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Created: 2023-01-19 19:55:49
Updated: 2024-03-03 17:42:53
Published: 2023-11-24 13:00:00
Converted: 2025-04-14T20:09:24.119966497
18
The Baton Rouge Lawyer
Article V Revisited: The U.S.
Constitutional Provision for States
to Control the Federal Government
and Louisiana Participation
By Albert Dale Clary
The U.S. Constitution
has a little-known
provision for the states
to control a runaway
federal government: Article V,
the amendments article. Article
V has two methods for amending
the Constitution, but only one has been
used. All 27 of the current amendments
to the Constitution were proposed by
one method, in which Congress intro-
duced amendments and states ratified
those proposals. However, Article V
has a second method for introducing
amendments, known as the convention
method.1 The text, logic and history
of Article V show this second method
was created to give states the power to
control the federal government when the
federal government fails to honor the
Constitution’s limits on federal power.
Article V: The text
Article V provides a process for the
states to propose amendments, rather
than Congress:
The Congress, whenever two thirds
of both Houses shall deem it neces-
sary, shall propose Amendments
to this Constitution, or, on the Ap-
plication 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 . . . .2
So, when two-thirds of the states
apply for a convention for proposing
amendments, Congress “shall” call
that convention. However, any amend-
ments proposed by the convention
only become “part” of the Constitution
if ratified by the legislatures of three-
fourths of the states, just as any amend-
ments proposed by Congress.
How the state power to control the
federal government arose
As the Constitutional Convention
neared its completion in 1787, the only
method to propose amendments was
for Congress to propose them. Then, on
Sept. 15, 1787, George Mason of Virginia
addressed the Convention and said, as
paraphrased by James Madison in his
notes of the Convention, “It would be
improper to require the consent of the
Natl. Legislature because they may abuse
their power, and refuse their consent on
that very account. . . .”3
Thus, Article V was modified to provide
for states to control one mode of
proposing amendments.4 Both modes
of proposing amendments were subject
to the same state ratification to become
part of the Constitution. However, this
second method puts states in control
of both proposing the amendments
and ratifying the amendments. As one
contemporary essayist said,
The sovereign power of amending
the constitution . . . does not lie with
the federal legislature, whom some
have erroneously apprehended to
be supreme. That power, which is
truly and evidently the real point of
sovereignty, is vested in the several
legislatures and [ratifying] conven-
tions of the states, chosen by people
respectively with them.5
Alexander Hamilton in 1788 observed
this about Article V:
[T]he national rulers, whenever nine
states concur, will have no option upon
the subject. By the fifth article of the
plan the congress will be obliged, . . .The
words of this article are peremptory.
The Congress “shall call a conven-
tion.” Nothing in this particular is
left to the discretion of that body.6
The use of this second method of
proposing amendments gives the states
power over both proposing and ratifying
July/August 2022 19
amendments. The role of Congress in
this process is very limited, i.e., only to
“call” the convention.7 As explained by
Professor Natelson, this convention is a
Convention of States, not Congress,8 and
Article V was written by those familiar
with a long tradition of multi-colony and
multi-state conventions.9
Current state efforts to amend the
Constitution
State legislatures have approved
numerous applications for amendment
conventions. Various estimates range
from dozens to over 400.10 In 2015,
Congress began tracking these applica-
tions, and a registry of “memorials” to
propose amendments is kept by the Com-
mittee on the Judiciary of the U.S. House
of Representatives.11 Other websites also
privately track state resolutions.12
While no resolution has yet reached
the threshold 34 states required to
force Congress to “call” an amendment
convention, national interest in limiting
the growth of the federal government has
given birth to several Article V amendment
movements. Currently, the most notable
are the Balanced Budget Amendment
Task Force13 and the Convention of States
Project,14 but there are other efforts.15
Louisiana Article V resolutions
Louisiana has been one of the most
active states to approve such ap-
plications.16 For example, in 1907 the
Louisiana legislature passed a resolution
calling for a convention to propose an
amendment for direct election of U.S.
Senators, noting that “[t]he failure of
Congress to submit such amendments
to the States has made it clear that the
only practicable method of securing a
submission to the States is through” an
Article V convention.17 More recently,
Louisiana has passed resolutions to
question federal government control
over public schools (1960),18 bar federal
taxation of interest income on state debt
(1970),19 allow school choice (1970),20
impose limits on the federal debt (1975)21
and require a balanced federal budget
(1975).22 However, in 1990 the legislature
rescinded all prior Article V resolutions.23
In 2016, the Louisiana legislature
approved an application for a convention
to propose amendments limited to three
subject areas: to (1) limit the terms of
office that may be served by its officials
and by members of Congress, (2)
impose fiscal restraints upon the federal
government and (3) limit the power and
jurisdiction of the federal government.24
In 2018, the legislature approved a
Commissioner Selection resolution,
discussed further below. Since then, two
Article V resolutions for term limits have
failed to pass.25
Possible Amendments arising
from the 2016 Louisiana Article V
resolution
The three subject areas of the Louisiana
2016 resolution could include amend-
ments that impose significant limits on
federal power. Possible amendments
germane to the call would be those
to impose term limits on members
of Congress and the judiciary and
to require a balanced budget. Other
possible amendments could be to repeal
the direct election of U.S. Senators,26
grant the states direct authority to check
Congress27 or check the authority of
federal bureaucracies28 or to narrow the
judicial expansion of the Commerce
Clause or the General Welfare clause.
The Louisiana model legislation
for state legislative control of the
amendment convention
Although some authors critical of an
Article V amendment convention raise
the specter of a “runaway” convention,29
Louisiana is one of the states that has
already passed a resolution to direct how
the state legislature will control the people
sent to the convention. In the 2018 Com-
missioner Selection Resolution (CSR),
the legislature directed how it will select,
authorize, instruct and supervise the people
who attend this convention.30 As Professor
Natelson reports, “Founding-Era practice
informs us also that commissioners at an
amendment convention were to operate
under agency law and remain within the
limits of their commissions[,]”31 which
includes “the duty to abide by instructions
established by concurrent resolution of the
legislature for participation in the conven-
tion and the duty to act only within the scope
of the Louisiana Legislature’s application for
the convention . . . .”32
This 2018 CSR imposes two layers
of limitations on the authority of
Louisiana’s commissioners. First, the
commissioners cannot act outside the
convention resolution by the Louisiana
legislature. The “duty to act only within
the scope of the . . . Legislature’s applica-
tion” means Louisiana’s commissioners
cannot participate in any “runaway”
convention.33 Second, the commissioners’
20
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authority to act will be limited by any
“instructions established by concurrent
resolution of the legislature.”34
To leave no doubt, the Louisiana CSR
contains the clear statement that any vote
cast by a commissioner outside the scope
of the legislature’s instructions or the
legislature’s application “is an unauthor-
ized vote and is therefore void.”35 This
Louisiana procedure is entirely consistent
with similar historical conventions, for
which typically the legislatures, sitting as
representatives of the citizens, selected,
“empowered,” instructed and supervised
their amendment convention commis-
sioners.36 This procedure for limiting
authority of commissioners to an Article
V convention is also entirely consistent
with the Louisiana Civil Code articles
on mandate, which allow a principal to
impose limitations on the authority of
its mandates.37 It is anticipated all states
that send commissioners to the amend-
ment convention would similarly select,
authorize, instruct and supervise that
state’s commissioners.
Conclusions
Louisiana has been a leader in the Article
V movement. The legislature has passed
perhaps more resolutions for Article V
conventions than any other state and has
also passed a CSR, which can serve as a
model to other states on how to control
the commissioners and conduct of any
Article V convention.
1
Michael Stern, Reopening the Constitutional Road to
Reform: Toward a Safeguarded Article V Convention,
78 Tenn. L. Rev. 765, 765 (2011).
2
U.S. Const. art. V (emphasis added).
3
Robert G. Natelson, Proposing Constitutional
Amendments by Convention: Rules Governing the
Process, 78 Tenn. L. Rev. 693, 732-33 n.21 (citing The
Records of the Federal Convention of 1787 (Max
Farrand ed., 1937)) and n.264-69.
4
See Robert G. Natelson, Founding Era Conventions
and the Meaning of the Constitution’s Convention
for Proposing Amendments, 65 Fla. L. Rev. 615, 621
(2013).
5
As stated by Trent Coxe, a Philadelphia business-
man and one of the most influential pro-Constitu-
tion essayists, as described by Robert G. Natelson
in The Law of Article V, State of Initiation of
Constitutional Amendments 28 (2018) (emphasis
added).
6
Alexander Hamilton, The Federalist Papers No. 85
(1788) (emphasis added).
7
Natelson, supra note 3, at 733
8
Robert G. Natelson, Why The Constitution’s “Con-
vention for Proposing Amendments” Is a Convention
of the States, Policy Brief, The Heartland Institute,
October, 2017.
9
Natelson, supra note 4, at 620.
10
The Article V Library, http://article5library.org/
applications.htm.
11
U.S. House or Representatives Clerk, Selected
Memorials, http://clerk.house.gov/legislative/memo-
rials.aspx.
12
See, e.g., State Legislators Article V Caucus, http://
articlevcaucus.com/; Friends of the Article V Con-
vention http://www.foavc.org/01page/Amendments/
index.htm.
13
http://bba4usa.org/.
14
Convention of the States Action, https://conven-
tionofstates.com/ (note that the author is a volun-
teer for the Convention of States Project).
15
See, e.g.,U.S. Term Limits, https://www.termlimits.
com/; Wolf-PAC, https://wolf-pac.com/.
16
See U.S. House Clerk, supra note 11.
17
National Archives, Center for Legislative Ar-
chives, Application of the Louisiana State Legislature
The Baton Rouge Lawyer
is seeking
articles for publication.
Contact Pam Labbe
at pam@brba.org
Interested in serving
in a leadership position
in the BRBA?
Self-nomination forms for 2023
leaders will be in the next issue of
The Baton Rouge Lawyer.
and Governor for a Convention to Propose a Consti-
tutional Amendment for Direct Election of Senators,
November 25, 1907, https://www.archives.gov/legis-
lative/features/17th-amendment/louisiana.html.
18
House Concurrent Resolution (HCR) No. 21 (Act
2 of the First Extraordinary Session of 1960).
19
Senate Concurrent Resolution (SCR) No. 25
(Regular Session, 1970).
20
HCR No. 12 (Reg. Session, 1970).
21
SCR No. 109 (Reg. Session, 1975).
22
HCR No. 269 (Reg. Session, 1975).
23
HCR No. 218 (Reg. Session, 1990).
24
SCR No. 52 (Reg. Session, 2016) (following the
Convention of States resolution).
25
HCR No. 28 (Reg. Session, 2020); HCR No. 51
(Reg. Session, 2021).
26
The 17th amendment changed the method of
selection of U.S. Senators.
27
Mark R. Levin, The Liberty Amendments 179
(2013).
28
Id. at 99.
29
See, e.g., The Article V Convention to Propose
Constitutional Amendments: Current Developments,
Congressional Research Service, November 15,
2017, CRS report R44435, p. 18.
30
HCR No. 4 (Reg. Session, 2018).
31
Natelson, supra note 4, at 686.
32
HCR No. 4, supra note 30, at Section 3.A (empha-
sis added).
33
For an excellent analysis of the mistaken no-
tion that an amendments convention can be a
“runaway” convention to act on matters outside
the authority of commissioners, see Michael B.
Rappaport, The Constitutionality of a Limited Con-
vention: An Originalist Analysis, 81 Const. Comm.
53 (April 6, 2012), available at https://ssrn.com/
abstract=2035638.
34
HCR No. 4, supra note 30, at Section 3.A.
35
Id. at Section 3.C.
36
Robert G. Natelson, The Law of Article V: State
Initiation of Constitutional Amendments, at §
3.10. Selecting Commissioners, § 3.11. Empowering
Commissioners and § 3.12. Instructing and Super-
vising Commissioners.
37
See La. C.C. art. 2989, et.seq.