“A common tactic among opponents of an amendments convention is to label it a ‘constitutional convention,’ and then claim that a constitutional convention is inherently unlimited,” notes constitutional scholar Professor Robert G. Natelson in his latest article for the Article V Information Center. “The fact that courts have repeatedly limited constitutional conventions seems not to have occurred to them.”
The author of “The Law of Article V” and the nation’s foremost expert on the topic, Natelson highlights new research from Roman J. Hoyos, a law professor at Southwestern Law School in Los Angeles, that debunks the common claim that conventions under the Constitution are “inherently unlimited.” First, he notes that contrary to popular opinion, even constitutional conventions are limited. Secondly, he points out that “an Article V convention has even less scope than a constitutional convention.”
“Professor Natelson and others have done an important job of growing our understanding of Article V,” Hoyos writes. “Their work has produced an emerging consensus that an Article V convention can be limited. While this scholarship quite sensibly focuses on Article V precedents, commentary, and jurisprudence, I want to move in a different direction.”
“Rather than focus on Article V itself,” Hoyos delves into the law surrounding constitutional conventions (particularly those held by individual states), which are often confused for amendment conventions. His point is that if even constitutional conventions — which are inherently broader than amendment conventions — are limited, by extension, an Article V convention must be as well.
“At the center of that jurisprudential history is the treatise literature on the law of constitutional conventions, and [19th-century convention scholar] John Alexander Jameson’s treatise in particular,” he writes. “Following the Civil War, Jameson published the first-ever legal treatise on constitutional conventions, drawing upon the rich American constitution-making experience of the nineteenth century to invent a law of constitutional conventions. Jameson’s work makes a systematic and powerful case for the idea that constitutional conventions are by definition limited institutions. [emphasis added]”
Diving deep into Jameson’s work and other historical scholarship, the author determines that the convention “is simply a conveyancer employed to fill up the instrument for the people to sign, and until they do sign it, the ordinances are utterly lifeless.” Specifically, in the case of state conventions, the delegates were “limited simply to proposing a constitution, not enacting one.”
Hoyos and Natelson, each drawing upon decades and even centuries of convention experience in the U.S., agree that this precedent similarly applies to amendment conventions as per Article V. In fact, they reason that an Article V convention would be more limited as it cannot alter the Constitution but only propose amendments.
The historical “distinction between amendment and revision, along with the 1787 convention’s decision to use the term amendment rather than alteration suggests that Article V does not envision a general revision power either for Congress or an Article V convention. Instead, Article V merely offers two distinct paths to amendment. One allows Congress to propose amendments when in its discretion it has identified a defect in need of change. The other allows states themselves to demand that Congress assemble a convention for such a purpose. So a congressional convention act that purported to create an unlimited Article V convention would be beyond Congress’ authority. And since Article V conventions only possess an amendment power, any attempt by the convention to draft a new constitution sua sponte would also be void.”
Prof. Roman J. Hoyos’s study is chock-full of invaluable research that should put to rest the misconception that federal conventions are “inherently unlimited.” As we head into legislative season, in which that lie will inevitably resurface, COS supporters should acquaint themselves with the true history of conventions in America.
To read Prof. Natelson’s commentary on the article, click here. Or, read the entire report here.
Leading Article V scholar uncovers FASCINATING new evidence for limited convention
Published in Blog on January 08, 2024 by Jakob Fay
