Article V Conventions and the Tenth Amendment Go Hand-in-Hand
The Article V convention movement has garnered incredible strength over the past few years. Most of this legislative ferment is attributable to the seminal work of one man. But what if that man were now working to extinguish his own handiwork? What if in an effort to mold inapplicable Supreme Court precedent into rules of the road for an Article V convention, that man fumbled a huge opportunity to vindicate the Founders' intent from a clean slate?
Sadly, that appears to be happening.
A few days ago, an article appeared by former law professor Rob Natelsonasserting that the Tenth Amendment does not "give" power to state legislatures under Article V of the U.S. Constitution. This declaration was at once inane and potentially misleading. It was inane because, of course, the Tenth Amendment does not "give" power to anything. It guarantees the preservation of the sovereign powers of the states (or the people) to the extent that they are not superseded by the delegated powers of the federal government.
It is a mere truism to say that the Tenth Amendment does not "give" power to state legislatures under Article V. But such a truism is potentially misleading when written by a leading Article V convention advocate. It appears to disclaim a role for state sovereignty in organizing an Article V convention. And such a disclaimer naturally invites Congress to fill the gaps of Article V. Congress, after all, is the natural repository of legislative authority for all things federal. If the Tenth Amendment cannot be invoked to fill those gaps, it is pretty obvious who will.
Fortunately, nothing could be further from the truth than the notion that state sovereignty has nothing to do with Article V. How do we know this? Because the Founders said so.
In Federalist 43, James Madison wrote Article V "equally enables the general and the State governments to originate the amendment of errors". Notice that this statement was in reference to "State governments," not what Natelson calls "independent assemblies" performing a federal function. In Federalist 85, Alexander Hamilton emphasized that "alterations" in the Constitution may be "effected by nine States" which would "set on foot the measure" through their application. George Nicholas, the Constitution's leading advocate during the Virginia ratification convention, declared"it is natural to conclude that those States who will apply for calling the Convention, will concur in the ratification of the proposed amendments." Finally, George Washington wrote, "It should be remembered that a constitutional door is open for such amendments as shall be thought necessary by nine States."
In all of the foregoing instances, the reference is plainly to "states" as states using the convention process to propose the amendments they desired. There is no way to assume the truth of the Founders' representations about Article V without also assuming that the sovereign powers of the states -- those guaranteed by the Tenth Amendment -- would have a role in directing the convention mode of proposing amendments under Article V. Indeed, the plain text of Article V leaves no other natural interpretative possibility open.
Specifically, Article V says "on the Application" of two-thirds of the state legislatures, Congress "shall call a convention for proposing amendments." Grammatically, no express grant of power to make the requisite "Application" is conferred by Article V on state legislatures. Rather, the "Application" power is presumed to exist. As such, reference to the "Application" is a clear textual point of entry for state control based on reserved legislative power. The Tenth Amendment's guarantee of the reserved powers of the states is, therefore, critically important to understanding and enforcing Article V as it applies to the convention mode of proposing amendments.
The Founders' representations about how the states would obtain desired amendments through the convention process confirm that the "Application" would determine what the resulting Article V convention was authorized to do. Nothing in any case cited by Natelson suggests the Supreme Court would rule otherwise.
For example, Natelson primarily relies upon Hawke v. Smith (1920) and Leser v. Garnett (1922) for the proposition that the Supreme Court has "invalidated efforts to control the amendment process though state law." He then points to United States v. Sprague (1931) and U.S. Term Limits v. Thornton (1995) as somehow establishing that states have no reserved powers under Article V.
Natelson is mistaken.
Neither Hawke, Leser nor Sprague dealt with the Article V "amendment process" in general, much less the Article V convention process. Sprague simply reaffirmed the fact of Congressional control over the selection of the mode of ratification. Both Hawke and Leser were exclusively concerned with state legislative power over the ratification of a congressionally proposed amendment. Hawke ruled only that "ratification by a state of a constitutional amendment is not an act of legislation." Leser ruled only that the "function of a state Legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing the amendment, is a federal function." None of these cases speaks at all to the nature, source or effect of the power of legislatures to join in an "Application" for an Article V convention.
Natelson's reliance on U.S. Term Limits is likewise misplaced. The case not speak to Article V at all. It dealt with federal election qualifications. Significantly, the Court ruled: "States can exercise no powers whatsoever which exclusively spring out of the existence of the national government." The use of the phrase "exclusively" is key. As discussed above, the "Application" power referenced in Article V does not "exclusively spring out of the existence of the national government," it would have existed with or without the national government. To understand the nature and scope of the "Application" power and the convention triggered thereby, reference must be made to the traditional power of states to petition another governmental body and to organize interstate conventions.
In the final analysis, the Article V convention process cannot be understood except in the light of the Tenth Amendment. To the extent that Natelson's contrary contention boils down to an armchair prediction of a future Supreme Court decision, perhaps the best evidence of what the current Supreme Court would do vis a vis state control over an Article V convention can be found in the words of Professor Antonin Scalia (now Justice). In response to a question about whether an Article V convention can be limited, then-law professor Scalia said: "There is no reason not to interpret it to allow a limited call, if that is what the states desire."
There is no better statement of Tenth Amendment principle applied to Article V than that. But the truth of the matter is that the Article V convention process presents a question of first impression on multiple levels for the Supreme Court. No one really knows whether or how the Court will rule. For this reason, we should encourage states to robustly exercise their sovereignty over the Article V convention process and the Court to follow the Founders' clear guidance in this virgin legal territory. We should not grab any case that mentions "Article V" and try to mold it into a semblance of a legal theory that threatens to undercut the whole Article V movement.
Nick Dranias is President & Executive Director within the Office of the President of Compact for America Educational Foundation, Inc. He is also a Research Fellow and Policy Advisor with the Heartland Institute. Dranias previously served as General Counsel and Constitutional Policy Director for the Goldwater Institute, where he held the Clarence J. and Katherine P. Duncan Chair and directed the Joseph and Dorothy Donnelly Moller Center.
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