Op-ed | Drake’s claims of constitutional attack unfounded

While Kerry Drake’s columns are usually thought-provoking and well-researched, I am deeply disappointed by his Sept. 26 column, “The U.S. Constitution is Under Attack.” Drake appears to have let his antipathy toward the balanced budget amendment cloud his judgment. He resorts to fear-mongering about the process chosen to write that amendment, instead of relying on sound reasoning about the substance of that proposal.

I would like to correct the record about the amendment process that Drake criticizes so vehemently, but before I do I need to make a full disclosure: I am the chairperson of a nonpartisan, grassroots organization of Wyoming citizens called Wyoming Promise. We are currently engaged in a statewide petition drive to put a measure on the Wyoming ballot that would call for a 28th Amendment to the United States Constitution, which would effectively overturn the Supreme Court’s decision in Citizens United v. FEC and allow for the re-enactment of meaningful campaign finance reform. Our measure first asks Congress to propose such an amendment, but we include a backup plan: If Congress does not propose such an amendment within six months after our measure is adopted, we call for a convention of states under Article V of the Constitution to propose such an amendment.

Drake’s column repeats many inaccurate or exaggerated claims about what an Article V convention might look like. Let’s examine some of the claims he makes.

[An article V] convention could totally alter how the United States is governed. Once they remove the lid on the supreme law of the land, there would be absolutely no filter on what could go in or come out.

Drake cites no authority for this proposition, and it fails to withstand even the most cursory scrutiny. The convention would have no authority to change anything at all. A convention can only propose amendments; anything it proposed would then need to be ratified by 38 states. That is a very tall order indeed.

Article V doesn’t contain a word about what issues a constitutional convention can cover. Constitutional scholar and Harvard Law School Professor Laurence Tribe has succinctly spelled out the possible damage: ‘What you’re doing is putting the whole Constitution up for grabs.’

Drake, I’ll see your Harvard law professor and raise you one Republican U.S. Attorney General and the American Bar Association.

My Harvard law professor is Prof. Tribe’s colleague Lawrence Lessig, who has written a book entitled Republic, Lost. In Chapter 13, which you can read here, he writes: “If the English language has any meaning, then the convention spoken of in Article V has no power to change the Constitution. Its only power would be to propose changes to the Constitution. It likewise would have no power to change the mode by which amendments to the Constitution are ratified, since the mode by which amendments are ratified is itself part of the Constitution.”

Prof. Lessig also argues that an Article V convention not only can be limited to a single purpose, but that almost by definition a convention must be limited in purpose. He writes, “There is no such thing as a convention unrelated to a particular purpose. There are only and always bodies convened to serve some purpose, and then to terminate. An Article V convention could be no different.” (emphasis in original)

Former U.S. Attorney General Edwin Meese agrees. He issued an official report in 1987 in which he opined that “Article V permits the states to apply for, and the Congress to call, a constitutional convention for limited purposes, and that a variety of practical means to enforce such limitations are available,” including a court order to stop a convention from considering matters beyond that limited purpose.

The American Bar Association also wrote a very comprehensive analysis of the Article V convention in 1973, and concluded that “Congress has the power to … limit a convention’s authority to a specific subject matter where the legislatures of two-thirds of the states seek a convention limited to that subject.”

One final point: Drake uses the scary, and incorrect, term “constitutional convention.” There is no such thing. Article V does not use that term at all; instead it speaks of a “Convention for proposing Amendments.” The incorrect term “constitutional convention” is frequently used by people trying to scare others into thinking that the entire Constitution would be in play. As we have seen, that is not the case.

The Wyoming Legislature tried to put a safeguard in HJR 2 that says such a convention can only be for one purpose, and the one it approved was to pass a BBA. Unfortunately, the state’s resolution doesn’t control the situation, the U.S. Constitution does.

This claim is misleading at best. The states actually can control and limit the purpose of an Article V convention, as Prof. Lessig, Attorney General Meese, and the American Bar Association confirm (see previous section).

There are no rules that could keep a convention from becoming a free-for-all where anything could get passed.

Simply not true; this is a logical fallacy. The fact that Article V does not provide “rules” does not mean that there are no rules; you just have to look for the rules elsewhere. And there are plenty of places where rules can be found.

It is not surprising, nor even upsetting, that Article V does not provide rules about how a convention would be conducted. Constitutions are not intended to get into that level of detail. Constitutions (a) set out broad principles, and (b) create institutions to decide the specifics of how those principles are to be carried into effect. The Due Process clause is a good example of that. The Constitution requires that neither the federal nor any state government deprive any person of “life, liberty or property, without due process of law.” The broad principle is “due process,” but what, exactly, does that mean? The Constitution leaves that to the courts to determine on a case-by-case basis.

The Due Process Clause is just one outside “rule” that can give some shape to what an Article V convention would have to look like. Courts have interpreted that clause to require, at a minimum, fair notice and an opportunity to be heard. If 34 states called for a convention to do one thing, and the convention decided to do something else, the legislators and voters who called for the convention would not have had proper notice that the convention intended to consider other matters, and they would have lost the opportunity to have their voices heard on the new issues. A pretty clear violation of due process.

Another outside rule: In all 50 states, if a person appoints somebody else to be his agent to do something, the agent can legally only do that one thing. If the agent exceeds the authority given, the action by the agent is void. Thus, if either the legislature or the voters appoint delegates to a convention and delegate to them the power to do only one thing, the delegates have no legal authority to go beyond that delegated authority and do anything else.

Remember, people who attend such a convention are called delegates. That means they have received (“been delegated”) authority from some higher authority (in this situation, the state legislatures). Drake cites no legal theory under which a convention, given authority by 34 or more states to do one thing only, could ignore the instructions of the states that gave the convention limited power and then claim unlimited power. I cannot think of any such legal theory.

 

Fritz Pettyjohn, a former Alaska state senator and a leading BBA advocate, was surprisingly candid in an op-ed that was posted on the ALEC website in April. ‘An Article V Convention could … propose any number of solutions. One would be to dissolve Congress and elect a new one. When you’re the sovereign, you can do that.’

Part of this claim is technically accurate but grossly misleading. Read the quote carefully: The former Alaska state senator says that a convention [assuming it ran away] could propose dissolving Congress. It is grossly misleading because a mere proposal to abolish Congress would still require 38 states to ratify it. That is extremely unlikely, even given the low approval rating Congress currently enjoys.

But more importantly, another part of this claim is simply false. Pettyjohn’s absurd claim depends on the convention being given (or trying to claim) the powers of a “sovereign.” But that is an extraordinary claim. Nothing in Article V even remotely suggests that a convention would be invested with sovereignty. Instead, Article V clearly limits the power of the convention to “proposing amendments” which must then be ratified by 38 states. And nothing in the various state calls for a convention limited to a single purpose could possibly be interpreted as a delegation of sovereign power.

Whether they realized it or not at the time of the HJR 2 vote, Wyoming lawmakers have made possible the kind of undemocratic power-grabs described by Pettyjohn at an open convention.

Nonsense, for all of the reasons outlined above. A runaway convention is extremely unlikely, and anything it proposed would be subject to ratification by 38 states anyway.

But there is one more very important reason why this is nonsense. In many states, including Wyoming, it is illegal for delegates to an Article V convention of states to vote on anything other than the subject for which the convention is called. In fact, in many states, the delegates would commit a felony if they tried to vote on matters outside the call for the convention.

Wyoming is one of the states where a delegate could go to jail if he or she attempted to vote on a matter beyond the scope of the call. At the same legislative session where HJR 2 (the balanced budget measure) was adopted, the Wyoming legislature also adopted House Enrolled Act 123, now codified as Wyo. Stat. § 9-22-101 et seq. Specifically, § 9-22-102 provides that “No delegate [to an Article V convention] shall have authority to vote to allow consideration of, or to approve, an unauthorized amendment for ratification to the United States constitution.” The term “unauthorized amendment” means “a proposed amendment that is outside the permitted subject matter contained in the article V application or contrary to legislative instructions.” In other words, the Wyoming delegation is required, by law, not to “run away” even if the rest of the convention might try to.

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Just to be sure that this limitation has teeth, § 9-22-102 further provides that any vote made in violation of this limitation “shall be null and void” and the delegate shall be immediately replaced by a new delegate. Finally, to add suspenders to those two belts, the delegate who illegally voted on a matter other than the purpose for the convention “shall be guilty of a felony punishable by imprisonment for not more than five (5) years, a fine of not more than ten thousand dollars ($10,000.00), or both.”

Wyoming is not alone in enacting such limitations on the authority of delegates to an Article V convention. I did some quick research and found eight additional states with similar restrictions: Florida, Georgia, Indiana, North Dakota, South Dakota, Tennessee, Texas and Utah. (Notice how “red” those states are.) Many of them also make “unauthorized voting” a felony, while others just say those votes would be void and the delegates casting the votes will be dismissed from the delegation. Together with Wyoming, that makes nine states (so far) that are legally prohibited, by statute, from “running away.” (A similar measure is now pending in Wisconsin, and perhaps other states, as well.)

So if an Article V convention were held, it would need a majority of states to agree before it could “run away.” We can be certain that at least these nine states could never join that movement. Which makes the prospect of a runaway convention even more unlikely.

Final thoughts

In short, none of the fears that Drake tries to whip up in his column stand up to scrutiny. There may be legitimate policy reasons to object to a balanced budget amendment (in fairness, Drake does hint at several). Drake’s cause would be much better served by arguing about the merits of the balanced budget amendment, rather than by stoking irrational fears, making exaggerated claims, and completely misrepresenting the process by which the amendment is to be proposed.

Ken Chestek is an Associate Professor of Law at the University of Wyoming College of Law, and chair of the nonpartisan group Wyoming Promise. The views he expresses in this column are his alone.