Monday, January 26, 2015


By Publius Huldah
January 12, 2015

In former law professor Rob Natelson’s recent paper, “No, the Necessary and Proper Clause Does NOT Empower Congress to Control an Amendments Convention” [read it HERE or HERE], he makes several untrue statements and commits the gross fallacy of making a circular argument which begs the question.
Natelson is the intellectual guru of those pushing for an Article V convention. Among the false claims they make is that a convention will be controlled by the States, and Congress has nothing to do with it.[1]
That false claim rests on Natelson’s (1) fanciful theory of “customs”,(2) his tortured interpretation of the necessary and proper clause, (3) his misrepresentations of Supreme Court cases, and (4) his crimes against the Laws of Logic.
I’ll show you.
What Does Article V Say?
Article V provides two methods of proposing amendments to our Constitution. Congress proposes amendments and submits them to the States for ratification; or Congress “calls” a convention if 2/3 of the States apply to Congress for a convention.
All our existing 27 amendments were proposed using the first method. We have never had a convention under Article V – for good reason.[2]
What does the Necessary and Proper Clause Say?
Article I, §8, last clause says:
“The Congress shall have Power”… “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department[3]or Officer thereof.” [boldface mine]
The Federalist Papers confirm the plain language of the Constitution: §8 delegates to Congress the power to make laws for executing the powers delegated to each branch of the federal government.[4]
How Does the Necessary and Proper Clause Apply to Article V?
Article V delegates to Congress the power to “call” the convention. The necessary and proper clause delegates to Congress the power to make all laws necessary and proper to carry out its power to “call” the convention.
The April 11, 2014 Report of the Congressional Research Service[5] shows that Congress claims exclusive authority over both methods of amending the Constitution, and that Congress claims the power to organize & set up a convention.
But Natelson – mind, he is their “cutting edge intellectual” –insists that the necessary and proper clause does NOT delegate to Congress power to organize& set up an Article V convention.
Well, well! Let’s look at Natelson’s four arguments:
(1) Natelson’s Fanciful Theory of “Customs”
A convention called under Article V of our Constitution is governed by provisions in our Constitution: Article V and Article I, §8, last clause - the “necessary and proper” clause.
But Natelson has long insisted that customs followed at conventions during our “Founding Era” determine how a convention called under Article V will be organized & set up. He says in his paper:
“… An entity that calls an interstate convention always has been limited to specifying the time, place, and subject matter. It is the state legislatures who control selection of their own commissioners, thank you very much.”
“Founding Era” customs supersede our Constitution? And where does Article V say a convention called under Article V is an “interstate” convention?
(2) Natelson’s Tortured Interpretation of the Necessary and Proper Clause
Natelson says the necessary and proper clause:
“…is not a grant of authority, but a rule of interpretation. It tells us to construe certain enumerated powers as the ratifiers understood them rather than in an overly-narrow way. …” [emphasis mine]
A “rule of interpretation”? As authority for this claim, Natelson cites a book co-authored by his own illustrious self which you can buy for $34.99.
So! While Hamilton and Madison said in The Federalist Papers[4] that the necessary and proper clause was a “grant of power to Congress” to make the laws to execute the powers delegated;
And Madison and Thomas Jefferson said The Federalist Papers were:
“an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it's genuine meaning”[6]
Natelson says the clause is a “rule of interpretation” instead of a “grant of power”, and his $34.99 book is authoritative instead of The Federalist Papers.
(3) Natelson’s Misrepresentations of Supreme Court Cases[7]
Natelson next asserts “the Necessary and Proper Clause does not extend to the amendment process” because when Congress acts on Article V, it is not a Department or Branch of the federal government. Instead, it is an “ad hoc assembly”.
Congress is sometimes not a branch of the federal government? It is sometimes an ad hoc assembly? The Constitution doesn’t say that! The Federalist Papers don’t say that! Madison’s Journal of the Federal Convention doesn’t say that!
But Natelson says he “knows” this from the “Founding Era record”, from subsequent history, and from decisions of the U.S. Supreme Court, such asU.S. v. Sprague (1931).
Of course, Natelson doesn’t show where the “Founding Era record” says this; he doesn’t show why assemblies which met during our “Founding Era” are relevant to a convention called under Article V; he doesn’t show where “subsequent history” says this; and he doesn’t tell the truth about the holding in U.S. v. Sprague.
The issue in U.S. v. Sprague was whether the 18th Amendment (Prohibition) should have been ratified by conventions in each State instead of by State Legislatures. The Supreme Court held that Article V “is a grant of authority by the people to Congress” and that the people “deliberately made the grant of power to Congress in respect to the choice of the mode of ratification of amendments”. Accordingly, Congress had authority to select ratification of the proposed Amendment by State Legislatures instead of by conventions in each State.
U.S. v. Sprague has nothing to do with what Natelson claims it says!
Yet, Natelson goes on to say he “knows” that Congress can’t pass laws structuring the Convention because a “long list of 20th century cases” holds that “ordinary legislation does not bind the amendment process. See, for example, Leser v. Garnett (1922).”
Congress can’t pass laws organizing a convention under Article V? The Constitution doesn’t say that! The Federalist Papers don’t say that! Madison’s Journal of the Federal Convention doesn’t say that!And the Supreme Court case Natelson cited doesn’t say it either!
Of course, Natelson doesn’t provide this “long list of 20th century cases”; and the one case he did cite, Leser v. Garnett, has nothing to do with Congress’ law making powers.
The issue in Leser v. Garnett was whether States – whose State Constitutions restricted voting to men– could ratify an Amendment to the federal Constitution which allowed women to vote. The Supreme Court held that when State Legislatures ratify proposed amendments to the federal Constitution, they are performing a federal function derived from the federal Constitution and it transcends any limitations imposed by State Constitutions. So! Provisions in State Constitutions restricting voting to men did not prevent State Legislatures from ratifying an amendment to the federal Constitution which would have supremacy over a contrary provision in the State Constitution.
(4) Natelson’s Fallacious Circular Argument Begs The Question (Petitio Principii) [8]
Nowlet’s look at Natelson’s crimes against the Laws of Logic.
The fallacy of begging the question is committed when one assumes as true the conclusion he seeks to prove. An argument is circular when one seeks to prove the premise from the conclusion.

Natelson was supposed to prove that the necessary and proper clause does not give Congress power to make laws to organize & set up a convention under Article V.

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