Procedures for State Initiation of Constitutional Amendments

Testimony of

Nelson Lund

Professor of Law

George Mason University School of Law

Before the

Subcommittee on the Constitution

of the

Committee on the Judiciary

of the

House of Representatives

March 25, 1998

Mr. Chairman, and Members of the Committee, I am honored to be here today.

I begin with two propositions that were articulated by James Madison. First, "if angels were to govern men, neither external nor internal controls on government would be necessary."⁽¹⁾ Second, that "[i]n republican government, the legislative authority necessarily predominates."⁽²⁾ I believe this implies that Members of Congress are the most dangerous people in America.

Not the worst people in America, but the most dangerous. In fact, Madison anticipated (correctly, I think) that federal legislators would on the whole be superior to their state counterparts and to the general population with respect to three critical qualities: wisdom, patriotism, and love of justice.⁽³⁾ But even if these qualities will always be disproportionately found in Congress, we still won't get a body of angels. And, less obviously, we won't get an institution that is suited to make most of the important decisions about how to regulate the lives of our citizens. Instead, what we can expect to get is an institution that is well-suited to making certain kinds of decisions. In discussing the appropriate size of political jurisdictions, Madison offered the following analysis:

It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representative too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.⁽⁴⁾

Madison might have added, though he did not, that this "happy combination" was something easier to describe in words than to maintain in practice. Writing almost half a century later, Alexis de Tocqueville was impressed with how stable the combination had remained. That stability he attributed in large measure (though by no means exclusively) to what he saw as a genuinely novel device in our Constitution. When the thirteen original states created our federal system, they gave the new government the power not only to make laws but to administer them directly, without intermediation by the constitutive states. This idea, which seems obvious to us today, was actually so remarkable that Tocqueville was able to say that there was still no word for the resulting form of government, even several decades after it was put into place. He himself described what we have here in the United States, not as a federal government, but as an "incomplete national government."⁽⁵⁾

Unlike many of his contemporaries, Tocqueville believed that the greatest threat to our constitutional arrangements lay in a weakening of the federal government that might lead to a dismemberment of the union.⁽⁶⁾ As we now know, the War Between the States proved him right. But in the longer term, Tocqueville thought that the greater danger lay in the inherent tendency of democratic nations to concentrate power at the center.⁽⁷⁾ And he has proved right about that, too. It may be worth pausing for a moment to recall part of Tocqueville's explanation for the fragility of decentralized governmental forms:

Not only is a democratic people led by its own tastes to centralize government, but the passions of all its rulers constantly urge it in the same direction.

It may easily be foreseen that almost all the able and ambitious men in a democratic country will labor constantly to increase the scope of social power, for they all hope sooner or later to control it themselves. It is a waste of time to demonstrate to such men that extreme centralization may be harmful to the state, for they are centralizing in their own interests.

The only public men in democracies who favor decentralization are, almost invariably, either very disinterested or extremely mediocre; the former are scarce and the latter powerless.⁽⁸⁾

During the last two-thirds of this century, I believe it has become clear that our Constitution includes inadequate checks on the centripetal forces that have created the Behemoth of which you are now a part. The principal legal check on those forces was supposed to be the limited and enumerated nature of the powers granted to the federal government. The Supreme Court, however, has permitted Congress to expand the reach of federal power far beyond anything the framers would have imagined. Despite some recent small steps by the Court in the other direction, the scope of congressional power remains immense and almost completely uncontrolled.

What legal defenses do we now have against the inappropriate extension of federal power? Under the existing Constitution, very few. The framers, who were rightly distrustful of "parchment barriers," believed that the jealousy of the state governments would be more efficacious than the formal, legal constraints contained in the Constitution.⁽⁹⁾ But that natural jealousy has not proved in the long run to be much of a barrier.

One reason for our current predicament is that Article V of the Constitution effectively gives small congressional minorities a veto over constitutional amendments. One third of either House can prevent Congress from proposing a constitutional amendment to the states for ratification. It should come as no surprise that Congress has never approved a constitutional amendment that decreased its own power in any significant way. Indeed, since the Bill of Rights was adopted, Congress has not even approved any amendments (with the possible exception of the Twenty-First) that reinforced the original plan for a federal legislature of limited and enumerated powers.

The framers of the Constitution were well aware of the dangers inherent in giving Congress too much power to block constitutional amendments. As George Mason put it:

"[N]o amendments of the proper kind would be obtained by the people, if the [federal] Government should become oppressive, as he verily believed would be the case."⁽¹⁰⁾

On the other hand, the framers were also worried that giving the states an unchecked power to amend the Constitution might result in a power grab by the states at the expense of the federal government.⁽¹¹⁾

Both fears were reasonable, and the conundrum was addressed, after considerable debate, by adopting a mechanism through which Congress is supposedly obliged to call a constitutional convention upon the application of two-thirds of the state legislatures. No such convention has ever been called.

Why not? Although it may surprise you, one possibility is that Congress has been for some time in violation of its legal duty to call a constitutional convention. Forty-five states have at one time or another applied for a constitutional convention in language that does not restrict the application to a convention for the "sole" or "exclusive" purpose of considering some limited range of proposals.⁽¹²⁾ There is a legal argument, at least colorable and perhaps quite strong, that this fact implies that Congress is and has been for some time constitutionally obliged to call an Article V convention.⁽¹³⁾

Even leaving aside that unsettling possibility, there are enormous and unresolved questions about the constitutional convention method of proposing amendments. Just to take two examples: There has been considerable debate as to whether the Constitution allows a convention to be restricted to a limited range of topics. And there is considerable doubt about the extent to which Congress could put substantive or procedural restrictions on a constitutional convention convened under Article V.

Given the considerable uncertainties about the convention method of proposing amendments--which may well be the most significant cause of the fact that a convention has never been called--it makes sense to create a new method through which the congressional blocking power can be reduced. The concept embodied in H.J. Res. 84 admirably addresses this need. By allowing constitutional amendments proposed by the states to be submitted for ratification unless disapproved by a two-thirds vote of each House, the proposal would greatly reduce the congressional veto power while still providing a meaningful check on irresponsible action by the states.

If the states were ever to threaten a seriously deleterious expansion of their own power, there should be little difficulty in mustering the necessary supermajorities in Congress. On the other hand, if a sufficient number of states conclude that Congress has irresponsibly declined to propose a needed amendment--especially in cases where the self-interest of its Members is at stake--it is reasonable to hope that at least one third of one House would be willing to act in a responsible fashion.

I do have some relatively minor reservations about H.J. Res. 84 as currently drafted. As it is now written, a specific constitutional amendment would first have to be proposed by 34 states and then ratified by 38 states, including the 34 that had already approved it. I suggest that it would make sense to lower the threshold for proposing amendments--perhaps to a simple majority of the states. Given that three-fourths of the states must ratify, this could hardly raise the risk of irresponsible amendments, and it would somewhat decrease the collective action problems that are entailed in any scheme for state initiation of amendments.

My second suggestion has to do with an ambiguity in Section 1. It is not clear to me whether this language contemplates action by the state legislatures alone, or whether the Governor's approval of the "legislation" might be required. I would recommend resolving the ambiguity.

My third suggestion is that some provision be made for the possibility that states might purport to rescind or repeal proposals previously made under Section 1. It would be useful, I think, to specify whether or not such rescissions would be effective.

Finally, I question the advisability of Section 6. Given that the purpose of H.J. Res. 84 is to reduce congressional blocking power over the amendment process, this provision may create unnecessary and undesirable opportunities for congressional mischief.

Let me conclude by reaffirming my view that H.J. Res. 84 would be a useful and appropriate addition to the Constitution. Not a cure-all for the serious deterioration of the principles of federalism that we have witnessed in this century. And not a device that would necessarily lead only to the adoption of "good" amendments. But the fact that I do not see this as a panacea does not qualify my support for the proposal.

Finally, I can't resist noting my suspicion that the likelihood of Congress' approving H.J. Res. 84 is inversely related to desirability of the amendment. Fortunately, however, it is not my role to try to prove that suspicion wrong.

Thank you.

Judiciary Homepage

1. The Federalist No. 51, p. 322 (C. Rossiter, ed. 1961).

2. Id.

3. The Federalist No. 10, p. 82.

4. Id. at 83.

5. Democracy in America, p. 157 (J.P. Mayer ed., 1969).

6. Id. at 363-95.

7. Id. at 671-74.

8. Id. at 735.

9. See, e.g., The Federalist Nos. 45-46.

10. II The Records of the Federal Convention of 1787, at 629 (M. Farrand ed. 1937).

11. For a discussion, see Walter Dellinger, The Recurring Question of the "Limited" Constitutional Convention, 88 Yale L.J. 1623 (1979)

12. Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L.J. 677 (1993).

13. Id.