The Impending Convention for Proposing Amendments — Part IV

Note: This series of six articles originally appeared in the Washington Post’s “Volokh Conspiracy,” a leading constitutional law website. Parts I, II, and III appear below this post, and Parts V and VI will be posted in the near future.

How the judiciary’s decisions shed light on the federal amendments convention

Although there has not been a convention for proposing amendments, there has been a considerable amount of other amendment activity. Disputes arising from this activity have produced a series of reported court decisions interpreting Article V.

Within this nook of constitutional law, the courts have followed certain rules and principles with remarkable consistency. Thus, even though no judicial decision has arisen out of an actual amendments convention, the case law offers useful guidance as to the nature of such a convention and its protocols. This post draws on my treatise, “State Initiation of Constitutional Amendments: A Guide for Lawyers and Legislative Drafters” in summarizing this case law.

Perhaps the most important lesson from the accumulated cases is that when interpreting the language of Article V, the courts follow historical practices and understandings. The words of Article V are to be construed as the Founders
understood them. Moreover, procedures employed in adopting earlier amendments are followed for later amendments.

The courts construe Article V as a list of enumerated powers. Article V confers these powers on named assemblies, both pre-existing and ad hoc. They include Congress, the state legislatures, proposal conventions and ratifying conventions. No assembly has any power over the amendment process except that granted, expressly or impliedly, by the Constitution. The 10th Amendment’s recognition of reserved state powers is inapplicable to Article V.

Article V bestows its authority on named assemblies per se, not on any government or branch of government. Thus, the Supreme Court has held that Article V grants power to propose amendments to the assembly called “Congress,” not to the federal government or the national legislature as such. Similarly, Article V grants power to apply and ratify to state legislatures as independent assemblies, not to state governments or to the state legislative authorities.

Article V further bestows power on ad hoc bodies (conventions) that are not departments of any government. When an assembly wields authority derived from Article V, it is said to exercise a “federal function.”

There are analogues elsewhere in the Constitution. Article II confers a federal function on the Electoral College, an entity the Supreme Court has held is not a branch of government. The Guarantee Clause of Article V devolves federal functions on state legislatures and governors. Article I similarly devolves federal functions on state legislatures and officials, sometimes as governmental entities and sometimes not.

Each entity empowered by Article V is, of course, subject to the express limitations in the Constitution. For example, a federal amendments convention is limited to “proposing” and may not change the ratification rules or ratify its own proposals. Judicial respect for historical practice provides other guidance. For example, conventions of states always have been subject to the limits imposed by their calls and by legislative authority, so it follows that a convention may not propose amendments outside the scope of the state applications and congressional call.

Within its prescribed scope, each assembly is free to exercise the discretion an assembly of that kind historically has enjoyed. Hence, the courts hold that it is improper for a voter initiative to attempt to force a member of Congress to
propose a particular amendment or a state legislature to apply or to ratify. Similarly, it would be improper for an applying state legislature to try to turn a proposing convention into a ratifying convention by limiting it to an up-or-down vote on predetermined wording. (This last conclusion is controversial in some quarters, but I believe it is unavoidable.)

Because legislatures operating under Article V act only as resolving assemblies and not as lawmakers per se, executive participation (signing or vetoing) is not appropriate.

As noted in Part I, the Supreme Court has recognised (in accordance with nearly unanimous Founding-Era authority) that a convention for proposing amendments is a “convention of the states.” As also explained in Part I, “convention of the states” is a term with clear and longstanding content. Several rules follow:

o A convention for proposing amendments is a diplomatic meeting among “committees” of state “commissioners” on the basis of semi-sovereign equality, with an initial one state/ one vote suffrage rule.

o Each state committee is selected and commissioned as its state legislature determines – probably by legislative resolution rather than by pre-existing state law. State legislatures usually reserve the right to select their own commissioners, but they may delegate it to the governor or to the electorate, or they may adopt a nomination-and-confirmation approach.

o Each state committee, no matter how selected, is subject to legislative instruction. Although the state legislature may not, in its applying capacity, attempt to micromanage the convention, in its supervisory capacity it may instruct its own committee. The difference can be justified in this way: The convention should arrive at its conclusions through negotiation. To lay down immutable conditions on the call is to forestall negotiations. However, instructions issued after the call are alterable. In practice, they assure that negotiations include the authorities back home and that the state legislatures enjoy a co-equal position with Congress in the proposal procedure.

o The scope of the congressional call is limited to the traditional incidents of calls for interstate conventions. It may set the initial time and location and specify the applied-for subject matter; but may not dictate selection procedures, or convention rules or other matters to the states or to the convention.

o The Necessary and Proper Clause does not empower Congress to regulate the convention. There are several reasons for so concluding: (1) Allowing Congress to do so would be inconsistent with the Constitution’s goal of providing a way to bypass Congress; (2) the Necessary and Proper Clause is but a statement of incidental powers, which in a call for an interstate convention are limited to
time, place and subject; and (3) the Necessary and Proper Clause, by its terms, applies only to “foregoing Powers” and those vested either in the U.S. “Government” and in “any Department or Officer thereof” – a description that does not pertain to assemblies acting under Article V.

o The convention drafts its own rules and elects its own officers. Once an application campaign appears to have met the two-thirds threshold, Congress will have to determine whether the applications actually “aggregate” to 34. In the event of a dispute, the judiciary may be called upon to review the congressional decision.

As a general proposition, the congressional duty to call is ministerial in nature: The Constitution provides that when 34 states have demanded a convention on a particular topic, Congress “shall call” it. In the 1960s, some members of Congress stated flatly that, despite what the Constitution said, they would never vote to call a convention. Other opponents, such as Professor Charles Black, contended that Congress should load the call with controlling terms and conditions. History and precedent suggests that the courts will not respond favorably to such tactics.

However, even ministerial duties may require a threshold exercise of discretion. For example, some applications, especially older ones, purport to restrict the convention to an amendment with prescribed wording. Congress will have to determine whether those applications are void or, if valid, the extent to which they can be aggregated with more inclusive applications covering the same general subject. Although the judiciary has firmly rejected suggestions that Congress is omnipotent in regulating the amendment process, the courts likely will defer to reasonable, good-faith exercises of discretion.