The proposed lawsuit is based on the fact that there are hundreds of outstanding calls for an amending convention, far more than the 34 constituting two thirds of our 50 states. The complication is that most of these applications specify a particular subject for the amendment(s) to be proposed at the convention. Can a call for a convention to propose an amendment mandating a balanced federal budget be aggregated with one to allow state legislatures to be apportioned on a basis other than gross population (the two most common topics of calls in the last half century)? The lawsuit will argue that a call for a convention is a call for a convention, and the subject matter designations in the state applications should be ignored.

This would not be the first time this argument has been tried. In 2000 and 2004 Article V activist Bill Walker filed similar lawsuits, which were all dismissed by the courts on the grounds that the determination was to be made solely by the Congress. It is not clear how the new lawsuit would try to work around these precedents. One strategy may be that the promoters of the new lawsuit are looking to have it brought by a state, which jurisdictionally would have a stronger standing than Bill Walker as a private citizen.

Regardless of the fate of such a new lawsuit to force Congress to call a convention under Article V, it raises again the issue that the Framers clearly intended that the states as well as the federal Congress be empowered to initiate amendments to the Constitution, yet the procedures of Article V have proven inadequate to realize that intent. Even if an Article V convention were called, the absence of any agreed procedures, or agreement on how to agree, would mire the effort in irresoluble risks and uncertainties.

The point of Article V was that the Framers recognized that there would be a need to revise and update the Constitution as time and experience showed. Shouldn’t we apply the same logic to Article V itself? The half of Article V intended to enable states to initiate amendments has proved completely ineffective. Rather than expend endless resources on long-shot lawsuits and a risky and uncertain convention concept which is outside the American people’s experience, why not use Article V to reform Article V itself? The text of such a reformed Article V can be found here on this website. This “Amendment Amendment” provides clear unambiguous procedures familiar to all Americans to enable them, acting through their states, to be the final arbiters of their Constitution’s meaning.

The argument is that our country should be governed with political power equally allocated on a ‘one person, one vote’ basis.  This standard was articulated by the Supreme Court in the 1960s when it ruled that state legislative districts had to have equal numbers.   At that time, in many states rural districts had greater representation than urban districts due to people moving from the country-side into the cities and suburbs.  Today, the situation is reversed, with urban areas having greater representation due to their disproportionately larger non-citizen populations overall compared to rural areas.

In the 1960s these Supreme Court cases were very controversial, and there was a major drive for an Article V convention to amend the Constitution to reverse those decisions.  However, the principle of “one person, one vote” laid down in those cases is now broadly accepted.  Then Democrats were strong advocates of such equal representation, both on principle and because it would benefit them politically.  The principle of “one person, one vote” remains the same.  Now the question is what do Democrats do when the principle of equal representation may conflict with their political interests in many (but not all) cases.

1)    Labels can be important, especially when trying to communicate a sometimes subtle argument to the public.  The term “originalism” is suitable, but what is it contesting?  “Living constitutionalism” or “evolving constitution” are awkward, unclear and even misleading.  I propose that the debate properly should be framed in terms of its fundamental issue, which is how the law is changed, and by who(m)?  To change a law (or the Constitution) is to amend it.  When courts change the law as enacted, they are amending it.  For this I believe the correct term should be “judicial amendment,” and that is how I propose we should speak of what “living constitutionalists” are advocating.  And thus its opposite, as advocated by originalists, is democratic amendment.  By framing the fundamental issue as judicial amendment vs. democratic amendment, originalists can make clear that they are defending democratic government, not the dead hand of history as portrayed so often by their opponents.

2)    However, the argument that the judiciary is exceeding its proper democratic bounds runs into a major difficulty with regard to constitutional law.  Unlike regular laws, which can be readily amended by current legislatures, the Constitution can only be democratically changed by the lugubrious procedures of Article V.  Even while accepting the concept that constitutional change should be more difficult than regular legislation, the simple reality is that Article V is now moribund.  This leaves originalists with no response when advocates of judicial amendment argue that there is no realistic way to update the Constitution unless the judiciary acts.  All of the Framers expected that such updates would be needed – they just did not foresee that the procedures they put in place would become unworkable in a vast nation with 50 disparate states.

Therefore, the article argues that originalists need to actively advocate reform of Article V.  I propose such a reform briefly in the article.  The full text of my proposal is at www.amendmentamendment.com.  Regardless of the specifics, originalism is missing half of its force if it ignores the need to reform an amendment process that makes the U.S. Constitution one of the most difficult in the world to amend.

In addition, one should note that such an effort to return ultimate control of our Constitution to democratic rather than judicial processes, could make its advocates’ other arguments better received in our current populist political climate.

I discuss this “four word” Constitution further in chapter 9 of my book Timely Renewed, and discuss a constitutionally sound way to update the Electoral College system in my new book Fifty States, Not Six.

Moreover, the problems of our election system do not end with the winner-takes-all corruption of the Electoral College system.  In order to implement the three-fifths compromise, where slaves counted as three-fifths of a person for purposes of allocating seats in the House and Electoral College votes, the Constitution bases those allocations on the gross population, not the citizen population.  This has resulted in a significant skewing of political power in favor of areas with large non-citizen immigrant populations.

My new short book Fifty States, Not Six – a bipartisan approach to reforming the Electoral College and assuring that every citizen’s vote counts proposes a constitutional amendment which attempts to comprehensively address all of these issues.  The Popular Electoral Vote Amendment reforms rather than scraps the Electoral College system, preserving its unifying function while assuring that every citizen’s vote counts by eliminating winner-takes-all.  It also equalizes the votes of all citizens in congressional as well as presidential elections by apportioning based on the citizen population.

This short but comprehensive look at our election system offers fascinating historical insights from the founding to the 2016 election, as well as looking forward to reforming that system so that every citizen’s vote counts.  It also shows how this proposal is in the partisan political interests of both Democrats and Republicans.  The book is now available in print for only $5.99 from Amazon and for download for only $2.99 on Kindle or Nook.

This new edition of Are We the People? How We the People Can Take Charge of Our Constitution is available for only $5.99 in print and $2.99 on Kindle and Nook.

To a fair amount of publicity, Texas Governor Greg Abbott has just released a comprehensive proposal to amend the Constitution to restrict the power of the federal government, a power which in the last hundred years has grown far beyond its original constitutional bounds. The idea that only the power of constitutional amendment can permanently constrain the federal leviathan is not new. Mark Levin argued the same in his 2013 bestseller The Liberty Amendments, and many conservatives have been trying to organize such a campaign for years. However, all of these efforts suffer from a fatal strategic flaw, which makes it politically impossible to even launch such a campaign. This is that they all rely on the never used provision of the Constitution’s Article Five authorizing a convention of states to initiate constitutional amendments. Unfortunately, no such convention has ever been held in our history, nor is one ever likely to occur. Fortunately, there is an alternative way to harness the amendment power, an approach which is also politically feasible even in our current divided political environment. This is to revise Article Five to permit the states to amend the Constitution without having to go through the archaic and unworkable mechanism of a convention.

First, let’s see why the convention of states will not work. It will take 34 states to call a convention. Superficially the situation looks promising, with the highest number of Republican state legislators since 1920 controlling 67 of the 99 state legislative chambers. However, even with the largest number of Republican state legislators in almost a century, the convention drive still comes up short. Republicans control the governor’s office and both houses of the state legislature in 25 states (including Nebraska, where the unicameral legislature is technically nonpartisan but de facto Republican). Democrats only have state-wide control in seven states and there are 19 states where state government is split. Looking only at state legislatures, Republicans control both houses in 31 states (including Nebraska), Democrats control both houses in only 11 states, and eight states have a split in control between the two state legislative houses. However, the 31 states where Republicans control both houses of the state legislature, only three short of the 34 states necessary to call a convention, becomes a far larger shortfall when one considers several factors:

Governors may have a veto. In a 1798 case the Supreme Court ruled that the president did not have to sign a constitutional amendment for it to become effective. However, there has never been a ruling whether a state’s governor would have to sign a state legislature’s call for an Article V convention (or have the right to veto it), and prominent constitutional scholars have argued that gubernatorial approval would be required for a convention call. If that is the case, then the 31 state number falls down to the 25 states with complete GOP control. One can argue the point either way, but it is almost certain that there would be long drawn-out lawsuits to decide the question in every state where a Republican legislature issued a convention call which was opposed by a Democrat governor.

Not all Republicans will support a convention call. Even in the conservative movement there is substantial opposition to the idea of a convention, led by the estimable Phyllis Schlafly. Leading conservative jurists like Justice Antonin Scalia have also expressed reservations about an Article Five convention. Further, while no one would question Ms. Schlafly or Justice Scalia’s credentials as constitutional conservatives, sadly not all Republicans are true constitutional conservatives. Whether because of principled concerns like those of Phyllis Schlafly or Justice Scalia, or RINO disinterest, one cannot assume that all of the Republican state legislatures will bestir themselves to join in a call for a never before used Article Five convention. And the 31 or 25 state number declines further.

No Democrats will support a convention call. If the 34 state threshold cannot be met even with historically high Republican control at the state level, the only solution is to get some Democratic support. However, if the purpose of the convention is to limit the power of the federal government, what contemporary Democrat is going to support that? Democrats might support an open-ended convention free to also propose amendments increasing the power of the federal government, but then any convention would degenerate into a media circus dominated by leftist law professors, wasting the efforts of constitutional conservatives to bring it about.

There is an alternative — direct state action without a convention. So, do we just give up hope on using the amendment power to push the federal government back into its original constitutional constraints, constraints which an imperial federal judiciary has been ripping apart for 70 years? Clearly the Framers contemplated that amendment of the Constitution would be necessary and appropriate. That is why they included Article Five. And equally clear is that they intended that the states should be able to initiate amendment proposals just like Congress. Nonetheless, to date all 27 amendments have been initiated in Congress rather than the states.

The problem is the convention itself. Hastily enacted on the second to last day of the 1787 constitutional convention over James Madison’s strong objections, this archaic mechanism was perhaps a sensible way for the states to get together in an era of horse and sail, but is completely outmoded in today’s world. And, even if the impossible 34 state threshold for calling a convention were met, it would be a procedural nightmare tied up in litigation for years (see here). For example, if it tries to follow precedent and have one vote for each state, it is certain to be challenged under the Supreme Court’s “one-person, one-vote” cases. This issue would go to the Supreme Court, which would bolix the start of the convention for years. (How can you have a convention without knowing how the votes are going to be counted?)

The solution is to eliminate the requirement that the states act through a convention to initiate amendment proposals. Mark Levin proposes such a step in chapter 9 of his book The Liberty Amendments. My similar but slightly more complete proposal, the Amendment Amendment, can be found here. Under the Amendment Amendment, any five states could launch an amendment proposal without having to call a constitutional convention. With no convention, there would no chance of a “runaway” convention so feared by conservative convention opponents. And, most importantly, there would be a path for constitutional conservatives to enact amendments restoring the original constitutional limits on federal power without having to go through Congress at all.

Of course, either Levin’s proposal or the Amendment Amendment would have to be enacted the old fashioned way. How does one get two-thirds of each house of Congress to approve a proposal which returns control of the Constitution to the people? And, as with a drive for a convention, even if all the Republicans in Congress supported it, Democrat votes would still be needed. Here is where Levin’s proposal or the Amendment Amendment are superior to the convention approach. They are content-neutral. Liberals could use a reformed amendment process to launch their own proposals. This issue is particularly lively on the Left these days because of the desire to reverse the Citizens United decision.

While constitutional conservatives (and most of those 67 Republican state legislatures) would oppose any effort to gut the First Amendment, a temporary coalition with liberals to force Congress to enact a content-neutral proposal like Levin’s or the Amendment Amendment could work. As never before, there is intense interest in the subject across the political spectrum.  With a public outcry from both the left and the right, members of Congress would vote for it just to shut up the voters. Congress would know that this opens up an end run around it. However, members of Congress have short time horizons, and would vote for amendment reform because it is only procedural, and would not commit them to any particular amendment. Do something popular that actually doesn’t do anything right away? That’s right up Congress’ alley! Since it would give states legislatures a significant new role, ratification by the states would follow quickly.

Then we could get right to the business of enacting needed constitutional amendments. All the work and resources devoted to calling a convention to no avail could then be directed instead to actually passing amendments, such as proposed by Governor Abbott. By offering a real chance of enacting amendments, this reform would galvanize the grassroots, and could restore our republic in a time frame which would probably find an Article Five convention drive still looking for 34 states, or tied up in the courts.

Finally, this is not an exclusive “either-one-or-the-other” proposition. Constitutional conservatives can push for both an Article Five convention and Article Five reform simultaneously. In fact, given the daunting arithmetic facing a convention call, it would be strategically wise to pursue an alternative in parallel with the elusive quest for 34 states to call a convention. We are all suffering under a massive centralized leviathan which has utterly betrayed the Framers’ original vision of a limited federal republic. The Framers created the amendment power in part to give the people a means to prevent that. We should use every tool possible as soon as possible to carry out that mission.

Other commentators have addressed the substance of his proposals (for example here and here).  In this post I want to look at Justice Stevens’ proposed amendments from another angle.  I want to briefly analyze how well they are written.  It may be argued that it is rather cheeky for an everyday working lawyer to presume to correct the drafting of a Supreme Court justice, but I think I can bring a couple of skills to such an effort.  First, I have spent my legal career drafting contracts, often in a small business context where my clients and the other party would actually read the contracts.  As dull as contractual writing is, it does force the draftsman to be as clear as possible, both to state the parties’ intent and to avoid unintended readings.  Second, I put myself through the exercise of drafting (and redrafting in later editions) many constitutional amendment proposals in writing my book Timely Renewed: Amendments to Restore the American Constitution.  Amendment drafting poses particular challenges.  One must try to be precise without being so wordy that the proposal reads like a statute rather than a fundamental law.

Stevens’ proposals run all over the lot with regard to subject matter.  What links them is that they are all intended to reverse Supreme Court decisions in which Justice Stevens was in dissent.  In fact, much of the book consists of Stevens rehashing or quoting from his dissents, which makes the book a bit of a slog despite its short length.  The other linkage is that each amendment increases the power of government, and of the federal government and of federal judges in particular.  As we will see, this latter observation bears on the drafting of Stevens’ proposals.

So, let’s look at the proposals.  Rather than follow the order in the book, this post will take them in order of their level of public controversy.

Gun control.  Stevens proposes amending the Second Amendment to read (changes are in bold): “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.”  The change is designed to override the Supreme Court decision in Heller v. District of Columbia which recognized an individual right to bear arms, and somewhat limited restrictions on gun ownership.  Stevens’ change is based on the view that the Second Amendment was only about preserving state militias from federal interference, not protecting an individual’s right to arms.

Of course, since state militias do not exist anymore (having been superseded by the National Guard and local and state police), Stevens’ proposal is completely disingenuous.  It is simply a way of repealing the Second Amendment without having the courage or honesty to forthrightly state that that is his objective.  Cute drafting tricks like this to avoid being straight about the intent of the language are always a bad idea, because they can trip you up in unexpected ways.  For example, does this mean that a state militia member has an absolute right to his weapon even if his own militia officers order him or her to disarm?  And what prevents a pro-gun rights state from recreating the old-style militias, in which every adult in the state was deemed a member of the militia and could be required to maintain arms at all times?  Then Justice Stevens’ amended Second Amendment would assure the maximum possible distribution of firearms, which is definitely not the result he intended.  (Update:  In 2018 Stevens has come out for outright repeal of the Second Amendment.)

(Many on both sides of the gun control/rights debate agree that it might be worthwhile to clarify the Second Amendment.  Chapter 10 of Timely Renewed includes several versions of possible clarifying amendments that forthrightly reflect the various approaches.)

Campaign Finance.  Stevens proposes an amendment reading “Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.”  The word “reasonable” is one of lawyers’ worse drafting cheats.  It is the word you stick in when you can’t really agree, and need to smooth over a point.  Basically, it is the parties saying “we’ll let the judge decide if it ever becomes a problem.”  We get away with it in contracts because the vast majority of contracts never get disputed, and rarely go to court.  However, this constitutional provision is certain to be litigated extensively.  So, what Stevens is saying by inserting the cheat word “reasonable,” is that judges will dictate what campaign finance laws should be.  Aside from the substantive problem this presents of increasing the power of unelected federal judges over our most fundamental democratic act, this is poor drafting for a lot of reasons.  One is that legislators and people running for office will never really know what the campaign finance rules are since court decisions come after the fact.

Another problem is that, ironically, the purpose of the proposed amendment is to reverse the Court’s decision in Citizens United v. FEC, which allowed corporate bodies such as businesses and labor unions to spend money expressing their views on election issues.  Reasonableness is a sufficiently vague standard that a future court could readily find that the campaign finance laws struck down in the Citizens United case were unreasonable, and still invalid.  This is an important point for anti-Citizens United amendment proponents, because the Democrats’ proposed amendment introduced in the last Congress included Stevens’ “reasonable” requirement.

Death Penalty.  Stevens would amend the Eighth Amendment as follows (new words in bold):  “Excessive Bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.”  If you want to abolish the death penalty that’s fine, but “such as”?  What punishments are “such as” the death penalty?  “Such as” is language that a draftsman uses when he or she is too lazy or dumb to think through the possible scenarios.  Once again, by introducing unnecessarily vague language, Stevens is basically saying that judges will decide if something is sufficiently close to the death penalty to be “such as” it.  Considering the finality of the death penalty, one wonders what punishment might meet this standard.

In fact, while eliminating the death penalty, this language might actually loosen the limitations for other harsh punishments by being found to define “cruel and unusual.”  A court could rationally find that anything that was not life-threatening “such as the death penalty” was not “cruel and unusual.”  Current news brings to mind waterboarding as an example.  Since our intelligence agencies are so convinced of its efficacy in foreign situations, why not use it to interrogate convicted prisoners?  Harsh as it is, properly administered it is apparently not fatal “such as the death penalty.”  The Eighth Amendment terms “cruel and unusual” are already vague enough without introducing more uncertainty into this important provision of the Bill of Rights.

Political Gerrymandering.  Stevens proposes this amendment to restrict the long-standing practice of drawing legislative districts to favor the political party doing the drawing:  “Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.”

Any lawyer who could not drive a semi-trailer through a loophole as broad as “criteria such as natural, political, or historical boundaries or demographic changes” should lose their law license.  And if all of those gaps were not enough, there is “such as” again to allow a court to find any other criteria acceptable.  I am especially keen on this issue because I wrestled with the problem of an anti-gerrymandering amendment when writing Timely Renewed.  My conclusion was that the only amendment which could not be circumvented was one with arithmetic standards.   (My proposed anti-gerrymandering amendment is in chapter 11 of Timely Renewed.  It provides a simple numerical formula to define acceptable compactness of legislative districts.)  Justice Stevens’ amendment is too vague to be meaningful, which means that the intensely political decision of legislative redistricting would be decided by judges rather than democratically accountable legislators.

Sovereign Immunity and the “Anti-Commandeering Rule.” Stevens’ other two proposals are really quite arcane.  One is to bar state governments from having “immunity from liability for violating any act of Congress, or any provision of this Constitution.”  The other is to allow the federal government to give orders to state officials by subjecting “public officials” to the “supremacy” clause in Article VI of the Constitution.  I will not bore either you or me with the arcana behind these proposals.  It is worth noting that even someone as sympathetic to Stevens’ ideology as Cass Sunstein does not think that these are important enough to require constitutional amendment.

I will only note that, with both of these proposals, Stevens commits another too common drafting error.  When parties are immersed in a deal point, they can write it into the contract in a shorthand which they both understand but which oversimplifies a sometimes complex understanding.  I could not count the times I have given the little spiel about how the contract has to be comprehensible to someone who knows nothing about the deal, and therefore sometimes points which are obvious to the parties to the negotiations have to be spelled out in some detail in the contract.  While a constitutional amendment in particular has to speak in general language, in doing so Stevens has failed to spell out his specific objectives, and thus opened wide possibilities for alternate readings.

For example, it does not follow from subjecting state officials to the supremacy clause that federal officials can give them orders just by virtue of being federal officials.  A court could easily interpret Stevens’ revised supremacy clause to mean just that state officials can not violate federal law, which is different than empowering federal officials to command the services of state officials (all without compensating the states for the officials’ time by the way).  Similarly, simply saying that state officials are not immune from liability does not say what kinds of liability that covers.  Liability is a very complex area of law, and Stevens’ proposed language could be read to still bar the kinds of lawsuits he wants to allow.

This same problem runs through Stevens’ other proposals as well.  He is too immersed in the arcana of the Supreme Court decisions to which he is objecting to step back and see how else his language might be interpreted.  As a Supreme Court justice, he grew used to having lawyers parse his lengthy opinions for the fine points of his rulings.  In their opinions, Supreme Court justices can elaborate at length on the meaning of their rulings because those opinions are the law.  I have to wonder if Justice Stevens quite realizes that his book is not a Supreme Court opinion.  Future courts will not be bound by his book the way they theoretically would be by his Supreme Court opinions.  Consequently, his proposed amendments would have to stand on their own careless wording, unassisted by his explications in Six Amendments.

Of course, it is possible that his objective with this too often vague and imprecise language is to put more power into the hands of federal judges.  However, this lawyer, for one, thinks that federal judges already have entirely too much power, and can pass on Justice Stevens giving them even more.

Conservative criticism of the idea is largely based on concerns that any such convention will fall under the influence of leftist legislators and law professors, and propose amendments which would increase rather than decrease the power of the federal government.  While such amendments could still be stopped by defeating them in 13 states, they would waste all of the effort and resources invested in such a convention.   However, an even more certain problem with a state-called convention would be the one Madison pointed out at the 1787 convention – Article V’s lack of procedures, or of any method to determine procedures, a problem which would make such a convention unworkable.  These procedural problems are detailed in an article I have posted online under the title, To Originate The Amendment of Errors: Reforming Article V to Facilitate State and Popular Engagement in Constitutional Amendment.

To give one example, how will votes be allocated at the convention?  The default position would be state equality as at the 1787 convention, but many will object to that as a violation of the Supreme Court’s one-person, one-vote cases, and demand some allocation of votes proportional to population.  Both would have colorable arguments, and would make it certain that any state-called convention would be tied up in litigation for years as this and other procedural issues made their way up to the Supreme Court.  If you can not decide how to count votes, you can not do anything at a convention.

The solution, as elaborated in To Originate The Amendment of Errors,  my short book Are We The People? (described here), and on this blog, is to first adopt one of Levin’s and others’ suggestion to amend Article V to allow states to initiate amendment proposals without having to go through the untried, unworkable and archaic mechanism of a convention.  My proposal for such an Amendment Amendment would permit any five states to launch an amendment proposal without all the labor and risk of calling a convention.  As there would be no convention, there would be no chance for a “runaway” convention.  Instead, everyone would know exactly what they are voting on upfront.  In this way, grassroots groups could invest their resources directly in promoting their amendment proposal on the state level without ever having to go to Congress or incur the expense and risk of a national convention.