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Article V . . . I Do Not Think It Functions Like You Think It Functions

February 14, 2012

Something that never ceases to amaze me about the current crop of Republicans, especially in Arkansas, is their complete acquiesence to whatever the trendy group-think idea is. There’s no room (or, perhaps more accurately, ability) in their ranks for critical thinking; the corporate or special-interest overlords take care of that part, and they feed the message to willing Republicans like a mama bird regurgitating soundbite-sized chunks.

It should come as no surprise, then, that the posterchildren for this non-thinking group of Tea Party-backed Republicans[1] have pre-filed Joint Resolution #1, which is a call for a constitutional convention to pass an amendment to the U.S. Constitution that would require the federal government to get state approval before it could raise the national debt. This resolution, already adopted in North Dakota and Louisiana, is the pet project of a group called RestoringFreedom.Org. To hear RestoringFreedom.org tell it — and to hear the Arkansas Republicans parrot — this amendment is necessary because Congress is not going to stop spending, and only by using the constitutional power of states to propose an amendment can we be sure that the out-of-control spending in Washington will cease.

Ignoring for a moment the fact that the idea behind RestoringFreedom.Org is supported by ALEC (among others), I can see at least two problems with the effort itself. First, an amendment-proposing convention under Article V of the Consitution cannot be limited to a single subject matter, meaning that calling a convention to consider this amendment would necessarily require that the convention consider any and all amendments that might be proposed, which could lead to some unintended consequences. Second, if this amendment passed, you would either create a situation where the government was forced to raise taxes or you would effectively return to an Articles of Confederation-style situation where the government lacked the ability to raise the money it needed.  We’ll tackle each of these in turn.

Article V Conventions Cannot Be Preemptively Limited In Scope By The States.

Article V of the U.S. Constitution allows for the proposal of amendments in two ways — by “Congress, whenever two-thirds of both Houses shall deem it necessary,” or “on the Application of the Legislatures of two-thirds of the several States.” In either instance, once the threshold requirement is reached (2/3 of both Houses or 2/3 of the state legislatures), Congress has no discretion, and they “shall call a Convention for proposing Amendments.” Should any amendments be proposed by the convention, Congress then chooses how the amendments will be ratified, whether by a vote of the people or via ratifying conventions in each state. (Both options require 3/4 of the states to approve the amendment before it is ratified.)

According to this RestoringFreedom video (and Rep. Nate Bell[2]), if 2/3 of the states pass resolutions seeking a convention to propose this specific amendment, that convention would accordingly be limited to the single issue. Because no such convention has even been called, and because the Supreme Court has never ruled on this question, whether this is an accurate statement is open to some debate. A logical interpretation of Article V, however, suggests that it is not.

The United State Supreme Court has explained:

The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted it means now. […] The Constitution is not only the same in words, but the same in meaning, […] and reserves and secures the same rights and privileges to the citizens; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States.

South Carolina v. U.S., 199 U.S. 437 (1905). Stated a little differently, “[W]hen called upon to construe and apply a provision of the Constitution of the United States, we must look not merely to its language, but to its historical origin and to those decisions of this court in which its meaning and the scope of its operation have received deliberate consideration.” Missouri v. Illinois, 180 U.S. 208 (1901)

Makes sense, right? The words mean what they meant to the guys who actually wrote the thing.  Well, then, we have to look first at what “Convention” meant to the framers.

According to Prof. Gordon S. Wood in his book The Creation Of the American Republic, 1776-1787:

[T]he convention in American thinking eventually became something more than a legally deficient legislature, indeed became an extraodrdinary constitution-making body that was considered to be something very different and even superior to the ordinary legislature–all so rapidly and so suddently that it is difficult to recapture its origins. It was perhaps inevitable that the Aemricans’ conventions of 1774-75, as the instruments of revolution and consitution-making, should have eventually assumed an unusual importance in their eyes.

Likewise, Prof. Charles L. Black opined that “Convention” as it is used in Article V meant, specifically, “a convention for proposing such amendments as that convention decides to propose.” Amending the Constitution: A Letter to a Congressman, 82 YALE L.J. 189 (1972).  Indeed, this can be seen in the lead up to the Philadelphia Convention of 1787; the report of the Annapolis Convention of 1786 issued a request “to effect a general meeting, of the States, in a future Convention, for the same and such other purposes as the situation of public affairs may be found to require.”  A “convention” had to be a deliberative body if “may be found to require” was to have any meaning.

Looking more broadly at Article V, it is clear that the framers considered and included certain limitations on what an Article V convention may consider; no convention prior to 1808 was allowed to consider an amendment that would “in any manner affect” the importation of slaves or that would create taxes that were not based on population, and they are not allowed to consider any amendment that would change a state’s number of senators “without its consent.”  That’s it.

Why does this list matter? Because of a long-standing canon of statutory interpretation, expressio unius est exclusio alterius (“the express mention of one thing excludes all others”). Under that canon, where you would expect that the drafters of the law would have included a particular thing in a list if they wanted it included, items not on the list are assumed not to be covered by the statute.  In other words, the drafters’ failure to mention something becomes grounds for inferring that it was deliberately excluded.

So, by Article V’s text, we have the framers’ proposing a purposeful, deliberative body that could consider any amendments other than the ones specifically excluded.  Even beyond the text, however, there are arguments for why an unlimited convention is really the only form that makes sense.  Perhaps the most telling of these is the problems that allowing for a limited convention would create.

Under Article V, once 34 states have asked for a convention, Congress’ role in the whole process becomes administrative only:  So, assume for a moment that a limited convention was convened, but the convention members wound up approving an amendment that was somehow outside the scope of the limited convention.  What then?

After all, there is no provision in this Article or any other article that would allow Congress to refuse to submit that amendment to the states for a ratifying vote, but the courts would have no power to force Congress to submit the scope-exceeding amendment to the states under the political-question doctrine.  See Coleman v. Miller, 307 U.S. 433, 459 (1939) (Black, J., concurring) (“Congress, possessing exclusive power over the amending process, cannot be bound by and is under no duty to accept the pronouncements upon that exclusive power by this Court”). In fact, the purpose of the convention-proposal part of Article V is to allow the states to do what Congress won’t; putting Congress in a supervisory role for such a convention would be absurd in that situation, but not putting Congress in such a role would make the limits on a “limited” convention meaningless.

RestoringFreedom.Org and others who support this particular amendment are apparently attempting to limit the possible problems by making their petition and model legislation as similar as possible.  Effectively, they want the convention to function as a pass-through — 34 states agree to the amendment ahead of time, the convention is called, 4 more states agree, and it goes to the states (preferably, for their purposes, in the form of ratifying conventions rather than direct vote of the people).  But — and here’s another argument against the limited convention — the convention was never intended as a pass-through.

After all, if the only thing the drafters wanted was for 38 states to agree on an amendment, they could have omitted the 2/3 requirement for even calling a convention and simply required that 3/4 of state legislatures pass the same amendment.  To the extent that such a passage would have been nearly impossible in 1787 due to the lack of easy communication between the colonies, that would only serve to support the idea that the convention was not designed to be limited or act as a pass-through; it was designed to allow the colonies to get together, argue/negotiate/agree with one another, and propose such amendments as the convention might see fit.

Additionally, if the convention was supposed to be a pass-through, why would the requirement for calling that convention be less than would be required for ratifying the amendment?  Clearly, allowing a convention to be called with fewer than the number of states necessary for ratification means that the drafters anticipated some intervening discussion/deliberation.  As soon as you have that discussion, you open the same can of worms that we discussed above: if the discussions result in a substantive change to the pre-approved language of that amendment, the convention has exceeded its limits.

If you are wondering why the Arkansas legislators who back this amendment haven’t tweaked their joint resolution to possibly address this issue, the answer is because their joint resolution was nothing more than an Arkansas legislature heading slapped on the model legislation contained in the downloadable Legislator Information Package on Restoring Freedom’s website.  That Legislating For Dummies-style link, combined with the videos on the website, removed any possibility that the type of legislator who might propose this amendment would change it or apply any outside thought to the measure.

I can’t help but think of Alfred, Lord Tennyson: “Theirs not to make reply / Theirs not to reason why / Theirs but to do and die.” Onward, into the valley of Dumb, legislated the Republicans.

***

Coming soon(ish): Part II, in which we discuss why this amendment, when combined with the anti-tax mentality in Washington, would put the U.S. in much the same situation as it found itself under the Articles of Confederation.

***
[1] One Democrat, Gene Jeffress, also signed on to this absurdity.  If there’s a more transparent way to be able to pander to the Republican-leaning voters in AR-04, I don’t know what it is.
[2] I love that Bell mentions “Numerous Constitutional experts,” but then only points me to RestoringFreedom.org.  My guess is that Bell’s “study” of the issue involved little more than watching the videos on that website.

8 comments

  1. “First, an amendment-proposing convention under Article V of the Constitution cannot be limited to a single subject matter, meaning that calling a convention to consider this amendment would necessarily require that the convention consider any and all amendments that might be proposed, which could lead to some unintended consequences.”

    This is flatly wrong; conclusion doesn’t follow from premises. The convention as a body doesn’t have to consider all proposed amendments.

    Here is the way it works in the real world. A group of people assemble. They delegate authority to a small committee that writes the rules for the proceedings. The rules committee then decides what the procedures will be for decision-making.

    It is overwhelmingly likely that the rules committee in the convention that you’re imagining would decide that only the proposal that has the support of, in this case, 2/3 of the states would ever get considered.

    In the overwhelmingly unlikely event that other proposals were considered, it is overwhelmingly unlikely that they would pass out of the body.

    In the overwhelmingly unlikely event that they passed out of the body, it is overwhelmingly unlikely that they would be ratified by 38 states.

    Here is an example of the mistake that you are making. Personally, I would strongly prefer never to be hit by a meteorite. It is overwhelmingly unlikely that I would ever be hit by a meteorite, but it does not follow that my desire to avoid being hit by a meteorite means that I should never go outside. Your argument seems to be that, in fact, I should never go outside, because I might be hit by a meteorite.

    You’re not going to see a constitutional convention pass something out that isn’t supported by 34 states and in any case you’re not going to see 38 states ratify it. This is true for many reasons, including the fact that these are not doors that people want to open.

    I hope your part II is stronger. To call your part I weak would be quite complimentary.


    • This is flatly wrong; conclusion doesn’t follow from premises.

      Premise 1: The text of Article V, including what specific words meant in 1787 (as demonstrated by citation to sources), suggest that a limited convention is not available.
      Premise 2: The inclusion of specific limitations on what can be considered suggests that additional limitations were purposefully excluded under a long-standing cannon of legal interpretation.
      Premise 3: The administrative role of Congress in an Article V convention called by the states suggests that a limited convention was not contemplated.
      Premise 4: The idea of an Article V convention as a pass-through for something that’s already been agreed upon is not supported by any legal authority or logical interpretation of the rules.

      Conclusion: A limited Article V convention is not available.

      Yeah, I’d say that follows from the premises. What doesn’t make much sense, however, is why you think only addressing parts of Premises 3 and 4, without discussing the first two, is a valid response to the point of the post. What also doesn’t make a lot of sense is a statement like, “Here is the way it works in the real world,” when we are discussing something that has never once occurred in the real world. You make conclusory statements, devoid of citation to authority or convincing argument, and your assertions of what would or would not occur are therefore baseless.

      Additionally, your “example” is flawed for a number of reasons, not the least of which is it (like the rest of your comment) ignores the first half of the argument contained in the post.

      If my part 1 was “weak,” your response to it had all the strength of a mustard burp in a tornado.


      • I don’t think you understand the point I made, because you threw in a bunch of premises that are irrelevant to it. All four of the premises you list are irrelevant to my argument that the unintended consequences you list aren’t going to happen. I am sorry you didn’t understand this: the text of Article V, the canons of constitutional interpretation, and the many other irrelevant premises you supply play no role in my post.

        If you really think that “Here is the way it works in the real world” demands a citation, please familiarize yourself with past state constitutional conventions, or indeed with the procedures of a federal, state, or local legislative body. The first thing that such a body does upon first convening — almost inevitably and necessarily — is that it approves a set of rules, which cover the procedures that the body will follow. You are asking me for a citation for something that is common knowledge to anyone who has ever worked with a large group of people tasked with carrying out a deliberative function. However, two citations do occur to me that are relevant here: “A page of history is worth a volume of logic.” That’s Holmes in New York Trust Co. v. Eisner. Or perhaps Mencken’s “One horse-laugh is worth ten thousand syllogisms.”

        Go read my post carefully this time – respond to the argument that it actually makes. You flunked this task the first time. (Or, to demonstrate real intellectual seriousness, actually be brave enough to approve my post before you produce your “response.”) You are flatly wrong to say that the convention must “consider any and all amendments that might be proposed.” That is the conclusion which doesn’t follow from the premise you provided; all you did was supply a bunch of expletives: you were so busy insisting that I was making conclusory statements, that they lacked authority, that they weren’t convincing, that they were baseless, that they were flawed, etc etc etc ad nauseum, that you forgot to read, think about, or respond to the argument I made.

        Do you think Congress considers any and all legislation that any Congressman proposes? Think carefully – that’s a very relevant question here.


        • Last things first:

          (Or, to demonstrate real intellectual seriousness, actually be brave enough to approve my post before you produce your “response.”)

          The first comment from ANY new commenter is held for approval to prevent spam. Stop thinking you’re special or that your response was so impressive that I had to hold it for a while until I could respond.

          Moving on . . .

          I don’t think you understand the point I made, because you threw in a bunch of premises that are irrelevant to it. All four of the premises you list are irrelevant to my argument that the unintended consequences you list aren’t going to happen.

          So you’ve put this much effort into responding to a single clause in the original post, ignoring the rest? Fine, but that does nothing to refute the actual point of my post, which was that Art. V conventions cannot be limited to specific subject matters.

          To put it more simply, I argued that A, B, C, and D support my conclusion. You replied “NO WAY! The nonrestrictive clause that follows your actual conclusion is incorrect!” In fact, I didn’t even make the unintended-consequences point in this post. That was in reference to what I will write about in part two. Of course, you then go on to conflate that statement with a statement about what the convention must consider, despite the fact that the two are not the same; the former has not yet been discussed, while the latter was the conclusion of this post, which I supported and you have yet to fully respond to.

          If you really think that “Here is the way it works in the real world” demands a citation, please familiarize yourself with past state constitutional conventions, or indeed with the procedures of a federal, state, or local legislative body.

          My statement was aimed specifically at your assertion that the way “it works in the real world” was that the rules committee could decide to limit the subject matter of the convention. If the convention cannot be limited in scope — which was my assertion, supported by multiple arguments — then a rule committee cannot trump the requirements of the constitution, just as the rules committee could not (for example) make a rule that the convention got to choose the ratification process (rather than Congress) or that a number of state others than 3/4 was required for ratification. Constitutional limits on the convention trump any decisions of the rules committee.

          “A page of history is worth a volume of logic.” That’s Holmes in New York Trust Co. v. Eisner.

          Assuming you are familiar with the actual context of that quote, I’ll leave it to you to recognize the irony of using it here, considering the fact that I made arguments in the post based on “an interpretation of language by its traditional use on the practical and historical ground.” 256 U.S. 349.

          Go read my post carefully this time – respond to the argument that it actually makes. You flunked this task the first time.

          Perhaps you feel that way because you are unclear as to what your argument actually was.

          In this comment, you first state: “All four of the premises you list are irrelevant to my argument that the unintended consequences you list aren’t going to happen.” Later in the same comment, you write: “the argument that it actually makes[;] You are flatly wrong to say that the convention must ‘consider any and all amendments that might be proposed.'” These are clearly not the same argument. Moreover, I fail to see how saying “they don’t have to consider all proposals” is any different than saying “they can limit the convention;” the ability to ignore certain proposals by definition means that the subject-matter is limited, and I have already explained why it cannot be limited, going so far as to provide multiple reasons. You addressed less than half of those reasons, and you certainly have countered the original argument.

          So, yes, I call shenanigans on the idea that you were arguing only about unintended consequences, especially since I didn’t even flesh out that point, which I am saving for part 2. In fact, looking at your original comment, the only reference to “unintended consequences” was where you quoted me. You immediately follow it with your assertion about the convention not having to consider all proposals. You were/are specifically arguing that a convention doesn’t have to consider all proposals (i.e. that it can be limited). which we’ve discussed and which you’ve not fully refuted.

          In conclusion:

          To the extent you want a response to your assertion that the convention can be limited, I’ve provided it, both in the original post and in my first comment.

          To the extent you want a response to an argument about unintended consequences — a point that I haven’t even fleshed out yet — I think I’ll wait until I actually write part two.

          To the extent you want to continue asserting that you are arguing something that you are not, knock yourself out.


        • Also . . .

          Do you think Congress considers any and all legislation that any Congressman proposes? Think carefully – that’s a very relevant question here.

          No, because there are committees that vet such things. And those committees are established by a wholly different set of governing rules than would guide an Art. V convention. Now, as far as legislation that is proposed consistent with the prevailing rules of Congress, it is certainly considered in accordance with those same rules. Which, again, have nothing to do with an Art. V convention called by the states.


          • You have no idea what you’re talking about. Of course I never said that a rules committee could limit the scope of the convention; I said that it could write the rules for what the convention, as a whole, considers. That is the crucial point; you have covered it up with a bunch of hand-waving and irrelevant citations; you have demonstrated nothing in this series of posts except an apparently invincible ignorance of parliamentary procedure.


  2. Of course I never said that a rules committee could limit the scope of the convention.

    Except you did when you said “You are flatly wrong to say that the convention must ‘consider any and all amendments that might be proposed.'” If they don’t have to consider a proposal, then the scope is limited to whatever it is they do have to consider.

    I said that it could write the rules for what the convention, as a whole, considers.

    Actually, first you said something about limiting the convention, then you said something about unintended consequences, and now you are (again) saying something about limiting the convention without admitting that you’re talking about a limitation. If the Constitution prohibits something — such a limitation on subject-matter — then the rules of the convention cannot circumvent that. I’ve argued that the Constitution does so. You’ve . . . not replied in a meaningful manner.

    you have covered it up with a bunch of hand-waving and irrelevant citations

    I cited to law professors and historians among others. You cited to a USSC tax case. You also failed to respond to actual arguments. So let me make this clear: as soon as you respond to the ENTIRE argument for why the convention cannot be limited, I’ll offer a rebuttal. Until then, there’s no need.

    you have demonstrated nothing in this series of posts except an apparently invincible ignorance of parliamentary procedure.

    You’ve demonstrated a complete inability to actually engage in an argument, claiming that your point was three different things at different times. Roberts Rules of Order do not trump the Constitution; I made a Constitutional argument. You ignored it. But, please, tell us again how your point was something entirely different and how you are sure you are right, despite failing to counter much of anything.



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