Missouri HCR 9 and Article V Amendment Conventions

HCR 9 and Article V Amendment Conventions Testimony Presented Before the Missouri House General Laws Committee January 18, 2011

by Dave Roland Chairman Franz, Vice-Chairman Richardson, and members of the committee, I thank you for the opportunity to offer this testimony. My name is Dave Roland and I am the Director of Litigation and co-founder of the Freedom Center of Missouri, a non-profit, non-partisan law firm dedicated to research, litigation, and education in defense of state and federal constitutional principles. I have spent my entire career focusing on constitutional law while working with groups such as the Freedom Forum’s First Amendment Center, the Becket Fund for Religious Liberties, the Institute for Justice, and, just prior to founding the Freedom Center, with the ShowMe Institute. This testimony is being offered for informational purposes so that legislators may have a thorough understanding of the potential outcomes that might flow from a call for an Article V amendment convention; it is not intended to either support or oppose the passage of HCR9.

Amending the U.S. Constitution Under Article V Article V of the U.S. Constitution lays out the two ways in which Congress may initiate the process for amending the Constitution: 1) if two-thirds of each house of Congress approves an amendment, Congress can submit the amendment to the states for ratification, or 2) if two-thirds of the state legislatures apply to Congress for “a convention for proposing amendments” to the Constitution, Congress is required to call such a convention. Since the U.S. Constitution was ratified in 1789, the people have only ever utilized the first method of amendment. HCR9, if passed by the General Assembly, would constitute Missouri’s call for an Article V amendment

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convention. If thirty-three of our sister states issue a similar call, Congress would be required to make provision for such a convention.1 The state-driven method of constitutional amendment was included because the Constitution’s Framers recognized that Congress might not be inclined to propose amendments that would limit its own authority. Allowing the states an option to call for an amendment convention would provide a way to make necessary changes without depending on the federal legislature. Particularly when the states are interested in proposals such as the Repeal Amendment or a requirement that a majority of state legislatures must approve increases to the national debt, an Article V convention might present the best chance of getting an amendment submitted for ratification.

What Would an Article V Convention Look Like?

Given the unprecedented nature of such a convention, it is difficult to know for sure. Article V does not specify how many delegates should participate or how they should be selected—the details would likely be left to Congress to decide. There are a couple of models that could be followed, specifically that of the Philadelphia Convention of 1787 and the numerous state constitutional conventions that have been held through the years. The delegates to the Philadelphia Convention were selected by their states’ legislatures and there was no standard number of delegates for each state; Virginia sent seven delegates, while Rhode Island didn’t send any. It is possible that Congress would give states the flexibility to choose their own number of delegates and would permit the state legislatures to choose those delegates; it is also possible that Congress would decide that delegates should be apportioned according to the states’ relative populations, although because an Article V convention has only the authority to propose 1

Over the years a great many states, including Missouri, have issued calls for an Article V convention to discuss various amendments to the U.S. Constitution, but there has never been a critical mass of states calling for the same amendment. Calls for an Article V convention are considered to be perpetual in that, once issued, they remain in effect until they are either rescinded or the requested convention is assembled.

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amendments and cannot enact them—and because the amendment process is a matter delegated to the states as units, rather than citizens as individuals—I think it more likely that Congress will prefer a model akin to most state constitutional conventions, with each state being authorized to select the same number of delegates, who would be chosen by the people themselves at a special election.

Some have observed that if Congress is displeased that a convention has been called, it might try to establish parameters for the convention that would be particularly favorable to Congress.

This is a legitimate concern, to be sure, although it is in my estimation somewhat unlikely.

Congress will be bound to issue a call for the convention in keeping with the expressed wishes of the states requesting it, and ultimately either the state legislators or the people themselves will likely be responsible for choosing delegates for a convention and ratifying whatever amendments the convention produces. Congress will also presumably be mindful of the political danger of demonstrating bad faith in assembling a convention that has been called for by the states, which should provide a powerful incentive to avoid playing games with the convention process. If, however, Congress establishes terms for the convention that do not meet with the states’ approval, it is not clear what recourse the states would have. Article V gives Congress the sole responsibility for calling the convention and, in the absence of any other Constitutional guidance (and in light of courts’ general refusal to resolve “political questions”), it seems unlikely that courts would interfere with whatever rules Congress chose to establish.

The Scope of the Convention The most pressing question—the one that is in some circles causing discomfort with the idea of an Article V amendment convention—is whether the convention could be restricted to considering only specified subjects or whether such the convention could take upon itself the

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authority to make a more general revision of the Constitution.2 There are a number of important points to consider as pertains to this issue.

It is possible that an amendment convention might propose amendments not contemplated by those who called the convention. After all, the Philadelphia Convention of 1787 was originally called “for the sole purpose of revising the Articles of Confederation,” and several prominent members of the Revolutionary generation—Patrick Henry the most famous among them— refused to participate in the convention because they sensed it would range beyond the limited expectations of those calling it. Additionally, the founding principles of the American Republic assume that the people have the inherent authority to alter or abolish their existing forms of government if they decide that it is in their best interests to do so. This has led some state courts to determine that once the people call for a constitutional convention, its scope is only limited by what the people are willing to ratify. 3 There are very good arguments to be made that an Article V amendment convention would have no rightful authority to consider amendments beyond the scope of those specifically requested by the states in resolutions such as HCR9. The plain language of Article V limits a convention to consideration of “amendments to this [the U.S.] Constitution;” it does not appear to contemplate a general convention. The Goldwater Institute in Arizona has assembled excellent 2

The distinction between a limited "amendment convention" and a general constitutional convention is that a general constitutional convention would reconsider the entire framework of government, opening the possibility of a complete abandonment or revision of the current constitution. States do this with some frequency—Missouri has done it four times—but since the Philadelphia convention there has never been a similar federal convention. With the exception of the Confederate States' Constitution, citizens have been content to simply amend the existing U.S. Constitution in single steps, rather than making more sweeping changes to it. And as I point out later on, the Constitution itself doesn't set any rules for how a general revision of that document would take place, even if that was what the people wanted.

3 To be clear, most of the cases addressing this question were dealing with subject-matter restrictions that state legislatures attempted to impose above and beyond restrictions chosen by the people themselves in calling for state constitutional conventions. See, e.g., Snow v. City of Memphis, 527 S.W.2d 55, 63 (Tenn. 1975)(“To the extent that the legislature includes affirmative proposals in the call, beyond the scope aforesaid, the excess is mere surplusage, in the nature of gratuitous advice, and even though approved by the people, is not binding on the Convention, nor does it invalidate the call or the subsequent action of the Convention”).

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research indicating that the Framers’ intent was to allow the states to limit the scope of an Article V amendment convention.4 Additionally, it is useful to look at the example of the states as they have from time to time called for limited conventions to consider amendments to their own constitutions. In those instances where the conventions exceeded the limits set for them by the people who called the conventions, the majority of state courts have concluded that the convention only properly had the authority granted to it by the people and any action taken beyond the scope of that authority could be of no effect.

If delegates to the convention are chosen wisely, it is unlikely that they will deviate from the topic(s) that the states calling the convention expressly authorized them to consider.

Unfortunately, however, the experience of the states has also shown that there can be no guarantee that this will be the case, and it is also not certain that courts would intervene to prevent the ratification of amendments or revisions that exceeded the scope of a limited convention’s delegated authority.5 The Final Authority The most important thing to keep in mind for those who worry about the possibility that an Article V amendment convention might exceed the scope of its authority is that no provision resulting from the convention can become binding unless ratified by three-fourths of the states.

This is an exceptionally high barrier, which the Framers of the Constitution established as an 4

See “Amending the Constitution by Convention: A Complete View of the Founder’s Plan” by Robert G. Natleson, available at http://goldwaterinstitute.org/article/5005, and “Learning from Experience: How the States Used Article V Applications in America’s First Century” by Robert G. Natleson, available at http://goldwaterinstitute.org/article/5353.

5 Missouri itself provides the paradigmatic example of a “runaway” convention. After the 1860 election, the general assembly announced that it would not address the question of whether Missouri should secede from the Union, but rather that a special state convention should be called specifically for the purpose of answering that question.

The convention voted not to secede, then adjourned - but when Federal troops stormed the state capitol, causing most of the regularly-elected state government to flee, the secession convention reconvened, deposed from office all the lawfully elected officials, and for several years issued ordinances and edicts as though it was the state's governing body. Despite clearly exceeding the limited purpose of the convention’s calling, Missouri’s courts did not challenge the convention’s actions.

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assurance that the American people would never be subject to a constitutional provision unless it received overwhelming support from the states. Again, the obstacle posed by ratification is no guarantee that an amendment convention limit itself only to the outcomes desired by those favoring its calling, but I believe that the people as a whole need not be concerned that a “runaway� convention will result in extreme, unforeseen changes to the way our Constitution functions.

Thank you very much for your time.

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