these statements were meant to be only hopeful predictions that an otherwise inherently freewheeling or merely topic-limited convention would do what the states wanted.

In fact, contrary to Mr. Natelson’s assertions, there is nothing inherent about conventions that they all must range with greater deliberation than debate and decision over a binary choice—as the existence of ratifying convention proves on the face of Article V. Indeed, Hamilton made this exact point about the Article V amendment process in Federalist No. 85, stating that all amendment proposals under Article V would be brought forth with “no necessity for management or compromise, in relation to any other point -- no giving nor taking. The will of the requisite number would at once bring the matter to a decisive issue. And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.”

Viewed together with the statements of Hamilton, Washington, as well as the text and legislative history of Article V, it is clear that Coxe’s statements were not metaphorical or aspirational. They were meant as yet another literal description about how the convention would deliver the specific amendments requested by two-thirds of the states in their application.

Of course, some contend that the use of the plural “amendments” in “convention for proposing amendments” indicates that the application must ask for a convention to consider more than one amendment. Some latch onto this claim the further assertion that a proposing convention must range widely without regard to the application and that any attempt to limit the convention to the application violates Article V. But context proves this contention wrong. Context shows the plural form was meant to include the singular, not exclude it. How do we know this? Because Congress’s direct amendment proposal power also speaks of proposing “amendments” in the plural. But Congress has typically proposed amendments one-at-a-time. No one has ever contended seriously that Congress may only propose multiple amendments or none at all. There are also many other instances of the plural including the singular, not excluding it throughout the Constitution. Notice also that the convention called in response to the application is textually limited to one “for proposing amendments.” It does not say “for drafting amendments.” Thus, the notion that the proposing convention must have deliberative authority to add or subtract to the agenda requested by the application has no more support than the notion that a ratifying convention would have authority to add or subtract to the agenda of ratifying a specific amendment referred by Congress.

The Tenth Amendment Confirms the Determinative Role of the Application and State Sovereignty in Article V

As shown above, all of the evidence—text, legislative history, founding intent and public understanding—confirms that the authority of a proposing convention is determined by the application’s request; and the content of the application’s request is supplied by the exercise of reserved traditional power to make applications as guaranteed by the Tenth Amendment. Given that the authority of the proposing convention ultimately rests on the exercise of the state’s reserved traditional power to include detailed requests in their applications, it is absurd to claim, as Mr. Natelson does, that the Tenth Amendment has no role in Article V.

The Founders never spoke of state legislatures somehow acting as federal assemblies exercising conferred power independently from state sovereign power when they initiated the proposal of amendments by convention. Instead, as explained in our Policy Brief No. 4, the Founders referred repeatedly to states as states exercising such amendment power. They did so because they understood that the application clause embraces state sovereignty as the source of the content of the application. For example, James Madison wrote in Federalist 43 that Article V “equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”

Mr. Natelson cannot credibly wave off these facts as somehow immaterial. In Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n, 135 S.Ct. 2652, 2671n.26 (2015), the Court emphasized that “[p]articipants in the debates over the Elections Clause used the word 'legislature' interchangeably with 'state' and 'state government'" to justify the conclusion that the whole sovereign legislative power of the state was invoked by the Elections Clause. In view of this ruling, we have little to fear from the possibility that courts might favor Mr. Natelson over Mr. Madison. Following Ariz. State Legislature, the better bet is that courts will recognize that James Madison was not using words loosely in Federalist No. 43. Madison meant exactly what he wrote.

Conclusion

As emphasized in our second and third articles in this series, states are the default governing authority in our system of federalism. It is well-established that states have autonomous sovereign power under the Tenth Amendment to enforce or fill the gaps of the Constitution consistently with its text. Article V is not an exception to this rule. Indeed, resort to the principle of state sovereignty is the only way to make sense of Article V’s application clause in light of the totality of the evidence.

The best interpretation of the application clause of Article V is that it does not confer a power, authority or duty on state legislatures out of whole constitutional cloth. Instead, the application clause of Article V leverages the exercise of the pre-existing sovereign power of the states to determine the contents of their application and thereby determine the authority of the proposing convention. It follows that the states also enjoy incidental sovereign power under the Tenth Amendment to ensure the application indeed governs the proposing convention through whatever mechanics are conducive to that end and consistent with the text of Article V—including, but not limited to, through the adoption of an enforceable interstate agreement that details and safeguards everything involved in the amendment process.

In the final analysis, the Compact approach to Article V is clearly constitutional because it takes the text of Article V, the promises of the Founders, and our system of federalism seriously. Mr. Natelson’s attack on Compact for America does not because it arbitrarily disavows the power of state sovereignty in the amendment process.

#articleveducation

Featured Posts
Recent Posts