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October 21, 2014

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Does Article V Really Mandate a Free Range Convention?

October 3, 2014

 

Fivers often debate the extent to which the states direct the convention for proposing amendments contemplated under Article V of the U.S. Constitution.

 

Some Fivers claim that the convention must have total deliberative freedom to consider and debate anything under the sun. In essence, they view the convention as a completely autonomous, free-ranging sovereign body, entirely independent of the states that apply for it.

 

Others, like retired Professor Robert Natelson (who almost single-handedly revived the Article V movement four years ago), contend that the convention’s deliberations can only be limited by the states to a subject matter (although it is unclear whether his opinion reflects a litigation risk assessment or a claim about the original meaning of Article V).

 

Still others, such as Fifth Circuit Court of Appeals Judge Harold DeMoss, Professors Michael Rappaport, John Eastman, and Kevin Gutzman, and constitutional attorneys and scholars Nick Dranias, Ilya Shapiro, Shane Krauser, and Michael Stern, contend that the states have the constitutional authority to limit the deliberations of an Article V convention to debating and voting up or down a specific amendment proposal, if they so choose.

 

Who is right?

 

Well, Compact for America obviously sides with DeMoss, Rappaport, Eastman, Gutzman, Dranias, Shapiro, Krauser and Stern. The laser-focus of the Compact for a Balanced Budget on advancing and ratifying a specific and pre-drafted Balanced Budget Amendment is indeed premised on the constitutionality of limiting the deliberations of the convention it organizes to debating and voting up or down that amendment. The evidence from the Founding era overwhelmingly supports this premise. But rather than being prescriptive about why you should agree with Compact for America (you can already find the legal and historical analysis here), this blog invites you to take the same intellectual journey that led us to this conclusion.

 

So, before arriving at our destination, we would urge you ask and investigate the following ten areas of inquiry for yourself: 

 

First, read Article V itself. Notice the word “convention” used in connection with the ratification process is not identified as we typically do as a “ratifying convention.” It is specified simply as a “convention.” Notice also that the language of Article V does not directly limit this convention’s deliberations to only ratification. There is no text that says a convention organized to ratify an amendment cannot also do other things. Hence, Article V’s use of the word “convention” on the ratification side simply presumes that without further limiting language, a “convention” can still be a “convention” when its deliberations are limited to debating ratification, which is simply an up or down vote on a particular amendment proposal. What does that suggest about the extent of deliberation required by the similar use of the word “convention” on the proposal side? Is it really true that all conventions must have more deliberative freedom than debating an up or down vote?

 

Second, read 18th century dictionaries. The word “convention” is typically used interchangably with “assembly.” Is there any Founding-era authority that says a convention is necessarily a free-ranging, autonomous deliberative body?

 

Third, read the drafting history for Article V carefully. Notice that James Madison’s draft formulation originally had “Congress” proposing amendments on application of the states. Notice that this draft was altered on the proposal side only by replacing “Congress” with a “convention for proposing amendments.” Notice that this change was made to better ensure that Congress would not frustrate the states in their effort to obtain desired amendments. Does that change from “Congress” to “convention” really imply that the convention was meant to have autonomous deliberative freedom to propose amendments unlike those desired by the states? Is there really any hint in the drafting history of Article V that the “convention” was meant to be even more autonomous from the states in the application process than Congress would have been in Madison’s original formulation?

 

Fourth, read Federalist No. 43, notice how James Madison says the power of the states to secure amendments is equal to that of Congress. Would that representation be true if the convention was really meant to be an autonomous body that must necessarily have deliberative freedom to disregard the will of the states with regard to desired amendment proposals?

 

Fifth, read Federalist No. 85. Notice that Alexander Hamilton says that the amendment process set out in Article V would not involve “give or take.” Notice that his discussion is about the entire amendment process, not just the Congressional side. Does this representation stand against the notion that the convention requires deliberation involving free-ranging “give or take?”

 

Sixth, back to Federalist No. 85, notice also that Hamilton emphasizes how two-thirds of the states would seek “alterations” or “set on foot the measure” and that we can rely on state “legislatures” to erect barriers. What does this imply about the agenda-setting power of the Article V application process, which alone is entirely controlled by two-thirds of the states through their legislatures? Is it reasonable to construe the convention as necessarily being independent and autonomous from the state legislatures that applied for it? Or is it more reasonable to construe the convention as an instrumentality of those very applying states? If the convention is an instrumentality of the applying states, is there any reason why its deliberations would need to range more widely than debating an up or down vote over the amendment proposal desired by those states?

 

Seventh, read George Washington’s 1788 letter to John Armstrong, notice how he says “nine states” can get the amendments they desire, in reference to the two-thirds threshold for calling an Article V convention. Is that representation, coming from the Chairman of the Philadelphia Convention, consistent with an Article V convention necessarily having the autonomous deliberative freedom to disregard the will of the states that applied for it?

 

Eighth, read George Nicholas’ representations during the ratification debates; he said, “The Convention which shall be so called, will have their deliberations confined to a few points;--no local interests to divert their attention;--nothing but the necessary alterations.”  Nicholas also added, the new convention would not have to decide the preliminary issues that had beset the Philadelphia Convention.  “No experiments to devise,” he said, “the general and fundamental regulations being already laid down.” Does this representation about the state-initiated Article V amendment process suggest that the convention it organizes must involve more deliberation than a debate over an up or down vote on the “necessary alterations?”

 

Ninth, read Tench Coxe’s representations during the ratification debates. He said, “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 these statements clearly indicate that two-thirds of the states would specify the desired amendments in their Article V application. What does that imply about proposal process? Is this representation consistent with the notion that the convention must have deliberative freedom to range freely away from the contemplated amendments?

 

Tenth, what legal authority actually requires legislative “deliberation” to involve more than debating an up or down vote on a legislative measure? Are there really authorities that say any deliberative body loses its deliberative qualities by voting into place rules that limit debate to an up or down vote on a specific piece of legislation? Does that mean that special legislative sessions that are so limited are non-deliberative? Or is it more reasonable to conclude that legislative deliberation still exists even when deliberation is limited to debating an up or down vote on a particular measure?

 

Now, after gathering your thoughts in response to the foregoing questions, step back and consider what they imply. What is the picture of the Article V convention for proposing amendments that is painted by the answers you have gathered?

 

Is it really true that an Article V convention was meant to be an autonomous body that must have the deliberative freedom to propose amendments that the states never applied for?

 

Or was an Article V convention meant to be an instrumentality of the states, organized because 18th century technological limitations rendered an assembly of the states the only practical vehicle for ensuring that the amendments the states wanted (as expressed in their application) were actually proposed?

 

And if an Article V convention was meant only to be a coordinating instrumentality of the states, is there really any reason to suppose that it would necessarily have more deliberative freedom than a ratifying convention?

 

You know where Compact for America stands. We believe the Founding-era answers to the foregoing questions overwhelmingly sustain the view that an Article V convention is an instrumentality of the states, with only as much deliberative freedom as the states allow it. Consequently, the laser-focus of the Compact for a Balanced Budget on advancing and ratifying a specific Balanced Budget Amendment is fully constitutional.

 

If you stand with Compact for America, you stand by the Constitution’s original meaning.

 

* * *

 

by Nick Dranias

 

* * *

 

If you have not done so already, please visit the Compact for America website and load up on intellectual ammunition. 

 

Please show your support for the cause by purchasing cool Compact for America gear.

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