A New Theory Supporting The Use of the Tenth Amendment to Control the Article V Process—and Why the Theory Doesn’t Work

Rob in the Colorado Rockies

Rob in the Colorado Rockies

The state legislative power to issue binding applications for an amendments convention derives either directly from the Constitution (Article V) or from authority retained (“reserved”) by the states under the Tenth Amendment. Which is it?

A lot hinges on the question. One thing that does is the legal validity of the “Compact for America” approach. The “Compact for America” campaign. urges states adopt a paperwork package that allegedly will control the entire amendment process in advance: applications, congressional call, amendments convention, choice of “Mode of Ratification,” and ratification. Promoters say the states can do this through their Tenth Amendment reserved powers. They cite some statements by various Founders in support, but one can cite other Founders to the contrary.

The Founding-Era record may be ambiguous, but there is no ambiguity in the courts’ position: Federal and state tribunals—including the Supreme Court—have ruled repeatedly and uniformly that the amendment authority exercised by legislatures and conventions comes from Article V, not from the states’ reserved powers. Further, the courts have ruled almost as uniformly that trying to use state law to control the process, or aspects of the process, in advance is unconstitutional. A legal treatise discussing the application and convention process is available here.

Moreover, the U.S. Supreme Court held in U.S. Term Limits v. Thornton that powers the states did not have prior to the Constitution—and were created by the Constitution—could not be “reserved” to the states by the Tenth Amendment. Obviously the power to make binding applications to the Federal Congress for an amendments convention did not exist prior to the Constitution because neither the Constitution nor the Federal Congress then existed.

I recently developed a textualist argument to support the view that reserved powers do apply to the amendment process. Unfortunately, as I developed the argument, it became clear that it doesn’t work. To understand the argument and why it doesn’t work, we turn to the Tenth Amendment, which provides:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.(bolding added)

The textualist argument proceeds as follows:

If one uses the word “reserved” in a popular way, then the Thornton case is right, because in popular usage one could not “reserve” something one never had. But the leading Founders were predominantly lawyers and citizens educated in law, and they frequently used terms in a technical legal way.

The most common technical use of “reserved” during the Founding Era was in conveyances of land. When one granted land and “reserved” something, one reserved a new interest, an interest that had not existed previously. If the interest did exist previously, one “excepted” it.

Thus, if Owen conveyed Blackacre to Peter but wanted to make clear that the sale was subject to an existing easement (right of way) in a neighbor, then Owen “excepted” the easement. But if Owen wanted to create a new easement over Blackacre for himself, then he “reserved” it. In a similar manner, the new state prerogative of issuing applications binding on the new Federal Congress could be reserved. In fact, “reserved” is precisely the correct word for it.

This argument thus hinges on concluding that the Tenth Amendment used the term “reserved” in the technical legal sense.

But here’s why the argument breaks down:

* The legal presumption is that the Constitution uses words in a popular sense. This presumption is rebuttable, but it does put the burden of proof on those who claim a given term is employed in a technical legal way.

* It is also presumed that if the Constitution uses same term in more than one place, it has the same meaning in both places. Article I, Section 8, Clause 16 says that Congress has power

To provide for organizing, arming, and disciplining, the Militia. . . reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress. (bolding added)

Because the states could and did appoint militia officers and train their militias before the Constitution existed, Article I, Section 8, Clause 16 must mean “reserve” in the popular, not the technical legal sense. This, again, raises the burden of proof for those who claim that the Tenth Amendment employed the same word technically.

* Another rule governing the technical legal sense of “reserved” was that a grantor could not “reserve” an interest for a person who was not a party to the deal. In the example above, Owen could reserve an easement over Blackacre for himself but not for a non-party named Jane. Now, the strongest theoretical basis for the Constitution is that it is—as the Preamble implies—a grant from the people to their new federal agents. If this is true, then how could the Tenth Amendment “reserve” an interest to the states, who were not parties?

* You could retreat to the old theory that the Constitution is, like the Articles of Confederation before it, merely a compact whereby the states granted power to new federal agents. However, the courts have rejected that theory for nearly two centuries. And even if the courts accepted that theory at this late date, how could the states “reserve” (as the Tenth Amendment does) an interest to the people, who were non-parties?

* Possibly you can cure this objection by adopting the rarely-used position that both the states and the people were parties to the Constitution. But the courts don’t buy that, either.

* By the old technical legal rules, reservations were created by an “instantaneous grant.” This meant that when Owen sold land to Peter while reserving an easement, the easement didn’t just stay with Owen. What “actually” happened was that Owen conveyed all of Blackacre to Peter, and then a new easement sort of jumped out of Blackacre right back to Owen! But the Constitution is not a grant of all Blackacre—that is, it does not grant omnipotence to the new federal officers, subject to just a few reservations and exceptions. Rather, the grants outside Article V are all defined in a way that does not include the states’ “reserved” application power. In other words, the Founders could not have been using the technical meaning of “reserve” in the Tenth Amendment because, outside of Article V, there is no grant wide enough from which control over the amendment process could jump back to the states.

In sum, my technical argument doesn’t work. It will not convince the courts to abandon their prior decisions disallowing use of state law to control the amendment process.