Misunderstandings of Article V processes for amending the constitution (some of it intentional) continue to swirl around the idea of a Convention of States. But one clarifying court case in 1975 made a great stride toward reducing the confusion. An opinion in 1975 for a three-judge district court panel, Dyer v. Blair, became one of the most important ever issued on Article V of the Constitution. It provided answers to these questions:
Are Article V issues “political questions” entrusted solely to Congress and outside court jurisdiction? No, the courts have long adjudicated Article V cases.What is the source of a state legislature’s function in the amendment process? Is it a state power reserved by the Tenth Amendment? Or does it derive from the Constitution? Answer: The power of a legislature or convention operating under Article V comes directly from the Constitution. It follows that neither a federal nor state enactment may alter the amendment procedure.
The decision further noted that Article V leaves many rules implied rather than stated. But it showed that we can deduce the unstated rules from history and from the circumstances surrounding the Constitution’s adoption. (Also true of many other constitutional provisions.)
When an assembly acts under Article V—such as a state legislature ratifying an amendment—is approval by a simple majority of those present and voting? Or is a supermajority necessary? Answer: the usual rule is a simple majority of those present and voting, except when the Constitution specifies a different majority. Article V does specify a supermajority of the states (three-fourths) to ratify proposed amendments.
In summary, the landmark decision in Dyer v. Blair did not alter constitutional amendment law, but it clarified some very important points.
- It confirmed that most amendment law derives directly from the Constitution, and state and congressional enactments may not change it.
- It showed how we deduce governing rules from the constitutional text and from historical practice.
- It confirmed that legislatures and conventions operating under Article V may fix their own procedural rules.
- It told us that unless the Constitution’s words tell us differently—or an assembly then operating under Article V temporarily changes the standard—amendment decisions are made by a majority of those present and voting.
By clarifying constitutional amendment law, Dyer v. Blair made the states' power to propose amendments under Article V more understandable to citizens who now seek to use it to cure our dysfunctional federal government.
NATELSON: John Paul Stevens’ Greatest Legacy? His Impact On The Constitutional Amendment Process by Robert Natelson Senior Fellow, Independence Institute, The Daily Caller, July 22, 2019
https://articlevinfocenter.com/john-paul-stevens-greatest-legacy/
Myrl.Nisely@COSaction.com
