Natelson Compendium Summary PDF

Key Facts from Rob Natelson's Compendium extracted by Maurice Emmer

Attachment: 669/Natelson_Compendium_-_Key_Facts.pdf

EXTRACT OF KEY POINTS RE: ARTICLE V

FROM ROBERT G. NADELSON’S TREATISE

M. Emmer, October, 2018

An Article V Convention is not a Constitutional Convention

Our original “constitutional” convention was called by two states that
invited delegations from the other states.  This all happened under the

“sovereign” (i.e., inherent) powers of each state.  Such “sovereign” powers
bestowed on the delegations broad (“plenipotentiary”) authority at the

convention.  This derived from the fact that the states, being independent
sovereigns, dealt with each other as countries do, using rules of

international diplomacy.

An Article V convention is different because it is called under the authority

of Article V of the Constitution, not the sovereign authority of each state.
Therefore, the rules of international diplomacy do not apply and the

convention has only the authority allowed by Article V, i.e., to propose

amendments on particular subjects.

The rich history of conventions of states was familiar to the Founders

It was common practice for the colonies and later the states (collectively,

the “states” hereafter) to hold “conventions” of delegations to establish
rules among themselves.  The practice also was used to resolve intra-state

matters.

Between 1689 and 1776 the colonies met in convention 20 times.  Between

1776 and 1787 the states met in convention 11 times.  The customs and
practices developed by such conventions are a rich source of authority

instructing us about how an Article V convention must be convened and
conducted.

The practice was borrowed from the British, who had used “assemblies” or

“conventions” for such purposes.  This long predated either the Articles of

Confederation or the Constitution.  Customs and practices of such
conventions were well understood by the Founders, many of whom had

been delegates to some of these conventions.

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There were several types of conventions.  Some were for developing
proposed rules for potential adoption by the states.  Some were for

ratifying rules proposed by other conventions or by the state legislatures.
Some had broad authority; others strictly limited authority.

Non-Article V Conventions of States Continued to be Used After the
Constitution Was Adopted

States continued to hold conventions for purposes various purposes.  One

was held in Washington, D.C. in 1861 attempting to avoid civil war.
Another was called in 1922 to create the multi-state Colorado River

Compact (seven states).

Article V Conventions Were Added In Case Congress Went Too Far

Early drafts of the Constitution permitted amendments to be both proposed

and ratified ONLY at a Convention of States.  This was modified to permit
Congress to propose (subject to state ratification) because it was thought

Congress’ experience would alert it to needed changes.  In final form,
Article V included the additional means of proposing (not ratifying)

amendments through a Convention of States because it was foreseen that

Congress might exceed its authority and require restraining.

Thus, Article V is a way in which the Founders enfranchised the citizens to
propose amendments through their legislatures.  To deny the citizens the

opportunity to propose amendments would be as serious a denial of a civil

right as denying them the right to vote.

The Demonization of Article V is Purely Political, Not Based in Fact

Use of an Article V convention was well accepted into the early 20

th

century.  Then some political movements began to fear that such a

convention might do exactly what Convention of States Action seeks to do:

reduce federal power.  That’s when politically motivated essays began to
appear quoting selectively and often inaccurately to spread unfounded fear

of an Article V convention.

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Such demonization efforts were difficult to rebut at first for lack of
comprehensive scholarship on Article V.  Though many authorities existed

to interpret Article V (e.g., minutes from the Constitutional Convention,
minutes from the debates of the Bill of Rights (introduced in Congress by

James Madison), minutes from the ratifying debates in the states,

Federalist Papers, other publications contemporaneous with the drafting
and ratification, judicial decisions), no one had brought the threads

together until a Justice Department lawyer began to do so in a 1979
opinion.  This was followed by other comprehensive works, including the

most extensive work of Professor Robert G. Natelson.

Interpreting Article V

If two-thirds of the state legislatures apply to Congress for an Article V

convention, Congress “must” call one.  The convention is for proposing
amendments to the Constitution; no other purpose is authorized by Article

V.

Questions frequently asked in interpreting Article V are easily answered

using legal authorities and standard methods of statutory interpretation.

1.

Do the states have any way of proposing Constitutional amendments

other than Article V?  No.  Article V is the exclusive means of
amending the U.S. Constitution.  A state could beseech Congress to

consider proposing an amendment, but Congress is not required to
circulate any proposed amendment for ratification outside the Article

V process.

2.

How would an Article V convention organize itself? Where would it
derive the authority to do so?  The Constitution grants Congress the

power to “call” an Article V convention once enough state legislatures
“apply” for one.  When an Article V convention convenes, it does so

under the Article V Congressional power to call it.  The convention
conducts its business under federal law, but is not a federal

department.  For that reason, Congress has no further power over

the convention, as it would have if the convention were part of the
federal government.  The convention’s federal power includes the

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express power to propose amendments, as well as implied powers,

such as the power to adopt its own rules and select its own officers.
Congress has no power to do those things and, thus, could not

control the convention as some have alleged.

3.

What powers do the state legislatures have over the convention?

They have powers that they exercised in regard to conventions of

states at the time the Constitution was adopted.  These include: To
define the scope of its application (i.e., what may be considered at

the convention); to determine how to select delegates
(commissioners) and how many; to provide delegates with

instructions.  These were typical of the powers exercised by colonial
or state legislatures in regard to the numerous conventions occurring

between 1689 and 1787.

4.

If a state divides its legislative power between a “legislature” and the
citizens (i.e., if it permits the right of ballot initiative), can the citizens

call for an Article V convention or ratify a proposed amendment?  No.
Article V is explicit that action must be taken by the “legislature,”

which has been interpreted to mean the elected representative body

of the state.

5.

Is a legislature’s resolution calling for an Article V convention

covering only specific matters effectively so limited?  Despite
arguments to the contrary, the overwhelming evidence is that such

resolutions are effective to limit the scope of an Article V convention.

Historical practice confirms the use of subject-limited applications for
conventions of states.  Further, all conventions of states have

remained within their stated subjects.  More fundamentally, Congress
could not apply the terms of Article V that require it to determine

whether two-thirds of the legislatures had “applied” for a particular

convention unless it could determine that they all had applied to
cover the same subject matter.

6.

How long does a legislative house’s resolution remain in effect?  A
resolution adopted in one house of the Colorado general assembly

dies at the end of the legislative session unless also adopted by the
other house in the same session.  Once adopted in the same session

in both houses, the resolution is valid unless and until it is rescinded.

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7.

Could Congress determine the rules of conduct and limits of authority

of an Article V convention?  No.  No such authority is granted to
Congress in any part of the Constitution.  Grants of authority in

articles other than Article V do not apply to an Article V convention.
If they did, it would make a dead letter of Article V.  This would

thwart the drafters’ intent and would not withstand challenge.

Moreover, constitutional language granting Congress powers in other
articles does not extend to Article V.

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Created:	2019-01-02 18:34 GMT
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