The Silver Lining in the Mistakes at the Assembly of State Legislatures

The Assembly of State Legislatures (ASL) has adjourned from its latest meeting, still without having produced a set of rules for an Article V amendments convention.

I have been an enthusiastic supporter of ASL. I have to acknowledge, however, that missteps have impeded its progress.

Fortunately, there is a very plush silver lining within the mistakes.

The latest missteps involved a set of rules proposed by the ASL executive committee. Some of these missteps involved procedure: Apparently there was insufficient consultation with professional drafters or with members of the ASL standing rules committee.

Not surprisingly, therefore, the product was marred by substantive deficiencies. Some of these were glaringly obvious to everyone except the drafters -- specifically, a system of super-majority, weighted voting, and co-officer rules reminiscent of the political theories of John C. Calhoun. These devices directly violated the balance struck by the Constitution in Article V. They also would have rendered the convention unworkable by granting a veto at every stage to a minority unsympathetic with the convention’s goal.

The principal argument for this approach was that for an amendment to have a chance at ratification it had to enjoy super-majority support at the convention. But as I pointed out in two articles covering the subject (here and here), this argument is simply unsupported by actual convention experience.

I also predicted that the super-majority approach would promote extortion from the unsympathetic minority. As it turns out, my prediction was validated even earlier than I expected: During the ASL meeting itself, the super-majority/co-officer/weighted voting requirements encouraged minority lobbyists to demand, as the price of their support, that the convention agenda be expanded beyond the likely scope of its call. They demanded that the convention be designed to produce an amendment that very few states have applied for.

The general ASL membership attempted to address the glaring deficiencies by altering the executive committee draft. But in the pressure of time they largely overlooked something: That draft suffered from many other deficiencies as well.

These were not minor or merely typographical. They were of the type that would have impeded convention operations. A few days before the ASL meeting, another Article V scholar alerted me to the scope of the problem. The two of us, assisted by a third Article V specialist, soon identified at least 19 fundamental defects. They included:

  •  important omissions, such as failure to define the term “qualified majority,” the measure for electing co-presidents;
  •  oversights, such the one that rendered convention amendments to its rules unalterable;
  •  rules that flatly contradicted each other, such as two conflicting ways of electing the parliamentarian (or parliamentarians); and
  •  provisions that were legally void, such as an attempt to impose these rules as the initial pattern for future conventions.

Now the silver lining: These missteps happened only in planning sessions, not in the convention itself. In the century before the Constitution was written, colonies and states met in convention at least 30 times -- in other words, every 3-4 years. Not all of these gatherings was successful, but the failures of some laid the foundations for the success of others. The framers wrote Article V in the expectation, therefore, that state officials would be knowledgeable about, and comfortable with, the interstate convention process.

However, in the years since the Constitution was adopted, the states have met in convention only a handful of times. The last general convention was in 1861 and the last regional convention met in 1922. Hence, there is a lot of re-learning to be done.

Because it is so difficult to call an Article V convention, we have re-learn either through close study of the historical and legal record or through planning mistakes.

The ASL’s latest difficulties teach the following lessons:

  •  Don’t draft in secret or bypass normal processes;
  •  Don’t include provisions that impede the convention operations or contradict the balance struck by Article V;
  •  Obtain professional drafting assistance; and
  •  Remain non-partisan, but don’t try to forge an artificial bipartisanship with people who will oppose the goals of any convention likely in the near future.

On that last point: American history has included several events of significant constitutional change. Some have been formal (the post-Civil War Amendments, the Progressive Era amendments). One has been informal (the New Deal).

The more important constitutional proposals did not result from compromise between parties with radically different visions.  Significant reform came only after controversial proposals were presented for public consideration, and public consideration led to lopsided support.

But the proposals had to come first.

Rob Natelson, a retired constitutional law professor who is Senior Fellow in Constitutional Jurisprudence at the Independence Institute, is the nation's most published active scholar on the Constitution's amendment process.

The Assembly of State Legislatures (ASL) has adjourned from its latest meeting, still without having produced a set of rules for an Article V amendments convention.

I have been an enthusiastic supporter of ASL. I have to acknowledge, however, that missteps have impeded its progress.

Fortunately, there is a very plush silver lining within the mistakes.

The latest missteps involved a set of rules proposed by the ASL executive committee. Some of these missteps involved procedure: Apparently there was insufficient consultation with professional drafters or with members of the ASL standing rules committee.

Not surprisingly, therefore, the product was marred by substantive deficiencies. Some of these were glaringly obvious to everyone except the drafters -- specifically, a system of super-majority, weighted voting, and co-officer rules reminiscent of the political theories of John C. Calhoun. These devices directly violated the balance struck by the Constitution in Article V. They also would have rendered the convention unworkable by granting a veto at every stage to a minority unsympathetic with the convention’s goal.

The principal argument for this approach was that for an amendment to have a chance at ratification it had to enjoy super-majority support at the convention. But as I pointed out in two articles covering the subject (here and here), this argument is simply unsupported by actual convention experience.

I also predicted that the super-majority approach would promote extortion from the unsympathetic minority. As it turns out, my prediction was validated even earlier than I expected: During the ASL meeting itself, the super-majority/co-officer/weighted voting requirements encouraged minority lobbyists to demand, as the price of their support, that the convention agenda be expanded beyond the likely scope of its call. They demanded that the convention be designed to produce an amendment that very few states have applied for.

The general ASL membership attempted to address the glaring deficiencies by altering the executive committee draft. But in the pressure of time they largely overlooked something: That draft suffered from many other deficiencies as well.

These were not minor or merely typographical. They were of the type that would have impeded convention operations. A few days before the ASL meeting, another Article V scholar alerted me to the scope of the problem. The two of us, assisted by a third Article V specialist, soon identified at least 19 fundamental defects. They included:

  •  important omissions, such as failure to define the term “qualified majority,” the measure for electing co-presidents;
  •  oversights, such the one that rendered convention amendments to its rules unalterable;
  •  rules that flatly contradicted each other, such as two conflicting ways of electing the parliamentarian (or parliamentarians); and
  •  provisions that were legally void, such as an attempt to impose these rules as the initial pattern for future conventions.

Now the silver lining: These missteps happened only in planning sessions, not in the convention itself. In the century before the Constitution was written, colonies and states met in convention at least 30 times -- in other words, every 3-4 years. Not all of these gatherings was successful, but the failures of some laid the foundations for the success of others. The framers wrote Article V in the expectation, therefore, that state officials would be knowledgeable about, and comfortable with, the interstate convention process.

However, in the years since the Constitution was adopted, the states have met in convention only a handful of times. The last general convention was in 1861 and the last regional convention met in 1922. Hence, there is a lot of re-learning to be done.

Because it is so difficult to call an Article V convention, we have re-learn either through close study of the historical and legal record or through planning mistakes.

The ASL’s latest difficulties teach the following lessons:

  •  Don’t draft in secret or bypass normal processes;
  •  Don’t include provisions that impede the convention operations or contradict the balance struck by Article V;
  •  Obtain professional drafting assistance; and
  •  Remain non-partisan, but don’t try to forge an artificial bipartisanship with people who will oppose the goals of any convention likely in the near future.

On that last point: American history has included several events of significant constitutional change. Some have been formal (the post-Civil War Amendments, the Progressive Era amendments). One has been informal (the New Deal).

The more important constitutional proposals did not result from compromise between parties with radically different visions.  Significant reform came only after controversial proposals were presented for public consideration, and public consideration led to lopsided support.

But the proposals had to come first.

Rob Natelson, a retired constitutional law professor who is Senior Fellow in Constitutional Jurisprudence at the Independence Institute, is the nation's most published active scholar on the Constitution's amendment process.