By Jim DeGraffenreid, Gardnerville, Nevada
Professor Rob Natelson’s interpretation of the Supreme Court case Leser V. Garnett is either an outright lie, or complete incompetence from the only “constitutional authority” cited by the Convention of States” movement. Either way, it proves that this group cannot be trusted to wheel the Constitution into the operating room for major surgery. And, it eliminates Natelson from the category of expert on Constitutional law. He is so undeniably wrong on this point that his opinion on Article V is of no value whatsoever.
The core assertion of the COS movement is that Article V provides a means by which state legislatures can circumvent Congress by holding a convention to propose Constitutional amendments. They make this claim despite the plain language of Article V, which states that “on the Application of the Legislatures of two thirds of the several States”, Congress “shall call a Convention for proposing Amendments” to the Constitution.
Article I, Section 8 specifies that Congress shall have the 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…thereof.”
To support the fantasy that state legislatures have anything to do with a Constitutional Convention beyond applying to Congress to call one, Natelson makes the unbelievable claim that the Necessary and Proper clause doesn’t apply, because Congress isn’t a part of the Federal Government when they’re acting under Article V.
This assertion is so blatantly ridiculous that Natelson was asked to cite the case law which he claims supports it. Natelson cited Leser vs. Garnett, a case from 1922 where opponents of women’s suffrage attempted to overturn ratification of the 19th Amendment on three grounds. One of these was that several of the ratifying states had provisions in their Constitution denying women the right to vote.
In rejecting this argument, the Supreme Court held that when the states are ratifying an amendment, they are performing a federal function which supersedes any contrary provisions in their own Constitutions. The decision specifically compares the state legislatures to Congress, stating that both perform federal functions under the Constitution when acting under Article V – the exact opposite of what Natelson claims the decision says.
Bottom line is that Natelson is either liar or grossly incompetent – the case law he cites is crystal clear in rejecting his argument, which is the foundation of the entire COS movement. Below is an excerpt of the relevant language of Leser vs. Garnett – Click for Source.
“The second contention is that in the Constitutions of several of the 36 states named in the proclamation [258 U.S. 130, 137] of the Secretary of State there are provisions which render inoperative the alleged ratifications by their Legislatures. The argument is thst by reason of these specific provisions the Legislatures were without power to ratify. But the function of a state Legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the federal Constitution; and it transcends any limitations sought to be imposed by the people of a state. Hawke v. Smith, No. 1, 253 U.S. 221 , 40 Sup. Ct. 495, 10 A. L. R. 1504; Hawke v. Smith, No. 2, 253 U.S. 231 , 40 Sup. Ct. 498; National Prohibition Cases, 253 U.S. 350, 386 , 40 S. Sup. Ct. 486, 588.”