The people made me do it: can the people of the states instruct and coerce their state legislatures in the Article V constitutional amendment process?

• Author: Amar, Vikram David

INTRODUCTION

For me, there is no place more exciting than California. Where else can you find earthquakes, mudslides, internet boom and bust stories, and Jerry Brown back in politics? Amid all this unpredictability, however, it is nice to know that some constants remain. For instance, one thing you can always count on in the Golden State is that every year the voters will enact an initiative that gets struck down in court. And this last year was no exception. In 1998, California voters enacted Proposition 225,(1) a fascinating law that implicates a host of deep constitutional issues--namely, federalism, popular sovereignty, congressional term limits, and the federal constitutional amendment process. As expected, last summer the California Supreme Court invalidated the measure as violating Article V of the United States Constitution.(2)

But this past year's story did not fit the usual mold in two ways. First, unlike other California propositions of recent years, Proposition 225 was not on the cutting edge. Voters in a number of other states had already enacted measures virtually identical to Proposition 225,(3) and at least six other state and federal courts had struck these measures down as violating Article V.(4) And so, this Essay really concerns the constitutionality of a nationwide movement of which California's experience is but one small part. Second, unlike many other popular referendums, this time it has been the reviewing courts, and not the voting public, who have ignored constitutional first principles. The short of it is that judges all across the country have gotten things fundamentally wrong here, and that ballot measures like Proposition 225 that have been passed nationwide are not unconstitutional, or at least not unconstitutional for the reasons that have been given.

To see this, let us start with what Proposition 225 and its counterparts in other states do. This requires that we go back to the Supreme Court's 1995 decision in U.S. Term Limits, Inc. v. Thornton,(5) in which the Court held that neither state governments nor Congress can impose congressional term limits under our existing Constitution.(6) If such term limits are to come about, the Thornton Court made clear that they require an amendment of the Constitution through Article V.(7) Backers of Proposition 225, working with similar groups in other states, have tried to move things along in that direction by enacting in each state a plebiscitary initiative. Each initiative, among other things, "instructs" state and federal legislators in that state to pursue the Article V amendment process by proposing, supporting, and ratifying a federal term limits amendment, a template version of which is included in the initiative measure.(8) If a legislator fails to take any of a number of defined steps along the Article V proposal and ratification path, the initiative provides that a "scarlet letter"(9) designation be placed on the next election ballot --indicating that the individual legislator has "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS."(10)

As indicated above, lower courts--most recently the California Supreme Court--uniformly have invalidated these measures.(11) The gist of these decisions is that scarlet letters and related devices are coercive and that such coercion violates Article V of the United States Constitution.(12) According to these decisions, Article V requires that state legislatures be free and independent to make their own decisions through their own deliberative processes when deciding whether to seek and/or ratify federal constitutional amendments.

This logic has a certain appeal these days. A recent and very prominent line of federalism decisions--the so-called state-commandeering or state-conscription cases like New York v. United States(13) and United States v. Printz(14)--might be read as creating a deliberative autonomy enjoyed by state institutions, especially state legislatures, when they carry out their duties. It would be tempting to connect the dots from all these cases and derive a general principle of legislative autonomy and immunity from coercion and conscription. In the end, however, I think the state-conscription cases involve a very different situation--that of the federal government coercing state legislatures--from the scarlet-letter-device cases. When the people of a state, the masters of their legislature, if you will, engage in such coercion, no federal constitutional value is offended.(15) Of course, Thornton and other constitutional developments tell us that the people of each state are not the masters of the national legislature, Congress.(16) For that reason, although the reviewing courts have not drawn a distinction between the two sets of government agents, scarlet letters imposed on federal legislators may be impermissible(17) even though they are quite allowable for their state counterparts.(18) I will return to the question of coercing federal legislators a bit later.

But let us begin by focusing on scarlet letters that are imposed upon state legislators. My discussion assumes that scarlet letter devices really are, as lower courts have held them to be, "coercive," rather than "informational."(19) Indeed, my argument is that nothing in Article V prohibits coercive action by the people of a state against its legislature. Thus, my Article V analysis would be no different if the people of the several states, instead of adopting a scarlet letter approach, had gone even "further" by backing up their instructions to their state legislative contingents by imposing on those legislators who disregarded the popular directives a flat ineligibility to seek reelection.

My inquiry into these matters proceeds as follows. In Part I of this Essay, I open the analysis of coercive measures against state legislators by focusing on the text of Article V, particularly its reference to "Legislatures of ... the ... States."(20) I conclude that the term, used against the historical backdrop of state constitutions in 1787, was not designed to interfere with the preexisting control that people enjoyed over their state legislatures. I then reinforce this textual/historical reading with compelling structural and practical arguments. Most importantly, I argue that the structural concern over governmental self-dealing counsels against reading Article V as giving a veto over constitutional change to government actors.(21) I conclude Part I by analyzing other places in which the Constitution has empowered "Legislatures of ... the ... States" and concluding that these other provisions of the Constitution further undermine the reading of Article V that courts across the nation have embraced.

In Part II, I explain why Article V uses the term "Legislatures of ... the ... States" rather than "states," the more generic term used elsewhere in the Constitution. In Part III, I consider possible counterarguments to my reading of Article V, including some based on old Supreme Court cases and others based on structural constitutional themes. In Part IV, I quickly dispose of the issue bracketed above--the application of coercive measures to federal legislators. I then conclude by suggesting that there may be some additional constitutional questions that need to be asked about scarlet letter and other coercive measures--questions that have nothing to do with any Article V reasoning embraced to date.(22)

1. WHY ARTICLE V CAN'T MEAN WHAT THEY SAY IT MEANS

   1. Text and History

      Article V of the Constitution has received more scholarly attention in the past few decades than ever before.(23) Much of this recent and needed(24) attention has focused on whether Article V is the exclusive lawful means of federal constitutional amendment. Those who say that Article V is not the exclusive means of amending the Constitution argue that the national polity is sovereign under American constitutional theory, and that a majority of this national polity enjoys the constitutional right to amend the document through deliberative means, whether or not these means meet the requirements of Article V.(25) Those who support the conventional view that Article V is completely exclusive reject the idea that ultimate sovereignty resides completely in a majority of the national people. Instead, these scholars argue that Article V reflects a federalism compromise in which people of each state surrendered some of their sovereignty in 1787 as the price to pay for ratifying the Constitution. However, because of mistrust of other state peoples, they did so only on the condition that future changes to the Constitution would comply with Article V's particular and cumbersome processes.(26) Thus, the scholarly debate on Article V exclusivity thus far has focused on the relationship between the national polity and state polities, as well as the relationship between the peoples of the various states. But the important and separate matter of the relationship under Article V between the people of each state and their elected legislators has received no academic attention until this Essay. Even as I examine this last question, though, I should note that my resolution of it is not unrelated to the way the exclusivity question has been decided. Indeed, as I demonstrate below, the conventional reading of Article V exclusivity embraced by most commentators as well as all courts --counsels strongly in favor of my resolution of the question of popular coercion.(27) With that background, let us turn in earnest to the popular coercion question.

      Any assessment of the constitutionality under Article V of coercion of state legislatures must, of course, consider the text of Article V itself, which provides:

      The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either...