Sandy's Article V Question
bryanw at TJSL.EDU
Thu Dec 7 20:33:12 PST 2000
I have been thus far assuming throughout this discussion on Art II:1:2 that
Mark Scarberry was correct re: Article V (that the State Legislature acts
alone and unconstrained by the State Constitution there). And he may be.
(I think a lot of what follows may not be in accord with Supreme Court
precedents on Article V, which I only vaguely recall at the moment, but I'm
deliberately going back to first principles here.) For reasons I've posted
earlier, I think Art II:1:2 is much better analogized to Art I:4:1 (which
Mark concedes has been construed by the Court as subject to state const
restraints) than to Art V anyway.
But, prompted by Sandy Levinson's provocative posting, I'd suggest we
consider the text and structural logic of Article V. It says merely that
amendments to the US const "shall be valid ... when ratified by the
Legislatures of three fourths of the several states...." That certainly
indicates that a federal constitutional amendment cannot be ratified unless
it gets the nod of approval of whatever state-law body we can all agree is,
in fact, the State Leg. But it doesn't seem to me to imply that a State
Constitution could not place limits on a State Leg's ability to ratify some
or all federal constitutional amendments. Unlike Art II:1:2, Art V is not
phrased as a grant of power. It's just a hurdle a federal constitutional
amendment must surpass.
Suppose a state constitution provides generally that the State Leg must
always muster a 3/5 or 2/3 vote to approve any positive law? There doesn't
seem anything in Article V that would justify imposing a contrary "majority
is good enough" rule with regard to federal constitutional amendments alone.
Article V surely just takes state legislative procedures as it finds them.
Suppose a State Const imposed a special 2/3 requirement for ratification of
federal constitutional amendments alone? Again, I don't see any textual (or
structural/logical) conflict with Article V. No State ever *has* to ratify
any proposed amendment (well, conveniently forgetting the experience of
1865-70!). Why shouldn't the people of the state put a few more shackles
and obstacles on the ability of their State Leg to ratify? All Article V is
concerned with is to say that an amendment darned sure doesn't get ratified
unless it gets 3/4 of the State Legs (or state conventions, if Congress
chooses that alternative).
Let's go farther. What would be wrong with a state constitutional amendment
prohibiting and disabling the State Leg from ratifying any federal
constitutional amendment that would amend the federal Bill of Rights? The
Leg and/or people of that state would have to amend their state
constitution, through whatever procedures they follow for that purpose, in
order to make it possible to ratify a Bill-of-Rights-endangering amendment.
Otherwise, it would be an added firewall against such amendments. I'm
warming to this notion.
What I would agree a state could NOT do would be to authorize some body
other than the State Leg (the governor, the state supreme court, a
popular-vote referendum) to submit a valid "ratification" for Article V
purposes. Or rather, a state could do that and it would just be a nullity,
properly ignored. But is there anything in the text, logic, or structure of
Article V that prohibits or should prohibit a state, via its Constitution,
from making it more difficult for its State Leg to ratify? The whole point
of Article V was to make it very difficult to ratify amendments, and the
feds can't (or shouldn't, again forgetting 1865-70) force states to ratify
in any event, so if a state chooses to entrench a reluctance to ratify, via
either procedural or substantive state constitutional restrictions on its
State Leg's ratification function, what's the problem?
Am I missing something here? (Hopefully, not some recent discussion of this
very point on this list, and other than Supreme Court precedents which I
realize may preclude some or all of these hypos, though I'd certainly be
grateful for any reminders of the cases on point.)
And of course, if all this is even half right, it shoots a few big holes in
the Scarberry/Scalia argument that a State Leg's Art II:1:2 power can't be
constrained by the State Constitution.
Bryan Wildenthal, Thomas Jefferson School of Law
> -----Original Message-----
> From: Sanford Levinson [mailto:SLevinson at MAIL.LAW.UTEXAS.EDU]
> Sent: Thursday, December 07, 2000 12:04 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: A hesitant question about BLACKER
> I wonder how this discussion intersects with ratification of
> amendments under Article V. As I recall (and I'm sure
> someone will tell me
> if I'm wrong), Illinois (or some other state) has a 3/5 or
> 2/3 rule for
> ratification of federal constitutional amendments, which,
> obviously, makes
> it even harder to amend the Constitution than is already the
> case. Could
> (would) such a supermajority rule be unconstitutional because the best
> reading of Article V is that ratification must be my majority
> vote in the
> state legislatures?
> sandy levinson
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