Tuesday, October 12, 2010

Constitutional Convention? If Sandy Wants it, Then It Must be a Leftist Plot

Brian Tamanaha

As readers of this blog know, co-blogger Sandy Levinson believes that our national political institutions are broken and the Constitution is largely to blame. According to this article in the American Spectator, a growing number conservatives think the same, and they are advocating a constitutional convention to rectify the problems.

Sandy's support for the idea, however, gives them pause:
Indeed, one reason for conservative suspicions is that liberals themselves have proposed a constitutional convention in order to make it easier to realize leftist policy goals. In 2006, for instance, University of Texas law professor Sanford Levinson wrote a well-received book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It). He argued for a convention in which the entire founding document is fair game.

There's nothing to worry about, according Robert Natelson (of Independence Institute). "The convention is bound by the nature of the call," Natelson said. "So if it's been told to propose an amendment forbidding the government from being involved in health care, that is the only issue it may address."

Don't count on it.

During the 1990 constitutional convention of the Federated States of Micronesia, a legal challenge was brought against the convention (while it was in session) on the grounds that, once convened, it improperly decided to alter the rules that purported to restrict its actions and agenda. The case went directly to the FSM Supreme Court.

As Legal Counsel representing the convention, I argued that the Court had no say in and no power over the convention. A duly constituted constitutional convention is the ultimate political body which cannot be bound by legal restrictions (of course, its actions must be later ratified to amend the constitution). I suggested (respectfully) that the court had no authority to even hear the case. They didn't much care for the latter argument, but they ultimately ruled in favor of the convention on political question grounds.

What struck me at the time, and today, is that this question cannot be answered by legal analysis. A constitutional convention is, in a sense, a meta-legal body. Natelson is much too confident in his view that the convention can be controlled.

To get conservatives on board, what Sandy should do now is come out against the convention--say, out of new found concern that it would be taken over by conservative TP activists who pursue amendments that make the constitution even worse than it already is.

[Postscript: As the article indicates, Randy Barnett is a leading conservative activist for a convention. He has drawn up a list of desirable amendments, some of which might appeal to conservatives as well as liberals (like his "repeal" proposal, in which two-thirds of the states may rescind any federal law or regulation). But I am puzzled by his proposal to limit congressional power under the Commerce Clause to its "original intent." A major benefit of a convention is that, at least for the new amendments, we can get away from (tendentious) historical analysis about "original intent" or "original meaning" and simply analyze what the amendments mean now. The best way to limit congressional power is to spell out the limits. (Perhaps that's what Barnett meant, and he wants the explicit limits to match the limits then.) Interpretation will still be required, but it will no longer turn on what people thought 200 years ago.]


Neat bit of trivia there but no surprising from the author of "Understanding Law in Micronesia: An Interpretive Approach to Transplanted Law."

The ruling referenced appears to be here.

I saw Natalson's argument and was frankly shocked. Is he unaware of what happened in 1787?

On MF's point, Federalist No. 40 is also useful reading.

The notion that “[a] duly constituted constitutional convention is the ultimate political body which cannot be bound by legal restrictions” strikes me as peculiar. If a convention is called pursuant to Article V, surely it is subject to whatever legal restrictions Article V places upon it. Thus, for example, it cannot propose an amendment that would deprive a state (without its consent) of equal suffrage in the Senate.

Of course, you may not believe that Article V imposes any other legal restrictions on a convention. Or you may not believe that a court has the authority to enforce whatever legal restrictions may exist. But these are different positions than claiming that an Article V convention is somehow inherently immune from legal restrictions.

The argument that an Article V convention might “run away” in the sense that the Philadelphia Convention (allegedly) did is a different sort of claim. This implies that the convention might assert or exercise extra-legal powers to establish a new constitutional order, notwithstanding the restrictions placed on it by Article V. If it were to do so, and its actions were to be accepted by Congress, the President, the courts and the states, then it would have effectively established a new “rule of recognition” for the United States. But this is on the order of saying that if a state were to secede from the union, and its action were to be likewise accepted, then it would no longer be bound by the Constitution. And if pigs could fly . . .

Thus, for example, it cannot propose an amendment that would deprive a state (without its consent) of equal suffrage in the Senate.

But could it not propose an amendment to Article V itself to remove the Senate equal suffrage clause? And propose an amendment to the Senate, conditional on the successful ratification of the amendment to Article V? Nothing in Article V would suggest that Article V itself cannot be amended.

What limits are there placed on by Article V?

The convention is called "for proposing amendments." The amendment doesn't explicitly say it is limited to any guidelines set by Congress.

It's after 1808, so the first limit is moot. The second can very well be dealt with via Electric Dragon's solution, which is basically what the UK did in regard to a similar "unamendable" provision.

The assumption is that when the convention is called that Congress can set limits on its discretion. But, again, it's unclear that is allowed; the text can very well can interpreted both ways.

And, once the convention proposes the amendments, there doesn't seem to be a way for Congress to step in and say "you overstepped your bounds" -- if the amendments are ratified, they are part of the Constituiton. And, the amendment process has been deemed a 'political question' in the past, so court review is dubious.

As to the postscript, what "a major benefit" is is open to question. What the "original intent" of the Commerce Clause (see article referenced by Prof. Balkin) is also debatable. Barnett's views, as seen by his comments at Volokh Conspiracy (like Balkin, he doesn't allow comments), are somewhat open to question.

The idea that a convention is limited to the subject matter it was called for comes out of thin air, it's not to be found in Article V. The only Article V limit on subject matter IS the equal representation of states in the Senate. And that operates more on a "may" than "can" level, a convention is as capable of originating amendments violating that provision as Congress is capable of originating laws that violate the Constitution. IOW, perfectly capable of doing so. It's just not supposed to.

The chief limit in that respect is actually the fact that anything the convention proposes must be ratified by 3/4ths of the states, by legislative vote or citizen vote, as Congress dictates. In order to get to equal representation in the Senate, you have to posit that all but the 12 smallest states will vote to hand complete control over the federal government to the 9 largest states. Doesn't strike me as likely.

Beyond that, the manifest weaknesses of Article V conventions are:

1. The Constitution declares that Congress shall call a convention if the requisite number of states ask for one. But it is near an absolute certainty that, should Congress decline to, the courts will declare the failure a "political matter".

2. The Constitution conspicuously does NOT state how the delegates to the convention will be chosen, or on what representational basis. Do states have equal representation in the convention? Sum of House and Senate seats? Proportional to population? Are delegates chosen by state legislatures? Popularly elected? Chosen as state governments, or Congress dictates? There's remarkable room for mischief here. If Congress were to chose the representation basis itself, or even the delegates itself, (Who'd make a better convention than the members of the House and Senate, meeting in joint session? Nobody the members of the House and Senate could think of, that's who...) who wants to bet the courts would call a foul, given the absence of guiding language?

Finally, while Article V explicitly states that amendments generated by the convention must be ratified in the same fashion as Congressionaly originated amendments, not much stops the convention from proposing it's amendments with a different ratification scheme. There's precedent for that in the constitutional convention which produced the Constitution itself.

So, we could see a convention appointed by Congress, generating amendments favorable to Congress, altering the ratification process so that the 9 largest states could ratify them. And if the other 41 states begged to differ, it would get down to who had the bigger army.

Given all this, a convention is a desperation move, something you'd only call if you thought the system was broken, and going to fall apart soon. That is NOT a belief limited to the left, and so calls for a convention are not limited to the left.

Joe and ED- my point is that an Article V convention is subject to legal limits. This is a different question from what those limits are and how they are enforced.

I believe, as does Natelson, that the convention is subject to limitations placed on it by the states. Thus, if the states call a convention for the sole purpose of considering a balanced budget amendment, the convention cannot propose an amendment to abolish the electoral college. Congress itself has no authority to either expand or contract the convention’s agenda.

This limitation is not explicitly set forth in Article V, but it flows from the text, structure and purpose of the article. My argument cannot be fully set forth here (I have an article coming out on the subject), but I would be interested in your answer to the following question. Since Article V requires a supermajority of the Congress to propose amendments and a like supermajority of the states to call a convention for proposing amendments, what interest would be advanced by allowing the convention, by simple majority, to propose amendments unrelated to the purpose of the states in calling the convention in the first place?

As for how the limitations on the convention are enforced, there are serious questions as to when, if at all, a court might intervene in the process. My own guess is that a federal court would intervene, at the earliest, once Congress submitted an amendment to the states for ratification (though the Micronesian case illustrates the possibility of earlier intervention). There are other ways to enforce the limitations, however. The convention itself can enforce it, and delegates to the convention can be required by their commissions to enforce it. Congress can enforce it by refusing to submit an out-of-scope amendment for ratification. And the states can enforce it by refusing to ratify (or even to consider ratification of) an out-of-scope amendment.

"the states call a convention for the sole purpose of considering a balanced budget amendment"

There are two methods of proposal. [1] Congress can propose or [2] the legislature "shall call a Convention for proposing amendments." The convention proposes, not the state legislature.

"what interest would be advanced by allowing the convention, by simple majority, to propose amendments unrelated to the purpose of the states in calling the convention in the first place?"

The purpose very well might be the same purpose why the 21A was submitted to convention -- it was done so because it was feared that dry legislatures would block it, so conventions were set up as a more direct method (cf. 10A "states" v. "people") of ratification.

Art. V arguably sets up a balance. Legislatures will have to call the conventions which then decide, similarly, the Electoral College can be appointed by state legislatures, but ultimately have independent authority to decide.

I'm not saying that's the only way to interpret it, but the text suggests it. Congress can "propose" amendments. State legislatures call conventions to do that. Your way would give state legislatures more power -- it would have a sort of qualified power to propose.

As to your last paragraph, it very well might be deemed a political question as it has in the past. Overall, as the original post suggests, as well as other constitutional experts who would agree, the matter is far from clear. And, given wiggle room, the weight of events would very well go the way suggested by BT.

Oh, and since the Constitutional Convention changed the rules once authorized by Congress to meet, why wouldn't it set up a rule in which a convention authorized by the requisite supermajority might be able to change the rules?

I think Joe has it right. Any restriction on a Convention arises not from Congress or the courts, but from the willingness of those ratifying the changes to do so.

To those who think the courts can intervene: do you have an example from a state constitutional convention in which a court intervened?


Thanks for the link to the FSM opinion. I added it to the post.

Joe and Brett explain quite well why there are weak grounds to believe that the convention can be legally limited in advance. For what it's worth, Justice Burger also doubted that a convention can be limited (see the linked article).


Although I may not persuade Professor Tamanaha or anyone else, let me take a stab at responding to the various arguments. (Due to space limitations, it is divided into two parts)

Joe argues that limiting the convention would effectively transfer the power to “propose,” or some part thereof, from the convention to the states. He argues that the term “propose” implies “an independent authority to decide,” analogous to the authority given to presidential electors. For present purposes, I will assume that he is correct in this conclusion. But even a convention limited to considering a single amendment retains the “independent authority to decide” whether or not it should propose that amendment. It is not at all obvious why this authority is insufficient to satisfy the text, even under Joe’s interpretation.

Joe also suggests that the purpose of the convention method “very well might be the same purpose why the 21A was submitted to convention.” But this purpose would explain why the convention should have the power to block (ie, refuse to propose) an amendment. It does not explain why the convention should have the power to propose an entirely different amendment.

As far as the real-world risk of a runaway convention, it seems to me that Joe’s analogy to the electoral college is highly instructive. While concerns have been raised about the possibility of isolated faithless electors, I don’t think anyone fears that the electoral college as a whole might “run away” and elect some person off the street as President. Moreover, just as the states can deter faithless electors with criminal and civil sanctions, so can they deter convention delegates from voting for out-of-scope amendments.

I agree with Brett that the Constitution’s silence on representation, voting and procedure is a significant weakness in the Article V convention process. (Madison tried to raise this issue in Philadelphia, but his colleagues were evidently ready to go home by that time.) There are ways, however, for the states to deal with this problem and deprive Congress of the opportunity for mischief-making. For example, states could enact uniform laws to govern the procedures that their delegates would be required when the convention adopts its rules. It should be noted that a uniform law approach is being developed for states to constrain faithless electors (and also was used for conventions during the ratification of the 21st Amendment).

Mark asks whether there are examples of courts intervening with respect to state constitutional conventions. I will refer him to Russell Caplan’s Constitutional Brinkmanship p. 132, which states: “State courts likewise have long held judicially reviewable issues presented by the application stage [referring, I think, to applications for an Article V convention], having long held justiciable questions relating to amendment of their respective state constitutions. One federal court decided that a provision of Louisiana’s constitution, a constitution that had been adopted by convention, went beyond the terms of the convention call and on that basis invalidated the provision.” I have not read the cases Caplan cites, but I note that even the Micronesian case suggests that courts could intervene in the convention process if the convention violates applicable law.

Having said this, I am not claiming that there is any certainty that courts would in fact intervene in the Article V convention process. I would say, however, that the possibility of judicial intervention would have a further constraining affect on any convention delegates inclined to propose an out-of-scope amendment.

I think that there are sufficient safeguards, both inherently and as the states can build in, to prevent an Article V convention from proposing amendments outside the scope of the convention as the applying states define it. If all else fails, the states have the power to block any out-of-scope amendment by refusing to ratify it. With all due respect, the notion that a convention might attempt to change the ratification requirements, or that it would have a chance of getting away with it if it tried, is completely far-fetched. It would be more plausible to worry that the electoral college might choose Levi Johnson as our next president.

mls: "It would be more plausible to worry that the electoral college might choose Levi Johnson as our next president." He does not satisfy the age requirement, which may exceed his IQ. But can he dance?

"With all due respect, the notion that a convention might attempt to change the ratification requirements, or that it would have a chance of getting away with it if it tried, is completely far-fetched."

You ARE aware that you're declaring "completely far-fetched" the precise process which led to our current Constitution? Just checking...

Brett- I am familiar with the Philadelphia Convention, but I have difficulty understanding the argument that what was done in Philadelphia, however it is viewed, means that an Article V convention is not subject to the limitations of Article V. Surely the framers thought that an Article V convention would be subject to the ratification requirements and other limitations of Article V. If the (alleged) fact that the Philadelphia Convention was illegal/illegitimate under the Articles of Confederation means that an Article V convention can ignore the requirements of Article V, why wouldn’t this reasoning be equally applicable to any other institution established by the Constitution? Wouldn’t the Congress be able to ignore the requirements of Article I, the President the requirements of Article II, etc?

The fact is that an Article V convention which claimed the power to amend the Constitution without ratification by three quarters of the states would be acting illegally under the Constitution. Of course, if the convention were somehow able to persuade the country to go along with this usurpation, it would be able to establish a new constitutional order. But this is mere tautology, and has nothing to do with any mystical power inherent in being called a “convention.”

I'm not arguing any "mystical power", I'm just saying that what's already happened once can not be completely far fetched. The "having happened before" bit precludes the "completely". You have to actually advance arguments as to why it can't happen.

I mean, here's Sandy, and he wants a CC, and if one happens will be organizing his heart out to influence it, and what's he want from a convention? Exactly the one thing Article V says it can't give him. And which Article V ratification is unlikely to permit, too.

Think he's going to be pitching in, fighting the prospect of a "runaway" convention? A "runaway" convention is what he WANTS. Nothing short of a runaway convention will satisfy him.

Yes, it's contrary to the formal rules, such as they are. So what? Much of what the federal government does today is contrary to the formal rules establishing it. A good deal of modern constitutional jurisprudence consists of nothing more than transparent sophistry to the end of preventing the formal rules from getting in the way of what the federal government wants to do, just as regulate matters that aren't interstate commerce.

When somebody is concerned that a law is going to be violated, "But that would be against the law!" isn't much of an argument. Kind of misses the point. It really, REALLY misses the point, when you've got a political class who've made evading the formal rules into a high art.

So, what mechanisms would prevent the events of Philadelphia from repeating themselves?

Maybe some degree of transparency, assuming that, instead of promises of transparency, we got the actual article. One of the first things they did in Philadelphia, after all, was close the doors and make sure no records were kept, so that nobody outside the hall would know what they were up to.

We hold a CC, and they try to pull that, it will be the first sign they're up to no good, and that enraged mobs are the order of the day.

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