BILL ANALYSIS Ó
AJR 10
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Date of Hearing: May 12, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AJR 10
(Grove) - As Introduced February 27, 2015
SUBJECT: Federal constitutional convention: application
KEY ISSUE: Should california call upon congress to convene a
constitutional convention for the purpose of amending the U.S.
constitution to impose restraints on the power and jurisdiction
of the federal government?
SYNOPSIS
Article V of the United States Constitution provides two ways to
amend the Constitution: first, Congress may propose amendments
and submit them to the states for ratification; second, Congress
may, upon application by two-thirds of the states, call a
convention for proposing amendments to the Constitution. Once
amendments are proposed, either by Congress or by a convention
requested by the states, any amendments become operative after
being ratified by three-quarters of the state legislatures, or
by conventions in the states. Of the twenty-seven amendments to
the Constitution, all have been proposed by Congress. All but
one of the twenty-seven amendments proposed by Congress was
ratified by state legislatures; only the 21st Amendment
(repealing the 18th) was ratified by state conventions rather
that state legislatures. This resolution would constitute
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California's application to Congress for a constitutional
convention. Because this method has never been used, and
because Article V is light on detail, it is unclear how the
process envisioned by this resolution would unfold. Do the
applications by states need to be identical, or at least on the
same subject matter? If the applications by the states all
address the same subject, would Congress have the power (or even
the duty) to limit the scope of the convention to that subject?
Does there even need to be a single subject matter? How would
delegates to the convention be selected, by Congress or by the
states? Would each state have an equal number of delegates, or
would the number of delegates be based on a state's population?
Given the multitude of questions, some scholars warn of the
dangers of an unlimited, "runaway convention" that could
radically alter the Constitution. Other scholars argue that
Congress could, and likely would, limit the convention to a
single subject. Still others reasonably conclude that if the
respected scholars who have studied the question disagree so
completely, then the only logical conclusion is that it is
impossible to know exactly what would happen. Some argue that
the final check on a "runaway convention," even if that were to
occur, is the requirement for the final product to be ratified
by three-quarters of the states. This assumes, however, that
the convention will not amend the Article V amendment process,
just as the original Framers ignored the provision of the
Articles of Confederation saying that the Constitution could
only be amended by unanimous consent of all thirteen states
before jettisoning the Articles entirely. As to AJR 10,
however, the question of whether the convention can be limited
may not matter because AJR 10 is "limited" to the breathtakingly
broad topic of the "power and jurisdiction of the federal
government." Given that the Constitution is, in essence, a
limited grant of powers and jurisdiction to the federal
government, the resolution's "limitation" would seem to be
unlimited.
SUMMARY: Constitutes an application to the United States
Congress to call a constitutional convention pursuant to Article
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V for the purpose of amending the United States Constitution.
Specifically, this measure:
1)Declares that Whereas:
a) The Founders of the United States Constitution empowered
state legislators to be guardians of liberty against
excessive use of power by the federal government.
b) The federal government has created a mounting national
debt exceeding $17 trillion through improper and imprudent
spending.
c) The federal government has usurped the legitimate roles
of the states through unfunded federal mandates.
d) The federal government has ceased to operate under a
proper interpretation of the Tenth Amendment of the United
States Constitution.
e) It is the solemn duty of the states to protect the
liberty of our people by proposing amendments to the United
States Constitution through a convention of the states.
2)Resolves that:
a) The Legislature of the State of California hereby make
application to the Congress of the United States to call an
amendment convention pursuant to Article V of the United
States Constitution limited to proposing amendments to the
United States Constitution that limit the power and
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jurisdiction of the federal government.
b) The State of California joins in the application of the
states of Georgia, Florida, and Alaska in calling for a
convention to propose amendments that impose fiscal
constraints on the federal government, and which limit the
power and jurisdiction of the federal government.
Expresses Legislature intent that this application shall be
joined with those states and subsequent applications by
other states limited to the identified purposes.
c) The Legislature adopts this application with the
understanding that Article V confers no power on the
Congress other than the ministerial duty to "call" a
convention; that Congress has no power to name delegates to
convention, but that this power shall remain exclusively
with the states; and that Congress shall be otherwise
limited in its powers to providing for the manner in which
the convention is conducted, as specified.
EXISTING LAW requires Congress, whenever two thirds of both
houses shall deem it necessary, to propose amendments to the
United States Constitution, or, upon the application of the
legislatures of two thirds of the states, to call a convention
for the purpose of proposing amendments, which shall be valid
when ratified by the legislatures of three fourths of the
states, or by conventions in three fourths thereof, as the one
or the other mode of ratification that may be proposed by the
Congress. (Article V of the U.S. Constitution.)
FISCAL EFFECT: As currently in print this resolution is keyed
non-fiscal.
COMMENTS: Article V of the United States Constitution provides
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two ways to amend the Constitution: first, Congress may propose
amendments and submit them to the states for ratification;
second, Congress may, upon application by two-thirds of the
states, call a convention for proposing amendments to the
Constitution. Once amendments are proposed, either by Congress
or by a convention requested by the states, they become
operative after being ratified by three-quarters of the state
legislatures, or by convention in three-quarters of the states.
This resolution would, pursuant to Article V of the United
States Constitution, constitute California's application to the
U.S. Congress to call a convention for purposes of amending the
U.S. Constitution.
According to the author, and the declarations of this
resolution, the Constitution must be amended in order to restore
the Framers' original purpose of empowering state legislatures
as a bulwark against "the excessive use of power by the federal
government." (The resolution uses the term "Founders," but the
term "Framers" is historically accurate because they "framed"
the Constitution.) AJR 10 declares that the federal government
has "usurped the legitimate roles of the states" and "ceased to
operate under a proper interpretation of the tenth Amendment to
the United States Constitution." As such, this Article V
application represents "the solemn duty of the states to protect
the liberty of our people [by] proposing Amendments to the
United States Constitution" that will "impose fiscal constraints
on the federal government and limit the power and jurisdiction
of the federal government." Although the resolution links its
applications to those recently adopted by Alaska, Florida, and
Georgia, those resolutions are similar but not identical to this
resolution. Most notably, those resolutions also call for
limiting the terms of federal officeholders.
AJR 10 and the Original Meaning(s) of the Constitution. AJR 10
purports to know the original intent of the Framers and the
original meaning of Constitutional provisions, including the
10th Amendment. It may be useful, therefore, to recall the
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history of the Constitutional Convention. The resolution's
claim that the Framers of the United States Constitution wanted
to "empower" state legislatures seems at odds with the
conclusions drawn by most historians. The consensus among
historians is that the delegates who met in Philadelphia agreed
that the national government under the Articles of Confederation
was too weak and ineffectual, and the purpose of the convention
was to strengthen, not weaken, the federal government. Although
James Madison and Alexander Hamilton would later differ on
questions of federal power, they agreed on this point. In
particular, Madison's Federalist #10 - probably the best known
of the Federalist Papers - argues for a larger, stronger federal
government that could restrain popular majorities in the state
legislatures, who in Madison's mind had shown a foolish "rage
for paper money, for an abolition of debts, for an equal
division of property, or for any other improper or wicked
project." (Gary Wills, Ed., The Federalist Papers, Bantam
Classic Edition, 1982, p. 49.) During the convention, Madison
even proposed giving Congress the power to veto acts of the
state legislatures. For Madison, at least, empowering state
legislatures was not at the top of the agenda.
That Madison's plans for a Congressional veto over the states
was rejected suggests that the "Framers" were not all of one
mind and any attempt to discern a single "original meaning" or
"original intent" of the Framers is fraught with difficulty.
(See e.g. Jack Rakove, Original Meanings: Politics and Ideas in
the Making of the Constitution (1996).) Not only is it
difficult to discern a single meaning or intent of a collective
body, Madison's political career shows that it is often
difficult to discern a single intent of even a single person
within that body. A little over a decade after arguing that
Congress should have veto power over the acts of state
legislatures, Madison secretly drafted the Virginia Resolutions
of 1799 which declared exactly the opposite: that a state could
nullify an Act of Congress. Nearly twenty years later, in 1816,
Madison did another about-face, supporting the Second Bank of
the United States, after arguing throughout the 1790s that
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Congress had no constitutional power to establish the First Bank
of the United States. (James Ketcham, James Madison: A
Biography, 1982.) Those who purport to understand the "original
intent" of the Framers must have a difficult time with Madison,
arguably the most influential of the Framers. Is it the Madison
of 1787 who wanted to weaken the power of the states and empower
the federal government, or the Madison of 1799 who wanted to
give states the power to nullify an Act of Congress? Is it the
Madison of the 1790s who vigorously argued that the federal
government lacked power to create a national bank, or the
Madison of 1816 who supported and signed the legislation
reestablishing a national bank?
The Meaning of Article V. Just as it is difficult to discern
the meaning or intent of the U.S. Constitution, it is no easier
to discern the meaning of specific provisions of the
Constitution. Nowhere is this more evident than in the single
paragraph that constitutes Article V. It warrants quoting in
full:
The Congress, whenever two thirds of both Houses shall
deem it necessary, shall propose Amendments to this
Constitution, or, on the Application of the Legislatures
of two thirds of the several States, shall call a
Convention for proposing Amendments, which, in either
Case, shall be valid to all Intents and Purposes, as Part
of this Constitution, when ratified by the Legislatures of
three fourths of the several States, or by Conventions in
three fourths thereof, as the one or the other Mode of
Ratification may be proposed by the Congress; Provided
that no Amendment which may be made prior to the Year One
thousand eight hundred and eight shall in any Manner
affect the first and fourth Clauses in the Ninth Section
of the first Article; and that no State, without its
Consent, shall be deprived of its equal Suffrage in the
Senate.
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In all, Article V creates four ways to amend the Constitution,
two methods of proposing amendments that can be coupled with
either of two methods of ratifying amendments. The two methods
of ratification are relatively straight-forward. Once
amendments are proposed, they must be ratified by three-quarters
of the state legislatures or by a convention in those states.
Congress decides which method is used. Twenty-Six of the
twenty-seven constitutional amendments have been ratified by
state legislatures. Only the 21st Amendment (repealing
prohibition, the 18th Amendment) was ratified by conventions in
the several states. When it comes to proposing amendments, more
questions arise. For example, given the rule of construction
which assumes that the drafters chose their words purposefully,
it is notable that while Article V gives Congress the power to
"propose Amendments," the states are not similarly given the
power to directly propose amendments. Instead, the state
legislatures make an application to Congress, and Congress then
"shall call a Convention proposing Amendments." In other words,
as some scholars have contended, the Framers did not intend for
states to necessarily propose specific amendments that Congress
would then act upon.
Can Congress or the States Limit the Form and Subject Matter of
the Constitutional Convention? This resolution purports to
limit power of Congress to merely the ministerial power of
calling a convention once two-thirds of the states have
submitted applications having "substantially the same purpose."
It also purports to limit the powers of Congress by the terms of
the application, noting, for example, that it shall be the
states, not Congress, who shall select delegates; that each
state will get one vote at the convention; and that the
convention will be limited to the specific topics set forth in
the application. Despite the resolution's confident
declarations of limiting the power of Congress and the
convention, it is not altogether clear that the limitations that
are proposed would be effective in limiting either the power of
Congress, or the ability of the convention to define the form
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and scope of the convention.
According to the record of the debates regarding Article V, the
convention first considered a draft that would have placed
Congress and the states on equal terms, insofar as both could
"propose Amendments" to the Constitution. Under this early
draft, once two-thirds of the states proposed amendments,
Congress would be left with the administrative task of sending
the amendments out to the states for ratification. When the
drafters rejected this approach and opted for the current
version, however, they left unanswered the questions of just
what role Congress would play in the process after a sufficient
number of states submitted applications. Because Article V does
not answer these basic questions - such as whether the
applications submitted by the states would have to be on the
same subject, or perhaps even identical - it would presumably be
up to Congress to make this determination. Nor does Article V
say anything about how delegates to the convention would be
selected, or whether the convention would be like the Senate,
with each state having an equal number of delegates, or like the
House, with the number of delegates proportionate to each
state's population. Whether the states can initiate this
process by the terms of the application - as this resolution
purports to do - is not specified in Article V.
The unanswered question that has generated the most scholarly
debate, however, is whether Congress could "limit" the
convention to a particular subject matter raised in the state
applications. This debate became particularly intense in the
1970s when two issues in particular - abortion and the federal
debt - prompted dozens of state applications. It was in this
context that Professors William Van Alstyne and Walter
Dellinger, both of Duke University Law School, engaged in a
series of law review exchanges on the "recurring question" of
the "limited" constitutional convention. The details of their
exchange are beyond the scope of this analysis, but suffice it
to say that both constitutional scholars blended an examination
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of historical documents with prevailing theories of
constitutional interpretation to arrive at quite different
conclusions. Van Alstyne argued that both the history and the
text support the view that Article V provides for a "limited"
convention, stressing the fact that Article V gives Congress the
power to call the convention and implicitly the power to
structure it. Dellinger, on the other hand, argued that Article
V places no limits on the convention and even suggested that a
limited convention might be unconstitutional. According to his
theory, Article V gives Congress the power to propose specific
amendments, but it gives the states the power to request a
convention. Nothing in Article V suggests that either Congress
or the states, by wording of their applications, could limit the
convention's scope. In the final exchange, Dellinger concluded
that both scholars agree that a limited convention would be
possible and even appropriate. But the two sharply disagree as
to whom (if anyone) has the power to control the constitutional
convention. Van Alstyne insisted that it could be limited by
the application of the states or by Congress. Dellinger insisted
that the convention process was envisioned as an alternative to
Congress proposing single amendments, and that the convention,
once created, is designed to operate independently "of both the
possible self-interest of Congress and the potential
parochialism of the state legislatures." (Van Alstyne, Does
Article V Restrict the States to Calling Unlimited Conventions
Only: A Letter to a Colleague, 1978 Duke L. J. 1295 (Jan.
1979); Dellinger, The Recurring Question of the 'Limited'
Constitutional Convention, 88 Yale L. J. 1623 (July 1979); Van
Alstyne, The Limited Constitutional Convention: The Recurring
Answer, 1979 Duke L. J. 985 (Sept. 1979) and Dellinger, Who
Controls a Constitutional Convention? A Response 1979 Duke L.
J. 999 (Sept. 1979), quote at p. 1000.)
For those who doubt the prospects of a "runaway convention,"
however, one need look no further than the original
constitutional convention in 1787. At the Annapolis Convention
in 1786, it was decided to convene in Philadelphia to amend the
Articles of Confederation. Not only did the Framers jettison
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this idea and instead draft an entirely new document, they also
threw out the requirements for ratifying any changes. By its
own terms, the Articles of Confederation could only be amended
by a unanimous vote. But the Framers decided to replace the
Articles with the Constitution by only requiring that nine of
the thirteen states ratify the document. The reason for doing
so was pure expedience. According to Madison in Federalist #40,
this change "proceeded from an irresistible conviction of the
absurdity of subjecting the fate of 12 States, to the
perverseness or corruption of a thirteenth." Without calling
out Rhode Island by name - the only state not to send delegates
to Philadelphia - Madison noted that the "inflexible" state that
he had in mind amounted to just 1/60th of the people of the
United States. ("Federalist No. 40," in Federalist Papers,
supra, p. 199.)
The Broad Scope of AJR 10. The fact that two respected
constitutional scholars studying the same sources can come to
different conclusions on the possibility of a "limited"
convention may suggest that ultimately there is no certain
answer. One can read the text of Article V and the historical
sources on the debates and make a plausible case for either
position. What makes AJR 10 so interesting, however, is that it
almost makes the question of the "limited" constitutional
convention beside the point. That is because AJR 10 does not
propose a limited subject matter. The constitutional convention
proposed by AJR 10 claims, as state applications traditionally
have, that the convention will be convened for the "sole and
exclusive purpose" of considering amendments for the stated
purposes. However, the stated purpose of AJR 10 is, in addition
to imposing fiscal restraints, "to limit the power and
jurisdiction of the federal government." As every school boy
and school girl learns (or at least is supposed to learn) the
Constitution is a limited grant of power to the federal
government, with all other powers reserved to the states by the
Tenth Amendment. Articles I through III of the Constitution set
forth, respectively, the powers and jurisdiction of the
legislative, executive, and judicial branches of the federal
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government. Article IV addresses the relative powers of federal
government and the states. Article V, as we have seen,
addresses the amendment process and the relative role of
Congress and the state legislatures in proposing amendments.
Amendment VI contains the supremacy clause, which asserts that
the Constitution and the laws of the United States are the
supreme law of the land. In short, every part of the
Constitution is almost exclusively about the powers and
jurisdiction of the federal government. An application for a
constitutional convention that is "limited" to the powers and
jurisdiction is not limited at all. It would appear to encompass
everything.
What Would AJR 10 Change in the Constitution? The Committee may
wish to engage the author on what specific amendments AJR 10
contemplates. For example, the author and the language of the
resolution claim that the federal government has somehow usurped
the legitimate role of the states in the Constitution and
"ceased to operate under a proper interpretation of the Tenth
Amendment." [Emphasis added.] But this seems to suggest - as
noted by the Eagle Forum in its opposition letter - the problem
is not with the words of the Constitution but with the ways in
which those words have been interpreted. If the existing words
are clear but the interpretations are erroneous, as the author
and supporters of this resolution apparently believe, how
exactly would the convention change those words? Or how would
the convention restore the "true" meaning of the Constitution:
by expressly overturning the U.S. Supreme Court that "got it
wrong" in somebody's view? Would, for example, the convention
overturn Citizens United and add a qualifier to the First
Amendment clarifying that it was only intended to protect the
speech rights of flesh-and-blood human beings and not
corporations? Would limiting the power and jurisdiction of the
federal government include overturning a federal law banning
late-term abortions, since such medical regulations are clearly
not a matter of "interstate commerce" as understood by the
Framers and are therefore matters properly reserved to the
states?
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ARGUMENTS IN SUPPORT: According to the author, "the purpose of
the resolution is to add California to the list of states that
are using their power in Article V . . . to propose
constitutional amendments that will restrain the federal
government and restore the robust, federal system created by the
Constitution." The author believes that, contrary to the
original intent of the Framers, "the power of government has
become overwhelmingly concentrated among a relatively small
ruling class in Washington, D.C. This concentration of power
has led to out-of-control spending at the federal level and has
marginalized the state legislatures."
ARGUMENTS IN OPPOSITION: The Eagle Forum of California opposes
this resolution, in part because it believes that the purpose of
Article V is to "correct errors and defects," not, as the
resolution declarations claim, "to place restraints on excessive
uses of federal power." Eagle Forum notes that the
"Constitution already places clear restraints on the federal
government through enumerated powers, most of which are listed
in Article I, Section 8. The 10th Amendment makes it clear that
all other power is reserved by the States or the People."
"The Constitution," Eagle Forum adds, "is not the problem."
Rather, the problem "is that the federal and State governments
have ignored the Constitution, and the People are ignorant about
what the Constitution says. The Constitution needs to be
understood, defended, and enforced - not amended or rewritten."
Finally, Eagle Forum opposes calling for an Article V convention
"because such a convention of the sovereign people would have
the inherent right to propose whatever changes to our
Constitution the delegates want, including replacing the
Constitution itself. And once called, it will be too late to
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stop it if we don't like their agenda." For those who think
that delegates could be restrained at such a convention, Eagle
Forum draws a comparison with the original constitutional
convention of 1787. That convention, after all, was only
supposed to propose amendments to the Articles of Confederation
and have those amendments ratified by all thirteen states: "But
the delegates [in 1787] ignored their instructions and wrote an
entirely new Constitution. Furthermore, they changed the mode
of ratification. Whereas the Articles of Confederation required
the Continental Congress and all of the then 13 States to
approve Amendments before they became effective; the new
Constitution provided at Article VII that it would require only
9 States for ratification. There is nothing which can stop
delegates to a convention today from doing the same thing."
REGISTERED SUPPORT / OPPOSITION:
Support
Convention of States Project
Several individuals
Opposition
Eagle Forum
One individual
Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334
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