Article V . . . I Do Not Think It Functions Like You Think It FunctionsFebruary 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 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), 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.
 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.
 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.