Mike Stern Rebuts Claim that “Congress would control a convention”

2013-0822 RGN

Article V scholar and former House of Representatives legal counsel Mike Stern has just written a response to the irresponsible claim that Congress could control a Convention for Proposing Amendments, either by specifying how commissioners are allocated or in other ways.

His response is worth wide publicity. Here it is:

I am writing to respond to the argument, circulated by opponents of HJR 1018, that Congress could by law attempt to exercise control over an Article V convention. Specifically, a piece circulated in the House on February 24, 2015 claims that “the U.S. Constitution gives Congress the authority to determine the voting delegate count and the Supreme Court of the United States has already affirmed this.”
This claim is wrong as a matter of law. Moreover, as described below, there is no chance that Congress would attempt to regulate the Article V convention as suggested even if it had a colorable legal basis for doing so.

The argument for Congress’s supposed legal authority is premised entirely on a series of bills that were introduced in Congress from the late 1960s until 1992. These bills derived from legislation originally proposed by Senator Sam Ervin of North Carolina to support a specific constitutional amendment designed to overturn the Supreme Court’s “one man one vote” decision in Reynolds v. Sims. It is important to note that no such legislation was ever enacted and it has been more than 20 years since it has even been introduced for consideration.
Senator Ervin explained the background for his legislation in a 1968 law review article:

Article V of the Constitution of the United States provides that constitutional amendments may be proposed in either of two ways—by two-thirds of both houses of the Congress or by a convention called for by the Congress in response to the applications of two-thirds of the state legislatures. Although the framers of the Constitution evidently contemplated that the two methods of initiating amendments would operate as parallel procedures, neither superior to the other, this has not been the case historically. Each of the twenty-five amendments ratified to date was proposed by the Congress under the first alternative. As a result, although the mechanics and limitations of congressional power under the first alternative, very little exists in the way of precedent or learning relating to the unused alternative method in article V. This became distressingly clear recently, following the disclosure that thirty-two state legislatures had, in one form or another, petitioned the Congress to call a convention to propose a constitutional amendment permitting states to apportion their legislatures on the basis of some other standard that the Supreme Court’s “one man-one vote” requirement. The scant information and considerable misinformation and even outright ignorance displayed on the subject of constitutional amendment, both within the Congress and outside of it—and particularly the dangerous precedents threatened by some of the constitutional misconceptions put forth—prompted me to introduce in the Senate a legislative proposal designed to implement the convention amendment provision in article V.

As the above passage makes clear, Senator Ervin’s legislation was designed to assist the states in calling for an amendments convention. Indeed, although Ervin’s legislation wrongly assumes that Congress has the power to legislate with regard to convention procedures, he also says that it would be “a flagrant disavowal of the clear language and intended function of article V” for the Congress to use this power in a manner that would thwart the states in their efforts to call a convention.

Ervin was primarily concerned with what he describes as the “considerable misinformation” and “constitutional misconceptions” being circulated by the opponents of an Article V convention. Of these the most important, which Ervin spends considerable time in refuting, is the idea that the convention cannot be limited. Ervin explains that this interpretation was “supported neither by logic nor constitutional history” and argues that “[t]his construction would effectively destroy the power of the states to originate the amendment of errors pointed out by experience, as Madison expected them to do.” It should be noted that opponents of the Article V convention still rely primarily on the constitutional misconception of the runaway convention, while cherry picking Ervin’s legislation for “precedent” they find more to their liking.

Unfortunately, Senator Ervin gave comparatively little attention to the question of Congress’s power to regulate the Article V convention. He merely observed that someone would need to provide for the membership and procedures of the convention and contended it would be impossible for all fifty state legislatures to do so. The original version of the legislation provided for one vote per state, but Ervin amended it to provide for proportional representation, apparently in the hope of reducing opposition from liberal senators who were opposed to any attempt to reverse Reynolds v. Sims.

In assessing whether Congress has the power to regulate voting at an Article V convention, two questions need to be asked: (1) does the Constitution provide for a default voting rule for the convention and (2) does Congress have the power to establish a voting rule or alter the default rule? Ervin seemed to assume, without analysis, that no default voting rule existed (hence his contention that Congress or all fifty states would have to act to establish such a rule). But this assumption is obviously wrong. If the Constitution provided no default rule, calling a convention would be impossible until Congress or the state legislatures established what rule would apply. Yet Article V clearly provides that once two-thirds of the state legislatures apply for a convention, Congress “shall” call the convention. As Hamilton wrote in Federalist No. 85, the words of Article V are “preemptory” and “[n]othing in this particular is left to discretion.” Thus, there can be no requirement of other action, particularly by Congress, before a convention is called.

Once it is recognized that the Constitution provides a default voting rule, it is apparent that this rule must be one vote per state. This is true for the following reasons: (1) there are a number of different possible proportional representation methods (population, congressional representation, seats in the House, etc.) and nothing in Article V or the Constitution provides a basis for choosing among them; (2) one vote per state was the voting rule used in the Philadelphia convention and all interstate conventions prior to that time; (3) in respect to both applying for a convention and ratifying an amendment, Article V provides an equal vote to each state; (4) statements made during the debate over ratification, such as Hamilton’s observation that “whenever nine or rather ten states, were united in the desire of a particular amendment, that amendment must infallibly take place,” confirm an understanding of one vote per state; and (5) post-ratification history, including the procedure used during the Washington Convention of 1861, demonstrates that voting at Article V conventions was to be one vote per state.

As Ervin acknowledged in the passage quoted earlier, there was a paucity of “learning” regarding the Article V convention at the time he crafted his legislation. However, subsequent work by noted scholars such as Professor Rob Natelson and Michael Rappaport provides a much more detailed understanding of the Framers’ original intent with respect to the Article V convention. Professor Natelson’s research, for example, demonstrates that at the time of the framing there were well understood procedures for holding such a convention, including a one vote per state rule. Thus, although the resolutions of the states and the Confederation Congress calling for the Philadelphia Convention were silent (as is Article V) as to the voting rule to be used, the Philadelphia Convention employed a one vote per state rule without objection or controversy.

It is also apparent that Congress cannot, consistent with the purpose of the Article V convention, be permitted to establish or alter the voting rule for the convention, nor otherwise to exercise any authority that would infringe upon the independence of the states and the convention. The entire purpose of the Article V convention was to empower the states to obtain constitutional amendments without congressional authorization or assistance. Allowing Congress to control the convention through adoption of voting rules or other procedural requirements would fly in the face of this fundamental purpose of the convention.

The February 24, 2015 document circulated by opponents of HJR 1018 claims that Congress has the power under the Necessary and Proper Clause to prescribe rules for the convention. But for the reasons already discussed it would be neither necessary (because the Constitution provides a default voting rule) nor proper (because the convention must be completely independent of Congress) for Congress to regulate the convention. Moreover, the Necessary and Proper Clause applies to powers vested by the Constitution in “the Government of the United States, or in any Department or Officer thereof,” which description does not include the Article V convention.

It is also suggested that the Supreme Court has somehow upheld Congress’s authority to regulate an Article V convention. This claim is obviously false since Congress has never passed such legislation and the Court has therefore never had occasion to consider it. The case cited for that proposition, Dillon v. Gloss, involved Congress’s authority to include a time limit for ratification in a congressionally proposed constitutional amendment. It had nothing to do with an Article V convention at all.

The Feb. 24 document cites a Congressional Research Service report for the proposition that the Ervin legislation and later proposals modeled on it establish Congress’s claim to “broad responsibilities” in connection with a convention. But the very same CRS report also acknowledges a strong argument for a “minimalist” role for Congress and notes there is “justification for this course of action from the pens of the founders themselves.” The original intent of the Framers is much more powerful legal support than the terms of comparatively recent legislation that never passed Congress.

In any event, there is no practical possibility that Congress would today be willing or able to enact legislation regulating an Article V convention. The fact that the Ervin legislation failed to pass Congress for more than 20 years should amply demonstrate that today’s Congress, more divided and dysfunctional than ever before, is never going to pass such legislation. In the extraordinarily unlikely event that such legislation were introduced, much less seriously considered, the states would have plenty of time to defeat the legislation or, if all else failed, to rescind their applications.

As a final red herring, the Feb. 24 document suggests that Congress could insulate delegates from control by their state legislatures by citing to a provision of the Ervin legislation that would provide delegates with a privilege against arrest. This provision would have simply provided delegates with standard legislative immunity that appears in the U.S. Constitution and most state constitutions. The arrest privilege is extraordinarily narrow (applying only to arrest in civil cases, which makes it essentially meaningless) and was neither intended to nor would have the effect of interfering with state legislative control over their delegations.