Opinion

NATELSON: John Paul Stevens’ Greatest Legacy? His Impact On The Constitutional Amendment Process

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Robert Natelson Senior Fellow, Independence Institute

John Paul Stevens died on July 16 at the age of 99. His greatest legacy was not his service on the Supreme Court or his post-retirement commentary. It was his decision in Dyer v. Blair, a case that arose while he was still a judge on the U.S. court of appeals.

Stevens wrote the opinion in 1975 for a three-judge district court panel. His opinion was one of the most important ever issued on Article V of the Constitution — the constitutional amendment process.

The case arose from the struggle over the ill-fated “Equal Rights Amendment” (ERA), a clumsily-worded proposal Congress had sent to the state legislatures for ratification. The Illinois state constitution specified that ratifying an amendment required a three-fifths majority by each house of the state legislature.  The ERA had garnered simple majorities, but had fallen short of three-fifths. Stevens had to determine whether this was sufficient. His ultimate answer was “no.”

The speaker of the Illinois house, Robert Blair, argued that the case should be dismissed. As others have done, Blair contended that Article V issues are “political questions” entrusted solely to Congress and outside court jurisdiction. In support, Blair cited a four-justice concurring opinion from Coleman v. Miller, a 1939 Supreme Court case.

Stevens correctly rejected Blair’s defense. Stevens showed that most of the Supreme Court justices had refused to sign the concurrence. He further noted that the courts had long adjudicated Article V cases.

Stevens’ decision rejected a disastrous constitutional claim. The founders had designed the amendment process largely as a curb on Congress. Accepting the claim that the courts could not oversee congressional amendment decisions could have disabled an important constitutional check.

Stevens then passed to the next question: What is the source of a state legislature’s function in the amendment process? Is it a state power reserved by the 10th Amendment? Or does it derive from the Constitution? Stevens again arrived at the correct conclusion: The power of a legislature or convention operating under Article V comes directly from the Constitution. It follows that neither a federal nor state enactment may alter the amendment procedure.

Stevens noted that Article V leaves many rules implied rather than stated. But he showed that we can deduce the unstated rules from history and from the circumstances surrounding the Constitution’s adoption. (In this respect, Article V is like many other constitutional provisions.)

Stevens next asked: When an assembly acts under Article V — such as a state legislature ratifying an amendment — is approval by a simple majority of those present and voting? Or is a supermajority necessary?

Stevens concluded the usual rule is a simple majority of those present and voting. As he pointed out, the Constitution specifies when it requires different majorities, such as two-thirds or three-fourths. Otherwise, the standard is a simple majority. Stevens’ conclusion was consistent with the constitutional balance and with the law in effect when the Constitution was ratified. That law was established by a 1760 English case, Oldknow v. Wainright.

Stevens then asked if a pre-existing law could change this simple majority rule. His answer was “no.” Thus, the Illinois constitutional provision mandating a three-fifths vote was invalid. On the other hand, by simple majorities legislatures and conventions historically could establish their own governing rules. So if the Illinois legislature chose to follow the three-fifths standard, it could opt to do so. And in the case of the ERA, it had opted to do so.

Stevens’ landmark decision in Dyer v. Blair did not alter constitutional amendment law, but it clarified some very important points. First, Stevens confirmed that most amendment law derives directly from the Constitution, and state and congressional enactments may not change it. Second, he showed how we deduce governing rules from the constitutional text and from historical practice. Third, he confirmed that legislatures and conventions operating under Article V may fix their own procedural rules. Finally, he told us that unless the Constitution’s words tell us differently — or an assembly operating under Article V temporarily changes the standard — then amendment decisions are made by a majority of those present and voting.

By clarifying constitutional amendment law, Stevens made it more accessible to citizens who now seek to use it to cure our dysfunctional federal government.

Rob Natelson is America’s most published active scholar on the U.S. Constitution’s amendment process. He is the author of the legal treatise, The Law of Article V; director of the nonprofit Independence Institute’s Article V Information Center; and a senior adviser to the Convention of States Project.


The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.