Rob in the Colorado Rockies

A few groups pushing constitutional amendments are trying to convince state legislatures to adopt laws and interstate compacts that rely on state authority reserved by the Tenth Amendment.

This is a serious mistake—one that likely will lead to defeat in the courts.

In a recent article, I pointed out that the courts have held repeatedly that the power to amend the U.S. Constitution comes exclusively from Article V of the Constitution. The courts hold that Article V functions are not part of the states’ reserved authority. Since 1920, the courts (including the U.S. Supreme Court) have repeatedly voided efforts to funnel amendment procedures through state law.

Recently, my article was challenged by a paid activist for one of the groups pushing the “Tenth Amendment” approach. Although he seemed to admit that the Tenth Amendment was irrelevant to the proposal and ratification procedures, he claimed the application process was different. He argued that states could adopt laws and interstate compacts that controlled the state application process.

However, he overlooked cases that rule that the same principles govern the application process as govern other Article V functions. I’ve supplemented my article to reference those cases.

This does NOT mean state legislatures have no control over the convention. It just means that their authority to do so is an implied power granted to them by the Constitution, not part of their reserved powers. They must control the convention through their applications and by selecting, commissioning, and supervising their convention commissioners. They can’t do it in advance by passing laws or entering compacts.