<h3> Some Thoughts on the Mechanics of the Article V Movement</h3>

vanity | August 16, 2013 | Nathan Bedford

[nathanbedford]

Publius:

Looking at your first-rate analysis of the Federalist Papers, I noted your reference to your comments at the foot of #43 and I believe that is relevant and I presume to quote your work at length titled, A Convention for Proposing Amendments below.

You really have done first-rate work.

I wish I had been exposed to it before I wrote my vanity but I'm also pleased that we seem to be on the same page when it comes to anticipating many of the problems implementing an Article V convention. I had to intuit my effort without the benefit of your work.

I was unable to open ALEC.

Here are your comments at Federalist Paper #43 for the benefit of any late coming readers to this thread:

At 85, Madison explains that there are two ways for amendments to the Constitution to be proposed to the states for ratification. The first is for two-thirds of each House of Congress to propose them. The second is for the legislatures of two-thirds of the states to request Congress to call a Convention for Proposing Amendments. Often referred to as a “Constitutional Convention”, it is viewed as the “nuclear option”.

Over the centuries, Congress has considered requests for a Convention to be fixed to a “single subject” standard, and this has foundation in contract law. According to this standard, the Convention is the agent of the states, and an agent may not go outside the purview of his agency agreement. The purview of a Convention is determined by the petitioning language generated by the states, and any attempt to address extraneous issues is forbidden. This is the traditional position.

An alternative position asserts that the Convention is a sovereign body during its life, and it may address any issue it wishes, whether authorized by the states or not. This is a decidedly minority position.

The safety valve is the requirement that the legislatures, or ratifying conventions, of three-fourths of the states ratify amendment proposals produced by a Convention in order for them to be placed in the Constitution. This is what would rein in a “runaway” Convention.

In 1965, the American Bar Association appointed a commission to determine if the Supreme Court’s “One Man/One Vote“ ruling would affect a Convention for Proposing Amendments. One commissioner thought that the Convention was such a primal act of the Republic that it would not, but he was overruled by the other 19 commissioners. The commission also came up with a draft bill to codify the “single subject” rule, to set a standard for the “freshness” of state petitions, to define the procedure for election of state delegates to the Convention, and to define the Convention’s initial rules of procedure.

In 1968 Sen. Everett Dirksen of Illinois introduced legislation matching the ABA’s draft bill, but it did not pass. Upon his death, Sen. Sam Ervin of North Carolina picked up the torch, and upon his retirement Sen. Orrin Hatch of Utah sponsored the bill. Its last introduction in 1991 failed to pass the Senate Judiciary Committee.

Only once did petitions for a Convention for Proposing Amendments reach the two-thirds threshold, and Congress found wiggle room to weasel out of calling a Convention.

In the early 20th Century, one of highest priorities of the Progressive Movement was to end the practice of state legislatures electing senators and pass that to the people via direct election. This had been suggested at the Constitutional Convention of 1787 by James Wilson, and Andrew Jackson had pushed for it in 1829. With many state legislatures functioning as wholly-owned subsidiaries of railroads, mines and other corporate interests, senators were often better known for the company they represented than the state.

The House had often passed an amendment to change this, but the Senate always balked. Then the state legislatures began demanding a Convention to introduce a constitutional amendment to effect this change. When the two-thirds threshold was reached, the Senate reacted by passing the 17th Amendment to the states for ratification.

The Senate had feared that a Convention would come up with an amendment that required the election of the entire Senate all at once under the new paradigm. When the vote by the state legislatures pushed the Senate into action, it came up with wording that permitted the change to go into effect starting with the election of 1914, requiring no new election for the entire Senate.

How did Congress avoid calling a Convention, even when the two-thirds threshold had been reached? Some petitions for a Convention stated that their conditions would be met if Congress passed such an amendment on its own. Once Congress acted, the petition was considered discharged, and it no longer counted for the calling of a Convention. Had those state petitions been worded otherwise, Congress would have been caught in a ticklish situation.

In two Supreme Court decisions, Dillon v. Gloss (1921) and Coleman v. Miller (1939), the Court ruled that if the states met the two-thirds threshold, Congress had no choice but to set a time and place for the Convention; it was a purely ministerial function for Congress. However, as those cases did not pertain directly to this issue, it has been alleged that the statements of the Court were dicta and not law. In other words, Congress could refuse to call a Convention, no court could order it to do so, and only the people, through the political process, could force Congress to do its duty by altering the makeup of Congress.

Even today, there is a lot of uncharted territory.

[Publius]

You're right. The ALEC PDF download has problems. Try this link instead.

ALEC Document

[nathanbedford]

As I make my way through the documents to which you have so kindly provided the citations, I am struck by the authoritative temper taken by the authors in which they confidently state a rule for which there is no explicit source. For example, the handbook repeatedly says that the convention may not be a "plenipotentiary" convention and, even conceding that they cite no less an authority than Madison, why should that be so?

As a matter of curiosity, or rather as a matter of fundamental philosophy, I wonder about the strange clause in Article V which prohibits the convention from changing the rule that each state has "equal suffrage in the Senate." I can philosophically understand why the convention might not alter the constitutionally determined mechanics of ratification, but how can the Constitution set aside part of itself to be eternally immutable?

If Mark Levin gets traction on his approach, we shall see some really agile legal minds waging battle over the application of Article V and I certainly look forward to it. More important, I think FreeRepublic should be prepared to contribute.

If you don't mind, I will have some additional thoughts later for your reaction.

[Publius]

To alter the principle of equal suffrage in the Senate, it would first be necessary to amend Article V to allow it. Only then could the principle be altered.

It would be a two-step process.

Article V names two explicitly forbidden subjects and one implicitly forbidden subject.

Altering slavery before 1808 is one explicitly forbidden subject. Ending equal suffrage in the Senate is the other.

Implicitly forbidden is a convention to write a new Constitution. Article V's language permits Congress or a convention to propose amendments to the Constitution of 1787. Period. Because of that, Article V implicitly forbids Congress or a convention from starting afresh with a new Constitution. This is what that "plenipotentiary" business is all about in the ALEC document.

The states, however, may request a general convention, as opposed to a single-subject convention. This would permit delegates from the states to address all possible subjects for amendments, not just one subject. To address Mr. Levin's proposed amendments, it would be necessary for the states to petition Congress for a general convention.

[nathanbedford]

It is precisely this doubletalk that I am complaining about. On the one hand a plenipotentiary convention is prohibited but on the other hand a general convention with identical scope is permitted with a different label.

I understand that Article V purports to prohibit changes to the Senate but, as you point out, amendment one might permit changes In Article V and in the next breath a Second Amendment might change the Senate. Once again, I hear doubletalk.

My larger point is that when it comes time to do battle over the meaning of Article V, it seems to me that it is important in winning the battle to determine who sets the rules rather than arguing over the rules themselves. Will it be Congress, the court, state legislatures? At the convention, will it be the delegates representing the states or delegates representing populations?

Much of this will be a public-relations battle and that is historically problematic for conservatives. But in such a battle a head start is often determinative. That is precisely what the Bar Association has attempted to do.

[Publius]

Not identical scope.

Look at it this way. Article V implicitly forbids throwing out the Constitution of 1787 and starting over. But it allows the states to request a general convention open to all subjects for amendment proposals. Because Congress and an Amendments Convention have the same proposal powers, Congress can't start over either, but it can propose whatever amendments it desires.

To sum it up, throwing out and starting over is a no-no. But proposing 60 amendments that would change the shape of the document is allowed. It sounds like the same thing, and it may even have the same effect in the end, but it is really two different processes.

As far as determining who controls what, this is where the gray areas predominate. I have an idea. Take the points made in the ALEC document and chart them versus the points made in the ABA report.

Here is an example. ALEC says that if a state requests a convention, that request sits out there in perpetuity unless a state's legislature explicitly rescinds that petition. Their logic is that convention petitions and amendment ratifications are governed by the same rules. ABA says that convention petitions require contemporaneousness, and Congress has the right to set the standards for that timeliness. Their logic is that convention petitions and amendment ratifications are apples and oranges.

Make a list of all these discrepancies, and you'll locate all the issues that will be battled in Congress and the courts if 34 states request a general convention to discuss Levin's amendment proposals.