The Necessary and Proper Clause Does NOT Empower Congress to Control an Amendments Convention By Robert Natelson

Attachment: 3988/Article20_TheNecessaryAndProperClause_COSA122022.pdf

The Framers inserted the “Convention  for proposing Amendments” in the  Constitution to provide the states  with a way of obtaining constitutional  amendments without federal interference.  THE NECESSARY AND PROPER CLAUSE  DOES NOT EMPOWER CONGRESS TO  CONTROL AN AMENDMENTS CONVENTION  Robert Natelson, Independence Institute’s Senior Fellow in Constitutional Jurisprudence and Head of the Institute’s   Article V Information Center  Updated November 2022 I heard a presentation by a spokesman for  a group that claims to defend the Consti- tution and revere the Founders. Yet the  spokesman trashed the Constitution’s  Framers for allegedly exceeding their au- thority and claimed they added a provision  that largely rendered another provision  useless. In other words, the spokesman  charged the Framers with being both (1)  dishonorable and (2) incompetent. The Framers inserted the “Convention  for proposing Amendments” in the Consti- tution to provide the states with a way  of obtaining constitutional amendments  without federal interference. Tench Coxe,  a leading advocate for the Constitution  during the ratification debates, pointed  out that the convention device allows the  states to obtain whatever amendments  they choose, “although the President,  Senate and Federal House of Representa- tives should be unanimously opposed to  each and all of them.” The spokesman, however, asserted that the  Constitution allowed Congress, through the  Necessary and Proper Clause, to dictate,  either in the convention call or by previous  legislation, how an amendments convention  is structured and how commissioners (dele- gates) are selected and apportioned. The claim that Congress can use the Nec- essary and Proper Clause to structure  the convention was first advanced in the  1960s, and has been repeated numerous  times since then. A Congressional Re- search Service report published earlier this  year noted that some in Congress have  taken the same line, although the report  did not actually endorse it. But pause to consider: Why would the  Framers place in the Constitution a meth- od by which Congress could largely control  a convention created to bypass Congress?  Were the Framers that stupid? Of course not. Most of them were high- ly experienced and extremely deft legal  drafters. Behind the belief that the Necessary and  Proper Clause empowers Congress to  structure the convention are three dis- tinct assumptions—all erroneous. They    are (1) that the scope of Congress’s author- ity under the Necessary and Proper Clause  is broader than it is, (2) that the Clause cov- ers the amendment process, and (3) that  ordinary legislation may govern the amend- ment process. The Necessary and Proper Clause is the  last item in the Article I, Section 8 list of  congressional powers. It reads: “The Congress shall have Power…To make all  Laws which shall be necessary and proper for  carrying into Execution the foregoing Powers,  and all other Powers vested by this Constitu- tion in the Government of the United States,  or in any Department or Officer thereof.” It happens that the most extensive  treatment of the Necessary and Proper  Clause is an academic book I co- authored with Professors Gary Lawson,  Guy Seidman, and Geoff Miller: The  Origins of the Necessary and Proper Clause  (Cambridge University Press, 2010) (cited  by Justice Thomas in a Supreme Court  case in 2014 and apparently relied on by  Chief Justice Roberts in 2012). This book  reveals the Necessary and Proper Clause to  be a masterpiece of legal draftsmanship.  Continued on back page Continued from front page The Clause was based on usage common  in 18th-century legal documents. It is not  a grant of authority, but a rule of interpre- tation. It tells us to construe certain enu- merated powers as the ratifiers understood  them, rather than in an overly narrow way.  In legal terms, the Necessary and Proper  Clause informs us that those enumerated  powers include “incidental” authority. Even if the Clause did apply to the amend- ment process, the authority “incidental”  to Congress’s call would be quite narrow.  An entity that calls an interstate conven- tion always has been limited to specifying  the time, place, and subject matter. It is the  state legislatures that control selection of  their own commissioners.    But, in fact, the Necessary and Proper  Clause does not extend to the amendment  process. To explain:    The Constitution includes numerous  grants of power. These grants are made to  Congress, to the President, to the courts,  to the Electoral College, and to state legis- latures, state governors, and various con- ventions. An entity exercising a power un- der one of those grants is said to exercise a  “federal function.” The Necessary and Proper Clause is  crafted to apply to most federal functions,  but it also excludes a number of them.  Specifically, it covers only the grants  listed in Article I, Section 8, and those  vested in the “Government of the United  States” and in “Departments” and  “Officers” of that government. In other words, the Clause omits con- stitutional grants made to entities that  are not part of the “Government of the  United States,” even when those entities  exercise “federal functions.” See, for ex- ample, Ray v. Blair, 343 U.S. 214 (1952)  (holding that presidential electors, who  ultimately derive their power from the  Constitution, exercise a federal function  but are not federal officers or agents). The  convention for proposing amendments is  one of a handful of entities that falls into  this category.   Even if we did assume, for sake of argu- ment, that Congress is a “Department” of  the federal government for other purposes,  the rules for Article V are different. The difference is that (according to the  courts) when Congress and state legisla- tures act in the amendment process, they  do not act as the legislative branches of their  respective governments. Instead, they act  as ad hoc assemblies for registering the pop- ular will. They can exercise only the power  granted by Article V, and not powers grant- ed by other parts of the U.S. Constitution  or by state constitutions. Thus, in Idaho v.  Freeman (1981), a federal court ruled that: “Congress, outside the authority granted by  Article V, has no power to act with regard to  an amendment, i.e., it does not retain any of  its traditional authority vested in it by Ar- ticle I” [which includes the Necessary and  Proper Clause].  (This case was later vacated as moot, but  there were no problems with the merits  of the ruling.) Or, as the Supreme Court  of Missouri pointed out when addressing  the state legislature’s Article V functions,  “[The legislature] was not, strictly speaking,  performing the functions of a legislative body  for the state, but was acting as a representa- tive of the people, pursuant to authority del- egated to it by the federal Constitution. . . ”  State ex rel. Tate v. Sevier (1933).     (The U.S. Supreme Court denied cer- tiorari in that case, meaning it refused to  consider reversing this decision.) Again, when legislatures act under Article  V they do so as separate assemblies, not  as the legislative branches of their govern- ments. This is a very old principle, dating  back to 1798, when the Supreme Court  held that congressional amendment pro- posals do not need presidential signature.  See also United States v. Sprague (1931).     Well, if Congress cannot insert language  in the “call” structuring the convention,  can it pass laws for the same purpose?  Again, the answer is “no.” A long list of  20th century cases from courts at all lev- els holds that the amendment process is  governed by the express and implied pro- visions of Article V, not by other sources  of law, such as statutes, state constitu- tions, or ordinary legislative rules. See,  for example, Leser v. Garnett (1922) and  Dyer v. Blair (1975). (540)441-7227 |  C ONVENTION O F S TATES . COM  | Facebook.com/ConventionOfStates| | Twitter.com/COSproject  Why would the Framers place in the  Constitution a method by which Congress  could largely control a convention  created to bypass Congress? Were the  Framers that stupid? Of course not.