By Publius Huldah
January 12, 2015
NewsWithViews.com
January 12, 2015
NewsWithViews.com
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
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.
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
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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