A Thought Experiment Inspired by James Madison and Michael B. Rappaport
More than two hundred years ago, in his report on the Virginia Resolutions, James Madison observed that the states could have overturned the Alien and Sedition Acts by exercising their Article V power to seek a constitutional amendment for that “object.” Later, in his 1830 “Letter on Nullification,” Madison urged states to use their Article V power to protect their sovereignty against federal overreach rather than employing the futile gesture of nullification.
Just imagine if the 28 states currently challenging the constitutionality of the Patient Protection and Affordable Care Act (PPACA) had not only followed Madison’s advice, but institutionalized it by forming an interstate compact requiring them to use their Article V powers systematically to prevent or overturn the enactment of any unconstitutional federal law. Such a compact could conceivably require states to send delegates periodically or on demand to a central location (physical or virtual) to meet, debate, and vote on model Article V applications, which could then be introduced in their respective legislatures in a coordinated fashion. Regardless of whether this meeting was called a “convention,” “conference,” or a “task force,” it would greatly streamline the logistics of disseminating and introducing sufficient numbers of identical Article V applications to maximize the chances of triggering Congress’ mandatory obligation to call a convention. The underlying compact could also contain provisions cementing the moral, legal and political authority for limiting any eventual Article V convention to a specific purpose—at least as much as any state statute or informal political movement could. Moreover, because such a compact would merely exercise sovereign powers already vested in the states, and not necessarily displace federal power, congressional consent would not be necessary for its lawful formation.
If they had been parties to such a compact, the states that are now suing the federal government over PPACA in federal court could have instead responded to the preceding congressional debate by jointly introducing Article V applications aimed at prohibiting the federal government from regulating freedom of choice in health plans. And with the concurrent introduction and likely approval of identical Article V applications in 28 state legislatures (only six short of the 34 state threshold needed to trigger the call for a convention), it is entirely conceivable that the resulting political threat would have influenced enough votes in Congress to block the passage of PPACA.
As this thought experiment suggests, the power of states to check and balance an overreaching federal government would be vastly increased if states regularized and streamlined the use of Article V. Indeed, the mere existence of an organized approach to Article V among the states would substantially influence congressional behavior without a convention ever being convened—whether or not one believes that an Article V convention can be limited to specific amendment ideas. This prognostication is justified by more than hypothetical reasoning. Congress famously proposed the 17th Amendment, establishing the popular election of U.S. Senators, only after a carefully coordinated effort came within one state of reaching the threshold needed to compel Congress to convene an Article V convention for the same purpose.
Professor Rappaport is thus entirely correct that the states could restore balance to our system of dual sovereignty if they organized regular advisory conventions for the purpose of crafting and proposing specific ideas for federal constitutional amendments. However, much of what Rappaport would like to accomplish can already be achieved without a constitutional amendment also giving states the power to propose specific amendments directly for ratification. Constitutionalists should therefore embrace the general thrust of Rappaport’s “state drafting reform” to the extent that it inspires collective action among the state