Guest Post by former NH Senator Jim Rubens

Article V of the United States Constitution grants states the power to propose and ratify amendments to the Constitution. The framers included this not-yet-used parallel route to amending because they anticipated that Congress could one day become unresponsive, self-interested or even corrupt.
 
A key concern about use of the state-led amending route is the theorized “runaway convention.” Among the seven safeguards against this is a state delegate limitation law, listed below as safeguard #4.
 
HB269 would provide this safeguard for New Hampshire. HB269 will be heard before the House State-Federal Relations and Veterans Affairs Committee,
 
Friday, January 20, 10:30am, LOB Room 206-208

HB269:

· Establishes a procedure for the selection of delegates to an inter/intrastate policy-making convention, including to an Article V convention.

· Limits the authority of delegates to policy making conventions to only those granted by the New Hampshire legislature.

· Creates a procedure by which the New Hampshire Secretary of State shall recall and replace any delegate attempting to act outside of the scope of the authority granted to them by the New Hampshire legislature.

The single existing New Hampshire Article V convention application is via HCR40 (2012) which limits the subject matter as follows: “… to call a convention for the sole and exclusive purpose of proposing a federal balanced budget amendment for submission to the states for ratification.”

Additional Article V application bills now before the legislature are:

· HCR1 (fiscal responsibility, restraint on federal powers, term limits), a hearing date of 1/27 is anticipated, but not yet confirmed.

· HCR4 (term limits), set for a public hearing this Friday 1/20, 1:30pm, State-Federal, LOB206-208.

· Prior legislatures have considered, but not passed Article V application bills related to campaign money limits.

The constitutional safety and use of the state-led Article V amending process is endorsed by the American Legislative Exchange Council, Convention of States, Path To Reform and by Presidents Reagan, Eisenhower and Lincoln.

Justice Antonin Scalia

“The founders inserted this alternative method of obtaining constitutional amendments because they knew the Congress would be unwilling to give attention to many issues the people are concerned with, particularly those involving restrictions on the federal government’s own power. The founders foresaw that and they provided the convention as a remedy.”

U.S. Dept of Justice (1979)

“Since it is undisputed that Congress possesses the authority to propose amendments limited to a single topic or group of topics, it follows that the applications of the states for calling a constitutional convention also may be limited. This understanding is reinforced by the normal practice of the states in limiting by subject their applications to the Congress.”

Seven structural and precedential safeguards:

1. None of 41 multi-state conventions to date (11 before 1787, 30 after), have breached subject matter limitations, including the 1787 Constitutional Convention. No existing application in any state seeks a constitutional convention. Detailed history here and here.
2. Congress is constitutionally barred from calling an amending convention unless at least 34 states have submitted unrescinded and unexpired legislative applications on the same subject or subjects.
3. Delegates to an amending convention are selected by the states as legal agents for their state, making state legislatures’ instructions to them binding. Even without delegate limitation laws, all state legislatures therefore retain authority to remove and replace delegates attempting to exceed their authority.
4. Fifteen (15) states now have delegate limitation laws. HB269 would add this extra safeguard for New Hampshire.
5. A Convention for proposing Amendments has zero power to change the Constitution. Any proposed amendment is null and without effect unless and until ratified by 38 states.
6. Should all the foregoing safeguards fail and a majority of delegates were to propose an amendment outside subject matter limitations, Congress would be constitutionally barred from submitting such a rogue amendment to the states for potential ratification.
7. Any proposed amendment must be ratified by 38 states. Because only 13 of 99 state legislative bodies can kill any proposed amendment, no amendment not having extraordinarily broad public support can possibly be ratified.

Whether or not you support use of the Article V amending process to address our nation’s unmet structural challenges, please support the HB269 delegate limitation bill.

Jim Rubens is a former NH State Senator and a former chair of the NH GOP platform committee.