Robert G. Natelson, author of The Original Constitution: What It Actually Said and Meant, taught law for twenty-five years, including twenty-three years at the University of Montana. In 2010 Natelson left academia to serve as a Senior Fellow in Constitutional Jurisprudence with the Independence Institute in Denver. In addition to writing numerous articles about the historical context and original meaning of the U.S. Constitution, Natelson also has coauthored two legal briefs about ObamaCare, one concerning the law’s relationship to the “necessary and proper” clause, the other concerning the expansion of Medicaid.
Natelson currently chairs the First Committee in Colorado, a group dedicated to educating the public and state legislators about state-initiated amendments to the U.S. Constitution, as authorized by Article V. The First Committee is particularly interested in the potential of amendments to restrain the federal debt.
Here Natelson discusses the process of constitutional amendment and his interest in possible amendments to restrain the federal debt. Although I do not agree with all of Natelson’s legal opinions and policy positions, I find his knowledge of the U.S. Constitution to be unparalleled, and his views on the amendment process to be both fascinating and potentially nation changing.
Ari Armstrong: Thank you for taking the time to share your knowledge and views with readers of The Objective Standard. What prompted you to get so seriously involved in promoting state-initiated constitutional amendments, particularly with the hope of restraining the federal debt?
Robert Natelson: Two things really came together. The first was my constitutional scholarship. I write a lot about the original meaning of constitutional phrases and terms, and my practice is to choose areas where the existing writing is either very sparse or substandard. You’d be surprised how many areas of constitutional law fit either one of those criteria. Article V—the amendment procedure—met them both. Not only was there relatively little scholarship on the subject, but most of it was of dreadful quality. So I began to research and write on Article V, particularly the procedure by which the states can propose amendments through what the Constitution calls a “convention for proposing amendments.”
In the course of my studies, I found that many of the claims about that procedure—including assertions I’d formerly believed—were false. One such assertion is that a “convention for proposing amendments” is the same as a constitutional convention. The two actually are quite different from each other. Another false assertion is that such a convention cannot be controlled by the states that sponsored it. Not only is there virtually no empirical support for that position, but there is a great deal of historical and legal evidence to the contrary.
The second thing that got me interested in this field is the growing abusiveness and overreaching of the federal government, highlighted by that government’s fiscal incontinence. Congress obviously cannot or will not solve its own problems, and the Founders created the amendment convention process precisely to deal with this kind of eventuality.
AA: Would you offer us some background on the amendment process? What’s involved in the process? How often have state governments attempted to initiate an amendment process? And why have they never succeeded?
RN: That’s a tall order. To really understand it, I’d recommend reading some of my articles, particularly “Proposing Constitutional Amendments by Convention: Rules Governing the Process,” which was published by Tennessee Law Review in 2011. You can find it on the Independence Institute website, along with several other articles on the subject.
Essentially, though, there are two ways to propose amendments for ratification or rejection by the states. One is for Congress to propose; the other is for two-thirds of the state legislatures to require Congress, through resolutions called “applications,” to call a “convention for proposing amendments.” A convention for proposing amendments is essentially a meeting of delegations sent by the state legislatures themselves, organized on a one-state, one-vote basis. In lieu of Congress, the convention decides whether to propose one or more amendments for ratification or rejection.
State legislatures have applied literally hundreds of times for conventions on particular topics, but there have never been sufficient simultaneous applications on any one topic to force a convention. However, the state legislatures have, through applications, sometimes induced Congress to propose its own amendments. The most dramatic example occurred in 1913, when thirty-one of the forty-eight states had issued applications for a convention to propose an amendment for direct election of U.S. senators. Congress had refused for many years to propose such an amendment, but the imminence of a convention finally induced Congress to act. Its proposal became the Seventeenth Amendment.
Why have state legislatures never succeeded in forcing a convention? In some cases because they achieved their end when Congress proposed its own amendment (although I don’t expect Congress to be that responsive in the current political environment). In other cases, there wasn’t enough public support for amendments that some applying states wanted. Just before the Civil War, both President Buchanan and President-elect Lincoln urged the states to obtain a convention to reach a compromise that would head off the war, but the state legislatures just didn’t move fast enough. This was one of the tragedies of our history, and we are heading for another tragedy if, once again, the state legislatures do not move quickly enough.
AA: In light of such proposals as the trillion-dollar coin, why do you think the amendment process might effectively limit national spending?
RN: I think if a convention proposed a balanced budget amendment or something similar, the requisite three-fourths of the states would ratify it. All the states but Vermont have balanced budget rules, and while they don’t work perfectly, almost everyone admits that they work better than no rule at all, which is what we have now at the federal level.
AA: Some conservatives have opposed the state-initiated amendment process because, they argue, it could lead to a runaway convention to fundamentally alter the Constitution. Would you offer the essential features and background of that argument and explain why you regard it as unsound? In particular, what would constrain a convention initiated under Article V to its intended purpose?
RN: The idea behind that argument is that convention delegates would disregard their trust and follow their impulses instead. It’s unsound for many reasons, including the fact that it is based on a misunderstanding of what a convention for proposing amendments is and how it would work.
Moreover, there are multiple safeguards against that happening. First, the claim that short-term delegates are going to ignore their instructions and thereby ruin their reputations simply ignores political reality. Beyond that, there are many legal safeguards: Any amendment offered beyond the scope of the state applications or beyond the scope of the call could be challenged in the courts. Congress—an institutional rival of the convention—could refuse to choose a “mode of ratification” for such an amendment. The states could refuse to ratify it. And any ratification could, in turn, be challenged judicially.
In sum, there are a lot more safeguards against a runaway convention than against a runaway Congress.
AA: As a follow-up, some claim that the participants in the Constitutional Convention acted beyond their prescribed boundaries, and this illustrates the dangers of any convention getting out of control. You’ve persuaded me that the Convention acted within its legitimate mandate, but some people argue otherwise. Would you briefly outline your case for why the convention’s participants were authorized to write a new constitution?
RN: When I discuss Article V conventions, someone always says, “Yes, but isn’t it true that the 1787 Constitutional Convention ‘ran away’—that it was commissioned only to propose amendments to the Articles of Confederation but wrote a new document instead?”
And the answer to that is: No, it’s not true. That’s an old smear against our framers that has been encouraged by an ignorance of founding-era history, language, and law. I explain what really happened in the Tennessee Law Review article mentioned above.
Briefly, the 1787 runaway myth is based on the idea that the Confederation Congress called the Constitutional Convention and limited it to proposing changes in the Articles of Confederation. Actually, that convention was called by two states, Virginia and New Jersey, to revisit the entire political system. After seven states already had authorized such a wide-ranging convention, Congress passed a very weak resolution indicating its “opinion” that the convention should be limited to amending the Articles, but it had no authority to so limit it. Nearly all states followed the lead of Virginia and New Jersey to grant their delegates enough authority to propose changes in the entire system.
In constitutional studies, many misunderstandings arise because of changes in the meaning of language. For the 1787 convention, the states authorized their delegates to propose alterations in the “federal constitution.” A lot of people today think the “federal constitution” refers to the Articles of Confederation. But in 1787, the term “constitution” usually did not mean any particular document. Rather, it meant the entire political system—as we today refer to the British “constitution.” And the surrounding history shows that “federal constitution” was, in fact, understood in that broader sense.
AA: Let’s say you persuade people to use the state-initiated amendment process more often. Might that lead to some anti-liberty amendments? For example, in the last election, voters in both Montana and Colorado supported measures calling for federal and state censorship of political speech. Do you worry about encouraging the groups behind such measures to pursue their cause via a state-driven amendment?
RN: No, I don’t worry about it, because there is little chance that the states will propose anything more authoritarian than Congress and other federal actors adopt every day. Remember also that all a convention can do is propose, whereas the federal government has almost unfettered power to enact, spend, and regulate.
There’s another reality here: The federal government is now heavily influenced by “takers”—the recipients of federal largesse. They form a class of what you might call “neo-Tories,” because many of the original American Tories adopted their views due to direct or indirect reliance on largesse from the British Crown.
Like their predecessors, the neo-Tories spend a lot of time (and a lot of our tax money) influencing the central government. But America’s producers, who usually can’t spend time lobbying Washington, D.C., because they are too busy working to support their families, still exercise more influence in state capitals. You saw that in the results of the 2012 elections. The neo-Tories concentrated hard on the presidency and the Senate, and that’s pretty much all they won. The producers won everything else from the House of Representatives and the state houses, right down the line.
AA: I’d like to ask a broader question. The “original intent” theory of constitutional interpretation has taken quite a beating in modern legal academia. One set of arguments with which I’m familiar—proposed by philosopher Tara Smith—holds that the Constitution should be interpreted conceptually, not just by what those who wrote it may or may not have intended. For example, even if some of the founders might have sanctioned political restrictions on certain types of speech, that doesn’t mean we should permit such restrictions today under the First Amendment; rather, we should see the right to freedom of speech named by the First Amendment as a principle not to be violated regardless of the Founders’ intentions. What are your general thoughts on interpreting the Constitution according to “original intent?”
RN: I don’t believe in interpreting the Constitution by its “original intent,” and neither does any other informed originalist today. “Original intent” means the intent of the framers of the document. The correct legal standard—the one applied to the Constitution for its first 150 years and to almost every other legal document even today—is to interpret the document according to the understanding of its makers, which is to say the understanding of the delegates to the state ratifying conventions. If that understanding is not recoverable or is conflicting, then the fallback position is to interpret the document according to its objective public meaning at the time. In most cases, all these standards reach similar results.
The founding generation grew up under the unwritten British constitution and elected written constitutions instead for both federal and state governments. They did so for very good reasons. Of course, a written constitution is merely a way of communicating and making clear the terms of the ratification deal.
Those who argue that we should change that deal without formal amendment are really attacking the entire conception of a written constitution. In other words, they are urging that we follow the same British system we rebelled against in the American Revolution. Folks like that are free to express their opinions; but if they really want to live under such a system I respectfully suggest they might want to emigrate to Britain and allow those of us who want to live under a written constitution to do so in peace.