BILL ANALYSIS Ó AJR 30 Page 1 Date of Hearing: April 26, 2016 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AJR 30 (Grove) - As Amended April 21, 2016 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 AJR 30 Page 2 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 document could only be amended by unanimous consent of all thirteen states before jettisoning the Articles entirely. As to AJR 30, however, the question of whether the convention can be limited may not matter because AJR 30 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 power 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 V for the purpose of amending the United States Constitution. AJR 30 Page 3 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 impose fiscal restraints on the federal government and that limit the power and AJR 30 Page 4 jurisdiction of the federal government. b) The State of California joins in the application of the states of Georgia, Florida, Alaska, Alabama, Tennessee, and Indiana 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. Contends that because Article V only gives Congress the power to "call" a convention it may only act as expressly specified in Article V. 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 AJR 30 Page 5 non-fiscal. COMMENTS: 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, 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 in 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." AJR 30 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, Alabama, Florida, Georgia, Indiana, and Tennessee, those resolutions are similar but not identical to this resolution. Most notably, those resolutions also call for limiting the terms of federal officeholders. AJR 30 and the Original Meaning(s) of the Constitution. AJR 30 AJR 30 Page 6 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 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 AJR 30 Page 7 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 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 give Congress the power to veto acts of the states, 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 AJR 30 Page 8 Consent, shall be deprived of its equal Suffrage in the Senate. In all, Article V creates four ways to amend the Constitution, two methods of proposing amendments coupled with 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, not the states, 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. Given that the overall purpose of the 1787 Convention was to strengthen the power of the federal government, it is not surprising that Article V leaves it to Congress to "propose" amendments, and only gives the states the power to make an application to Congress to do so. As such, the resolution's statements claiming that the only power that Congress has under Article V is to "call" a convention, while the state will retain the power to define the scope and set the rules is simply not supported by either the words or the history of the Constitution. 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 AJR 30 Page 9 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 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. AJR 30 Page 10 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 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' AJR 30 Page 11 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 only needs to look at the constitutional convention in 1787. At the Annapolis Convention in 1786, delegates representing only six of thirteen states decided to convene in Philadelphia the following year to amend the Articles of Confederation. Not only did the Framers jettison 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 of all of the states. 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 30. 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 30 so interesting, however, is that it almost makes the question of the "limited" constitutional convention beside the point. That is because AJR 30 does not AJR 30 Page 12 propose a limited subject matter. The constitutional convention proposed by AJR 30 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 30 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 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 30 Change in the Constitution? The Committee may wish to engage the author on what specific amendments AJR 30 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 AJR 30 Page 13 exactly would the convention change those words? Or how would the convention restore the "true" meaning of the Constitution? How would one change the words of the Tenth Amendment differently to make its true meaning clearer? If the problem is in the interpretation of the Constitution, would the convention add an amendment 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? 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 League of Women Voters of California (LWVC) opposes this resolution because it believes that "a convention should only be called only if certain conditions are in place. Among them, we believe representation at the convention must be based on population, rather than one state, one vote, and that delegates should be elected, not appointed, as they represent citizens. Voting at the convention must be by delegate, not by state." Finally, LWVC believes that AJR 30 Page 14 any application for an Article V convention should be "limited to a specific topic" in order to "guard against a 'runaway convention' which considers multiple issues or topics." LWVC points out that the topics suggested this resolution - limiting the power and jurisdiction of the federal government - "is so vast it could include numerous and diverse subjects, such as gun rights, social security, Medicare, the Veterans Administration, aid to education, energy, agriculture, NASA, FEMA, international and interstate commerce, the entire military budget and defense spending." 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 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 AJR 30 Page 15 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 (sponsor) Convention of States Action Several individuals Opposition Eagle Forum League of Women Voters of California Several individuals AJR 30 Page 16 Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334