Fulfilling the promise of Article V with an Interstate Compact

State legislators are converging on George Washington’s home, Mount Vernon, during the weekend of December 7th in an historic meeting to discuss the procedures that would govern a convention for proposing amendments under Article V of the United States Constitution.

theconstitutionAnd if that means nothing to you, you’re not alone.

Article V much more famously authorizes two-thirds of each House of Congress to propose constitutional amendments for ratification by three-fourths of the states. All 27 amendments to the Constitution trace back to such congressional proposals. But far more important at the time of ratification was Congress’ obligation under Article V to call a “convention for proposing amendments” upon the application of two-thirds of the legislatures of the several States.

Our Constitution was ratified in large part because skeptical States were mollified by the representation that this “Article V convention” gave them the power to originate constitutional amendments. In Federalist No. 85—the closing argument of the Federalist Papers—Alexander Hamilton specifically promised: “We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.”

And yet, state legislatures have emphatically not used Article V to erect barriers against Washington’s dominance—even though Congressional overreach and judicial acquiescence have steadily dissolved the Constitution’s equal partnership between the States and the federal government. The difficulty of organizing an Article V convention has rendered the process so obscure as to effectively erase it from the political landscape. For most Americans, an “Article V convention” might as well be the next Comic-con.

Sadly, two myths have decisively hobbled past political efforts to urge States to use their power to originate constitutional amendments under Article V. The first myth is that Article V’s “convention for proposing amendments” is actually a reset button that was designed to produce a runaway convention that would reboot our Nation into an entirely new constitutional framework. The second myth is the notion that the state-origination of constitutional amendments was designed to percolate slowly through an uncoordinated, multi-staged, decades-long process of legislative deliberation.

Fortunately, the first of the Article V-hobbling myths has been busted repeatedly by the growing “Fiver” movement. The most obvious touchstone for refuting the “runaway convention” view of Article V is the undeniable fact that both congressionally proposed and convention-proposed amendments are textually subject to the same ratification requirements. Both amendment approaches are encapsulated within the same sentence, modified by the same clause. In view of this fact alone, no serious case can be made that an Article V convention is authorized to sidestep our Constitution’s existing framework.

Furthermore, in addition to Hamilton’s promise to the States in Federalist No. 85, it is manifestly evident from Federalist No. 43 that both the Framers and Ratifiers meant for the States to control the Article V convention process. There, James Madison wrote that Article V “equally enables the general and the State governments to originate the amendment of errors.” Similar understandings were repeatedly articulated by advocates of ratification during the Connecticut, Massachusetts, New Jersey, Pennsylvania, and Virginia ratification conventions.

Even apart from the text and context of Article V, the ability of the States to control the Article V convention process is implicit in the structure of our federal constitution. The fact that Article V does not specify whether the states or Congress control the convention process is not proof of an unknowable unknown. It underscores that Article V neither delegates the power to control the convention to Congress nor prohibits the states from doing so. This implies the states retained the power to control the convention under the principles of the Tenth Amendment because the states had the traditional power to convene interstate conventions and control them through delegate instructions.

In short, contrary to the myth of the “runaway convention,” Article V plainly codifies one and the same limited amendment power, which was meant to be exercised two ways—one by Congress and the other by the States.

The second myth—that the state origination of constitutional amendments was meant to be exceedingly difficult—is no less fictional, but word of its unicorn status is just starting to get out. This is because the Goldwater Institute only recently suggested using an interstate compact to consolidate and coordinate the use of Article V by the states. Previously, there was no concrete proposal illustrating how there could be an alternative to a multi-staged legislative quest to the elusive “Article V convention” and ultimate amendment ratification. Now there is—the Compact for America.

The Compact for America is an agreement among the states that would enable member states to agree in advance in a single piece of legislation to all components of the state-initiated Article V process—from the application to Congress, to the text of the proposed amendment, to delegate selection and instructions, to convention logistics and rules, to the ultimate ratification. The agreement is designed to be “blessed” by a counterpart congressional resolution, which consents to the compact and completely fulfills Congress’ role in the state-initiated Article V process—from the call for the convention, to the ultimate ratification referral of the proposed amendment. The resolution will not require Presidential approval because Congress’ role in Article V does not trigger the Constitution’s presentment requirement, as held by the Supreme Court in Hollingsworth v. Virginia.

The Compact for America thus consolidates every legislative step that is implicated by the state-initiated Article V process into just two overarching pieces of legislation—one interstate compact and one congressional resolution. What makes it possible to consolidate and front-load so much into two discrete acts is the use of interlocking “conditional enactments;” for example, the call for the Article V convention organized by the compact, which is contained in the congressional resolution, only goes “live” when a sufficient number of states join the compact to trigger it.

Like so many falling dominoes, Compact for America uses conditional enactments to set the entire Article V process inexorably in motion as soon as 38 states join the compact and simple majorities pass the congressional resolution. In principle, a constitutional amendment originating from the states could be proposed and ratified within the span of a single session year and with a grand total of 39 legislative actions. This is in stark contrast to what would otherwise be required to generate a constitutional amendment from the states without a compact—namely, 100+ legislative actions across five or more legislative sessions.

The compact approach to Article V thus dramatically reduces the number of legislative actions and sessions needed to generate a constitutional amendment from the states. Of course, this feature has triggered the rejoinder that it is a bug from adherents to the myth that Article V requires a difficult, multi-staged, deliberative legislative process for state-originated constitutional amendments. The problem with this rejoinder is that it contradicts the promises made by the pro-ratification federalists during the founding-era.

As against Patrick Henry’s lengthy oration at the Virginia Ratification convention that it was too difficult for the states to use Article V, the federalists did not say, “We agree.” Instead, George Nicholas responded, “[i]t is natural to conclude that those States who will apply for calling the Convention, will concur in the ratification of the proposed amendments . . . . The Convention which shall be so called, will have their deliberations confined to a few points;–no local interests to divert their attention;–nothing but the necessary alterations.”

Alexander Hamilton in Federalist No. 85, likewise, insisted that “[t]here can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete Constitution.” Hamilton even expressly disclaimed the notion that the Article V process required multi-staged legislative deliberation, emphasizing, “[t]here would then be no necessity for management or compromise, in relation to any other point no giving nor taking. The will of the requisite number would at once bring the matter to a decisive issue.”

Nicholas and Hamilton were far from alone. During the New Jersey ratification debates, the New Jersey Journal wrote that the Constitution included “an easy mode for redress and amendment in case the theory should disappoint when reduced to practice.” Similarly, during the Connecticut ratification debates, Roger Sherman wrote, “[i]f, upon experience, it should be found deficient, it [the Constitution] provides an easy and peaceable mode of making amendments.”

The bottom line is that federalists did not envision a difficult multi-staged game of legislative give-and-take for state-originated constitutional amendments. They actually told the world that the process would be easy, coordinated, and minimally deliberative. This was not mere “pillow talk.” These representations informed the public understanding as to what ratifying the Constitution meant.

Viewed in this light, the Constitution’s text, context and structure are clear: the compact approach to Article V fulfills the Founders’ actual vision for state-originated constitutional amendments. If the state legislators converging on Mount Vernon were to embrace it, the use of Article V by the States could become as frequent and familiar to Americans as ballot measures are in the states. And that means the States would finally have the means of restoring their equal partnership in governance with Washington.

Nick Dranias is Director of Policy Development and Constitutional Government at the Goldwater Institute. Dranias led the Institute’s successful challenge to Arizona’s system of government campaign financing to the U.S. Supreme Court. Dranias also serves on the board of Compact for America, Inc., which is urging the states to advance a Balanced Budget Amendment using an interstate compact.

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