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Here are some videos from the Convention Of States project. Some are long, and some are short, after seeing them check out the Understanding Article V Posts.
You tube videos from COS; https://www.youtube.com/watch?v=wRXYkL3WWHQ
Maek Meckler's address to COS; https://www.youtube.com/watch?v=diaUzSo8_wg
Ken Ivory on rules of convention; https://www.youtube.com/watch?v=diaUzSo8_wg
Radio: Debate On Article V, The Call For A Convention Of The States
( http://thefederalist.com/2016/02/23/radio-debate-on-article-v-the-call-for-a-convention-of-the-states/ )
( http://thefederalist.com/2016/02/23/radio-debate-on-article-v-the-call-for-a-convention-of-the-states/ )
Rob Natelson on draft of convention; https://www.youtube.com/watch?v=-4140az60vo
COS live with Michael Farris on Fighting Judicial Overreach; https://www.youtube.com/watch?v=ms-Oo_IakjE
Michael Farris debates John Birch Society; https://www.youtube.com/watch?v=5HBVzS9c8ZQ
Arizona Rep. Kelly townsend; https://www.youtube.com/watch?v=o4nPp_XhL0c
South Carolina Rep.Alan Clemmons; https://www.youtube.com/watch?v=YakWYk8ggI8
Interview with Maine Senator Andrew Cushing; https://www.youtube.com/watch?v=qivOzT_79r8
Senator Tom Coburn on Mark Levin Show to discuss SCOTUS; https://www.youtube.com/watch?v=AXTSD36STw4
Senator Tom Coburn on DC dysfunction and Article V, on Greta van Susteren show; https://www.youtube.com/watch?t=132&v=EcFR02jb0eE
Coburn and Meckler on Sean Hannity show; https://www.youtube.com/watch?v=TBImITx5DxI
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THE OTHER WAY TO AMEND THE CONSTITUTION;
THE ARTICLE V CONSTITUTIONAL CONVENTION
AMENDMENT PROCESS
A PDF on the subject by the Harvard Journal of Law & Public Policy on; Constitutional Convention Amendment Process The PDF; http://www.law.harvard.edu/students/orgs/jlpp/Vol30_No3_Rogersonline.pdf
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This section will deal with Understanding Article V presented by Rob Natelson, Senior Fellow in Constitutional Jurisprudence
The Independence Institute
New U.S. House Rule: A Hopeful Sign for an Amendments Convention
anuary 26, 2015 by Rob Natelson
As the likelihood of a Convention for Proposing Amendments increases, people are beginning to adjust to the idea.
A recent example is adoption of a new rule by the U.S. House of Representatives providing for the recording and public availability of state legislative applications for a convention. The rule change, sponsored by Rep. Steve Stivers (R.-OH), provides that the Chairman of the Judiciary Committee may transmit any such application to the House Clerk, and that “the Clerk shall make such . . . publicly available in electronic form, organized by State of origin and year of receipt.”
Although this is a modest change, it apparently is the first time either chamber of Congress has provided for an orderly way to handle and publicize Article V applications.
Another implication relates to the convention call. Under Article V, once Congress receives applications on a particular subject from two thirds of the state legislatures (34 of 50), it MUST call the convention. Nevertheless, for many years there has been concern that a ruthless congressional majority might stonewall by imposing unreasonable rules for counting applications or simply refuse to call or issue the call subject to unreasonable or unconstitutional terms. As the tone of Rep. Stivers’
news release announcing the change suggests, this rule change reduces those concerns.
This development also suggests what I am hearing elsewhere: A sizable contingent in Congress actually wants the state legislatures to get their act together and propose an amendment to fix a broken system.
http://constitution.i2i.org/2015/01/
What is an “Excise?”
January 25, 2015 by Rob Natelson
Article I, Section 8, Clause 1 of the Constitution reads as follows:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the Common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.
The Constitution also requires that “direct taxes” be apportioned among states by population. The implication is that excises are not among those levies deemed “direct taxes”—so that excises must be uniform, but need not be apportioned.
At the time the Constitution was written, an excise was universally understood to be an “inland” (domestic) tax on the consumption of commodities, specifically on manufactured goods. To cite only a few of the many corroborating definitions:
* Thomas Sheridan’s 1789 English dictionary defined “excise” as “A tax levied upon commodities.”
* George Nicholas at the Virginia ratifying convention described excises as “a kind of tax on manufactures.”
* In Federalist No. 33, Alexander Hamilton wrote of “recourse . . . to excises, the proper objects of which are particular kinds of manufactures.”
Typically taxed by excises were alcoholic beverages, carriages, silks, and certain other items then considered luxuries, such as coffee, chocolate, and tea.
As an indirect tax, an excise was one kind of levy known generically as a “duty.”
By contrast, taxes on individuals (“capitations”), property, businesses, income, and the ordinary business of life were considered “direct.” The Constitution required them to be apportioned among the states.
In 1937, the Supreme Court decided Charles C. Steward Machine Co. v. Davis, in which the Court ruled that the Social Security tax on employers was an “excise,” and therefore did not have to be apportioned among the states. The Court cited three pre-constitutional tax statutes that were not imposed on commodities but, the Court claimed, were excises. All of the Court’s citations were bogus: None of the statutes were excises. Two were head taxes. The other was a non-excise duty.
The Steward Machine case illustrates the incompetent, and sometimes mendacious, methods the Supreme Court employed during the 1930s and 1940s—the very nadir of its history.*
In fact, the tax on employers was a classic direct tax and should have been apportioned among the states as Congress previously had apportioned other direct taxes.
Note: This column is based on research for my forthcoming article, tentatively entitled, What the Constitution Means by “Duties, Imposts, and Excises”—and Taxes (Direct or Otherwise)
* * * *
* Footnote: Some would argue that the Dred Scott case of 1857, a similarly mendacious decision, represented the Court’s nadir. But that was a single horrid case issued by an otherwise competent bench. At least on constitutional subjects, the Court during the 1930s and 1940s issued one poorly-crafted decision after another.
http://constitution.i2i.org/2015/01/25/what-is-an-%E2%80%9Cexcise%E2%80%9D/
As the likelihood of a Convention for Proposing Amendments increases, people are beginning to adjust to the idea.
A recent example is adoption of a new rule by the U.S. House of Representatives providing for the recording and public availability of state legislative applications for a convention. The rule change, sponsored by Rep. Steve Stivers (R.-OH), provides that the Chairman of the Judiciary Committee may transmit any such application to the House Clerk, and that “the Clerk shall make such . . . publicly available in electronic form, organized by State of origin and year of receipt.”
Although this is a modest change, it apparently is the first time either chamber of Congress has provided for an orderly way to handle and publicize Article V applications.
Another implication relates to the convention call. Under Article V, once Congress receives applications on a particular subject from two thirds of the state legislatures (34 of 50), it MUST call the convention. Nevertheless, for many years there has been concern that a ruthless congressional majority might stonewall by imposing unreasonable rules for counting applications or simply refuse to call or issue the call subject to unreasonable or unconstitutional terms. As the tone of Rep. Stivers’
news release announcing the change suggests, this rule change reduces those concerns.
This development also suggests what I am hearing elsewhere: A sizable contingent in Congress actually wants the state legislatures to get their act together and propose an amendment to fix a broken system.
http://constitution.i2i.org/2015/01/
What is an “Excise?”
January 25, 2015 by Rob Natelson
Article I, Section 8, Clause 1 of the Constitution reads as follows:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the Common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.
The Constitution also requires that “direct taxes” be apportioned among states by population. The implication is that excises are not among those levies deemed “direct taxes”—so that excises must be uniform, but need not be apportioned.
At the time the Constitution was written, an excise was universally understood to be an “inland” (domestic) tax on the consumption of commodities, specifically on manufactured goods. To cite only a few of the many corroborating definitions:
* Thomas Sheridan’s 1789 English dictionary defined “excise” as “A tax levied upon commodities.”
* George Nicholas at the Virginia ratifying convention described excises as “a kind of tax on manufactures.”
* In Federalist No. 33, Alexander Hamilton wrote of “recourse . . . to excises, the proper objects of which are particular kinds of manufactures.”
Typically taxed by excises were alcoholic beverages, carriages, silks, and certain other items then considered luxuries, such as coffee, chocolate, and tea.
As an indirect tax, an excise was one kind of levy known generically as a “duty.”
By contrast, taxes on individuals (“capitations”), property, businesses, income, and the ordinary business of life were considered “direct.” The Constitution required them to be apportioned among the states.
In 1937, the Supreme Court decided Charles C. Steward Machine Co. v. Davis, in which the Court ruled that the Social Security tax on employers was an “excise,” and therefore did not have to be apportioned among the states. The Court cited three pre-constitutional tax statutes that were not imposed on commodities but, the Court claimed, were excises. All of the Court’s citations were bogus: None of the statutes were excises. Two were head taxes. The other was a non-excise duty.
The Steward Machine case illustrates the incompetent, and sometimes mendacious, methods the Supreme Court employed during the 1930s and 1940s—the very nadir of its history.*
In fact, the tax on employers was a classic direct tax and should have been apportioned among the states as Congress previously had apportioned other direct taxes.
Note: This column is based on research for my forthcoming article, tentatively entitled, What the Constitution Means by “Duties, Imposts, and Excises”—and Taxes (Direct or Otherwise)
* * * *
* Footnote: Some would argue that the Dred Scott case of 1857, a similarly mendacious decision, represented the Court’s nadir. But that was a single horrid case issued by an otherwise competent bench. At least on constitutional subjects, the Court during the 1930s and 1940s issued one poorly-crafted decision after another.
http://constitution.i2i.org/2015/01/25/what-is-an-%E2%80%9Cexcise%E2%80%9D/
Treatise on Amendments - Conventions Updated to Include Rules for Congress "Call"
A Summary of How States Push Back Against Washington
The Cato Institute has published a new paper by Professor John Dinan that summarizes all the credible ways in which the states can and do push back against Washington, D.C. The only omission to this excellent summary is the states’ amendment powers under the Constitution’s Article V. (Although the states have never forced Congress to call an amendments convention, they often have used their Article V powers, successfully or unsuccessfully, to force changes in federal policy.)
Professor Dinan’s paper summarizes such techniques as state lawsuits against federal officials, refusal to participate in federal programs, refusal to cooperate with federal criminal law, and others. It is a good resource for citizens and state officials who wish to restore the Constitution’s balance of power between the states and the central government.
You can access the paper here.
http://www.cato.org/publications/policy-analysis/how-states-talk-back-washington-strengthen-american-federalism
Professor Dinan’s paper summarizes such techniques as state lawsuits against federal officials, refusal to participate in federal programs, refusal to cooperate with federal criminal law, and others. It is a good resource for citizens and state officials who wish to restore the Constitution’s balance of power between the states and the central government.
You can access the paper here.
http://www.cato.org/publications/policy-analysis/how-states-talk-back-washington-strengthen-american-federalism
The Framers’ Bloopers
The Constitution’s Framers were very great men, but they were not gods. They made mistakes.
By “mistakes,” I’m not talking about matters of political judgment, such as how much to accommodate slavery. I mean drafting errors of the forehead-slapping kind.
Consider first a matter of style: The Constitution in its final form was drafted by a committee chaired by Gouverneur Morris. By all accounts they did a fine job. But not a flawless one.
The committee decided to follow the practice of capitalizing all nouns—a custom already going out of fashion, and abandoned just two years later when the Bill of Rights was written (that is, 1789; the Bill was ratified in 1791). One could defend that decision; but after having made it, they forgot to capitalize several nouns. The omissions include the word “defence” in the Preamble; “credit” in Article I, Section 8, Clause 2 (the congressional borrowing power); “duty” in Article I, Section 9, Clause 1; and “present” in Article I, Section 9, Clause 8.
Much more serious were a handful of substantive mistakes. Article I, Section 7, Clause 3 provides that all congressional resolutions requiring concurrence of the House and Senate must be presented to the President for his signature or veto. The Clause contains no exception for constitutional amendments under Article V—even though the evidence suggests that the Founders intended such an exception. So beginning with the 1798 Supreme Court case of Hollingsworth v. Virginia, the courts have followed the Founders’ intent rather than the literal wording.
Article II is certainly the worst-drafted of the instrument’s seven articles. The very first sentence of Article II (the so-called Executive Vesting Clause) is unclear enough to have led to long-standing disputes over the scope of presidential power—although my own view is that the disputes are due as much to ignorance of 18th century drafting practice as to the quality of the drafting.
Article II specified that the runner-up in the presidential election would be Vice President. I put that in the “misjudgment” rather than the “blooper” category because, as I explain in my book, The Original Constitution: What It Actually Said and Meant, there were some good reasons for the initial rule. It was only in practice that we learned that that approach didn’t work. It was corrected in 1804 by the adoption of the Twelfth Amendment.
But another defect in Article II falls squarely in the “blooper” category. The Framers inserted qualifications in Article I for Senators and Representatives, and when they wrote Article II they prescribed qualifications for the President. But they omitted qualifications for the Vice President. Apparently they just forgot. The Twelfth Amendment cured that omission also.
A less obvious boner appears in Article II, Section 2. One if its phrases implies that, with Senate advice and consent, the President appoints federal officers. But a later phrase in the same section (“may by Law vest the Appointment . . . in the President alone”) implies that the Senate co-appoints. Important consequences depend on which phrase controls, but it takes some serious constitutional interpretation to figure out that the former prevails over the latter. This also is explained in The Original Constitution: What It Actually Said and Meant.
The Bill of Rights—drafted by the First Congress—isn’t free of composition mistakes either. The Fifth Amendment excepts members of the U.S. Armed Forces from the requirement of grand jury indictment, but it fails to except enemy combatants accused of war crimes. If you read it literally, therefore, the Fifth Amendment seems to extend more protection to enemy combatants than to our own soldiers. It takes some interpretative work to figure out that this is not actually so. This point is also discussed in The Original Constitution: What It Actually Said and Meant.
Don’t get me wrong: In its entirety, the Constitution is a beautiful piece of legal craftsmanship. Indeed, most of those who charge the Framers with mistakes are mistaken themselves, either because they are ignorant of 18th century language, history, law, and conditions, or because they merely disagree with the Founders’ ideas of government.
For example, some writers claim that the Framers were too sketchy in describing the Convention for Proposing Amendments in Article V. But this claim is based on ignorance of established 18th-century convention procedure.
For discussions of other unfair raps against the Founders, see posts here, here, and here for short essays correcting such claims.
All that having been said, we still must acknowledge that the Framers made an occasional drafting mistake. Their document is the supreme law of the land, and one of the greatest political achievements in human history. But it is not Holy Writ, unchangeable or never to be questioned: The Framers were humble enough to recognize that themselves. That’s one reason they included the Article V amendment procedure.
http://constitution.i2i.org/2014/01/12/the-framers’-bloopers/
By “mistakes,” I’m not talking about matters of political judgment, such as how much to accommodate slavery. I mean drafting errors of the forehead-slapping kind.
Consider first a matter of style: The Constitution in its final form was drafted by a committee chaired by Gouverneur Morris. By all accounts they did a fine job. But not a flawless one.
The committee decided to follow the practice of capitalizing all nouns—a custom already going out of fashion, and abandoned just two years later when the Bill of Rights was written (that is, 1789; the Bill was ratified in 1791). One could defend that decision; but after having made it, they forgot to capitalize several nouns. The omissions include the word “defence” in the Preamble; “credit” in Article I, Section 8, Clause 2 (the congressional borrowing power); “duty” in Article I, Section 9, Clause 1; and “present” in Article I, Section 9, Clause 8.
Much more serious were a handful of substantive mistakes. Article I, Section 7, Clause 3 provides that all congressional resolutions requiring concurrence of the House and Senate must be presented to the President for his signature or veto. The Clause contains no exception for constitutional amendments under Article V—even though the evidence suggests that the Founders intended such an exception. So beginning with the 1798 Supreme Court case of Hollingsworth v. Virginia, the courts have followed the Founders’ intent rather than the literal wording.
Article II is certainly the worst-drafted of the instrument’s seven articles. The very first sentence of Article II (the so-called Executive Vesting Clause) is unclear enough to have led to long-standing disputes over the scope of presidential power—although my own view is that the disputes are due as much to ignorance of 18th century drafting practice as to the quality of the drafting.
Article II specified that the runner-up in the presidential election would be Vice President. I put that in the “misjudgment” rather than the “blooper” category because, as I explain in my book, The Original Constitution: What It Actually Said and Meant, there were some good reasons for the initial rule. It was only in practice that we learned that that approach didn’t work. It was corrected in 1804 by the adoption of the Twelfth Amendment.
But another defect in Article II falls squarely in the “blooper” category. The Framers inserted qualifications in Article I for Senators and Representatives, and when they wrote Article II they prescribed qualifications for the President. But they omitted qualifications for the Vice President. Apparently they just forgot. The Twelfth Amendment cured that omission also.
A less obvious boner appears in Article II, Section 2. One if its phrases implies that, with Senate advice and consent, the President appoints federal officers. But a later phrase in the same section (“may by Law vest the Appointment . . . in the President alone”) implies that the Senate co-appoints. Important consequences depend on which phrase controls, but it takes some serious constitutional interpretation to figure out that the former prevails over the latter. This also is explained in The Original Constitution: What It Actually Said and Meant.
The Bill of Rights—drafted by the First Congress—isn’t free of composition mistakes either. The Fifth Amendment excepts members of the U.S. Armed Forces from the requirement of grand jury indictment, but it fails to except enemy combatants accused of war crimes. If you read it literally, therefore, the Fifth Amendment seems to extend more protection to enemy combatants than to our own soldiers. It takes some interpretative work to figure out that this is not actually so. This point is also discussed in The Original Constitution: What It Actually Said and Meant.
Don’t get me wrong: In its entirety, the Constitution is a beautiful piece of legal craftsmanship. Indeed, most of those who charge the Framers with mistakes are mistaken themselves, either because they are ignorant of 18th century language, history, law, and conditions, or because they merely disagree with the Founders’ ideas of government.
For example, some writers claim that the Framers were too sketchy in describing the Convention for Proposing Amendments in Article V. But this claim is based on ignorance of established 18th-century convention procedure.
For discussions of other unfair raps against the Founders, see posts here, here, and here for short essays correcting such claims.
All that having been said, we still must acknowledge that the Framers made an occasional drafting mistake. Their document is the supreme law of the land, and one of the greatest political achievements in human history. But it is not Holy Writ, unchangeable or never to be questioned: The Framers were humble enough to recognize that themselves. That’s one reason they included the Article V amendment procedure.
http://constitution.i2i.org/2014/01/12/the-framers’-bloopers/
The Santa Fe Convention: A 20th Century Convention of States
Rob at the Trevi Fountain in Rome
For over 300 years, American states (and before Independence, American colonies) have cooperated with each other as equal sovereigns to address common problems.
One device for doing so is the formal, diplomatic meeting of state delegations (called “committees”) consisting of delegates (called “commissioners”). Meetings of state commissioners may be bilateral—as when two states form a boundary commission to resolve a boundary dispute. Such gatherings also may be multilateral—that is, with three or more state committees participating. The usual label for a multi-state meeting isconvention.
Most commentators on the Constitution have shown no familiarity with any multi-state conventions other than the 1787 Constitutional Convention and (sometimes) the Annapolis Convention held the previous year. Some opponents of the Article V “convention for proposing amendments” have even argued that the 1787 gathering is our only historical precedent.
The truth is dramatically different. Far from the 1787 Philadelphia convention being unique, at the time it was more like business as usual. Over the previous century, there had been more 30 conventions among colonies and states. The Constitutional Convention was the 11th held since Independence had been declared in 1776. Others had been held in Providence (twice), York Town, PA (1777), Springfield (1777), Hartford (twice), New Haven (1778), Philadelphia (1780), Boston (1780), and Annapolis (1786).
After the Constitution was adopted the states met less frequently, but they did continue to meet. The New England states convened in Hartford, Connecticut in 1814. The Southern states gathered in Nashville, Tennessee in 1850. And the states held a general convention—one to which every state was invited—in Washington, D.C. in 1861. The Washington Conference Convention, as it was labeled, was called to propose to Congress a constitutional amendment to ward off Civil War. It did produce such an amendment, but Congress failed to act on it.
There was at least one more recent gathering as well. In 1922, seven southwestern states sent commissioners to negotiate the Colorado River Compact. Although the assembly was called the Colorado River Commission, it was in all respects a convention of states, and it may be called the “Santa Fe Convention,” after the city where its most important sessions were held.
The group convened 27 times over the course of a single year. The first seven sessions occurred in Washington, D.C., the eighth in Phoenix, the ninth in Denver, and the remaining 18 in Santa Fe.
The convention consisted of seven commissioners, one from each participating state. This made it one of the smaller interstate conventions, but by no means the smallest. The group decided to include a federal representative, Secretary of Commerce Herbert Hoover—then perhaps the best known and most highly-regarded engineer in the world. Including a federal representative was advisable because, unlike proposed constitutional amendments, interstate compacts must be approved by Congress.
However, inclusion of a representative of sovereignty in a multi-state convention was well-precedented: several inter-colonial conventions had included commissioners from the British Crown or from sovereign Indian tribes.
The Colorado River Commission followed all the principal rules for a convention of states:
* Each state had one vote;
* The convention decided on its own procedures;
* The convention elected its own officers—a chairman who was a commissioner and a secretary who was not;
* After the initial call, the convention controlled the time and place of meeting;
* The commissioners stayed within their prescribed agenda; and
* They produced a recommendation ultimately ratified by the participating states.
There also were three more unusual aspects. First, because of the special needs of interstate compacting, the group adopted a unanimous voting rule. By unanimous vote, they later changed this temporarily, allowing approval of resolutions by a majority of states. Second, the convention adjourned for weeks at a time to allow the technical staff to do its work. This was not unprecedented: The Nashville Convention first met in June, 1850 and then adjourned to November. Finally, the convention decided to rotate its meetings among several different cities.
Most importantly, the Santa Fe gathering provides us with yet another, relatively recent, instance of sovereign American states meeting in convention.
For those interested, I have posted the minutes of the Colorado River Commission here.
http://constitution.i2i.org/files/2014/01/Minutes-CORiver-Commn.pdf
NB: Thanks to Nick Dranias of the Goldwater Institute for his insights into interstate-compact negotiation process. They were helpful in preparing this post. Also, thanks to Peg Brady for her research.
http://constitution.i2i.org/2014/01/17/the-santa-fe-convention-a-20th-century-convention-of-states/
One device for doing so is the formal, diplomatic meeting of state delegations (called “committees”) consisting of delegates (called “commissioners”). Meetings of state commissioners may be bilateral—as when two states form a boundary commission to resolve a boundary dispute. Such gatherings also may be multilateral—that is, with three or more state committees participating. The usual label for a multi-state meeting isconvention.
Most commentators on the Constitution have shown no familiarity with any multi-state conventions other than the 1787 Constitutional Convention and (sometimes) the Annapolis Convention held the previous year. Some opponents of the Article V “convention for proposing amendments” have even argued that the 1787 gathering is our only historical precedent.
The truth is dramatically different. Far from the 1787 Philadelphia convention being unique, at the time it was more like business as usual. Over the previous century, there had been more 30 conventions among colonies and states. The Constitutional Convention was the 11th held since Independence had been declared in 1776. Others had been held in Providence (twice), York Town, PA (1777), Springfield (1777), Hartford (twice), New Haven (1778), Philadelphia (1780), Boston (1780), and Annapolis (1786).
After the Constitution was adopted the states met less frequently, but they did continue to meet. The New England states convened in Hartford, Connecticut in 1814. The Southern states gathered in Nashville, Tennessee in 1850. And the states held a general convention—one to which every state was invited—in Washington, D.C. in 1861. The Washington Conference Convention, as it was labeled, was called to propose to Congress a constitutional amendment to ward off Civil War. It did produce such an amendment, but Congress failed to act on it.
There was at least one more recent gathering as well. In 1922, seven southwestern states sent commissioners to negotiate the Colorado River Compact. Although the assembly was called the Colorado River Commission, it was in all respects a convention of states, and it may be called the “Santa Fe Convention,” after the city where its most important sessions were held.
The group convened 27 times over the course of a single year. The first seven sessions occurred in Washington, D.C., the eighth in Phoenix, the ninth in Denver, and the remaining 18 in Santa Fe.
The convention consisted of seven commissioners, one from each participating state. This made it one of the smaller interstate conventions, but by no means the smallest. The group decided to include a federal representative, Secretary of Commerce Herbert Hoover—then perhaps the best known and most highly-regarded engineer in the world. Including a federal representative was advisable because, unlike proposed constitutional amendments, interstate compacts must be approved by Congress.
However, inclusion of a representative of sovereignty in a multi-state convention was well-precedented: several inter-colonial conventions had included commissioners from the British Crown or from sovereign Indian tribes.
The Colorado River Commission followed all the principal rules for a convention of states:
* Each state had one vote;
* The convention decided on its own procedures;
* The convention elected its own officers—a chairman who was a commissioner and a secretary who was not;
* After the initial call, the convention controlled the time and place of meeting;
* The commissioners stayed within their prescribed agenda; and
* They produced a recommendation ultimately ratified by the participating states.
There also were three more unusual aspects. First, because of the special needs of interstate compacting, the group adopted a unanimous voting rule. By unanimous vote, they later changed this temporarily, allowing approval of resolutions by a majority of states. Second, the convention adjourned for weeks at a time to allow the technical staff to do its work. This was not unprecedented: The Nashville Convention first met in June, 1850 and then adjourned to November. Finally, the convention decided to rotate its meetings among several different cities.
Most importantly, the Santa Fe gathering provides us with yet another, relatively recent, instance of sovereign American states meeting in convention.
For those interested, I have posted the minutes of the Colorado River Commission here.
http://constitution.i2i.org/files/2014/01/Minutes-CORiver-Commn.pdf
NB: Thanks to Nick Dranias of the Goldwater Institute for his insights into interstate-compact negotiation process. They were helpful in preparing this post. Also, thanks to Peg Brady for her research.
http://constitution.i2i.org/2014/01/17/the-santa-fe-convention-a-20th-century-convention-of-states/
Who Says History is Relevant to Article V? Well, the U.S. Supreme Court, For One!
In 1988, Oxford University Press published Russell Caplan’s book Constitutional Brinksmanship. It revealed some of the extensive history behind the Convention for Proposing Amendments in Article V of the Constitution.
More recently, we have learned much more about that history. We now know that there were over 30 multi-colony and multi-state conventions before the Constitution was adopted, and that the Convention for Proposing Amendments was based on them. We know what their rules were and how they used the terms that the Framers used in Article V. We also have uncovered a rich history of multi-state conventions and Article V activity after the Constitution was adopted.
Anti-convention alarmists were generally unaware of this history and have been embarrassed by these findings. Some of them, therefore, are now making the astounding claim that all of this prior practice is simply irrelevant!
But the U.S. Supreme Court says they are wrong. So do many other courts. In fact, for over two centuries now, the judiciary has used historical practice to interpret the words in Article V. The courts know that they must consult the Founders’ experience to understand how they used terms like “legislature,” “application,” “call,” “ratify, and “convention.” When that evidence isn’t decisive, the courts turn to later practice for guidance. This is settled constitutional law.
And as any constitutional lawyer can tell you, in recent years the Supreme Court has become even more attuned to history in answering constitutional questions.
Since the courts may have to resolve future Article V issues, their precedents provide far more insight than the unsupported speculations of alarmists.
Listed below are a few of the cases that have used history to interpret Article V. A “U.S.” citation means the case was decided by the U.S. Supreme Court. Most of the others are federal court cases; two were issued by state courts.
* Hollingsworth v. Virginia, 3 U.S. 381 (1798) (following the practice used in proposing the first ten amendments to uphold the 11th).
* Hawke v. Smith, 253 U.S. 221 (1920) (citing Founding-Era evidence to define what the Framers meant by the Article V word “legislature”)
* Barlotti v. Lyons, 182 Cal. 575, 189 P. 282 (1920) (also citing Founding-Era evidence to define what the Framers meant by the Article V word “legislature”).
* Leser v. Garnett, 258 U.S. 130 (1922) (relying on history to affirm the procedure that ratified the 19th amendment).
* Opinion of the Justices, 132 Me. 491, 167 A. 176, 179 (1933) (consulting history to determine how delegates are chosen to a state ratifying convention).
* United States v. Gugel, 119 F.Supp. 897 (E.D. Ky. 1954) (citing the history of judicial reliance on the 14th amendment as evidence that it had been validly adopted)
* Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975) (Justice Stevens) (relying extensively on history to determine whether Illinois had validly ratified a proposed amendment)
* Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho 1981) (also relying on history in discussing a range of questions)
http://constitution.i2i.org/2013/10/10/who-says-history-is-relevant-to-article-v-well-the-u-s-supreme-court-for-one/
More recently, we have learned much more about that history. We now know that there were over 30 multi-colony and multi-state conventions before the Constitution was adopted, and that the Convention for Proposing Amendments was based on them. We know what their rules were and how they used the terms that the Framers used in Article V. We also have uncovered a rich history of multi-state conventions and Article V activity after the Constitution was adopted.
Anti-convention alarmists were generally unaware of this history and have been embarrassed by these findings. Some of them, therefore, are now making the astounding claim that all of this prior practice is simply irrelevant!
But the U.S. Supreme Court says they are wrong. So do many other courts. In fact, for over two centuries now, the judiciary has used historical practice to interpret the words in Article V. The courts know that they must consult the Founders’ experience to understand how they used terms like “legislature,” “application,” “call,” “ratify, and “convention.” When that evidence isn’t decisive, the courts turn to later practice for guidance. This is settled constitutional law.
And as any constitutional lawyer can tell you, in recent years the Supreme Court has become even more attuned to history in answering constitutional questions.
Since the courts may have to resolve future Article V issues, their precedents provide far more insight than the unsupported speculations of alarmists.
Listed below are a few of the cases that have used history to interpret Article V. A “U.S.” citation means the case was decided by the U.S. Supreme Court. Most of the others are federal court cases; two were issued by state courts.
* Hollingsworth v. Virginia, 3 U.S. 381 (1798) (following the practice used in proposing the first ten amendments to uphold the 11th).
* Hawke v. Smith, 253 U.S. 221 (1920) (citing Founding-Era evidence to define what the Framers meant by the Article V word “legislature”)
* Barlotti v. Lyons, 182 Cal. 575, 189 P. 282 (1920) (also citing Founding-Era evidence to define what the Framers meant by the Article V word “legislature”).
* Leser v. Garnett, 258 U.S. 130 (1922) (relying on history to affirm the procedure that ratified the 19th amendment).
* Opinion of the Justices, 132 Me. 491, 167 A. 176, 179 (1933) (consulting history to determine how delegates are chosen to a state ratifying convention).
* United States v. Gugel, 119 F.Supp. 897 (E.D. Ky. 1954) (citing the history of judicial reliance on the 14th amendment as evidence that it had been validly adopted)
* Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975) (Justice Stevens) (relying extensively on history to determine whether Illinois had validly ratified a proposed amendment)
* Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho 1981) (also relying on history in discussing a range of questions)
http://constitution.i2i.org/2013/10/10/who-says-history-is-relevant-to-article-v-well-the-u-s-supreme-court-for-one/
May state legislatures limit an Article V convention to a specifically-worded amendment? Part I
In my last post, I described the procedure by which we have recovered the meaning of the Constitution’s “convention for proposing amendments.”
But agreement on the principal facts does not imply complete agreement on the details. A prime example: We know that the state legislatures may limit the agenda of the convention to a single topic. But does that mean a generic topic (such as “federal term limits”) only? Or may the legislatures limit the convention to an up-or-down vote on a specifically-worked amendment?
For a number of reasons, I think the courts would insist that the convention be given drafting discretion—that is, more discretion than allowed in an up-or-down vote on pre-set wording. I’ll discuss my reasons another time.
Some excellent scholars disagree with me. Michael Stern is the former Senior Legal Counsel for the U.S. House of Representatives, and the author of the “Point of Order” blog. He believes that the convention can be limited to considering specific wording.
Article V and the Single Amendment Convention
Can an Article V convention for proposing amendments be limited to considering a single amendment specified by the state legislatures in their applications? Even within the relatively sparse literature on the Article V convention, little attention has been paid to this question.Professor Rob Natelson, who has written extensively in support of the proposition that a convention may be limited to a particular subject, has expressed skepticism regarding the viability of a “single amendment convention.” Natelson’s view, however, is less a firm conclusion about the original meaning of Article V than a prediction regarding the practical difficulties likely to attend an effort to hold a single amendment convention, including the possibility that Congress or the courts would refuse to recognize it.
Recently a prominent originalist scholar, Professor Michael Rappaport (well known to the readers of this blog), has concluded that Article V permits a convention for proposing amendments to be limited by either subject or the wording of a particular amendment. See Michael B. Rappaport, The Constitutionality of a Limited Convention: An Originalist Analysis, 81 Const. Comm. 53, 56 (2012) (“The Constitution allows the state legislatures to apply not merely for a convention limited to a specific subject matter [but allows them] to draft a specially worded amendment and then to apply for a convention limited to deciding only whether to propose that amendment.”).
Although the issue is not free from doubt, I agree with Rappaport that the state legislatures have the power to limit an Article V convention to a single amendment. This is so for five reasons:
1. Constitutional Text. Although some commentators suggest that the term “Convention for proposing Amendments” in Article V implies that the convention must at least have discretion over the specific wording of an amendment, nothing in the constitutional language itself supports that conclusion. The “proposing” of an amendment occurs when it is formally offered for adoption. See Rappaport, 81 Const. Comm. at 65 (“The proposing convention has the formal power to offer an amendment for adoption by the ratifiers.”). The ordinary meaning of the word does not imply that the amendment was originated or drafted by those doing the “proposing.”
Similarly, the word “convention” does not imply discretion beyond holding an up-or-down vote on whether to propose a specific amendment. Indeed, Article V provides for state ratifying conventions, which are limited to holding an up-or-down vote on whether to accept a specific amendment. Thus, “a convention can be limited as to whether or not to propose a specific amendment and still be a convention.” Id. at 70.
This point is bolstered by looking at the state resolutions leading up to the Philadelphia Convention of 1787. Many of these resolutions explicitly referred to the Convention’s function of “devising” (e.g., New Jersey), or “devising and discussing” (e.g., Virginia and New Hampshire), or “devising, deliberating on and discussing” (e.g., Pennsylvania and Delaware), alterations and provisions related to the federal constitution. If the Framers had wanted to specify that the Article V convention would be drafting or originating the amendments it proposed, they could have easily incorporated such terms.
2. Equality of the Federal and State Governments in Proposing Amendments. A key precept of Article V, reflected in constitutional structure, drafting history and contemporaneous statements of the Framers, is that Congress and the state legislatures are to have an equal ability to originate constitutional amendments. Thus, two-thirds of each house of Congress or two-thirds of the state legislatures is required to initiate the amendment process. As James Madison explained in Federalist No. 43, Article V “equally enables the general and the state governments, to originate the amendment of errors, as they may be pointed out by the experience on one side or the other.”
Natelson argues persuasively that this equality principle strongly supports the authority of the state legislatures to specify the subject matter on which the Article V convention will deliberate. See Robert G. Natelson, Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693, 726-27 (2011) (Federalist representations of equality suggest that in construing Article V, preference should be given to interpretations that raise the states toward the congressional level and treat the convention as their joint assembly. This, in turn, suggests that if Congress may specify a subject when it proposes amendments, the states may do do as well,”); see also Rappaport, 81 Const. Comm. at 90 (“[T]he limited convention view will further the constitutional purpose of permitting the convention method to be an effective alternative to the congressional proposal method.”).
This argument applies at least as forcefully to a single amendment convention. Congress, after all, drafts the actual wording of a proposed amendment; it does not merely identify the subject matter. Thus, if the state legislatures are to be treated equally to Congress, they must have the power to draft a specific amendment, just as Congress does. It is difficult to explain why the equality principle requires that the state legislatures be able to limit the convention to a particular subject, but not to a particular amendment.
3. Constitutional Purpose. As Natelson explains, the state-initiated method of amendment was created specifically in contemplation of amendments needed to limit the power of and/or curb abuses by Congress and the federal government. The Framers believed the state legislatures were best able to decide when such amendments were needed. Thus, in Federalist No. 85, Alexander Hamilton said that “[w]e may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.”
Both common sense and the record of the framing and ratification periods indicate that the Framers expected the state legislatures to act in response to some particular congressional abuse or to obtain a particular desired amendment. See, e.g., William W. Van Alstyne, The Limited Constitutional Convention- The Recurring Answer, 1979 Duke L. J. 985, 990 (1979) (Article V convention most likely will be called to address “particular usurpations” by Congress) (emphasis in original), Thus, Hamilton stated in Federalist No. 85 that “every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. . . . And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.” As Natelson observes, Hamilton’s reference to nine states “represented the two thirds then necessary to force a convention” (while 10 were needed to ratify). Natelson, 78 Tenn. L. Rev. at 727. This in turn indicates that two thirds of the states could initiate the amendment process when they were already “united in the desire of a particular amendment.”
If the applying states have already decided that they desire a particular amendment (including, perhaps, the exact wording of the amendment), there are significant costs to allowing the convention to propose other amendments. This rule would impose an “uncertainty tax” on the state initiation of amendments and make it less likely that state legislatures will apply for a convention in the first place. Rappaport, 81 Const. Comm. at 89. It also may make it less likely that the convention, if called, will be able to reach consensus on the desired amendment. Id. at 90. In either case it would tend to undercut Hamilton’s assurance that the amendment “must infallibly take place.”
By contrast, what purpose is served if the convention, called at the behest of state legislatures “united in the desire of a particular amendment,” is free to propose a different amendment? See Michael Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765, 774 (2011) (“Scholars who believe that an Article V Convention must be unlimited have struggled to explain the constitutional purposes that would be advanced by this interpretation.”). Hypotheses have been offered to the effect that the Article V convention would serve as a check on the state legislatures, but these claims make little sense (the convention can provide a check by refusing to propose the desired amendment and does not need the power to propose an alternative). In any event, they have no foundation in the actual purposes of Article V discussed during the Philadelphia Convention and the ratification period. See Rappaport, 81 Const. Comm. at 90-91; Stern, 78 Tenn. L. Rev. at 775-78.
Once it is accepted that the state legislatures have the power to limit an Article V convention, “[n]o constitutional principle appears to support distinguishing a convention limited to a single subject from one limited to a single amendment.” Stern, 78 Tenn. L. Rev. at 785. There may be reasons of pragmatism or efficiency that militate against seeking a convention limited to a single amendment, but these are questions that state legislators themselves, not courts or constitutional scholars, are in the best position to evaluate. There is little reason, either in 1787 or today, to constitutionalize the answers to these questions.
4. Contemporaneous Statements. We have already discussed statements by Madison and Hamilton which support the limited convention view. Other contemporaneous statements, compiled by Natelson, provide additional support for a limited convention, including one limited to a single amendment.
For example, Natelson cites 1788 letter by George Washington, in which he explained that “a constitutional door is open for such amendments as shall be thought necessary by nine States.” Natelson, 78 Tenn. L. Rev. at 727 & n.230 (quoting Letter of Apr. 25, 1788 from George Washington to John Armstrong). Again the implication is that the applying states would identify the amendments they thought necessary, not merely a subject matter or a problem to be solved, prior to the convention.
Even more strikingly, the Federalist writer Tench Coxe wrote in 1788:
If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such proposed amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.
Natelson, 78 Tenn. L. Rev. at 727 & n.232 (quoting A Pennsylvanian to the New York Convention, PA Gazette, June 11, 1788)).
As Natelson notes, Coxe’s statement “reveals an assumption that states would make application explicitly to promote particular amendments,” which would be known (and possibly disliked) by Congress before the Article V convention. Natelson, 78 Tenn. L. Rev. at 728. He cites several others, including Patrick Henry, who shared the same assumption and spoke as if “the states rather than the convention would do the proposing.” Id. at 730.
One might argue that these statements were imprecise and that the Founders only anticipated that the state legislatures would identify the substance, rather than the exact wording, of a desired amendment. But even if that is so, this evidence shows that the Founders did not assume the Article V convention would necessarily be originating or devising the amendments it proposed. All of these statements are therefore consistent with the view that the state legislatures may prescribe the wording of a particular amendment in the applications and confine the deliberations of the convention to whether to propose that amendment.
5. Background Law. Much of Natelson’s work in this area is devoted to showing that the Founders understood there to be a principal-agent relationship between the state legislatures and the convention, which relationship was governed by well-established principles of fiduciary law. See, e.g., Robert G. Natelson, Amending the Constitution by Convention: Lessons for Today from the Constitution’s First Century 2 (Independence Inst. 2011) (“Conventions for proposing amendments, like other federal conventions, are made up of delegates who are agents of the state legislatures. In effect, the entire convention is a collective agent of the state legislatures.”). It follows that the Article V convention is bound to comply with the limitations placed upon it by the state legislatures, unless the Constitution affirmatively prohibits those limitations.
As we have seen, nothing in the constitutional text, structure or purpose forbids the state legislatures from limiting the convention to a single amendment. It is true that those interstate conventions held before 1787 had discretion beyond an up-or-down vote on a single text (although there were intrastate conventions of this nature), but this may simply reflect the fact that there was no occasion to hold a more limited convention. By itself, this fact cannot provide the basis for finding an affirmative constitutional prohibition. See also Rappaport, 81 Const. Comm. at 71 (“[T]he question is not whether some conventions had discretion. Rather, it is whether all conventions must have discretion and, most importantly, whether a proposing convention must have discretion. The answer to those questions is no.”).
Thus, despite Natelson’s own reservations about the single amendment convention, I think his work as a whole supports the constitutionality, if not the wisdom, of such a convention. I explain more fully here why this is the more “Natelsonian” position.
http://www.pointoforder.com/2013/09/01/article-v-and-the-single-amendment-convention/
He bases his argument in part on the work of Prof. Michael Rappaport, one of the nation’s leading constitutional scholars. Professor Rappaport’s study of the original meaning of Amendment V concluded that that meaning at least permits the state legislatures to so limit the convention’s agenda.
57 page pdf
Rappaport was mentioned last week, in TPP WEBINAR.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2035638
http://constitution.i2i.org/2013/09/04/may-state-legislatures-limit-an-article-v-convention-to-a-specifically-worded-amendment-part-i/
But agreement on the principal facts does not imply complete agreement on the details. A prime example: We know that the state legislatures may limit the agenda of the convention to a single topic. But does that mean a generic topic (such as “federal term limits”) only? Or may the legislatures limit the convention to an up-or-down vote on a specifically-worked amendment?
For a number of reasons, I think the courts would insist that the convention be given drafting discretion—that is, more discretion than allowed in an up-or-down vote on pre-set wording. I’ll discuss my reasons another time.
Some excellent scholars disagree with me. Michael Stern is the former Senior Legal Counsel for the U.S. House of Representatives, and the author of the “Point of Order” blog. He believes that the convention can be limited to considering specific wording.
Article V and the Single Amendment Convention
Can an Article V convention for proposing amendments be limited to considering a single amendment specified by the state legislatures in their applications? Even within the relatively sparse literature on the Article V convention, little attention has been paid to this question.Professor Rob Natelson, who has written extensively in support of the proposition that a convention may be limited to a particular subject, has expressed skepticism regarding the viability of a “single amendment convention.” Natelson’s view, however, is less a firm conclusion about the original meaning of Article V than a prediction regarding the practical difficulties likely to attend an effort to hold a single amendment convention, including the possibility that Congress or the courts would refuse to recognize it.
Recently a prominent originalist scholar, Professor Michael Rappaport (well known to the readers of this blog), has concluded that Article V permits a convention for proposing amendments to be limited by either subject or the wording of a particular amendment. See Michael B. Rappaport, The Constitutionality of a Limited Convention: An Originalist Analysis, 81 Const. Comm. 53, 56 (2012) (“The Constitution allows the state legislatures to apply not merely for a convention limited to a specific subject matter [but allows them] to draft a specially worded amendment and then to apply for a convention limited to deciding only whether to propose that amendment.”).
Although the issue is not free from doubt, I agree with Rappaport that the state legislatures have the power to limit an Article V convention to a single amendment. This is so for five reasons:
1. Constitutional Text. Although some commentators suggest that the term “Convention for proposing Amendments” in Article V implies that the convention must at least have discretion over the specific wording of an amendment, nothing in the constitutional language itself supports that conclusion. The “proposing” of an amendment occurs when it is formally offered for adoption. See Rappaport, 81 Const. Comm. at 65 (“The proposing convention has the formal power to offer an amendment for adoption by the ratifiers.”). The ordinary meaning of the word does not imply that the amendment was originated or drafted by those doing the “proposing.”
Similarly, the word “convention” does not imply discretion beyond holding an up-or-down vote on whether to propose a specific amendment. Indeed, Article V provides for state ratifying conventions, which are limited to holding an up-or-down vote on whether to accept a specific amendment. Thus, “a convention can be limited as to whether or not to propose a specific amendment and still be a convention.” Id. at 70.
This point is bolstered by looking at the state resolutions leading up to the Philadelphia Convention of 1787. Many of these resolutions explicitly referred to the Convention’s function of “devising” (e.g., New Jersey), or “devising and discussing” (e.g., Virginia and New Hampshire), or “devising, deliberating on and discussing” (e.g., Pennsylvania and Delaware), alterations and provisions related to the federal constitution. If the Framers had wanted to specify that the Article V convention would be drafting or originating the amendments it proposed, they could have easily incorporated such terms.
2. Equality of the Federal and State Governments in Proposing Amendments. A key precept of Article V, reflected in constitutional structure, drafting history and contemporaneous statements of the Framers, is that Congress and the state legislatures are to have an equal ability to originate constitutional amendments. Thus, two-thirds of each house of Congress or two-thirds of the state legislatures is required to initiate the amendment process. As James Madison explained in Federalist No. 43, Article V “equally enables the general and the state governments, to originate the amendment of errors, as they may be pointed out by the experience on one side or the other.”
Natelson argues persuasively that this equality principle strongly supports the authority of the state legislatures to specify the subject matter on which the Article V convention will deliberate. See Robert G. Natelson, Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693, 726-27 (2011) (Federalist representations of equality suggest that in construing Article V, preference should be given to interpretations that raise the states toward the congressional level and treat the convention as their joint assembly. This, in turn, suggests that if Congress may specify a subject when it proposes amendments, the states may do do as well,”); see also Rappaport, 81 Const. Comm. at 90 (“[T]he limited convention view will further the constitutional purpose of permitting the convention method to be an effective alternative to the congressional proposal method.”).
This argument applies at least as forcefully to a single amendment convention. Congress, after all, drafts the actual wording of a proposed amendment; it does not merely identify the subject matter. Thus, if the state legislatures are to be treated equally to Congress, they must have the power to draft a specific amendment, just as Congress does. It is difficult to explain why the equality principle requires that the state legislatures be able to limit the convention to a particular subject, but not to a particular amendment.
3. Constitutional Purpose. As Natelson explains, the state-initiated method of amendment was created specifically in contemplation of amendments needed to limit the power of and/or curb abuses by Congress and the federal government. The Framers believed the state legislatures were best able to decide when such amendments were needed. Thus, in Federalist No. 85, Alexander Hamilton said that “[w]e may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.”
Both common sense and the record of the framing and ratification periods indicate that the Framers expected the state legislatures to act in response to some particular congressional abuse or to obtain a particular desired amendment. See, e.g., William W. Van Alstyne, The Limited Constitutional Convention- The Recurring Answer, 1979 Duke L. J. 985, 990 (1979) (Article V convention most likely will be called to address “particular usurpations” by Congress) (emphasis in original), Thus, Hamilton stated in Federalist No. 85 that “every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. . . . And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.” As Natelson observes, Hamilton’s reference to nine states “represented the two thirds then necessary to force a convention” (while 10 were needed to ratify). Natelson, 78 Tenn. L. Rev. at 727. This in turn indicates that two thirds of the states could initiate the amendment process when they were already “united in the desire of a particular amendment.”
If the applying states have already decided that they desire a particular amendment (including, perhaps, the exact wording of the amendment), there are significant costs to allowing the convention to propose other amendments. This rule would impose an “uncertainty tax” on the state initiation of amendments and make it less likely that state legislatures will apply for a convention in the first place. Rappaport, 81 Const. Comm. at 89. It also may make it less likely that the convention, if called, will be able to reach consensus on the desired amendment. Id. at 90. In either case it would tend to undercut Hamilton’s assurance that the amendment “must infallibly take place.”
By contrast, what purpose is served if the convention, called at the behest of state legislatures “united in the desire of a particular amendment,” is free to propose a different amendment? See Michael Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765, 774 (2011) (“Scholars who believe that an Article V Convention must be unlimited have struggled to explain the constitutional purposes that would be advanced by this interpretation.”). Hypotheses have been offered to the effect that the Article V convention would serve as a check on the state legislatures, but these claims make little sense (the convention can provide a check by refusing to propose the desired amendment and does not need the power to propose an alternative). In any event, they have no foundation in the actual purposes of Article V discussed during the Philadelphia Convention and the ratification period. See Rappaport, 81 Const. Comm. at 90-91; Stern, 78 Tenn. L. Rev. at 775-78.
Once it is accepted that the state legislatures have the power to limit an Article V convention, “[n]o constitutional principle appears to support distinguishing a convention limited to a single subject from one limited to a single amendment.” Stern, 78 Tenn. L. Rev. at 785. There may be reasons of pragmatism or efficiency that militate against seeking a convention limited to a single amendment, but these are questions that state legislators themselves, not courts or constitutional scholars, are in the best position to evaluate. There is little reason, either in 1787 or today, to constitutionalize the answers to these questions.
4. Contemporaneous Statements. We have already discussed statements by Madison and Hamilton which support the limited convention view. Other contemporaneous statements, compiled by Natelson, provide additional support for a limited convention, including one limited to a single amendment.
For example, Natelson cites 1788 letter by George Washington, in which he explained that “a constitutional door is open for such amendments as shall be thought necessary by nine States.” Natelson, 78 Tenn. L. Rev. at 727 & n.230 (quoting Letter of Apr. 25, 1788 from George Washington to John Armstrong). Again the implication is that the applying states would identify the amendments they thought necessary, not merely a subject matter or a problem to be solved, prior to the convention.
Even more strikingly, the Federalist writer Tench Coxe wrote in 1788:
If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such proposed amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.
Natelson, 78 Tenn. L. Rev. at 727 & n.232 (quoting A Pennsylvanian to the New York Convention, PA Gazette, June 11, 1788)).
As Natelson notes, Coxe’s statement “reveals an assumption that states would make application explicitly to promote particular amendments,” which would be known (and possibly disliked) by Congress before the Article V convention. Natelson, 78 Tenn. L. Rev. at 728. He cites several others, including Patrick Henry, who shared the same assumption and spoke as if “the states rather than the convention would do the proposing.” Id. at 730.
One might argue that these statements were imprecise and that the Founders only anticipated that the state legislatures would identify the substance, rather than the exact wording, of a desired amendment. But even if that is so, this evidence shows that the Founders did not assume the Article V convention would necessarily be originating or devising the amendments it proposed. All of these statements are therefore consistent with the view that the state legislatures may prescribe the wording of a particular amendment in the applications and confine the deliberations of the convention to whether to propose that amendment.
5. Background Law. Much of Natelson’s work in this area is devoted to showing that the Founders understood there to be a principal-agent relationship between the state legislatures and the convention, which relationship was governed by well-established principles of fiduciary law. See, e.g., Robert G. Natelson, Amending the Constitution by Convention: Lessons for Today from the Constitution’s First Century 2 (Independence Inst. 2011) (“Conventions for proposing amendments, like other federal conventions, are made up of delegates who are agents of the state legislatures. In effect, the entire convention is a collective agent of the state legislatures.”). It follows that the Article V convention is bound to comply with the limitations placed upon it by the state legislatures, unless the Constitution affirmatively prohibits those limitations.
As we have seen, nothing in the constitutional text, structure or purpose forbids the state legislatures from limiting the convention to a single amendment. It is true that those interstate conventions held before 1787 had discretion beyond an up-or-down vote on a single text (although there were intrastate conventions of this nature), but this may simply reflect the fact that there was no occasion to hold a more limited convention. By itself, this fact cannot provide the basis for finding an affirmative constitutional prohibition. See also Rappaport, 81 Const. Comm. at 71 (“[T]he question is not whether some conventions had discretion. Rather, it is whether all conventions must have discretion and, most importantly, whether a proposing convention must have discretion. The answer to those questions is no.”).
Thus, despite Natelson’s own reservations about the single amendment convention, I think his work as a whole supports the constitutionality, if not the wisdom, of such a convention. I explain more fully here why this is the more “Natelsonian” position.
http://www.pointoforder.com/2013/09/01/article-v-and-the-single-amendment-convention/
He bases his argument in part on the work of Prof. Michael Rappaport, one of the nation’s leading constitutional scholars. Professor Rappaport’s study of the original meaning of Amendment V concluded that that meaning at least permits the state legislatures to so limit the convention’s agenda.
57 page pdf
Rappaport was mentioned last week, in TPP WEBINAR.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2035638
http://constitution.i2i.org/2013/09/04/may-state-legislatures-limit-an-article-v-convention-to-a-specifically-worded-amendment-part-i/
May state legislative applications limit an Article V convention? Subject, yes; specific language, probably not (Part 2)
As noted in my last post, some excellent constitutional scholars believe state applications for a convention for proposing amendments may limit the convention to voting “yes” or “no” on a specifically-worded amendment. A prescribed-wording application, they say, reduces the fear of a “runaway” convention and places the state legislatures in the equal position with Congress that Article V of the Constitution was designed to give them.
I agree with those scholars that state applications may limit the convention to one or moresubjects. But I think the risks of trying to limit the convention to an up-or-down vote on aspecifically-worded amendment are just too great. The risks are legal, political, and practical.
The Legal Problems.
I believe there is a good chance courts reviewing prescribed-wording applications would invalidate them as not qualifying as proper “applications” at all. Here’s why:
* The text of the Constitution grants the convention, not the applying state legislatures, the power to “propos[e] Amendments.” The Framers could have drafted language permitting the states to propose amendments directly (some modern commentators have suggested such an approach), but they did not. One possible reason is the belief that a convention of all the states is more likely to produce a well-thought-out, widely-acceptable proposal than two-thirds of states, meeting apart before the convention has even opened.
* While it is true that a purpose of Article V is to give state legislatures a role co-equal to Congress as a promoter of amendments, that purpose is served by the make-up of the convention: a gathering of state delegations, chosen and instructed by the state legislatures.
* A long line of court cases holds (almost without dissent) that assemblies empowered by Article V must enjoy a certain amount of deliberative freedom (although this does not mean infinite deliberate freedom). See, e.g., Miller v. Moore, 169 F.3d (8th Cir. 1999); Bramberg v. Jones, 20 Cal. 4th 1045, 978 P.2d 1240 (1999); Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975) (opinion by Justice Stevens). Thus, the courts have voided measures, such as ballot language and referenda, that try to dictate to Article V legislatures or conventions how they are to conduct their business. Although prescribed-wording applications still would allow the “convention for proposing amendments” to vote a measure up or down, the courts might well rule that Article V requires that a proposal convention (as opposed to a ratification convention) be given more deliberative freedom than that. The reasons follow.
* Although some parts of Article V are too clear to require interpretation, see, e.g., United States v. Sprague, 282 U.S. 716 (1931), the precise meanings of other parts are less obvious. In those instances, the courts use the historical and legal background to interpret the meaning of words and phrases in Article V. See, e.g., Opinion of the Justices, 167 A. 176 (Me. 1933) (using historical materials to construe the meaning of a state ratifying convention); Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975) (opinion by Justice Stevens) (using Founding-Era materials to interpret “ratify” and “ratification”); Opinion of the Justices to the Senate, 373 Mass. 877, 366 N.E. 2d 1226 (1977) (using Founding-Era materials to interpret “application”);Berlotti v. Lyons, 182 Cal. 575, 189 P. 282 (1920) (referencing Founding Era and other materials to interpret “Legislatures”). Thus, Founding-Era history and, to a certain extent subsequent history, is of great importance in interpreting Article V.
* The name “convention for proposing amendments” tells us that this is a proposing convention. The Founders would have distinguished it both from a plenipotentiary convention (with very broad powers) and from a ratifying convention (limited to an up-or-down vote). These distinctions were well understood.
* The invariable practice for multi-state (and, before Independence, multi-colony) proposing conventions was for the entity applying for or calling the meeting to provide it with specific problems to work on, but also to grant the commissioners (delegates) the deliberative freedom to do so—something like the modern business or government problem-solving task force. This was true from the late 17th century through the Founding Era.
* The Founding-Era evidence is buttressed by subsequent practice. Nineteenth century proposing conventions, such as the Washington Conference Convention of 1861, worked within the same pattern. As far as I can tell, limiting an interstate proposal convention—in fact, limiting any interstate convention—to an up-or-down vote would be unprecedented.
* Limiting the convention to the role of “Answer the question: Yes or no? Which is it?” is inconsistent with the status of the interstate convention as an assembly of respectable and equal sovereigns. It certainly is inconsistent with the international law usages upon which the American multi-state convention was based. And that is no doubt one reason it would be unprecedented.
* When a court examined the pre-1787 history for understood meanings of “application” and “call,” the court would find that no application or call for a multi-colony or multi-state convention (and there were over 30 such gatherings) ever tried to limit the scope to an up-or-down vote on prescribed language.
* The court also might consider that until the late 20th century, it was unprecedented for an applying state to even try to limit an Article V amendments convention to prescribed wording.
Political and Practical Problems.
* The Framers inserted a convention into the amendment process presumably because the convention setting encourages collective deliberation, compromise, and conciliation among all the states, not merely among those that apply. Deliberation requires the ability to weigh alternatives.
* A proposal deriving from a convention of all states is more likely to be acceptable to the country than one imposed by two-thirds of the states. Two-thirds of the states might even represent less than half the population of the country; this is impossible at an amendments convention and almost impossible among the three-quarters of states necessary to ratify.
* Even if the courts uphold prescribed-wording applications, the language of the amendment is likely to be torn apart by opponents, and any substantial vulnerability will kill the entire enterprise. If the convention is ever called, it would have no power to amend the proposal to meet legitimate objections.
* State lawmakers enjoy being creative, and that means that in the world of real politics, legislative applications always vary. When the applications address a broad subject (such as “congressional term limits” or “federal balanced budget amendment”), this situation is manageable. But when applications must specify the precisely-identical wording, then variations probably can’t be counted together to reach the two-thirds threshold necessary for a convention.
For such reasons, I recommend that applications specify their general subject(s), but not try to limit the convention to voting “aye” or “nay” on indelible language.
http://constitution.i2i.org/2013/09/12/may-state-legislatures-limit-an-article-v-convention-to-a-specifically-worded-amendment-part-ii-answer-probably-not/
I agree with those scholars that state applications may limit the convention to one or moresubjects. But I think the risks of trying to limit the convention to an up-or-down vote on aspecifically-worded amendment are just too great. The risks are legal, political, and practical.
The Legal Problems.
I believe there is a good chance courts reviewing prescribed-wording applications would invalidate them as not qualifying as proper “applications” at all. Here’s why:
* The text of the Constitution grants the convention, not the applying state legislatures, the power to “propos[e] Amendments.” The Framers could have drafted language permitting the states to propose amendments directly (some modern commentators have suggested such an approach), but they did not. One possible reason is the belief that a convention of all the states is more likely to produce a well-thought-out, widely-acceptable proposal than two-thirds of states, meeting apart before the convention has even opened.
* While it is true that a purpose of Article V is to give state legislatures a role co-equal to Congress as a promoter of amendments, that purpose is served by the make-up of the convention: a gathering of state delegations, chosen and instructed by the state legislatures.
* A long line of court cases holds (almost without dissent) that assemblies empowered by Article V must enjoy a certain amount of deliberative freedom (although this does not mean infinite deliberate freedom). See, e.g., Miller v. Moore, 169 F.3d (8th Cir. 1999); Bramberg v. Jones, 20 Cal. 4th 1045, 978 P.2d 1240 (1999); Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975) (opinion by Justice Stevens). Thus, the courts have voided measures, such as ballot language and referenda, that try to dictate to Article V legislatures or conventions how they are to conduct their business. Although prescribed-wording applications still would allow the “convention for proposing amendments” to vote a measure up or down, the courts might well rule that Article V requires that a proposal convention (as opposed to a ratification convention) be given more deliberative freedom than that. The reasons follow.
* Although some parts of Article V are too clear to require interpretation, see, e.g., United States v. Sprague, 282 U.S. 716 (1931), the precise meanings of other parts are less obvious. In those instances, the courts use the historical and legal background to interpret the meaning of words and phrases in Article V. See, e.g., Opinion of the Justices, 167 A. 176 (Me. 1933) (using historical materials to construe the meaning of a state ratifying convention); Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975) (opinion by Justice Stevens) (using Founding-Era materials to interpret “ratify” and “ratification”); Opinion of the Justices to the Senate, 373 Mass. 877, 366 N.E. 2d 1226 (1977) (using Founding-Era materials to interpret “application”);Berlotti v. Lyons, 182 Cal. 575, 189 P. 282 (1920) (referencing Founding Era and other materials to interpret “Legislatures”). Thus, Founding-Era history and, to a certain extent subsequent history, is of great importance in interpreting Article V.
* The name “convention for proposing amendments” tells us that this is a proposing convention. The Founders would have distinguished it both from a plenipotentiary convention (with very broad powers) and from a ratifying convention (limited to an up-or-down vote). These distinctions were well understood.
* The invariable practice for multi-state (and, before Independence, multi-colony) proposing conventions was for the entity applying for or calling the meeting to provide it with specific problems to work on, but also to grant the commissioners (delegates) the deliberative freedom to do so—something like the modern business or government problem-solving task force. This was true from the late 17th century through the Founding Era.
* The Founding-Era evidence is buttressed by subsequent practice. Nineteenth century proposing conventions, such as the Washington Conference Convention of 1861, worked within the same pattern. As far as I can tell, limiting an interstate proposal convention—in fact, limiting any interstate convention—to an up-or-down vote would be unprecedented.
* Limiting the convention to the role of “Answer the question: Yes or no? Which is it?” is inconsistent with the status of the interstate convention as an assembly of respectable and equal sovereigns. It certainly is inconsistent with the international law usages upon which the American multi-state convention was based. And that is no doubt one reason it would be unprecedented.
* When a court examined the pre-1787 history for understood meanings of “application” and “call,” the court would find that no application or call for a multi-colony or multi-state convention (and there were over 30 such gatherings) ever tried to limit the scope to an up-or-down vote on prescribed language.
* The court also might consider that until the late 20th century, it was unprecedented for an applying state to even try to limit an Article V amendments convention to prescribed wording.
Political and Practical Problems.
* The Framers inserted a convention into the amendment process presumably because the convention setting encourages collective deliberation, compromise, and conciliation among all the states, not merely among those that apply. Deliberation requires the ability to weigh alternatives.
* A proposal deriving from a convention of all states is more likely to be acceptable to the country than one imposed by two-thirds of the states. Two-thirds of the states might even represent less than half the population of the country; this is impossible at an amendments convention and almost impossible among the three-quarters of states necessary to ratify.
* Even if the courts uphold prescribed-wording applications, the language of the amendment is likely to be torn apart by opponents, and any substantial vulnerability will kill the entire enterprise. If the convention is ever called, it would have no power to amend the proposal to meet legitimate objections.
* State lawmakers enjoy being creative, and that means that in the world of real politics, legislative applications always vary. When the applications address a broad subject (such as “congressional term limits” or “federal balanced budget amendment”), this situation is manageable. But when applications must specify the precisely-identical wording, then variations probably can’t be counted together to reach the two-thirds threshold necessary for a convention.
For such reasons, I recommend that applications specify their general subject(s), but not try to limit the convention to voting “aye” or “nay” on indelible language.
http://constitution.i2i.org/2013/09/12/may-state-legislatures-limit-an-article-v-convention-to-a-specifically-worded-amendment-part-ii-answer-probably-not/
A PDF of this series is available at this link: http://constitution.i2i.org/files/2010/09/Originalist-Bibliography-8-26-12.pdf
Below this series are posts of PDF documents that further aid in understanding Article V.
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Natelson SERIES STARTS BELOW:
Below this series are posts of PDF documents that further aid in understanding Article V.
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Natelson SERIES STARTS BELOW:
How We Have Learned More and More About the Constitution’s “Convention for Proposing Amendments”
August 30, 2013 by Rob Natelson
Listen to Mark Levin’s interview of Rob here. (Go to Aug. 29 podcast, and fast forward to minute 55.)
This past week, conservative icon Phyllis Schlafly contributed a short piece to Townhall.com in which she attacked the movement for an Article V convention. As I wrote in my response, she was relying on claims about the convention that had been superseded by modern research.
You can classify modern Article V writing in three broad waves. (There are many exceptions but the generalization is valid, I think.) The first wave consisted of publications from the 1960s and 1970s, typically by liberal academics who opposed conservative efforts to trigger a convention. Examples include articles by Yale’s Charles Black, William and Mary’s William Swindler, Duke’s Walter Dellinger, and Harvard’s Lawrence Tribe.
Typically, these authors concluded that a Article V “constitutional convention” (as they called it) could not be limited to a single subject. That, as we now know, was a mistake. A related error was their assumption that when the Founders referred to a “general” convention they meant a convention with unlimited subject matter. Actually, a “general convention” meant one in which all the states, or at least states from all regions, participated. It was the opposite of a “partial” or regional convention, and it had nothing to do with the scope of the subject matter.
The mistakes these authors made can be attributed partly to the agenda-driven nature of their writings, and their failure to examine many historical sources. They seldom ventured beyond The Federalist Papers and a few pages from the transcript of the 1787 Constitutional Convention.
Also in the First Wave was a 1973 study sponsored by the American Bar Association. The ABA did conclude that a “constitutional convention” could be limited, but was not a very solid piece of work, perhaps because (if my information is accurate) the principal writers were not professional scholars, but a pair of law students.
The Second Wave began in 1979 with a publication issued by President Carter’s U.S. Office of Legal Counsel and written by attorney John Harmon. For its time, it was a particularly thorough piece of work. Among the other authors in this wave were Grover Rees III, and the University of Minnesota’s Michael Stokes Paulsen. The most elaborate publication of this era was by Russell Caplan, whose book, Constitutional Brinksmanship, was released by Oxford University Press in 1988.
Second Wave authors accessed far more material than their predecessors. They paid more attention to the 1787-90 ratification debates. Caplan even made some reference to earlier interstate conventions. Most of them (Paulsen was an exception) correctly concluded that an Article V gathering could be limited.
But Second Wave writers did make some mistakes. They continued to refer to an Article V conclave as a “constitutional convention.” Some of them assumed, as some First Wave writers had, that Congress had broad authority under the Necessary and Proper Clause to regulate the convention and the selection and apportionment of delegates. None investigated the records of other interstate conventions in detail, or fully grasped their significance.
The Third Wave began in the 21st century. Its contributing authors include the University of San Diego’s Michael Rappaport, former House of Representatives Senior Counsel Mike Stern, the Goldwater Institute’s Nick Dranias, and myself. We have been able to place the Article V convention into its larger legal and historical context.
Like most of the Second Wave writers, we understand that an Article V convention can be limited. But we also have learned a lot of other things: the gathering is not a constitutional convention, it was modeled after a long tradition of limited-purpose gatherings, and it is governed by a rich history of practice and case law.
We also know that the Necessary and Proper Clause does not apply to conventions. That clause gives Congress power to make laws to carry into execution certain enumerated powers and “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” But a convention for proposing amendments is not part of the “Government of the United States” nor is it a “Department or Officer thereof.” Supreme Court precedent, as well as the wording of the Constitution, make this clear. For this and other reasons, congressional powers over the process are quite limited.
A few days ago, a friend sent me a 1987 report issued by the U.S. Justice Department. The title is “Limited Constitutional Conventions Under Article V of the United States Constitution.” As the date would suggest, this is a typical Second Wave publication. In addition to labeling an Article V Convention as a “constitutional convention, it also assumes that a “general” convention is one that is unlimited as to subject matter. It shows no familiarity with any previous interstate conventions other than the 1787 gathering. It makes the erroneous assumption that the latter meeting was called by Congress under the Articles of Confederation. It fails to understand the nature of the convention as a meeting of commissioners from state legislatures. It asserts erroneously that all 19th century state applications were for an unlimited convention. (In fact, several were limited.) And it makes the inaccurate assumption that Congress has power under the Necessary and Proper Clause to prescribe procedures for an amendments convention.
Such documents are of historical interest, but they should no longer be taken as authoritative.
http://constitution.i2i.org/category/article-v-convention/
Listen to Mark Levin’s interview of Rob here. (Go to Aug. 29 podcast, and fast forward to minute 55.)
This past week, conservative icon Phyllis Schlafly contributed a short piece to Townhall.com in which she attacked the movement for an Article V convention. As I wrote in my response, she was relying on claims about the convention that had been superseded by modern research.
You can classify modern Article V writing in three broad waves. (There are many exceptions but the generalization is valid, I think.) The first wave consisted of publications from the 1960s and 1970s, typically by liberal academics who opposed conservative efforts to trigger a convention. Examples include articles by Yale’s Charles Black, William and Mary’s William Swindler, Duke’s Walter Dellinger, and Harvard’s Lawrence Tribe.
Typically, these authors concluded that a Article V “constitutional convention” (as they called it) could not be limited to a single subject. That, as we now know, was a mistake. A related error was their assumption that when the Founders referred to a “general” convention they meant a convention with unlimited subject matter. Actually, a “general convention” meant one in which all the states, or at least states from all regions, participated. It was the opposite of a “partial” or regional convention, and it had nothing to do with the scope of the subject matter.
The mistakes these authors made can be attributed partly to the agenda-driven nature of their writings, and their failure to examine many historical sources. They seldom ventured beyond The Federalist Papers and a few pages from the transcript of the 1787 Constitutional Convention.
Also in the First Wave was a 1973 study sponsored by the American Bar Association. The ABA did conclude that a “constitutional convention” could be limited, but was not a very solid piece of work, perhaps because (if my information is accurate) the principal writers were not professional scholars, but a pair of law students.
The Second Wave began in 1979 with a publication issued by President Carter’s U.S. Office of Legal Counsel and written by attorney John Harmon. For its time, it was a particularly thorough piece of work. Among the other authors in this wave were Grover Rees III, and the University of Minnesota’s Michael Stokes Paulsen. The most elaborate publication of this era was by Russell Caplan, whose book, Constitutional Brinksmanship, was released by Oxford University Press in 1988.
Second Wave authors accessed far more material than their predecessors. They paid more attention to the 1787-90 ratification debates. Caplan even made some reference to earlier interstate conventions. Most of them (Paulsen was an exception) correctly concluded that an Article V gathering could be limited.
But Second Wave writers did make some mistakes. They continued to refer to an Article V conclave as a “constitutional convention.” Some of them assumed, as some First Wave writers had, that Congress had broad authority under the Necessary and Proper Clause to regulate the convention and the selection and apportionment of delegates. None investigated the records of other interstate conventions in detail, or fully grasped their significance.
The Third Wave began in the 21st century. Its contributing authors include the University of San Diego’s Michael Rappaport, former House of Representatives Senior Counsel Mike Stern, the Goldwater Institute’s Nick Dranias, and myself. We have been able to place the Article V convention into its larger legal and historical context.
Like most of the Second Wave writers, we understand that an Article V convention can be limited. But we also have learned a lot of other things: the gathering is not a constitutional convention, it was modeled after a long tradition of limited-purpose gatherings, and it is governed by a rich history of practice and case law.
We also know that the Necessary and Proper Clause does not apply to conventions. That clause gives Congress power to make laws to carry into execution certain enumerated powers and “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” But a convention for proposing amendments is not part of the “Government of the United States” nor is it a “Department or Officer thereof.” Supreme Court precedent, as well as the wording of the Constitution, make this clear. For this and other reasons, congressional powers over the process are quite limited.
A few days ago, a friend sent me a 1987 report issued by the U.S. Justice Department. The title is “Limited Constitutional Conventions Under Article V of the United States Constitution.” As the date would suggest, this is a typical Second Wave publication. In addition to labeling an Article V Convention as a “constitutional convention, it also assumes that a “general” convention is one that is unlimited as to subject matter. It shows no familiarity with any previous interstate conventions other than the 1787 gathering. It makes the erroneous assumption that the latter meeting was called by Congress under the Articles of Confederation. It fails to understand the nature of the convention as a meeting of commissioners from state legislatures. It asserts erroneously that all 19th century state applications were for an unlimited convention. (In fact, several were limited.) And it makes the inaccurate assumption that Congress has power under the Necessary and Proper Clause to prescribe procedures for an amendments convention.
Such documents are of historical interest, but they should no longer be taken as authoritative.
http://constitution.i2i.org/category/article-v-convention/
Rob Natelson on the Article V Convention
Posted by Michael Stern on 11 August 2013, 9:18 pm
In an article recently published in the Harvard Journal of Law and Public Policy, Professor Rob Natelson provides a brief but illuminating summary of how the Article V convention fits within the constitutional plan designed by the Founders. Natelson, the nation’s foremost expert on state initiation of constitutional amendments, explains that the Article V convention played a pivotal role in addressing two main arguments made by anti-Federalists, who predicted that the Constitution would undermine the sovereignty and autonomy of the states:
The first argument was that the Constitution granted too much power to the federal government, which could lead to abuse of that power. The second argument was more subtle but ultimately proved more prescient: Even if the Constitution, when honestly, fairly, and objectively read, did not give the federal government excessive power, ambitious and clever people would nonetheless twist its language to justify the seizure by the central government of enormous power, regardless of the understanding of those who wrote and ratified the instrument.
R. Natelson, The Article V Convention Process and the Restoration of Federalism, 36 Harv. J. Law & Pub. Pol’y 955, 956 (Spring 2013).
The Article V convention responded to both of these arguments, as Madison and Hamilton took pains to point out in The Federalist. First, thanks to the convention process, Article V “equally enables the general and the state governments, to originate the amendment of errors, as they may be pointed out by the experience on one side or on the other.” Federalist No. 43 (Madison). Thus, to the extent the Constitution proved to give too much power to the “general government,” the states could “originate the amendment of errors” without being subject to a congressional veto. This addressed the fear that any excessive national power would be permanently entrenched.
Second, the Article V convention process gave the state legislatures a significant constitutional power to counteract overreach by Congress or the federal government. Hamilton explained in Federalist No. 85 that, as a consequence of Article V’s design, “[w]e may safely rely on the disposition of the state legislators to erect barriers against the encroachments of the national authority.” Thus, Natelson observes: “[T]he Founders saw the amendment procedure as more than a way of responding to changed circumstances. They saw it as a tool for curbing excesses and abuses.” 36 Harv. J. Law & Pub. Pol’y at 957.
While no Article V convention has ever been called, Natelson points out that state legislatures can use their power short of actually calling a convention. Id. at 959. If “state legislatures flex[] their Article V muscles by applying, in a concerted manner, for a convention to propose amendments,” they can force Congress to propose an amendment as the price of not actually triggering the convention call. Id. Thus, “the States forced the United States Senate to agree to the Seventeenth Amendment . . . when thirty-one of the necessary thirty-two [at the time] applied for a convention limited to proposing a direct election amendment.”
Id. at 959-60.
You can also listen to Natelson discussing the Article V convention in this video.
http://www.pointoforder.com/2013/08/11/rob-natelson-on-the-article-v-convention/comment-page-1/#comment-34752
In an article recently published in the Harvard Journal of Law and Public Policy, Professor Rob Natelson provides a brief but illuminating summary of how the Article V convention fits within the constitutional plan designed by the Founders. Natelson, the nation’s foremost expert on state initiation of constitutional amendments, explains that the Article V convention played a pivotal role in addressing two main arguments made by anti-Federalists, who predicted that the Constitution would undermine the sovereignty and autonomy of the states:
The first argument was that the Constitution granted too much power to the federal government, which could lead to abuse of that power. The second argument was more subtle but ultimately proved more prescient: Even if the Constitution, when honestly, fairly, and objectively read, did not give the federal government excessive power, ambitious and clever people would nonetheless twist its language to justify the seizure by the central government of enormous power, regardless of the understanding of those who wrote and ratified the instrument.
R. Natelson, The Article V Convention Process and the Restoration of Federalism, 36 Harv. J. Law & Pub. Pol’y 955, 956 (Spring 2013).
The Article V convention responded to both of these arguments, as Madison and Hamilton took pains to point out in The Federalist. First, thanks to the convention process, Article V “equally enables the general and the state governments, to originate the amendment of errors, as they may be pointed out by the experience on one side or on the other.” Federalist No. 43 (Madison). Thus, to the extent the Constitution proved to give too much power to the “general government,” the states could “originate the amendment of errors” without being subject to a congressional veto. This addressed the fear that any excessive national power would be permanently entrenched.
Second, the Article V convention process gave the state legislatures a significant constitutional power to counteract overreach by Congress or the federal government. Hamilton explained in Federalist No. 85 that, as a consequence of Article V’s design, “[w]e may safely rely on the disposition of the state legislators to erect barriers against the encroachments of the national authority.” Thus, Natelson observes: “[T]he Founders saw the amendment procedure as more than a way of responding to changed circumstances. They saw it as a tool for curbing excesses and abuses.” 36 Harv. J. Law & Pub. Pol’y at 957.
While no Article V convention has ever been called, Natelson points out that state legislatures can use their power short of actually calling a convention. Id. at 959. If “state legislatures flex[] their Article V muscles by applying, in a concerted manner, for a convention to propose amendments,” they can force Congress to propose an amendment as the price of not actually triggering the convention call. Id. Thus, “the States forced the United States Senate to agree to the Seventeenth Amendment . . . when thirty-one of the necessary thirty-two [at the time] applied for a convention limited to proposing a direct election amendment.”
Id. at 959-60.
You can also listen to Natelson discussing the Article V convention in this video.
http://www.pointoforder.com/2013/08/11/rob-natelson-on-the-article-v-convention/comment-page-1/#comment-34752
The Problems With Repealing the Direct Election of Senators/17th Amendment
August 24, 2013 by Rob Natelson
Some political activists argue for repeal of the 17th amendment. In other words, they want to end popular elections of U.S. Senators and return to the original constitutional system of election by state legislatures.
Repeal advocates argue that the pre-17th amendment system better preserved federalism than does direct election.
Whatever the theoretical merits of their position, those activists need to either answer some hard questions or apply their energies elsewhere.
The first question is how they are going to overcome a big reality of practical politics: Popular election is, well. . . popular. In 2010, the revelation that a Colorado U.S. Senate candidate had once favored repeal probably cost him the election.
Yet, getting a constitutional amendment passed requires super-majority support, not super-majority opposition.
Advocates also have to address an institutional problem: The U.S. Senate, consisting as it does of politicians who owe their position to direct election, is unlikely to consent to a congressional resolution repealing the electoral rules that got them elected.
So that means that any repealer will have to be proposed, or at least threatened, by a convention of the states under the Constitution’s Article V. But some of the most fervent supporters of repeal strongly oppose such a convention. In other words, repeal advocates are not only a minority, they are a minority strategically divided among themselves.
Finally, repeal advocates need to address some real problems that plagued the former system.
What problems? Basically three:
1. Smaller electorates (e.g., state lawmakers) are easier to corrupt than larger electorates (e.g., the entire people). After 1850, cases multiplied in which candidates purchased Senate seats from state lawmakers. Some outrageous national scandals helped provoke the move to direct election.
2. State legislatures often couldn’t agree on a Senate candidate. For example, one legislative chamber might favor one candidate while the other chamber favored another. The result was deadlock. Legislatures sometimes balloted for months on end while their state remained under-represented in Congress. A deadlock delayed the selection of New York’s senators in the First Congress, and the phenomenon became more and more common as time wore on. Between 1891 and 1905—a period of only 14 years—there were 45 deadlocked senatorial elections in 20 different states!
Deadlock often was broken by “stampeding”—last-minute election of a dark horse whom no one previously had thought to be of senatorial timber. In other words, a procedure that originally had produced Senators like Daniel Webster and Thomas Hart Benton eventually produced a bunch of non-entities.
3. Because people “voted” for a Senate candidate by voting for state legislative candidates, federal and state issues became bundled, with state issues often entirely submerged. Think of the 1858 Illinois legislative races. Does anyone remember any of the issues in that campaign other than the issues that divided U.S. Senate candidates Lincoln and Douglas?
Put another way, legislative election of Senators began to hurt federalism because state elections lost their distinctive character among national issues.
These were not minor problems. When a politician votes to reduce his own power, you know things are bad. But that’s what state lawmakers did. First, they begged Congress to propose a direct-election amendment, then they established de facto direct election systems in some states, and finally they began an application campaign for an Article V amendments convention. By 1913, they were one state short of the necessary 2/3. The only reason we didn’t have a convention is that Congress caved in and proposed the 17th amendment itself.
My guess is that most repeal advocates are unaware of either the problems with legislative election of Senators or with possible solutions. For example, they could point out that Congress could reduce the danger of deadlock by using its constitutional authority (under Article I, Section 4, Clause 1) to adopt efficient rules by which legislatures could choose Senators. On the other hand, though, it’s fair to point out that Congress could have done this under the old system, but didn’t. In fact, one of the few election laws it passed may have made the situation worse.
Repealing direct election is probably a will o’ the wisp. If advocates can’t effectively answer the questions listed above, then they really should be seeking more feasible reforms.
http://constitution.i2i.org/2013/08/24/the-problems-with-repealing-the-direct-election-of-senators17th-amendment/
Some political activists argue for repeal of the 17th amendment. In other words, they want to end popular elections of U.S. Senators and return to the original constitutional system of election by state legislatures.
Repeal advocates argue that the pre-17th amendment system better preserved federalism than does direct election.
Whatever the theoretical merits of their position, those activists need to either answer some hard questions or apply their energies elsewhere.
The first question is how they are going to overcome a big reality of practical politics: Popular election is, well. . . popular. In 2010, the revelation that a Colorado U.S. Senate candidate had once favored repeal probably cost him the election.
Yet, getting a constitutional amendment passed requires super-majority support, not super-majority opposition.
Advocates also have to address an institutional problem: The U.S. Senate, consisting as it does of politicians who owe their position to direct election, is unlikely to consent to a congressional resolution repealing the electoral rules that got them elected.
So that means that any repealer will have to be proposed, or at least threatened, by a convention of the states under the Constitution’s Article V. But some of the most fervent supporters of repeal strongly oppose such a convention. In other words, repeal advocates are not only a minority, they are a minority strategically divided among themselves.
Finally, repeal advocates need to address some real problems that plagued the former system.
What problems? Basically three:
1. Smaller electorates (e.g., state lawmakers) are easier to corrupt than larger electorates (e.g., the entire people). After 1850, cases multiplied in which candidates purchased Senate seats from state lawmakers. Some outrageous national scandals helped provoke the move to direct election.
2. State legislatures often couldn’t agree on a Senate candidate. For example, one legislative chamber might favor one candidate while the other chamber favored another. The result was deadlock. Legislatures sometimes balloted for months on end while their state remained under-represented in Congress. A deadlock delayed the selection of New York’s senators in the First Congress, and the phenomenon became more and more common as time wore on. Between 1891 and 1905—a period of only 14 years—there were 45 deadlocked senatorial elections in 20 different states!
Deadlock often was broken by “stampeding”—last-minute election of a dark horse whom no one previously had thought to be of senatorial timber. In other words, a procedure that originally had produced Senators like Daniel Webster and Thomas Hart Benton eventually produced a bunch of non-entities.
3. Because people “voted” for a Senate candidate by voting for state legislative candidates, federal and state issues became bundled, with state issues often entirely submerged. Think of the 1858 Illinois legislative races. Does anyone remember any of the issues in that campaign other than the issues that divided U.S. Senate candidates Lincoln and Douglas?
Put another way, legislative election of Senators began to hurt federalism because state elections lost their distinctive character among national issues.
These were not minor problems. When a politician votes to reduce his own power, you know things are bad. But that’s what state lawmakers did. First, they begged Congress to propose a direct-election amendment, then they established de facto direct election systems in some states, and finally they began an application campaign for an Article V amendments convention. By 1913, they were one state short of the necessary 2/3. The only reason we didn’t have a convention is that Congress caved in and proposed the 17th amendment itself.
My guess is that most repeal advocates are unaware of either the problems with legislative election of Senators or with possible solutions. For example, they could point out that Congress could reduce the danger of deadlock by using its constitutional authority (under Article I, Section 4, Clause 1) to adopt efficient rules by which legislatures could choose Senators. On the other hand, though, it’s fair to point out that Congress could have done this under the old system, but didn’t. In fact, one of the few election laws it passed may have made the situation worse.
Repealing direct election is probably a will o’ the wisp. If advocates can’t effectively answer the questions listed above, then they really should be seeking more feasible reforms.
http://constitution.i2i.org/2013/08/24/the-problems-with-repealing-the-direct-election-of-senators17th-amendment/
AFFIRMATIVE REPEAL ARGUMENTS
The Argument to Repeal the Seventeenth Amendment of the Constitution
One of the less known and more controversial moments in the history of the Constitution of the United States was the 17th amendment of 1913. It birthed what some claimed was a more fair and accountable political system, and what others called Unconstitutional, tyrannical, and the removal of the voice of the States at the seat of government.
Out of the 17th amendment’s ratification came a movement to repeal the seventeenth amendment and return to original Constitutional law, and of course, a movement that supported a federal plan for electing Senators.
The original words of the the Constitution that are changed by the Seventeenth Amendment are in Article 1 Section 3, and read:
“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote”
The Seventeenth Amendment ratification eliminated the Constitutional mandate for Senators to the Congress of the United States to be chosen by the respective State Legislatures, who are elected by vote by the people within the respective state districts.
In other words, the 17th amendment of 1913 made it so Senators to the Congress of the United States are no longer chosen by State Legislatures and instead by popular vote of citizens, direct election, as in the house of representatives.
The argument to repeal the seventeenth amendment of the Constitution centers around the problem with directly electing Senators-a powerful and important political office- which is that it is the removal of another barrier or filter within government, and the removal of a motivator for active individuals in state government.
The direct election of Senators, which is what occurs now, is carried out in only one step, whereas if the movement to repeal the seventeenth amendment was successful, Senators would once again be chosen by State Legislators, who are first chosen by the people. The people are given incentive to put importance in the election of state legislators, because of their duty in the selection of Senators.
By first delegating the power of Congressional Senator election to a State Senator, an urgency in State Legislature elections is created. This drives more voters to research and participate in State Elections, especially the office of a State Senator. Once State Senators are elected, the election of Congressional Senators then must go through another check and balance with those elected by the politically motivated people of the respective State. Once the Congressional Senators are chosen, they then give the respective State they are from a seat at the table of legislation, instead of simply mimicking the house of representatives and adding to federal power.
State Legislatures selecting Senators owned a purpose, which was to make sure there was a seat at the table for the States in the creation of legislation. As Judge Napolitano, author of the recent "It’s Dangerous to Be Right When the Government is Wrong” explains:
[Judge Napolitano at 2:20 on the argument to Repeal the Seventeenth Amendment]
“There would be the nation as a nation, there would be the people, and there would be the states. The nation as a nation is the president, the people is the House of Representatives, and the states is the Senate, because states sent senators.”
[Judge Napolitano's infamous Theodore & Woodrow, an enlightening read]
Judge Napolitano makes an important and intelligent point, if the States were to select Senators, wouldn’t that create a voice for the individual States? Wasn’t the entire point of the Senate an equalizer between States so that smaller states contained the same legislative power as a large state in at-least one house?
It’s interesting to ponder what would be different if the Seventeenth Amendment ratification of 1913 did not occur. Of course, it was the states themselves who with a 3/4 majority, ratified the amendment. But I wonder what the intentions of those officials in power was at that time, and if they truly held the intention to ensure freedom of their fellow citizens . I also wonder whether those who did have good intentions would ratify again and whether they knew what they were truly getting into.
If two of the three legislative arms are chosen by popular vote and by the same group of voters, where is the resistance or balance? If the same members of society directly choose the Senate and the House, why would the results differ in philosophy or intention? But if the people have incentive to pay attention to State government and elect legislature, and Legislature chooses the Senate, the Senate calls upon the more active members of differing political philosophies to participate. By asking for more effort, only those who have discovered their interest in one side or one opinion and researched it are encouraged to act.
This lack of State voice at the table of legislation is behind the movement to repeal the seventeenth amendment and likely behind the widespread increase in use of Nullification by the individuals within the United States, which is not a bad thing, but a sign that the individuals within the respective States are tired of federal tyranny, across the board, and that it is time for individuals to once again own their lives, for states to protect that sacred Liberty, and for the federal government to get out of the way.
Ahmed Serag
http://livingnotsurviving.com/2013/06/18/the-argument-to-repeal-the-seventeenth-amendment-of-the-constitution/
Out of the 17th amendment’s ratification came a movement to repeal the seventeenth amendment and return to original Constitutional law, and of course, a movement that supported a federal plan for electing Senators.
The original words of the the Constitution that are changed by the Seventeenth Amendment are in Article 1 Section 3, and read:
“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote”
The Seventeenth Amendment ratification eliminated the Constitutional mandate for Senators to the Congress of the United States to be chosen by the respective State Legislatures, who are elected by vote by the people within the respective state districts.
In other words, the 17th amendment of 1913 made it so Senators to the Congress of the United States are no longer chosen by State Legislatures and instead by popular vote of citizens, direct election, as in the house of representatives.
The argument to repeal the seventeenth amendment of the Constitution centers around the problem with directly electing Senators-a powerful and important political office- which is that it is the removal of another barrier or filter within government, and the removal of a motivator for active individuals in state government.
The direct election of Senators, which is what occurs now, is carried out in only one step, whereas if the movement to repeal the seventeenth amendment was successful, Senators would once again be chosen by State Legislators, who are first chosen by the people. The people are given incentive to put importance in the election of state legislators, because of their duty in the selection of Senators.
By first delegating the power of Congressional Senator election to a State Senator, an urgency in State Legislature elections is created. This drives more voters to research and participate in State Elections, especially the office of a State Senator. Once State Senators are elected, the election of Congressional Senators then must go through another check and balance with those elected by the politically motivated people of the respective State. Once the Congressional Senators are chosen, they then give the respective State they are from a seat at the table of legislation, instead of simply mimicking the house of representatives and adding to federal power.
State Legislatures selecting Senators owned a purpose, which was to make sure there was a seat at the table for the States in the creation of legislation. As Judge Napolitano, author of the recent "It’s Dangerous to Be Right When the Government is Wrong” explains:
[Judge Napolitano at 2:20 on the argument to Repeal the Seventeenth Amendment]
“There would be the nation as a nation, there would be the people, and there would be the states. The nation as a nation is the president, the people is the House of Representatives, and the states is the Senate, because states sent senators.”
[Judge Napolitano's infamous Theodore & Woodrow, an enlightening read]
Judge Napolitano makes an important and intelligent point, if the States were to select Senators, wouldn’t that create a voice for the individual States? Wasn’t the entire point of the Senate an equalizer between States so that smaller states contained the same legislative power as a large state in at-least one house?
It’s interesting to ponder what would be different if the Seventeenth Amendment ratification of 1913 did not occur. Of course, it was the states themselves who with a 3/4 majority, ratified the amendment. But I wonder what the intentions of those officials in power was at that time, and if they truly held the intention to ensure freedom of their fellow citizens . I also wonder whether those who did have good intentions would ratify again and whether they knew what they were truly getting into.
If two of the three legislative arms are chosen by popular vote and by the same group of voters, where is the resistance or balance? If the same members of society directly choose the Senate and the House, why would the results differ in philosophy or intention? But if the people have incentive to pay attention to State government and elect legislature, and Legislature chooses the Senate, the Senate calls upon the more active members of differing political philosophies to participate. By asking for more effort, only those who have discovered their interest in one side or one opinion and researched it are encouraged to act.
This lack of State voice at the table of legislation is behind the movement to repeal the seventeenth amendment and likely behind the widespread increase in use of Nullification by the individuals within the United States, which is not a bad thing, but a sign that the individuals within the respective States are tired of federal tyranny, across the board, and that it is time for individuals to once again own their lives, for states to protect that sacred Liberty, and for the federal government to get out of the way.
Ahmed Serag
http://livingnotsurviving.com/2013/06/18/the-argument-to-repeal-the-seventeenth-amendment-of-the-constitution/
Should the 17th amendment be repealed?
By John. W. Dean
FindLaw Columnist
Special to CNN.com
Tuesday, September 24, 2002 Posted: 2:08 PM EDT (1808 GMT)
(FindLaw) -- Federalism, the allocation and balancing of power between state and federal government, has emerged as a central concern of the Supreme Court under Chief Justice William Rehnquist. Slowly, but steadily, the Rehnquist Court has been cutting back federal powers, and protecting state's rights.
Many have wondered what the court is doing. Why are the court's five conservatives -- the Chief Justice himself, along with associate justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas -- creating this new jurisprudence of federalism?
The answer is simple: they are seeking to fill a void in our constitutional structure, a problem created early in the 20th century. The problem began when, in the name of "democracy," we tinkered with the fundamental structure of the Constitution by adopting the 17th Amendment.
The amendment calls for direct election of U.S. Senators. It's a change that has in fact proved anything but democratic. And it is a change whose aftermath may haunt the 21st century.
Concerns about federalism, especially post-September 11
Divisions of power are rooted in our Constitution. Experience had taught the framers the dangers of concentrations of ruling authority, resulting in their ingenious template of checks and balances, with divisions and distributions of power.
Ultimate power in a democracy resides with the people. We are not a pure democracy, however, but rather a confederated republic (one that features, as well, county and local political subdivisions).
Thus, while there is national sovereignty, there is also state sovereignty. Power has been so divided and spread for one reason: to provide for and protect the highest sovereignty -- that of each individual citizen.
Only fools reject the wisdom of this founding principle of defusing power. Yet from the outset there has been debate regarding the appropriate allocation and balancing of these powers. The debate has focused on not only whether a particular matter should be dealt with at the state vs. the national level, but also on how these allocations are adjusted from time to time.
Of late, for example, along with laments for those who tragically lost their lives during the September 11 terrorist attack, there has been widespread concern with new realignments of federal/state powers that have followed in the name of homeland security.
Most significantly, as I discussed in a previous column, Washington is assuming powers that have only previously existed during a congressionally declared war.
Creating the United States Senate: The framers' bicameralism
In designing our constitutional system, the framers sought to remedy the limits of the Articles of Confederation, which created a loose association of states with little central power. The new system, they decided, ought to feature a better allocation of powers -- and the federal government should have the powers "necessary and proper" to perform its envisaged functions. The will of the people should be the foundation, and the foundational institution should be the law-making legislative branch.
Unsurprisingly, the revolutionaries were not very impressed with most aspects of the British model of government. They rejected parliamentary government, with its king or queen and three estates of the realm (lords spiritual, lords temporal, and the commons).
But one feature of the British system, the framers did borrow. That was bicameralism -- a word coined by Brit Jeremy Bentham to describe the division of the legislature into two chambers (or, in Latin, camera).
The British Parliament had its House of Lords as the upper chamber and the House of Commons as the lower chamber. Citizens selected members of the House of Commons. The members of the House of Lords, in contrast, were those who had been titled by a king or queen (lords temporal) and the archbishops and bishops of the Church of England (lords spiritual).
Loosely basing our bicameral legislature on this model (minus the lords, both temporal and spiritual), the framers created the House of Representatives as the lower chamber, whose members would be selected directly by the people. And with almost unanimous agreement, they determined that members of the upper chamber, the Senate, would be selected by the legislatures of the states. Each state would have two senators, while representatives would be apportioned based on population.
James Madison was not only involved in structuring the system, but was also a keeper of its contemporaneous record. He explained in Federalist No. 10 the reason for bicameralism: "Before taking effect, legislation would have to be ratified by two independent power sources: the people's representatives in the House and the state legislatures' agents in the Senate."
The need for two powers to concur would, in turn, thwart the influence of special interests, and by satisfying two very different constituencies, would assure the enactment was for the greatest public good. Madison summed up the concept nicely in Federalist No 51:
In republican government, the legislative authority, necessarily predominate. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions and their common dependencies on the society, will admit.
The system as designed by the framers was in place for a century and a quarter, from 1789 until 1913, when the 17th amendment was adopted. As originally designed, the framers' system both protected federalism and ensured that relatively few benefits would be provided to special interests.
The cloudy reasons behind the 17th amendment
There is no agreement on why the system of electing senators was changed through the enactment of the 17th Amendment. But there is widespread agreement that the change was to the detriment of the states, and that it played a large part in dramatically changing the role of the national government.
Before the 17th amendment the federal government remained stable and small. Following the amendment's adoption it has grown dramatically.
The conventional wisdom is that it was FDR's New Deal that radically increased the size and power of federal government. But scholars make a convincing case that this conventional wisdom is wrong, and that instead, it was the 17th amendment (along with the 16th Amendment, which created federal income tax and was also adopted in 1913) that was the driving force behind federal expansion.
The amendment took a long time to come. It was not until 1820 that a resolution was introduced in the House of Representatives to amend the Constitution to provide for direct elections of senators. And not until after the Civil War, in 1870, did calls for altering the system begin in earnest. But 43 years passed before the change was actually made.
This lengthy passage of time clouds the causes that provoked the amendment to be proposed and, finally, enacted. Nonetheless, scholars do have a number of theories to explain these developments.
George Mason University law professor Todd Zywicki has assembled an excellent analysis of the recent scholarship on the history of the 17th amendment, while also filling in its gaps. Zywicki finds, however, that received explanations are incomplete.
Two main 17th amendment theories don't hold water on examination
There have been two principal explanations for changing the Constitution to provide for direct election of senators. Some see the amendment as part of the Progressive movement, which swept the nation in the late 1800s and early 1900s, giving us direct elections, recall and referendums.
Others, however, believe the amendment resulted from the problems the prior constitutional system was creating in state legislatures, who under that system were charged with electing senators. These problems ranged from charges of bribery to unbreakable deadlocks.
Deadlocks happened from time to time when, because of party imbalance, a legislature was unable to muster a majority (as necessary under the 1866 law that controlled) in favor any person. The result was to leave the Senate seat empty and leave the state represented by only a single senator, not the constitutionally mandated two.
Professor Zywicki basically demolishes both these explanations. He contends, first, that explaining the 17th amendment as part of the Progressive movement is weak, at best. After all, nothing else from that movement (such as referendums and recalls) was adopted as part of the Constitution. He also points out that revisionist history indicates the Progressive movement was not driven as much by efforts to aid the less fortunate as once was thought (and as it claimed) -- so that direct democracy as an empowerment of the poor might not have been one of its true goals.
What about the "corruption and deadlock" explanation? Zywicki's analysis shows that, in fact, the corruption was nominal, and infrequent. In addition, he points out that the deadlock problem could have been easily solved by legislation that would have required only a plurality to elect a senator -- a far easier remedy than the burdensome process of amending the Constitution that led to the 17th Amendment.
Fortunately, Professor Zywicki offers an explanation for the amendment's enactment that makes much more sense. He contends that the true backers of the 17th amendment were special interests, which had had great difficultly influencing the system when state legislatures controlled the Senate. (Recall that it had been set up by the framers precisely to thwart them.) They hoped direct elections would increase their control, since they would let them appeal directly to the electorate, as well as provide their essential political fuel -- money.
This explanation troubles many. However, as Zywicki observes, "[a]though some might find this reality 'distasteful,' that does not make it any less accurate."
Should the 17th amendment be repealed?
Those unhappy with the Supreme Court's recent activism regarding federalism should consider joining those who believe the 17th amendment should be repealed. Rather than railing at life-tenured justices who are inevitably going to chart their own courses, critics should focus instead on something they can affect, however difficult a repeal might be.
Repeal of the amendment would restore both federalism and bicameralism. It would also have a dramatic and positive effect on campaign spending. Senate races are currently among the most expensive. But if state legislatures were the focus of campaigns, more candidates might get more access with less money -- decidedly a good thing.
Returning selection of senators to state legislatures might be a cause that could attract both modern progressive and conservatives. For conservatives, obviously, it would be a return to the system envisioned by the framers. For progressives -- who now must appreciate that direct elections have only enhanced the ability of special interests to influence the process -- returning to the diffusion of power inherent in federalism and bicameralism may seem an attractive alternative, or complement, to campaign finance reform.
Profession Zywicki likes this idea as well, but is probably right in finding repeal unlikely. He comments -- and I believe he's got it right -- "Absent a change of heart in the American populace and a better understanding of the beneficial role played by limitations on direct democracy, it is difficult to imagine a movement to repeal the 17th amendment."
John W. Dean, a FindLaw columnist, is a former Counsel to the President of the United States.
http://archives.cnn.com/2002/LAW/09/23/findlaw.analysis.dean.17th.amendm
FindLaw Columnist
Special to CNN.com
Tuesday, September 24, 2002 Posted: 2:08 PM EDT (1808 GMT)
(FindLaw) -- Federalism, the allocation and balancing of power between state and federal government, has emerged as a central concern of the Supreme Court under Chief Justice William Rehnquist. Slowly, but steadily, the Rehnquist Court has been cutting back federal powers, and protecting state's rights.
Many have wondered what the court is doing. Why are the court's five conservatives -- the Chief Justice himself, along with associate justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas -- creating this new jurisprudence of federalism?
The answer is simple: they are seeking to fill a void in our constitutional structure, a problem created early in the 20th century. The problem began when, in the name of "democracy," we tinkered with the fundamental structure of the Constitution by adopting the 17th Amendment.
The amendment calls for direct election of U.S. Senators. It's a change that has in fact proved anything but democratic. And it is a change whose aftermath may haunt the 21st century.
Concerns about federalism, especially post-September 11
Divisions of power are rooted in our Constitution. Experience had taught the framers the dangers of concentrations of ruling authority, resulting in their ingenious template of checks and balances, with divisions and distributions of power.
Ultimate power in a democracy resides with the people. We are not a pure democracy, however, but rather a confederated republic (one that features, as well, county and local political subdivisions).
Thus, while there is national sovereignty, there is also state sovereignty. Power has been so divided and spread for one reason: to provide for and protect the highest sovereignty -- that of each individual citizen.
Only fools reject the wisdom of this founding principle of defusing power. Yet from the outset there has been debate regarding the appropriate allocation and balancing of these powers. The debate has focused on not only whether a particular matter should be dealt with at the state vs. the national level, but also on how these allocations are adjusted from time to time.
Of late, for example, along with laments for those who tragically lost their lives during the September 11 terrorist attack, there has been widespread concern with new realignments of federal/state powers that have followed in the name of homeland security.
Most significantly, as I discussed in a previous column, Washington is assuming powers that have only previously existed during a congressionally declared war.
Creating the United States Senate: The framers' bicameralism
In designing our constitutional system, the framers sought to remedy the limits of the Articles of Confederation, which created a loose association of states with little central power. The new system, they decided, ought to feature a better allocation of powers -- and the federal government should have the powers "necessary and proper" to perform its envisaged functions. The will of the people should be the foundation, and the foundational institution should be the law-making legislative branch.
Unsurprisingly, the revolutionaries were not very impressed with most aspects of the British model of government. They rejected parliamentary government, with its king or queen and three estates of the realm (lords spiritual, lords temporal, and the commons).
But one feature of the British system, the framers did borrow. That was bicameralism -- a word coined by Brit Jeremy Bentham to describe the division of the legislature into two chambers (or, in Latin, camera).
The British Parliament had its House of Lords as the upper chamber and the House of Commons as the lower chamber. Citizens selected members of the House of Commons. The members of the House of Lords, in contrast, were those who had been titled by a king or queen (lords temporal) and the archbishops and bishops of the Church of England (lords spiritual).
Loosely basing our bicameral legislature on this model (minus the lords, both temporal and spiritual), the framers created the House of Representatives as the lower chamber, whose members would be selected directly by the people. And with almost unanimous agreement, they determined that members of the upper chamber, the Senate, would be selected by the legislatures of the states. Each state would have two senators, while representatives would be apportioned based on population.
James Madison was not only involved in structuring the system, but was also a keeper of its contemporaneous record. He explained in Federalist No. 10 the reason for bicameralism: "Before taking effect, legislation would have to be ratified by two independent power sources: the people's representatives in the House and the state legislatures' agents in the Senate."
The need for two powers to concur would, in turn, thwart the influence of special interests, and by satisfying two very different constituencies, would assure the enactment was for the greatest public good. Madison summed up the concept nicely in Federalist No 51:
In republican government, the legislative authority, necessarily predominate. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions and their common dependencies on the society, will admit.
The system as designed by the framers was in place for a century and a quarter, from 1789 until 1913, when the 17th amendment was adopted. As originally designed, the framers' system both protected federalism and ensured that relatively few benefits would be provided to special interests.
The cloudy reasons behind the 17th amendment
There is no agreement on why the system of electing senators was changed through the enactment of the 17th Amendment. But there is widespread agreement that the change was to the detriment of the states, and that it played a large part in dramatically changing the role of the national government.
Before the 17th amendment the federal government remained stable and small. Following the amendment's adoption it has grown dramatically.
The conventional wisdom is that it was FDR's New Deal that radically increased the size and power of federal government. But scholars make a convincing case that this conventional wisdom is wrong, and that instead, it was the 17th amendment (along with the 16th Amendment, which created federal income tax and was also adopted in 1913) that was the driving force behind federal expansion.
The amendment took a long time to come. It was not until 1820 that a resolution was introduced in the House of Representatives to amend the Constitution to provide for direct elections of senators. And not until after the Civil War, in 1870, did calls for altering the system begin in earnest. But 43 years passed before the change was actually made.
This lengthy passage of time clouds the causes that provoked the amendment to be proposed and, finally, enacted. Nonetheless, scholars do have a number of theories to explain these developments.
George Mason University law professor Todd Zywicki has assembled an excellent analysis of the recent scholarship on the history of the 17th amendment, while also filling in its gaps. Zywicki finds, however, that received explanations are incomplete.
Two main 17th amendment theories don't hold water on examination
There have been two principal explanations for changing the Constitution to provide for direct election of senators. Some see the amendment as part of the Progressive movement, which swept the nation in the late 1800s and early 1900s, giving us direct elections, recall and referendums.
Others, however, believe the amendment resulted from the problems the prior constitutional system was creating in state legislatures, who under that system were charged with electing senators. These problems ranged from charges of bribery to unbreakable deadlocks.
Deadlocks happened from time to time when, because of party imbalance, a legislature was unable to muster a majority (as necessary under the 1866 law that controlled) in favor any person. The result was to leave the Senate seat empty and leave the state represented by only a single senator, not the constitutionally mandated two.
Professor Zywicki basically demolishes both these explanations. He contends, first, that explaining the 17th amendment as part of the Progressive movement is weak, at best. After all, nothing else from that movement (such as referendums and recalls) was adopted as part of the Constitution. He also points out that revisionist history indicates the Progressive movement was not driven as much by efforts to aid the less fortunate as once was thought (and as it claimed) -- so that direct democracy as an empowerment of the poor might not have been one of its true goals.
What about the "corruption and deadlock" explanation? Zywicki's analysis shows that, in fact, the corruption was nominal, and infrequent. In addition, he points out that the deadlock problem could have been easily solved by legislation that would have required only a plurality to elect a senator -- a far easier remedy than the burdensome process of amending the Constitution that led to the 17th Amendment.
Fortunately, Professor Zywicki offers an explanation for the amendment's enactment that makes much more sense. He contends that the true backers of the 17th amendment were special interests, which had had great difficultly influencing the system when state legislatures controlled the Senate. (Recall that it had been set up by the framers precisely to thwart them.) They hoped direct elections would increase their control, since they would let them appeal directly to the electorate, as well as provide their essential political fuel -- money.
This explanation troubles many. However, as Zywicki observes, "[a]though some might find this reality 'distasteful,' that does not make it any less accurate."
Should the 17th amendment be repealed?
Those unhappy with the Supreme Court's recent activism regarding federalism should consider joining those who believe the 17th amendment should be repealed. Rather than railing at life-tenured justices who are inevitably going to chart their own courses, critics should focus instead on something they can affect, however difficult a repeal might be.
Repeal of the amendment would restore both federalism and bicameralism. It would also have a dramatic and positive effect on campaign spending. Senate races are currently among the most expensive. But if state legislatures were the focus of campaigns, more candidates might get more access with less money -- decidedly a good thing.
Returning selection of senators to state legislatures might be a cause that could attract both modern progressive and conservatives. For conservatives, obviously, it would be a return to the system envisioned by the framers. For progressives -- who now must appreciate that direct elections have only enhanced the ability of special interests to influence the process -- returning to the diffusion of power inherent in federalism and bicameralism may seem an attractive alternative, or complement, to campaign finance reform.
Profession Zywicki likes this idea as well, but is probably right in finding repeal unlikely. He comments -- and I believe he's got it right -- "Absent a change of heart in the American populace and a better understanding of the beneficial role played by limitations on direct democracy, it is difficult to imagine a movement to repeal the 17th amendment."
John W. Dean, a FindLaw columnist, is a former Counsel to the President of the United States.
http://archives.cnn.com/2002/LAW/09/23/findlaw.analysis.dean.17th.amendm
The Constitutional Convention Did Not Exceed Its Power and the Constitution is not “Unconstitutional”
June 2, 2013 by Rob Natelson
Judging by recent claims in the media such as this one, there is still a lot of life in the old tale (dating back to the Anti-Federalists) that the 1787 federal convention “ran away” and that the Constitution was unconstitutionally adopted.
I’ve dealt with both claims in this column occasionally (see, e.g., here and here), but maybe now is a good time to present a more complete correction of the record.
To get at the the truth you have to know about the laws and practices then applying to interstate conventions, and the procedure leading up to the 1787 gathering. Although the Anti-Federalists were right about certain things (some of their political predictions were brilliant), by and large the law was not their strong point. So their claims that the convention delegates exceeded their powers were partly the result of legal ignorance. They also may have hoped to convince themselves and the public that they had successfully done something they actually had failed to do. Explanation below.
For various reasons, many later writers have accepted the Anti-Federalist charge. This is because most people who write about the Founding may be either historians or lawyers, but they are seldom both. And even the few who are both historians and lawyers have rarely studied 18th century law and convention practice—yours truly modestly excepted.
The usual (false) narrative goes like this:
“The Confederation Congress called the convention and limited its power to proposing amendments to the Articles of Confederation. The Convention disregarded the limit, and drafted an entirely new document. The Articles provided that they could be changed only by unanimous consent among the states. But the convention illegally disregarded that, and allowed ratification of the Constitution by only nine states.”
Here are the facts:
* Before and during the Founding Era, there were many interstate conventions, and most of them were called by individual colonies and states. The call or invitation set the outer limits of the topic, and the powers of individual colony or state “committees” (delegations) were fixed by documents called “commissions” issued by each state to its “commissioners” (delegates).
* Congress did not call the Constitutional Convention. It was called by Virginia and, secondarily, by New Jersey in November 1786 in response to the recommendation of the Annapolis Convention the previous September. These calls provided for the convention to propose changes in the “federal constitution” without limiting the gathering to amendments to the Articles. The unanimousauthority of 18th century dictionaries tells us that “constitution” in this context meant the entire political system, not merely the Articles as such.
* Congress didn’t get around to considering the matter until late February of the following year. By then, seven of the 13 states had agreed to participate and broadly empowered their commissioners (delegates) to consider changes in the political system.
* Congress had no legal power to affect that effort, but a congressional committee did recommend that Congress endorse it. Congressional delegates from New York, where Anti-Federalist sentiment was strong, were instructed to try to stop it. They moved that Congress “recommend” that the convention be limited only to amending the Articles. Congress defeated the New York motion.
* The congressional delegates from Massachusetts then proposed a compromise. They watered down the New York motion to state only that “in the opinion of Congress it is expedient” that the convention be so limited. In this form it passed.
* But this “opinion” had no—repeat, no—legal force.
* The New York and Massachusetts efforts made sense only on the assumption that the seven states that already had empowered their delegates were giving them authority well beyond that of proposing amendments to the Articles.
* New York and Massachusetts later agreed to participate in the Constitutional Convention, but limited their commissioners to proposing amendments to the Articles.
* All the other states ignored them. The original seven continued to give their commissioners authority to recommend an entirely new system. Three more states decided to participate, and they also followed the original, broad formula.
* Thus, in Philadelphia, only the seven commissioners from New York and Massachusetts lacked power to propose a new form of government. Of the seven, three signed the Constitution, one in an individual capacity (Hamilton). Of the 55 delegates, therefore, only Nathaniel Gorham and Rufus King of Massachusetts arguably exceeded their authority by signing.
* There was nothing otherwise illegal about proposing a new system. Interstate conventions were considered meetings under international law. The Articles of Confederation were essentially a treaty among sovereign states. (The word “confederation” was based on the Latin word for treaty: foedus.) In other words, the role of the Confederation Congress was much like the role of the UN among sovereign nations today.
* Signatories of treaties always have the power to reconsider the terms of their connections, even if their coordinating agent (such as the UN or the Confederation Congress) objects.
* The Convention was not held under the Articles; it was by agreement of participating states outside the Articles. The Articles did not control the proceedings, either legally or practically.
* The Declaration of Independence explicitly presented Americans to the world as “one people”—not as 13 different peoples. It is true that this “one people” initially operated through 13 separate governments. But this is by no means unusual in world history, where single “peoples” often have been ruled by multiple governments. Good Founding-Era examples were the political fragmentation of the German people and of the Italian people. Good modern examples are Korea, Ireland, and the Arabian peninsula.
* Under the political theory of the Founding Era, the people were the “principals” and public officials their “agents.” Although the American people had granted governmental power to disconnected sets of agents, they also had the right to change that arrangement. (See the Declaration of Independence.) Legally, a principal could (and still may) revoke and alter his agent’s authority at any time, and entrust all or part of that authority to others.
* Put another way, the American people could revisit the treaty obligations their agents had contracted on their behalf. The 1787 convention suggested that the people do just that—by taking some of the power heretofore exercised by state officials and the Confederation Congress and entrusting it to new federal officials. This was why James Madison said on the Convention floor that “he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.”
* The ratification procedure was crafted so that the Constitution would never come until effect unless it represented the will of a majority of the American electorate. The Framers did this in two ways: (1) Ratification or rejection would come not from state politicians, but from conventions directly elected by the voters for the sole purpose of considering the Constitution, and (2) the Constitution would not go into effect unless conventions in nine states agreed.
* Why nine states? Because as the Constitution’s initial allocation of the new House of Representatives showed (Art.I, Sec. 2, Cl. 3), the Framers believed that any and all combinations of nine states would comprise a majority of American citizens. Even if the four most populous states all refused to ratify, the remaining nine still would represent a majority of the electorate. Moreover, as a matter of political reality, the Constitution would not go into effect unless some large states—particularly Pennsylvania and Virginia—were among the nine.
* Ultimately, of course, all 13 states ratified, satisfying even those who claimed the Articles governed.
So relax: The Founders were honorable men, and the Constitution is constitutional.
http://constitution.i2i.org/2013/06/02/the-constitutional-convention-did-not-exceed-its-power-and-the-constitution-is-not-%E2%80%9Cunconstitutional%E2%80%9D/
Judging by recent claims in the media such as this one, there is still a lot of life in the old tale (dating back to the Anti-Federalists) that the 1787 federal convention “ran away” and that the Constitution was unconstitutionally adopted.
I’ve dealt with both claims in this column occasionally (see, e.g., here and here), but maybe now is a good time to present a more complete correction of the record.
To get at the the truth you have to know about the laws and practices then applying to interstate conventions, and the procedure leading up to the 1787 gathering. Although the Anti-Federalists were right about certain things (some of their political predictions were brilliant), by and large the law was not their strong point. So their claims that the convention delegates exceeded their powers were partly the result of legal ignorance. They also may have hoped to convince themselves and the public that they had successfully done something they actually had failed to do. Explanation below.
For various reasons, many later writers have accepted the Anti-Federalist charge. This is because most people who write about the Founding may be either historians or lawyers, but they are seldom both. And even the few who are both historians and lawyers have rarely studied 18th century law and convention practice—yours truly modestly excepted.
The usual (false) narrative goes like this:
“The Confederation Congress called the convention and limited its power to proposing amendments to the Articles of Confederation. The Convention disregarded the limit, and drafted an entirely new document. The Articles provided that they could be changed only by unanimous consent among the states. But the convention illegally disregarded that, and allowed ratification of the Constitution by only nine states.”
Here are the facts:
* Before and during the Founding Era, there were many interstate conventions, and most of them were called by individual colonies and states. The call or invitation set the outer limits of the topic, and the powers of individual colony or state “committees” (delegations) were fixed by documents called “commissions” issued by each state to its “commissioners” (delegates).
* Congress did not call the Constitutional Convention. It was called by Virginia and, secondarily, by New Jersey in November 1786 in response to the recommendation of the Annapolis Convention the previous September. These calls provided for the convention to propose changes in the “federal constitution” without limiting the gathering to amendments to the Articles. The unanimousauthority of 18th century dictionaries tells us that “constitution” in this context meant the entire political system, not merely the Articles as such.
* Congress didn’t get around to considering the matter until late February of the following year. By then, seven of the 13 states had agreed to participate and broadly empowered their commissioners (delegates) to consider changes in the political system.
* Congress had no legal power to affect that effort, but a congressional committee did recommend that Congress endorse it. Congressional delegates from New York, where Anti-Federalist sentiment was strong, were instructed to try to stop it. They moved that Congress “recommend” that the convention be limited only to amending the Articles. Congress defeated the New York motion.
* The congressional delegates from Massachusetts then proposed a compromise. They watered down the New York motion to state only that “in the opinion of Congress it is expedient” that the convention be so limited. In this form it passed.
* But this “opinion” had no—repeat, no—legal force.
* The New York and Massachusetts efforts made sense only on the assumption that the seven states that already had empowered their delegates were giving them authority well beyond that of proposing amendments to the Articles.
* New York and Massachusetts later agreed to participate in the Constitutional Convention, but limited their commissioners to proposing amendments to the Articles.
* All the other states ignored them. The original seven continued to give their commissioners authority to recommend an entirely new system. Three more states decided to participate, and they also followed the original, broad formula.
* Thus, in Philadelphia, only the seven commissioners from New York and Massachusetts lacked power to propose a new form of government. Of the seven, three signed the Constitution, one in an individual capacity (Hamilton). Of the 55 delegates, therefore, only Nathaniel Gorham and Rufus King of Massachusetts arguably exceeded their authority by signing.
* There was nothing otherwise illegal about proposing a new system. Interstate conventions were considered meetings under international law. The Articles of Confederation were essentially a treaty among sovereign states. (The word “confederation” was based on the Latin word for treaty: foedus.) In other words, the role of the Confederation Congress was much like the role of the UN among sovereign nations today.
* Signatories of treaties always have the power to reconsider the terms of their connections, even if their coordinating agent (such as the UN or the Confederation Congress) objects.
* The Convention was not held under the Articles; it was by agreement of participating states outside the Articles. The Articles did not control the proceedings, either legally or practically.
* The Declaration of Independence explicitly presented Americans to the world as “one people”—not as 13 different peoples. It is true that this “one people” initially operated through 13 separate governments. But this is by no means unusual in world history, where single “peoples” often have been ruled by multiple governments. Good Founding-Era examples were the political fragmentation of the German people and of the Italian people. Good modern examples are Korea, Ireland, and the Arabian peninsula.
* Under the political theory of the Founding Era, the people were the “principals” and public officials their “agents.” Although the American people had granted governmental power to disconnected sets of agents, they also had the right to change that arrangement. (See the Declaration of Independence.) Legally, a principal could (and still may) revoke and alter his agent’s authority at any time, and entrust all or part of that authority to others.
* Put another way, the American people could revisit the treaty obligations their agents had contracted on their behalf. The 1787 convention suggested that the people do just that—by taking some of the power heretofore exercised by state officials and the Confederation Congress and entrusting it to new federal officials. This was why James Madison said on the Convention floor that “he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.”
* The ratification procedure was crafted so that the Constitution would never come until effect unless it represented the will of a majority of the American electorate. The Framers did this in two ways: (1) Ratification or rejection would come not from state politicians, but from conventions directly elected by the voters for the sole purpose of considering the Constitution, and (2) the Constitution would not go into effect unless conventions in nine states agreed.
* Why nine states? Because as the Constitution’s initial allocation of the new House of Representatives showed (Art.I, Sec. 2, Cl. 3), the Framers believed that any and all combinations of nine states would comprise a majority of American citizens. Even if the four most populous states all refused to ratify, the remaining nine still would represent a majority of the electorate. Moreover, as a matter of political reality, the Constitution would not go into effect unless some large states—particularly Pennsylvania and Virginia—were among the nine.
* Ultimately, of course, all 13 states ratified, satisfying even those who claimed the Articles governed.
So relax: The Founders were honorable men, and the Constitution is constitutional.
http://constitution.i2i.org/2013/06/02/the-constitutional-convention-did-not-exceed-its-power-and-the-constitution-is-not-%E2%80%9Cunconstitutional%E2%80%9D/
Why We Must Act Now To Use the Constitution’s Amendment Process to Restore Fiscal Sanity
April 27, 2013 by Rob Natelson
Following is an address I gave in Orlando Florida on April 26, 2013 on the need to use the Constitution’s Convention-Amendment Process to rein in Congress:
My initial background was in the private sector, but I served many years in academia. I spent much of that time teaching constitutional law and constitutional history to aspiring lawyers. Four years ago, when I was still on a law school faculty, I was looking for a new topic to write on, and turned my attention to the Constitution’s amendment process. I have to admit to you that back then I didn’t know any more about Article V than most constitutional law professors do—which is to say, not much. For some reason, Article V is not typically taught in law school curricula. I also found that there hadn’t been much scholarly writing on the subject. And as often happens in constitutional law, most of the writing that had been published really wasn’t very good. By that I mean it was incompletely researched, or it was driven by the author’s personal agenda—and usually both.
When I left academia and came to the Independence Institute full time, a person who served as a mentor was one of those elderly, gracious ladies whose wisdom extends to just about everything and everyone. She used to say that our biggest problem usually isn’t what we don’t know. Our biggest problem, she said, is all the things we know, but that just aren’t so.
When I started my research on Article V, I knew a lot about the subject that just wasn’t so. For example, I thought that a convention for proposing amendments is a “constitutional convention.” I thought that it was uncontrollable. I was wrong.
My research opened my eyes to a part of the Constitution and to a part of American history that was entirely new to me. As it turned out, it was entirely new to a lot of other people who read my work, including other constitutional scholars, some of whom are now building on my research and learning even more new things. Later, I’ll mention some what we’ve learned. But first let’s look at what really brings us together this evening.
America is in trouble. Perhaps the biggest peacetime trouble she has been in since our country was founded. And for perhaps the very first time since the Civil War, the very idea of America—the fundamental concept of America—is in trouble.
The fundamental concept behind America of course, is that all people are endowed by nature and by nature’s God with rights to life, liberty, and the pursuit of happiness, and that to secure those rights, governments are instituted among men, deriving their just powers from the consent of the governed. Adherence to that simple idea freed Americans to propel this country to a level never before seen.
America’s truly explosive rise occurred during our first 150 years—the period beginning with our Founding and continuing until the time when the federal government’s mistakes helped cause, and prolong, the Great Depression of the 1930s. We began that period as a ramshackle country on the outer edges of civilization. We ended it as the greatest nation in the world. This was the time when motorized transportation and instant communication were invented and perfected, mostly in America. It was when we learned to harness electricity. It was when we developed modern medicine, and a hundred thousand devices to make life easier. It was also when we freed the slaves and brought about the emancipation of women.
Our progress since the Great Depression has been considerable, but much of that progress represents momentum from our first 150 years. If you doubt this, think of the extent to which modern Internet and computer technology rests on a single 19th century accomplishment: the taming of electricity.
Why was America so successful? Because between the time from the Founding and the Great Depression most Americans enjoyed a degree of economic liberty that is almost unimaginable today. As historian Samuel Eliot Morison has observed, in most facets of life, government—especially the federal government—was almost invisible. Government peacetime spending averaged around 5% of the economy, compared with 40% now.
Americans enjoyed far more freedom from government taxes, regulation, and control. They enjoyed almost unrestrained freedom to innovate, earn a living, run a business, hire workers, take a job, join or not join a union, keep their own pay, form contracts on their own terms, keep and bear arms, open schools, build charities, and worship and speak as they pleased. They could do all these things without worrying about what the government might do to them—like my friend in Libby, Montana who was almost driven out of business by the EPA, which for political reasons persecuted him for years over a small drain that wasn’t even polluting anything. Or like me, when I had employees and received almost simultaneously from the unemployment insurance authorities a letter demanding that I immediately pay up a $30 deficiency, and another letter telling me I’d overpaid by $30.
America became great during a period when people simply didn’t have to deal with this sort of aggravation and expense. If you needed to start climbing the economic ladder, you could go to any local business and get a job with just a handshake. No intrusive paperwork. No social security numbers. No payroll withholding. Just a few state or local regulations to protect life and health. If the boss liked your work, he could keep you on without worrying about whether you were the 50th employee who would trigger the Obamacare health insurance mandates or just the 49th employee, who would not. You didn’t need health insurance anyway, because despite the limited technology and the fact that doctors still made house calls, medical care was far less expensive then. And if you had a catastrophic illness, there was a vast web of local relief agencies, mutual benefit societies, family networks, and private charities to help you out. If your boss couldn’t keep you on, well, you could freely move to another job that might be better.
Or you could go into business for yourself, without the government imposing insurmountable fees and barriers to your doing so. You could buy and own land without suffering the kind of official harassment now inflicted on so many landowners. You could keep almost everything you earned for the support and enjoyment of yourself and your family. Maybe become rich. Those times were empowering, exhilarating, exciting beyond belief.
And unlike today, young Americans could actually get jobs. They didn’t have to live in their parents’ basements leeching off daddy’s savings. They could earn their own way . . . start saving money in sound, uninflated, gold coin. . . raise their own families on their own resources. . . and build their own careers.
The politically-correct text books tell you that America’s success was the result of natural resources, ethnic diversity, government programs, and the oppression of minorities. This is largely balderdash. It is true that some minorities were much less free than the majority. It is also true that we have great natural resources and ethnic diversity. But those were not the fundamental reasons for America’s success. Because those things were true of many other countries as well—countries like Russia, Brazil, China, and India that, unlike America, remained backward and poor. What made the critical difference for America was freedom under law.
Freedom under law became compromised, though, when the federal government used the excuse of the Great Depression to break down constitutional limitations and greatly expand its reach. By 1960, just a few decades after the Depression ended, government was absorbing 25% of what had once been a free economy. Today, as I mentioned, it is absorbing nearly 45%.
A government founded to protect liberty has become an instrument for destroying liberty. A government founded to enable all to pursue happiness has become an instrument of envy, theft, and greed. To a great extent our economy has changed from one driven by people aspiring to greatness to one dominated by the scramble for political favors.
Most of us here this evening are among those who understand the problem. For the past few decades, we have tried to cure it. We have sponsored programs of civic education. We have worked to elect good people to office. We have attempted to reclaim the Tenth Amendment. Sometimes we have gone to court. And we have had a few real successes.
But the few successes should not obscure one glaring truth: Over the long haul, we continue to lose the fundamental concept of America. Twenty years ago when Bill Clinton was President the situation was worse than it had been 20 years before that. Today it is so much worse than when Bill Clinton was President that conservatives have begun to think of Hillary Clinton, of all people, as a more reasonable alternative to President Obama.
In my view, we are losing because we have tied ourselves to a handful of losing tactics. We have become comfortable fighting losing battles.
But if our goal is not merely to feel comfortable—if our goal is to win back for ourselves and our children that which has been slipping away—then we have to stop limiting ourselves to the things that don’t work, and start doing things that will work.
Let me give you a sobering historical example that may cast some light on what is in store for us if we do not adopt a new approach. More than 2000 years before our Constitution was written, another people located on what was then the outer edge of civilization established a free republic. They were only a small town in those days, but they were destined to become the greatest people in the world. Our own Founders looked to them for inspiration. Their system was based on principles of stoic virtue, respect for tradition, political accountability, military valor, and—to an extent unusual in the ancient world—human freedom. The Roman Republic lasted for 500 years, and its record still stands as the longest-lived major republic in the history of the planet.
Roman civilization eventually expanded throughout the Mediterranean World. Colonies of Roman citizens were established from Asia to Spain.
Roman leaders faced the challenge of making this extended state work while preserving the essence of the Roman constitution. One way they might have done so would have been to replace their system of lawmaking by the urban mob with an assembly of representatives from citizens throughout the Roman world. But they did not make those changes. And slowly, over a period of nearly a century, their constitution deteriorated. Great statesmen like Marcus Cicero were aware of what was happening. But they failed to arrest the decline.
They failed to arrest the decline because they tried to do so mostly by hitting the reset button until it wore out. In other words, they repeated over and over the same tactics that had failed before. Rome could have survived as a free government if its statesmen had shown more vision. But they did not.
When a system is wearing out, time is always limited. And so it happened that, for the Roman Republic, time to make the necessary changes did eventually run out. When elected Roman leaders failed to make the decisions necessary to preserve liberty, the decision was taken away from them. It was taken away by Julius Caesar and by his grand-nephew Augustus, who appropriated the state to their own purposes. For Romans, free government was gone forever.
But nothing was inevitable about this. Rome could have preserved its free constitution by making the changes necessary to keep it healthy while there was still time.
We Americans must not repeat their mistake. We must make the changes necessary to preserve freedom while there still is time.
Fortunately, we have the tools right at hand. They are our inheritance as Americans. Our Founders bequeathed them to us. They are lying right here, in Article V of our own Constitution. They are still fresh and new, and ready to use.
Article V is the Constitution’s provision for amendment. Today we think of constitutional amendment mostly as a way of responding to new conditions. The Founders recognized that purpose, but they also saw amendment as a way to prevent and correct government abuses.
Because the Framers recognized that the federal government might abuse its power, in their early drafts of the Constitution all amendments would come solely from a convention of the states. It was only when Alexander Hamilton pointed out that Congress might have good amendment ideas as well, that the Framers decided to give Congress, as well as the states, power to propose amendments. But to prevent an abusive Congress from obstructing needed changes, the states also retained their authority to propose. Their vehicle for doing so was what the Constitution calls a “convention for proposing amendments.”
So what is this “convention for proposing amendments?” That was one of those things I thought I knew four years ago, but what I knew wasn’t so.
The answer to the question comes from a great tradition of American interstate conventions, and from the experiences during the 224 years since the Founding.
When the delegates to the Constitutional Convention met in Philadelphia in 1787, it was only the latest in a very long series of diplomatic meetings among the different colonies and states. These meetings were called conventions. In the century before the Constitution was written, colonies and states met in convention on average of once every 40 months. They addressed subjects like Indian relations, foreign relations, common defense, currency inflation, and interstate trade. They met in Albany, New York in 1754. . . in New York City in 1765 . . . in Philadelphia in 1774, 1780, and 1787 . . . in York Town, Pennsylvania in 1777 . . . in Hartford, Connecticut in 1779 and 1780 . . .in Providence, Rhode Island in 1777 and 1781 . . . in Boston, Massachusetts in 1780. . .and in Annapolis, Maryland in 1786. And that list represents less than half of the conventions held.
After the Constitution was adopted, there were fewer interstate conventions, since the U.S. Senate served as a place where states could meet. Yet the American convention tradition continued. For example, there was an interstate gathering in Nashville, Tennessee in 1850 and a convention of 26 states in Washington, D.C., in 1861.
Each of these conventions was given a specific task or tasks to perform. Each had to remain within its prescribed limits, and not stray into other areas. This was true also of the 1787 Constitutional Convention. I mention this because there is an old myth that the Constitutional Convention was called only to amend the Articles of Confederation, but that it ignored its prescribed limits. But this old myth is just that—a myth—another thing I once thought I knew, but didn’t. . . .
Besides this great convention tradition, our understanding of Article V is informed by 224 years of experience and by important decisions from the United States Supreme Court and other arms of the judiciary. Here is one example: You may have heard the claim that a convention is sovereign and, despite limits on its authority it can do anything it likes. But we already have court cases showing us that that is not true. In fact, actions outside a convention’s legal instructions are void.
In the same way, some people persist in claiming that the convention for proposing amendments is a “constitutional convention.” By using that phrase, they display a lack of knowledge about the American tradition of gatherings among the states. In our history, we have had at least 31 conventions among the colonies and states, and only one has been a constitutional convention. Thirty have not been, and a convention for proposing amendments is not one, either.
In his recent decision for the U.S. Supreme Court rejecting the Medicaid mandates in Obamacare, Chief Justice Roberts famously said, “The states are separate and independent sovereigns. Sometimes they have to act like it.” Article V gives them a chance to act like it.
When a state legislature thinks an amendment might be a good idea, it sends a resolution to Congress, and if two thirds of the legislatures send resolutions for the same kind of amendment, then under the Constitution, Congress must call an interstate convention on that topic.
This interstate convention is essentially a diplomatic task force among representatives of the state legislatures acting as sovereign entities. At the designated time, each legislature sends a delegation (it’s called a “committee”) of delegates (they’re called “commissioners”) to the designated place. These committees of commissioners decide whether to propose amendments, and, if so, they draft the language. The convention adopts its own rules, and elects its own officers. Because sovereignties are inherently equal, each state committee has one vote. And as its name suggests, a “convention for proposing amendments” has power only to propose, not to ratify. Any proposal becomes part of the Constitution only if 38 states ratify it.
Now I’d like to remind you of a point I made earlier: The Founders added the convention for proposing amendments to the Constitution precisely to correct the federal government if it ever became dysfunctional. They predicted that if Congress got out of line, Congress probably would not propose amendments to correct itself. And their prediction was on target. Because in the 224 years since Congress proposed the Bill of Rights, it has never—with the minor exception of repealing Prohibition—has never proposed an amendment that reduces its own power. It has passed several amendments increasing its own power, but not reducing it.
Now—imagine that James Madison and John Dickinson were here in this room today. Suppose we told them that the federal government had far exceeded its constitutional authority. That Congress had become an auction-house for special interests. That Congress had run up a huge debt because 45 times in the last 50 years it had refused to even balance its own budget. That federal politicians had created a dependent class of citizens whom the politicians could manipulate for their own purposes. In other words, suppose we admitted to James Madison and John Dickinson that the federal government had re-created the very situation the British government tried to foist on the colonies in the 1770s, and that their generation had fought the American Revolution to prevent.
When we told them all this, no doubt James and John would ask us a very natural question. They’d ask if we had tried to correct the problem through the state-driven process in Article V. And when we sheepishly admitted that, no, we had not—that we had been deterred by ignorance and by the hysteria of alarmists and cranks—then what would these Founders say?
They would tell us that the whole mess was our own darn fault.
And they would be right.
It has been our own fault. But because we have been at fault, it does not mean we must stay at fault. The time to correct the situation is now!
If we want to save America. . . if we want to save the fundamental concept of America—then I suggest we act on five principles. Those principles are Vision, Unity, Determination, Legality, and Organization. Together, they add up to Victory!
First: Vision. We must have a clear idea of the kind of America we want to have. One where individual rights are respected. An America where people understand the difference between rights, to which you are entitled, and government largess, to which you are not. An America of limited government, personal responsibility, and self-reliance—an America prosperous and free.
Unity. Many of us have different ideas about how to use the Article V tools our Founders bequeathed to us. That discussion is normal and very healthy. We also must remember, however, that we are all on the same side.
Determination. Like the Founders, we must be willing to commit our lives, fortunes, and sacred honor. Many in this room have already done so.
You see, it requires determination to accomplish any real political change. The world recently lost a very great woman who showed what determination can do. It will take determination to overcome those well-intentioned but misguided souls who fear the cure our Founders gave us more than they fear our descent into national destruction. But once we get past them, we’ll need even more determination to overcome the power-brokers in national politics, the media, and academia.
Those people control much of the high ground in American power politics. But just as the late Margaret Hilda Thatcher overcame similar forces in Britain, largely by the force of sheer determination, so also will we overcome them in America.
Legality. If we keep our activities strictly legal, this will not prevent us from being vilified in the media by the most unfair sort of slander. The history of the Tea Party proves that. But if we keep our activities strictly legal, it will help us prevent failure and achieve victory.
Those with vested interests in the status quo have plenty of money for lawsuits. If we do not follow legal procedures, those lawsuits will undo all our hard work. The experience of the Term Limits movement is instructive in this regard. In the 1980s and 1990s, advocates for term limits tried to use Article V, but they violated the Article V rules as the courts had applied them. Their opponents sued, and the term-limits supporters lost in the courtroom many of the battles they had won in the political process.
Make no mistake: Once this campaign starts to succeed, we will be sued. So don’t give the opposition any reasonable way they can win their lawsuits.
Vision, Unity, Determination, Legality—and finally, Organization. To win, we need grass roots support and financial help in every state. In other words, we need your help—your help, the help of your state lawmakers, and of financial contributors, and of your friends and neighbors. The campaign to save America will succeed only if it is a mass movement, in which all understand that our future and the hopes of our children and grandchildren are at stake.
Like the Romans who tried to save their republic, but did too many ineffectual things for too long, until they lost their freedom entirely, we do not have unlimited time. Eventually, of course, our country will go bankrupt. But there is another deadline, too. If we do not apply Article V correctly and for good ends, then we will see it used by others incorrectly, and for bad ends. Many people of influence in academia and politics, are beginning to speak of their own version of Article V—one where they really do have a new “constitutional convention”—which they use to grow government further, and further curtail our liberties. To prevent being pre-empted by those people, we must move, and do so now.
Fortunately, the moment is promising. The American people understand the debt problem and they properly blame Congress. Most state legislatures are controlled by majorities who also understand the problem. Encourage those lawmakers to apply for a convention to address our national fiscal crisis. Contribute to groups working to restrain federal deficits through Article V. Set up websites. Talk to your friends—both your Facebook friends and your real friends—and support state legislators who understand the problem.
This is more than a fiscal issue, more than an issue of current politics. It is a long-term issue with moral and historical overtones. It is the question of whether the fundamental concept of America can endure. It is also a question of how those who come after us will live, and how those of us alive today will fare in the history books they write.
May they say of our generation that we labored rightly in a just cause, and in so doing we rose to greatness.
http://constitution.i2i.org/2013/04/27/why-we-must-act-now-to-use-the-constitutions-amendment-process-to-restore-fiscal-sanity/
Following is an address I gave in Orlando Florida on April 26, 2013 on the need to use the Constitution’s Convention-Amendment Process to rein in Congress:
My initial background was in the private sector, but I served many years in academia. I spent much of that time teaching constitutional law and constitutional history to aspiring lawyers. Four years ago, when I was still on a law school faculty, I was looking for a new topic to write on, and turned my attention to the Constitution’s amendment process. I have to admit to you that back then I didn’t know any more about Article V than most constitutional law professors do—which is to say, not much. For some reason, Article V is not typically taught in law school curricula. I also found that there hadn’t been much scholarly writing on the subject. And as often happens in constitutional law, most of the writing that had been published really wasn’t very good. By that I mean it was incompletely researched, or it was driven by the author’s personal agenda—and usually both.
When I left academia and came to the Independence Institute full time, a person who served as a mentor was one of those elderly, gracious ladies whose wisdom extends to just about everything and everyone. She used to say that our biggest problem usually isn’t what we don’t know. Our biggest problem, she said, is all the things we know, but that just aren’t so.
When I started my research on Article V, I knew a lot about the subject that just wasn’t so. For example, I thought that a convention for proposing amendments is a “constitutional convention.” I thought that it was uncontrollable. I was wrong.
My research opened my eyes to a part of the Constitution and to a part of American history that was entirely new to me. As it turned out, it was entirely new to a lot of other people who read my work, including other constitutional scholars, some of whom are now building on my research and learning even more new things. Later, I’ll mention some what we’ve learned. But first let’s look at what really brings us together this evening.
America is in trouble. Perhaps the biggest peacetime trouble she has been in since our country was founded. And for perhaps the very first time since the Civil War, the very idea of America—the fundamental concept of America—is in trouble.
The fundamental concept behind America of course, is that all people are endowed by nature and by nature’s God with rights to life, liberty, and the pursuit of happiness, and that to secure those rights, governments are instituted among men, deriving their just powers from the consent of the governed. Adherence to that simple idea freed Americans to propel this country to a level never before seen.
America’s truly explosive rise occurred during our first 150 years—the period beginning with our Founding and continuing until the time when the federal government’s mistakes helped cause, and prolong, the Great Depression of the 1930s. We began that period as a ramshackle country on the outer edges of civilization. We ended it as the greatest nation in the world. This was the time when motorized transportation and instant communication were invented and perfected, mostly in America. It was when we learned to harness electricity. It was when we developed modern medicine, and a hundred thousand devices to make life easier. It was also when we freed the slaves and brought about the emancipation of women.
Our progress since the Great Depression has been considerable, but much of that progress represents momentum from our first 150 years. If you doubt this, think of the extent to which modern Internet and computer technology rests on a single 19th century accomplishment: the taming of electricity.
Why was America so successful? Because between the time from the Founding and the Great Depression most Americans enjoyed a degree of economic liberty that is almost unimaginable today. As historian Samuel Eliot Morison has observed, in most facets of life, government—especially the federal government—was almost invisible. Government peacetime spending averaged around 5% of the economy, compared with 40% now.
Americans enjoyed far more freedom from government taxes, regulation, and control. They enjoyed almost unrestrained freedom to innovate, earn a living, run a business, hire workers, take a job, join or not join a union, keep their own pay, form contracts on their own terms, keep and bear arms, open schools, build charities, and worship and speak as they pleased. They could do all these things without worrying about what the government might do to them—like my friend in Libby, Montana who was almost driven out of business by the EPA, which for political reasons persecuted him for years over a small drain that wasn’t even polluting anything. Or like me, when I had employees and received almost simultaneously from the unemployment insurance authorities a letter demanding that I immediately pay up a $30 deficiency, and another letter telling me I’d overpaid by $30.
America became great during a period when people simply didn’t have to deal with this sort of aggravation and expense. If you needed to start climbing the economic ladder, you could go to any local business and get a job with just a handshake. No intrusive paperwork. No social security numbers. No payroll withholding. Just a few state or local regulations to protect life and health. If the boss liked your work, he could keep you on without worrying about whether you were the 50th employee who would trigger the Obamacare health insurance mandates or just the 49th employee, who would not. You didn’t need health insurance anyway, because despite the limited technology and the fact that doctors still made house calls, medical care was far less expensive then. And if you had a catastrophic illness, there was a vast web of local relief agencies, mutual benefit societies, family networks, and private charities to help you out. If your boss couldn’t keep you on, well, you could freely move to another job that might be better.
Or you could go into business for yourself, without the government imposing insurmountable fees and barriers to your doing so. You could buy and own land without suffering the kind of official harassment now inflicted on so many landowners. You could keep almost everything you earned for the support and enjoyment of yourself and your family. Maybe become rich. Those times were empowering, exhilarating, exciting beyond belief.
And unlike today, young Americans could actually get jobs. They didn’t have to live in their parents’ basements leeching off daddy’s savings. They could earn their own way . . . start saving money in sound, uninflated, gold coin. . . raise their own families on their own resources. . . and build their own careers.
The politically-correct text books tell you that America’s success was the result of natural resources, ethnic diversity, government programs, and the oppression of minorities. This is largely balderdash. It is true that some minorities were much less free than the majority. It is also true that we have great natural resources and ethnic diversity. But those were not the fundamental reasons for America’s success. Because those things were true of many other countries as well—countries like Russia, Brazil, China, and India that, unlike America, remained backward and poor. What made the critical difference for America was freedom under law.
Freedom under law became compromised, though, when the federal government used the excuse of the Great Depression to break down constitutional limitations and greatly expand its reach. By 1960, just a few decades after the Depression ended, government was absorbing 25% of what had once been a free economy. Today, as I mentioned, it is absorbing nearly 45%.
A government founded to protect liberty has become an instrument for destroying liberty. A government founded to enable all to pursue happiness has become an instrument of envy, theft, and greed. To a great extent our economy has changed from one driven by people aspiring to greatness to one dominated by the scramble for political favors.
Most of us here this evening are among those who understand the problem. For the past few decades, we have tried to cure it. We have sponsored programs of civic education. We have worked to elect good people to office. We have attempted to reclaim the Tenth Amendment. Sometimes we have gone to court. And we have had a few real successes.
But the few successes should not obscure one glaring truth: Over the long haul, we continue to lose the fundamental concept of America. Twenty years ago when Bill Clinton was President the situation was worse than it had been 20 years before that. Today it is so much worse than when Bill Clinton was President that conservatives have begun to think of Hillary Clinton, of all people, as a more reasonable alternative to President Obama.
In my view, we are losing because we have tied ourselves to a handful of losing tactics. We have become comfortable fighting losing battles.
But if our goal is not merely to feel comfortable—if our goal is to win back for ourselves and our children that which has been slipping away—then we have to stop limiting ourselves to the things that don’t work, and start doing things that will work.
Let me give you a sobering historical example that may cast some light on what is in store for us if we do not adopt a new approach. More than 2000 years before our Constitution was written, another people located on what was then the outer edge of civilization established a free republic. They were only a small town in those days, but they were destined to become the greatest people in the world. Our own Founders looked to them for inspiration. Their system was based on principles of stoic virtue, respect for tradition, political accountability, military valor, and—to an extent unusual in the ancient world—human freedom. The Roman Republic lasted for 500 years, and its record still stands as the longest-lived major republic in the history of the planet.
Roman civilization eventually expanded throughout the Mediterranean World. Colonies of Roman citizens were established from Asia to Spain.
Roman leaders faced the challenge of making this extended state work while preserving the essence of the Roman constitution. One way they might have done so would have been to replace their system of lawmaking by the urban mob with an assembly of representatives from citizens throughout the Roman world. But they did not make those changes. And slowly, over a period of nearly a century, their constitution deteriorated. Great statesmen like Marcus Cicero were aware of what was happening. But they failed to arrest the decline.
They failed to arrest the decline because they tried to do so mostly by hitting the reset button until it wore out. In other words, they repeated over and over the same tactics that had failed before. Rome could have survived as a free government if its statesmen had shown more vision. But they did not.
When a system is wearing out, time is always limited. And so it happened that, for the Roman Republic, time to make the necessary changes did eventually run out. When elected Roman leaders failed to make the decisions necessary to preserve liberty, the decision was taken away from them. It was taken away by Julius Caesar and by his grand-nephew Augustus, who appropriated the state to their own purposes. For Romans, free government was gone forever.
But nothing was inevitable about this. Rome could have preserved its free constitution by making the changes necessary to keep it healthy while there was still time.
We Americans must not repeat their mistake. We must make the changes necessary to preserve freedom while there still is time.
Fortunately, we have the tools right at hand. They are our inheritance as Americans. Our Founders bequeathed them to us. They are lying right here, in Article V of our own Constitution. They are still fresh and new, and ready to use.
Article V is the Constitution’s provision for amendment. Today we think of constitutional amendment mostly as a way of responding to new conditions. The Founders recognized that purpose, but they also saw amendment as a way to prevent and correct government abuses.
Because the Framers recognized that the federal government might abuse its power, in their early drafts of the Constitution all amendments would come solely from a convention of the states. It was only when Alexander Hamilton pointed out that Congress might have good amendment ideas as well, that the Framers decided to give Congress, as well as the states, power to propose amendments. But to prevent an abusive Congress from obstructing needed changes, the states also retained their authority to propose. Their vehicle for doing so was what the Constitution calls a “convention for proposing amendments.”
So what is this “convention for proposing amendments?” That was one of those things I thought I knew four years ago, but what I knew wasn’t so.
The answer to the question comes from a great tradition of American interstate conventions, and from the experiences during the 224 years since the Founding.
When the delegates to the Constitutional Convention met in Philadelphia in 1787, it was only the latest in a very long series of diplomatic meetings among the different colonies and states. These meetings were called conventions. In the century before the Constitution was written, colonies and states met in convention on average of once every 40 months. They addressed subjects like Indian relations, foreign relations, common defense, currency inflation, and interstate trade. They met in Albany, New York in 1754. . . in New York City in 1765 . . . in Philadelphia in 1774, 1780, and 1787 . . . in York Town, Pennsylvania in 1777 . . . in Hartford, Connecticut in 1779 and 1780 . . .in Providence, Rhode Island in 1777 and 1781 . . . in Boston, Massachusetts in 1780. . .and in Annapolis, Maryland in 1786. And that list represents less than half of the conventions held.
After the Constitution was adopted, there were fewer interstate conventions, since the U.S. Senate served as a place where states could meet. Yet the American convention tradition continued. For example, there was an interstate gathering in Nashville, Tennessee in 1850 and a convention of 26 states in Washington, D.C., in 1861.
Each of these conventions was given a specific task or tasks to perform. Each had to remain within its prescribed limits, and not stray into other areas. This was true also of the 1787 Constitutional Convention. I mention this because there is an old myth that the Constitutional Convention was called only to amend the Articles of Confederation, but that it ignored its prescribed limits. But this old myth is just that—a myth—another thing I once thought I knew, but didn’t. . . .
Besides this great convention tradition, our understanding of Article V is informed by 224 years of experience and by important decisions from the United States Supreme Court and other arms of the judiciary. Here is one example: You may have heard the claim that a convention is sovereign and, despite limits on its authority it can do anything it likes. But we already have court cases showing us that that is not true. In fact, actions outside a convention’s legal instructions are void.
In the same way, some people persist in claiming that the convention for proposing amendments is a “constitutional convention.” By using that phrase, they display a lack of knowledge about the American tradition of gatherings among the states. In our history, we have had at least 31 conventions among the colonies and states, and only one has been a constitutional convention. Thirty have not been, and a convention for proposing amendments is not one, either.
In his recent decision for the U.S. Supreme Court rejecting the Medicaid mandates in Obamacare, Chief Justice Roberts famously said, “The states are separate and independent sovereigns. Sometimes they have to act like it.” Article V gives them a chance to act like it.
When a state legislature thinks an amendment might be a good idea, it sends a resolution to Congress, and if two thirds of the legislatures send resolutions for the same kind of amendment, then under the Constitution, Congress must call an interstate convention on that topic.
This interstate convention is essentially a diplomatic task force among representatives of the state legislatures acting as sovereign entities. At the designated time, each legislature sends a delegation (it’s called a “committee”) of delegates (they’re called “commissioners”) to the designated place. These committees of commissioners decide whether to propose amendments, and, if so, they draft the language. The convention adopts its own rules, and elects its own officers. Because sovereignties are inherently equal, each state committee has one vote. And as its name suggests, a “convention for proposing amendments” has power only to propose, not to ratify. Any proposal becomes part of the Constitution only if 38 states ratify it.
Now I’d like to remind you of a point I made earlier: The Founders added the convention for proposing amendments to the Constitution precisely to correct the federal government if it ever became dysfunctional. They predicted that if Congress got out of line, Congress probably would not propose amendments to correct itself. And their prediction was on target. Because in the 224 years since Congress proposed the Bill of Rights, it has never—with the minor exception of repealing Prohibition—has never proposed an amendment that reduces its own power. It has passed several amendments increasing its own power, but not reducing it.
Now—imagine that James Madison and John Dickinson were here in this room today. Suppose we told them that the federal government had far exceeded its constitutional authority. That Congress had become an auction-house for special interests. That Congress had run up a huge debt because 45 times in the last 50 years it had refused to even balance its own budget. That federal politicians had created a dependent class of citizens whom the politicians could manipulate for their own purposes. In other words, suppose we admitted to James Madison and John Dickinson that the federal government had re-created the very situation the British government tried to foist on the colonies in the 1770s, and that their generation had fought the American Revolution to prevent.
When we told them all this, no doubt James and John would ask us a very natural question. They’d ask if we had tried to correct the problem through the state-driven process in Article V. And when we sheepishly admitted that, no, we had not—that we had been deterred by ignorance and by the hysteria of alarmists and cranks—then what would these Founders say?
They would tell us that the whole mess was our own darn fault.
And they would be right.
It has been our own fault. But because we have been at fault, it does not mean we must stay at fault. The time to correct the situation is now!
If we want to save America. . . if we want to save the fundamental concept of America—then I suggest we act on five principles. Those principles are Vision, Unity, Determination, Legality, and Organization. Together, they add up to Victory!
First: Vision. We must have a clear idea of the kind of America we want to have. One where individual rights are respected. An America where people understand the difference between rights, to which you are entitled, and government largess, to which you are not. An America of limited government, personal responsibility, and self-reliance—an America prosperous and free.
Unity. Many of us have different ideas about how to use the Article V tools our Founders bequeathed to us. That discussion is normal and very healthy. We also must remember, however, that we are all on the same side.
Determination. Like the Founders, we must be willing to commit our lives, fortunes, and sacred honor. Many in this room have already done so.
You see, it requires determination to accomplish any real political change. The world recently lost a very great woman who showed what determination can do. It will take determination to overcome those well-intentioned but misguided souls who fear the cure our Founders gave us more than they fear our descent into national destruction. But once we get past them, we’ll need even more determination to overcome the power-brokers in national politics, the media, and academia.
Those people control much of the high ground in American power politics. But just as the late Margaret Hilda Thatcher overcame similar forces in Britain, largely by the force of sheer determination, so also will we overcome them in America.
Legality. If we keep our activities strictly legal, this will not prevent us from being vilified in the media by the most unfair sort of slander. The history of the Tea Party proves that. But if we keep our activities strictly legal, it will help us prevent failure and achieve victory.
Those with vested interests in the status quo have plenty of money for lawsuits. If we do not follow legal procedures, those lawsuits will undo all our hard work. The experience of the Term Limits movement is instructive in this regard. In the 1980s and 1990s, advocates for term limits tried to use Article V, but they violated the Article V rules as the courts had applied them. Their opponents sued, and the term-limits supporters lost in the courtroom many of the battles they had won in the political process.
Make no mistake: Once this campaign starts to succeed, we will be sued. So don’t give the opposition any reasonable way they can win their lawsuits.
Vision, Unity, Determination, Legality—and finally, Organization. To win, we need grass roots support and financial help in every state. In other words, we need your help—your help, the help of your state lawmakers, and of financial contributors, and of your friends and neighbors. The campaign to save America will succeed only if it is a mass movement, in which all understand that our future and the hopes of our children and grandchildren are at stake.
Like the Romans who tried to save their republic, but did too many ineffectual things for too long, until they lost their freedom entirely, we do not have unlimited time. Eventually, of course, our country will go bankrupt. But there is another deadline, too. If we do not apply Article V correctly and for good ends, then we will see it used by others incorrectly, and for bad ends. Many people of influence in academia and politics, are beginning to speak of their own version of Article V—one where they really do have a new “constitutional convention”—which they use to grow government further, and further curtail our liberties. To prevent being pre-empted by those people, we must move, and do so now.
Fortunately, the moment is promising. The American people understand the debt problem and they properly blame Congress. Most state legislatures are controlled by majorities who also understand the problem. Encourage those lawmakers to apply for a convention to address our national fiscal crisis. Contribute to groups working to restrain federal deficits through Article V. Set up websites. Talk to your friends—both your Facebook friends and your real friends—and support state legislators who understand the problem.
This is more than a fiscal issue, more than an issue of current politics. It is a long-term issue with moral and historical overtones. It is the question of whether the fundamental concept of America can endure. It is also a question of how those who come after us will live, and how those of us alive today will fare in the history books they write.
May they say of our generation that we labored rightly in a just cause, and in so doing we rose to greatness.
http://constitution.i2i.org/2013/04/27/why-we-must-act-now-to-use-the-constitutions-amendment-process-to-restore-fiscal-sanity/
Why the Framers Could Suggest Ratification by Only Nine States
March 3, 2013 by Rob Natelson
In prior postings such as the one here, I have explained why it is wrong to claim that the commissioners (delegates) to the 1787 Constitutional Convention exceeded their power in recommending that the Articles of Confederation be replaced by a new instrument.
Another aspect of the same charge is that the Framers exceed their power by providing that the Constitution could come into effect upon ratification by only nine states instead of the 13 the Articles required.
One quick answer is that ultimately the Constitution was ratified by all 13. The 13th state (Rhode Island) ratified on May 29, 1790, less than three years after the document was composed.
But there is a more formal, and perhaps better answer. Here’s the background:
The Declaration of Independence explicitly presented Americans to the world as “one people”—not as 13 different peoples. It is true that this “one people” initially operated through 13 separate governments. But this is by no means unusual in world history: Within the loose league mis-labeled the Holy Roman Empire, the German people were governed by a multitude of states. From 1945 until unification in 1990, the German people were divided into two entirely separate countries. From the fall of the Western Roman Empire until 1870, the Italian people were divided into a multitude of different countries. The Korean people are divided into separate sovereignties today, as are the Irish.
Under the dominant political theory of the Founding Era, public officials were agents of the people. At the time of Independence, different segments of the American people had granted governmental power to disconnected sets of agents (officials of the several states). In 1781, those separate sets of agents agreed via the Articles of Confederation to formally empower the Confederation Congress.
Thus, the Articles essentially comprised a treaty among independent states. Of course the signatories to a treaty always may agree among themselves to repeal or re-write the instrument.
But under principles of agency prevailing both at the Founding and today, those who hire agents are called “principals.” In this case, the principals were the American people. Legally, a principal may revoke and alter his agent’s authority at any time, and entrust all or part of that authority to others.
Put another way, the American people could decide to revisit the treaty obligations their agents had contracted on their behalf. The commissioners at the 1787 convention suggested that the people do just that—by taking some of the power heretofore exercised by state officials and the Confederation Congress and entrusting it to new federal officials. This was why James Madison said on the Convention floor that “he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.”
The ratification procedure was crafted in such a way that if the Constitution were ratified, that ratification had a good chance of representing the will of a majority of the American people—or at least of the American electorate. This was done in two ways: (1) Ratification or rejection would come not from state politicians, but from conventions directly elected by the voters for the sole purpose of considering the Constitution. (2) The Constitution would not go into effect unless conventions in nine states agreed.
Why nine? Some have pointed out that nine represented a two thirds vote of states, and that it was an accepted number under the Articles for certain important decisions.
But I think there was a more central reason: As the Constitution’s initial allocation of the new House of Representatives showed (Art.I, Sec. 2, Cl. 3), the Framers believed that any combination of nine states would comprise a majority of American citizens. Even if the five most populous states all refused to ratify, the remaining nine still would represent a majority of the electorate.
But what if nine small states all ratified by very narrow margins, and five big states rejected the Constitution by huge margins? Wouldn’t that result in ratification by a minority?
This was theoretically possible. But the Framers knew the odds for ratification in Pennsylvania (the second most populous state) were very high. So the chances of a “9 smallest states vs. 5 biggest states” line-up was negligible. If only nine ratified, at least one large state—Pennsylvania—would be among them.
In addition, the Framers knew as a practical matter that even if nine states, including Pennsylvania, ratified, it still wouldn’t be enough. The union needed New York (then ranking fourth or fifth in population) and it desperately needed Virginia (first). Without one or the other—and probably without both—the Constitution could not be implemented. And if nine states ratified but New York did not (New York’s Governor opposed ratification), the New York City region might well secede from the state and join anyway.
So the Framers had good reason to believe that if the Constitution did come into effect, this would occur by the will of a majority of America’s “one people.”
The result would be creation of a government in a manner almost unprecedented in world history: Ratified by a majority of the people themselves.
http://constitution.i2i.org/2013/03/03/why-the-framers-could-suggest-ratification-by-only-nine-states/
In prior postings such as the one here, I have explained why it is wrong to claim that the commissioners (delegates) to the 1787 Constitutional Convention exceeded their power in recommending that the Articles of Confederation be replaced by a new instrument.
Another aspect of the same charge is that the Framers exceed their power by providing that the Constitution could come into effect upon ratification by only nine states instead of the 13 the Articles required.
One quick answer is that ultimately the Constitution was ratified by all 13. The 13th state (Rhode Island) ratified on May 29, 1790, less than three years after the document was composed.
But there is a more formal, and perhaps better answer. Here’s the background:
The Declaration of Independence explicitly presented Americans to the world as “one people”—not as 13 different peoples. It is true that this “one people” initially operated through 13 separate governments. But this is by no means unusual in world history: Within the loose league mis-labeled the Holy Roman Empire, the German people were governed by a multitude of states. From 1945 until unification in 1990, the German people were divided into two entirely separate countries. From the fall of the Western Roman Empire until 1870, the Italian people were divided into a multitude of different countries. The Korean people are divided into separate sovereignties today, as are the Irish.
Under the dominant political theory of the Founding Era, public officials were agents of the people. At the time of Independence, different segments of the American people had granted governmental power to disconnected sets of agents (officials of the several states). In 1781, those separate sets of agents agreed via the Articles of Confederation to formally empower the Confederation Congress.
Thus, the Articles essentially comprised a treaty among independent states. Of course the signatories to a treaty always may agree among themselves to repeal or re-write the instrument.
But under principles of agency prevailing both at the Founding and today, those who hire agents are called “principals.” In this case, the principals were the American people. Legally, a principal may revoke and alter his agent’s authority at any time, and entrust all or part of that authority to others.
Put another way, the American people could decide to revisit the treaty obligations their agents had contracted on their behalf. The commissioners at the 1787 convention suggested that the people do just that—by taking some of the power heretofore exercised by state officials and the Confederation Congress and entrusting it to new federal officials. This was why James Madison said on the Convention floor that “he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.”
The ratification procedure was crafted in such a way that if the Constitution were ratified, that ratification had a good chance of representing the will of a majority of the American people—or at least of the American electorate. This was done in two ways: (1) Ratification or rejection would come not from state politicians, but from conventions directly elected by the voters for the sole purpose of considering the Constitution. (2) The Constitution would not go into effect unless conventions in nine states agreed.
Why nine? Some have pointed out that nine represented a two thirds vote of states, and that it was an accepted number under the Articles for certain important decisions.
But I think there was a more central reason: As the Constitution’s initial allocation of the new House of Representatives showed (Art.I, Sec. 2, Cl. 3), the Framers believed that any combination of nine states would comprise a majority of American citizens. Even if the five most populous states all refused to ratify, the remaining nine still would represent a majority of the electorate.
But what if nine small states all ratified by very narrow margins, and five big states rejected the Constitution by huge margins? Wouldn’t that result in ratification by a minority?
This was theoretically possible. But the Framers knew the odds for ratification in Pennsylvania (the second most populous state) were very high. So the chances of a “9 smallest states vs. 5 biggest states” line-up was negligible. If only nine ratified, at least one large state—Pennsylvania—would be among them.
In addition, the Framers knew as a practical matter that even if nine states, including Pennsylvania, ratified, it still wouldn’t be enough. The union needed New York (then ranking fourth or fifth in population) and it desperately needed Virginia (first). Without one or the other—and probably without both—the Constitution could not be implemented. And if nine states ratified but New York did not (New York’s Governor opposed ratification), the New York City region might well secede from the state and join anyway.
So the Framers had good reason to believe that if the Constitution did come into effect, this would occur by the will of a majority of America’s “one people.”
The result would be creation of a government in a manner almost unprecedented in world history: Ratified by a majority of the people themselves.
http://constitution.i2i.org/2013/03/03/why-the-framers-could-suggest-ratification-by-only-nine-states/
How the Courts have Clarified the Constitution’s Amendment Process
February 27, 2013 by Rob Natelson
One source of security we have in using the Constitution’s amendment process is that the courts, including the U.S. Supreme Court, have a long history of protecting the integrity of the procedure.
Many of those who pontificate on the subject are largely unaware of this jurisprudence. Some have never investigated it. Some think the courts refuse to interpret Article V or that they leave such matters to Congress. Some writers have no legal training, and mis-interpret the cases they do find.
As a result, they often debate questions that the courts have long resolved or promote scenarios (such as the “runaway” scenario) that the law has long foreclosed.
It’s not like this case law is unavailable. It is all available from standard legal sources. In addition, several published works have discussed this material, including an Oxford University Press book by Russell L. Caplan and an article I published in Tennessee Law Review.
Here are some of the key issues the courts have addressed, either in binding judgments or as what lawyers call “persuasive authority.” This listing of cases is only partial.
* Article V grants enumerated powers to named assemblies—that is, to Congress, state legislatures, conventions for proposing amendments, and state conventions. When an assembly acts under Article V, that assembly executes a “federal function” different from whatever other responsibilities it may have. Hawke v. Smith, 253 U.S. 221 (1920); Leser v. Garnett, 258 U.S. 130 (1922); State ex rel. Donnelly v. Myers, 127 Ohio St. 104, 186 N.E. 918 (1933); Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (Justice Stevens).
* Article V gives authority to named assemblies, without participation by the executive. Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798).
* Where the language of Article V is clear, it must be enforced as written. United States v. Sprague, 282 U.S. 716 (1931).
* But that does not mean, as some have claimed, that judges may never go beyond reading the words and guessing what they signify. Rather, a court may consider the history underlying Article V. Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (Justice Stevens). It may also consider what is implied as well as what is expressed. Dillon v. Gloss, 256 U.S. 368 (1921). In other words, courts apply the same rules of interpretation to Article V as elsewhere.
* Just as other enumerated powers in the Constitution bring with them certain incidental authority, so also do the powers enumerated in Article V. State ex rel. Donnelly v. Myers, 127 Ohio St. 104, 186 N.E. 918 (1933). This point and the one previous are important in determining the scope of such Article V words as “call,” “convention,” and “application.”
* The two thirds vote required in Congress for proposing amendments is two thirds of a quorum present and voting, not of the entire membership. State of Rhode Island v. Palmer, 253 U.S. 320 (1920).
* A convention for proposing amendments is, like all of its predecessors, a “convention of the states.” Smith v. Union Bank, 30 U.S. 518, 528 (1831). The national government is not concerned with how Article V conventions or state legislatures are constituted. United States v. Thibault, 47 F.2d 169 (2d Cir. 1931).
* No legislature or convention has power to alter the ratification procedure. That is fixed by Article V. Hawke v. Smith, 253 U.S. 221 (1920); United States v. Sprague, 282 U.S. 716 (1931). Some “runaway” alarmists have suggested that a convention for proposing amendments could decree ratification by national referendum, but the Supreme Court has ruled this out. Dodge v. Woolsey, 59 U.S. 331 (1855). Neither can a state mutate its own ratifying procedure into a referendum. State of Rhode Island v. Palmer, 253 U.S. 320 (1920).
* And Congress may not try to manipulate the ratification procedure otherwise than by choosing one of two specified “modes of ratification.” Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981), judgment vacated as moot by Carmen v. Idaho, 459 U.S. 809 (1982); compare United States v. Sprague, 282 U.S. 716 (1931).
* A convention meeting under Article V may be limited to its purpose. In Re Opinion of the Justices, 204 N.C. 306, 172 S.E. 474 (1933).
* But an outside body may not dictate an Article V assembly’s rules and procedures. Leser v. Garnett, 258 U.S. 130 (1922); Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (Justice Stevens).
* Nor may the assembly be compelled to resolve the issue presented to it in a particular way. State ex rel. Harper v. Waltermire, 691 P.2d 826 (1984); AFL-CIO v. Eu, 686 P.2d 609 (Cal. 1984); Miller v. Moore, 169 F.3d 1119 (8th Cir. 1999); Gralike v. Cook, 191 F.3d 911, 924-25 (8th Cir. 1999), affirmed on other grounds sub nom. Cook v. Gralike, 531 U.S. 510 (2001); Barker v. Hazetine, 3 F. Supp. 2d 1088, 1094 (D.S.D. 1998); League of Women Voters of Maine v. Gwadosky, 966 F. Supp. 52 (D. Me. 1997); Donovan v. Priest, 931 S.W.2d 119 (Ark. 1996).
* Article V functions are complete when a convention or legislature has acted. There is no need for other officials to proclaim the action. United States ex rel. Widenmann v. Colby, 265 F. 398 (D.C. Cir. 1920), affirmed 257 U.S. 619 (1921).
As these cases illustrate, the courts are very much in the business of protecting Article V procedures, and have done so for more than two centuries.
http://constitution.i2i.org/2013/02/27/how-the-courts-have-clarified-the-constitutions-amendment-process/
One source of security we have in using the Constitution’s amendment process is that the courts, including the U.S. Supreme Court, have a long history of protecting the integrity of the procedure.
Many of those who pontificate on the subject are largely unaware of this jurisprudence. Some have never investigated it. Some think the courts refuse to interpret Article V or that they leave such matters to Congress. Some writers have no legal training, and mis-interpret the cases they do find.
As a result, they often debate questions that the courts have long resolved or promote scenarios (such as the “runaway” scenario) that the law has long foreclosed.
It’s not like this case law is unavailable. It is all available from standard legal sources. In addition, several published works have discussed this material, including an Oxford University Press book by Russell L. Caplan and an article I published in Tennessee Law Review.
Here are some of the key issues the courts have addressed, either in binding judgments or as what lawyers call “persuasive authority.” This listing of cases is only partial.
* Article V grants enumerated powers to named assemblies—that is, to Congress, state legislatures, conventions for proposing amendments, and state conventions. When an assembly acts under Article V, that assembly executes a “federal function” different from whatever other responsibilities it may have. Hawke v. Smith, 253 U.S. 221 (1920); Leser v. Garnett, 258 U.S. 130 (1922); State ex rel. Donnelly v. Myers, 127 Ohio St. 104, 186 N.E. 918 (1933); Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (Justice Stevens).
* Article V gives authority to named assemblies, without participation by the executive. Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798).
* Where the language of Article V is clear, it must be enforced as written. United States v. Sprague, 282 U.S. 716 (1931).
* But that does not mean, as some have claimed, that judges may never go beyond reading the words and guessing what they signify. Rather, a court may consider the history underlying Article V. Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (Justice Stevens). It may also consider what is implied as well as what is expressed. Dillon v. Gloss, 256 U.S. 368 (1921). In other words, courts apply the same rules of interpretation to Article V as elsewhere.
* Just as other enumerated powers in the Constitution bring with them certain incidental authority, so also do the powers enumerated in Article V. State ex rel. Donnelly v. Myers, 127 Ohio St. 104, 186 N.E. 918 (1933). This point and the one previous are important in determining the scope of such Article V words as “call,” “convention,” and “application.”
* The two thirds vote required in Congress for proposing amendments is two thirds of a quorum present and voting, not of the entire membership. State of Rhode Island v. Palmer, 253 U.S. 320 (1920).
* A convention for proposing amendments is, like all of its predecessors, a “convention of the states.” Smith v. Union Bank, 30 U.S. 518, 528 (1831). The national government is not concerned with how Article V conventions or state legislatures are constituted. United States v. Thibault, 47 F.2d 169 (2d Cir. 1931).
* No legislature or convention has power to alter the ratification procedure. That is fixed by Article V. Hawke v. Smith, 253 U.S. 221 (1920); United States v. Sprague, 282 U.S. 716 (1931). Some “runaway” alarmists have suggested that a convention for proposing amendments could decree ratification by national referendum, but the Supreme Court has ruled this out. Dodge v. Woolsey, 59 U.S. 331 (1855). Neither can a state mutate its own ratifying procedure into a referendum. State of Rhode Island v. Palmer, 253 U.S. 320 (1920).
* And Congress may not try to manipulate the ratification procedure otherwise than by choosing one of two specified “modes of ratification.” Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981), judgment vacated as moot by Carmen v. Idaho, 459 U.S. 809 (1982); compare United States v. Sprague, 282 U.S. 716 (1931).
* A convention meeting under Article V may be limited to its purpose. In Re Opinion of the Justices, 204 N.C. 306, 172 S.E. 474 (1933).
* But an outside body may not dictate an Article V assembly’s rules and procedures. Leser v. Garnett, 258 U.S. 130 (1922); Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (Justice Stevens).
* Nor may the assembly be compelled to resolve the issue presented to it in a particular way. State ex rel. Harper v. Waltermire, 691 P.2d 826 (1984); AFL-CIO v. Eu, 686 P.2d 609 (Cal. 1984); Miller v. Moore, 169 F.3d 1119 (8th Cir. 1999); Gralike v. Cook, 191 F.3d 911, 924-25 (8th Cir. 1999), affirmed on other grounds sub nom. Cook v. Gralike, 531 U.S. 510 (2001); Barker v. Hazetine, 3 F. Supp. 2d 1088, 1094 (D.S.D. 1998); League of Women Voters of Maine v. Gwadosky, 966 F. Supp. 52 (D. Me. 1997); Donovan v. Priest, 931 S.W.2d 119 (Ark. 1996).
* Article V functions are complete when a convention or legislature has acted. There is no need for other officials to proclaim the action. United States ex rel. Widenmann v. Colby, 265 F. 398 (D.C. Cir. 1920), affirmed 257 U.S. 619 (1921).
As these cases illustrate, the courts are very much in the business of protecting Article V procedures, and have done so for more than two centuries.
http://constitution.i2i.org/2013/02/27/how-the-courts-have-clarified-the-constitutions-amendment-process/
It’s Been Done Before: A Convention of the States to Propose Constitutional Amendments
February 21, 2013 by Rob Natelson
In 1861, the states held a dry run for an Article V “convention for proposing amendments.”
The event was the Washington Conference Convention or Washington Peace Conference. It was called by the Virginia legislature in January of 1861 in an effort to avert the Civil War. The idea was that the convention would draft and propose one or more constitutional amendments that, if ratified, would weaken extremists in both the North and the South, and thereby save the Union.
This gathering differed from an Article V convention primarily in that it made its proposal to Congress rather than to the states. In most other respects, it was a blueprint for how an Article V convention would conduct itself.
When the convention met in Washington D.C. on February 4, 1861, seven of the eleven states eventually in the Confederacy already had seceded. Of the 26 then remaining in the Union, 21 sent committees (delegations). The conference lasted until February 27, when it proposed a 7-section constitutional amendment.
The assembly followed to the letter the convention rules that had been established during the 18th century—the same rules relied on by the Constitution’s Framers when they provided for a Convention for Proposing Amendments. Specifically:
* The call for the convention set the place, time, and topic, but did not try to dictate other matters, such as selection of commissioners (delegates) or convention rules.
* At the convention, voting was by state. One vote was, apparently inadvertently, taken per capita, but that was quickly corrected.
* The committee from each state was selected in the manner that state’s legislature directed. Most committees were elected by the legislature itself. In some states the legislature delegated the selection to the governor, with or without state senate approval. In a few states, the legislature was not in session, and the governor made the pick.
* The convention adopted its own rules and selected its own officers. Former President John Tyler served as president.
* The convention stayed on topic. One commissioner made a motion that was arguably off topic (changing the President’s term of office), but that was voted down without debate.
* The amendment proposed would have protected slavery where it existed, but by confining it territorially probably would have doomed it to eventual extinction.
This convention’s efforts eventually failed, but the failure was that of Congress, not of the convention. The convention did its job—proposing a workable compromise—but Congress failed to propose it formally for ratification. And while some states had applied for an Article V convention, their applications were too few, too late.
As a result, the Union was torn apart and over 600,000 Americans died—the biggest American death toll in any war in our history.
You can find the convention journal at Google Books. There has been only one modern book devoted to the subject, Professor Robert Gray Gunderson’s Old Gentlemen’s Convention: The Washington Peace Conference of 1861 (Univ. of Wisconsin Press, 1961).
http://constitution.i2i.org/2013/02/21/its-been-done-before-a-convention-of-the-states-to-propose-constitutional-amendments/
In 1861, the states held a dry run for an Article V “convention for proposing amendments.”
The event was the Washington Conference Convention or Washington Peace Conference. It was called by the Virginia legislature in January of 1861 in an effort to avert the Civil War. The idea was that the convention would draft and propose one or more constitutional amendments that, if ratified, would weaken extremists in both the North and the South, and thereby save the Union.
This gathering differed from an Article V convention primarily in that it made its proposal to Congress rather than to the states. In most other respects, it was a blueprint for how an Article V convention would conduct itself.
When the convention met in Washington D.C. on February 4, 1861, seven of the eleven states eventually in the Confederacy already had seceded. Of the 26 then remaining in the Union, 21 sent committees (delegations). The conference lasted until February 27, when it proposed a 7-section constitutional amendment.
The assembly followed to the letter the convention rules that had been established during the 18th century—the same rules relied on by the Constitution’s Framers when they provided for a Convention for Proposing Amendments. Specifically:
* The call for the convention set the place, time, and topic, but did not try to dictate other matters, such as selection of commissioners (delegates) or convention rules.
* At the convention, voting was by state. One vote was, apparently inadvertently, taken per capita, but that was quickly corrected.
* The committee from each state was selected in the manner that state’s legislature directed. Most committees were elected by the legislature itself. In some states the legislature delegated the selection to the governor, with or without state senate approval. In a few states, the legislature was not in session, and the governor made the pick.
* The convention adopted its own rules and selected its own officers. Former President John Tyler served as president.
* The convention stayed on topic. One commissioner made a motion that was arguably off topic (changing the President’s term of office), but that was voted down without debate.
* The amendment proposed would have protected slavery where it existed, but by confining it territorially probably would have doomed it to eventual extinction.
This convention’s efforts eventually failed, but the failure was that of Congress, not of the convention. The convention did its job—proposing a workable compromise—but Congress failed to propose it formally for ratification. And while some states had applied for an Article V convention, their applications were too few, too late.
As a result, the Union was torn apart and over 600,000 Americans died—the biggest American death toll in any war in our history.
You can find the convention journal at Google Books. There has been only one modern book devoted to the subject, Professor Robert Gray Gunderson’s Old Gentlemen’s Convention: The Washington Peace Conference of 1861 (Univ. of Wisconsin Press, 1961).
http://constitution.i2i.org/2013/02/21/its-been-done-before-a-convention-of-the-states-to-propose-constitutional-amendments/
A Response to the “Runaway Scenario”
February 15, 2013 by Rob Natelson
NOTE: A PDF form of this lengthy essay is available here.
Many lawmakers and activists, and most of the public, now favor a constitutional amendment to impose financial restraint on Congress. Because experience shows that Congress is unlikely to propose such an amendment itself, there is growing interest in the Constitution’s procedure enabling the states to propose an amendment. The Constitution calls the states’ mechanism for doing so a convention for proposing amendments.
A convention for proposing amendments has never been held. While there are a number of reasons for this, a primary reason over the last 50 years has been the “runaway” scenario, first widely popularized in the 1960s and 1970s by liberal politicians, judges, and activists eager to block suggested amendments that would have overruled some liberal Supreme Court decisions. In one of the ironies of history, a handful of deeply conservative groups subsequently decided to promote the scenario to block the process from being used for any purpose.
The essence of the “runaway” scenario is that a convention for proposing amendments would be a “constitutional convention” in which the delegates could disregard prescribed limits on their authority, and push America further along the road to perdition. The scenario seems to have misled enough people to effectively disable a core mechanism in our Constitution’s system of checks and balances.
I am a constitutional historian—a former constitutional law professor with training in history and classics—who focuses on explicating the meaning of parts of the Constitution. Before undertaking a research project, I typically scan the existing scholarly literature to determine what has been written on a particular subject, and how thorough that writing is. I began to investigate Article V questions in 2009 when I found that the relevant commentary was relatively sparse and mostly of poor quality. My legal and historical research not only corrected much of what had been written, but also forced me to change my mind about several key issues (such as the controllability of a convention). This research has resulted in a half-dozen major articles and free standing studies (including a three-parter), and a fair number of writings for the general public. See http://constitution.i2i.org/articles-books-on-the-constitution-by-rob-natelson/; http://constitution.i2i.org/category/article-v-convention/.
Although I have addressed the “runaway” scenario briefly in a few of these studies, several people have asked me to respond in more detail. I am doing so only reluctantly: Like most scholars, I prefer to pursue my own inquiries rather than respond in detail to uninformed claims. Moreover, I’ve learned that answering “runaway” assertions is a fool’s game—rather like shooting wooden ducks in a carnival shooting gallery: Once you knock down a series of objections, a new bunch always pops up, as two-dimensional as the last.
Be assured that once this essay is published, I do not plan to waste my time shooting new rows of carnival ducks. But perhaps these comments will convince enough people to ignore the alarmists when they raise their next set of objections.
To be candid, many of the “runaway” writings are so confused and frantic that they are not worth answering. One of the better articles—and apparently a source for others—was composed by Chuck Michaelis, a businessman and amateur historian. (See http://www.principledpolicy.com/policy-statements/position-on-an-article-v-federal-constitutional-amendment-convention/). To be sure, the Michaelis article, like all the others, contains enough inaccuracies and misunderstandings to cause a professional to shake his head. But it does set a higher tone than many of its genre, so I have decided to frame this essay as a response to the Michaelis piece.
In order to strengthen his case, however, I have re-organized Mr. Michaelis’ argument so that each step leads more logically to the next. The results are as follows:
* A convention for proposing amendments is a constitutional convention akin to the 1787 Philadelphia gathering, which, according to Mr. Michaelis, was America’s “first constitutional convention.” He does not say it explicitly, but clearly assumes that 1787 assembly was the only federal constitutional convention ever convened.
* Mr. Michaelis finds gaps in the language of Article V that, he says, ultimately leave delegate selection and allocation in the hands of Congress, the body Article V charges with the duty of “calling” the convention. Article V, he says, thereby lodges critical power over the process in the same institution that has been abusing its authority.
* An American convention is an inherently uncontrollable body: conventions are instruments of the people’s sovereign will, and the gaps in Article V leave the convention for proposing amendments unbridled.
* A convention likely will disregard limits set in the state applications. Not only do conventions enjoy sovereign power, but the “first Constitutional Convention” proved a runaway, despite “strongly worded” congressional language to control it.
* The convention could obtain the changes it desires by altering the ratification process, as the “first Constitutional Convention” did.
* Such uncertainties render the process a “risky gamble.”
* The existing Constitution is sufficient to deal with the current federal crisis if we elect conscientious people, repeal the 17th amendment, and reclaim the 10th amendment.
The last point—which Mr. Michaelis actually makes early in this article—is more of a policy call than a matter of constitutional interpretation. But it is easily disposed of: We’ve been doing things his way for the last 50 years, and the situation has only gotten worse. Conscientious people have been elected, but they operate in a spending environment that renders it impossible for any but a handful to both be constitutionally-scrupulous and survive in office. There is no realistic chance of the 17th amendment being repealed. Even if there were, we would have to use the state application and convention process to force the Senate to act—which is how the amendment was passed in the first place. (Anyway, the research on the 17th amendment’s actual effects on federalism has been ambiguous.) As for the 10th amendment, states have been attempting for decades now to reclaim it, but without consistent success.
So the real question is whether state application and convention process is such a “risky gamble” that we should abandon it and thereby resign ourselves to leaving the constitutional system unbalanced and on the short road to bankruptcy.
But is the process a “risky gamble?” Like some other writers, Mr. Michaelis uses an out-of-context quote from a constitutional scholar to support his view that the process is risky. In this case, the language he quotes is my own acknowledgment that “abuses of the Article V amendment process are possible.” But that is no more than an acknowledgment that everything in politics is possible in at least a small degree. It is not an acknowledgment that the process is risky. For reasons explained below, the risks posed by the “runaway” scenario are actually quite small.
To know how the process will work, you must understand the meaning of the language in Article V as the courts and other actors are likely to interpret it. This, in turn, requires knowledge of (1) the historical, legal, and linguistic background behind the language, (2) two centuries of post-Founding usage and analysis, (3) governing principles of constitutional, international, and agency law, (4) a long line of Article V court decisions extending from 1798 into the 21st century, and (5) certain modern political realities.
Runaway alarmists display almost none of this knowledge. Even Mr. Michaelis, the most erudite among them, seems to have little of it. For example, although he cites the first part of my three-part Goldwater Institute study, he seems unfamiliar with the rest of my work or with the writings of scholars such as Russell Caplan, Ann Stuart Diamond, and Professor Michael Rappaport. Self-restriction to the first part of a single study may be why he claims I base my conclusions solely on original “intent.” But he must not have read even that first part carefully, or he would know that, strictly speaking, I do not base even originalist constitutional conclusions on original “intent.” And in fact my overall conclusions rest on all of the five factors set forth above, including post-Founding practice, standard legal rules, court decisions, and political realities.
Now, Mr. Michaelis’ next bit of confusion lies in classifying a “convention for proposing amendments” as a “constitutional convention.”
As Professor Diamond has pointed out, the difference between the two is evident. A constitutional convention is charged with drafting, proposing, and sometimes adopting, a new basic charter. A convention for proposing amendments is charged with drafting and proposing one or more amendments to that charter. James Madison added that in our system the first is “plenipotentiary,” while the second operates subject to the “forms of the constitution.” This was well understood by the Founders and by subsequent generations: No one labeled a convention for proposing amendments a “constitutional convention” until long after the Founding.
Yet Mr. Michaelis is not the first to confuse the two: The tendency to conflate them began late in the 19th century. No doubt it arose from ignorance, but it has been fostered by opponents of the process ever since. It serves them well.
Mr. Michaelis might respond that it is fair to refer to any gathering that addresses changes in constitutional rules as a “constitutional convention.”
The problem with this answer is that it renders the term far too broad. If we apply the term that way, the 1787 gathering was not, as he says, our “first constitutional convention.” One must also count the 1754 Albany Congress, which proposed a plan of colonial union; the First Continental Congress, which institutionalized interstate cooperation; the 1780 Hartford Convention, which formally recommended amending the Articles of Confederation; the 1786 Annapolis Convention, which also was called to recommend amendments; and perhaps the Second Continental Congress, which drafted and proposed the Articles.
Moreover, by that definition, we have had many constitutional conventions since: the many state conventions that ratified the Constitution or one of its amendments, and the 1861 Washington Conference Convention, an assembly of 21 states that proposed a complicated constitutional amendment to avert the Civil War.
Of course it stretches the term to call any of these gatherings “constitutional conventions”—for the same reason it stretches the term to apply it to a convention for proposing amendments.
Our next issue consists of those gaps in the language of Article V that Mr. Michaelis claims he has found.
If you know the Founding Era record, you know the gaps mostly don’t exist. This is because the Framers employed the key terms in Article V in universally accepted ways. Everyone knew that a general convention would be a meeting of the states. Everyone knew that a “call” did not include authority to dictate the apportionment or selection of commissioners (delegates). Everyone knew—and the ratification record amply confirms—that the applying states would control the subject matter and that each state legislature would control its commissioners. There was no need to restate the obvious.
But are the Founding Era convention customs and understandings part of Article V? Yes, they are.
This is where Mr. Michaelis would find legal knowledge helpful: The Supreme Court has held repeatedly that Article V consists of grants of enumerated powers to named assemblies (legislatures and conventions). As some very modern Supreme Court opinions make clear, Founding Era customs and understandings largely define the scope of the Constitution’s words and its grants. And while the courts have not always applied the Founders’ understandings to other parts of the Constitution, they have been generally reliable in doing so in Article V cases.
So why does the language of Article V seem sparse? Because rather than re-state the obvious, the Framers focused on resolving uncertainties not resolved by existing convention practice. The words “application” and “call” sometimes were used interchangeably, so Article V distinguished them. In the Founding Era, moreover, a “call” could come from a state, Congress, or a prior convention—so Article V stipulated who did the calling. In Founding Era practice, a convention might be merely a proposing body or a deciding one. The Framers settled on the former. Article V also specified the ratification procedure and placed certain amendments off limits.
By the way, Founding Era convention protocols did not go away after the Constitution was ratified. They remain much the same even today. The last multi-state convention, the Washington Conference Convention of 1861, proved their viability among large bodies and in times of extreme stress. Similar protocols governed the state conventions that ratified the 21st amendment in the 1930s.
Next we come to the “any convention can do anything” claim. The general idea is that, as the direct representative of the people, no convention can be controlled by any outside force because each convention is sovereign.
You can marshal a few writers in support of that opinion, and in the middle of the American Revolution a few state conventions acted that way. But this view runs contrary to both prevailing practice and established law. When the Constitution was adopted nearly all interstate conventions had been limited by topic, and in the intervening years also this has been true of nearly all conventions.
Moreover, the “any convention can do anything” view directly contradicts established constitutional law. That law holds that when they act under Article V, all assemblies—both legislatures and conventions—derive all their authority exclusively from the Constitution. Their power is limited accordingly. To take one example: A state convention commissioned to consider only a particular amendment can be limited to that purpose. In Re Opinions of the Justices, 204 N.C. 306, 172 S.E. 474 (1933); see also the relevant bibliography at http://constitution.i2i.org/about/ for citations to cases.)
Some alarmists counter with a speculative essay written by Yale professor Akhil Amar when he was fresh out of law school. (The essay was written long ago and without the benefit of modern Article V scholarship.) In it, the youthful Amar argued that the people can, by convention, change the political system extra-constitutionally. Now, to anyone familiar with the Declaration of Independence, this is an unsurprising thesis. Amar also suggested that some parts of the Constitution recognize this “popular sovereignty” power. But—and this is the important point—Amar explicitly distinguished the whole idea from Article V.
We now turn to Mr. Michaelis’ assertion that the 1787 convention was called by Congress for the limited purpose of amending the Articles of Confederation, but instead “ran away” by drafting a new document. I address this common misconception briefly in the first part of my Goldwater study, for which Mr. Michaelis accuses me of “equivocation” and “a long and complex argument regarding the meanings of words.”
But the facts are neither equivocal nor complex. They are as follows:
* The Constitutional Convention was not called by Congress. It was called by Virginia and, secondarily, by New Jersey in response to the recommendation of the Annapolis Convention. (During the Founding Era, most multi-state conventions were called by individual states.)
* The Articles of Confederation were, unlike the Constitution, essentially a treaty among sovereign states. The role of the Confederation Congress was much like the role of the UN among sovereign nations today. Signatories of treaties always have the power to reconsider the terms of their connections, even if their coordinating agent (such as the UN or the Confederation Congress) objects.
* Ten of the 12 states participating in the Constitutional Convention authorized their delegates (“commissioners”) to consider changes in the “federal constitution” without limiting them to amending the Articles of Confederation. The unanimous authority of 18th century dictionaries (including the first American edition of Perry’s) tells us that “constitution” in this context meant the entire political system, not merely the Articles as such.
* This was well understood in Congress. That’s why after seven states already had signed up to join in the convention, two states where anti-federalist sentiment was powerful—New York and Massachusetts—asked Congress to recommend that the convention be limited to amending the Articles. But the congressional resolution was certainly not “strongly worded,” as Mr. Michaelis claims. It was about as weak-tea as possible: watered down from a “recommendation” to the mere statement that “in the opinion of Congress it is expedient” that the convention be so limited. This is understandable, because Congress, as a mere agent of the participating parties, had no power to limit their decision, and it was presumptuous to try.
* In Philadelphia, only seven commissioners from two states lacked power to propose a new form of government. Of the seven, only three signed the Constitution, one in an individual capacity (Hamilton). Perhaps Nathaniel Gorham and Rufus King “ran away,” but no one else did.
Mr. Michaelis seems to argue—he is not quite clear on this point—that because 16 commissioners failed to sign the Constitution, all 16 recognized that proposing the document was beyond their power. This is simply untrue. Elbridge Gerry and two New York delegates did refuse to subscribe for lack of authority. But most of the 16 non-signers failed to subscribe for very different reasons: Edmund Randolph wanted to maintain political flexibility (a good choice in retrospect). George Wythe went home early to tend a dying wife. Luther Martin, George Mason, and John Mercer all opposed the terms of the document. Alexander Martin favored the Constitution, but left (probably for health reasons) before the convention ended. And so forth.
As for the convention’s decision to “change” the ratifying process: It is true that the 1787 gathering adopted a process different from that in the Articles, but the 1787 convention was not called under, or empowered by, the Articles. By contrast, a convention for proposing amendments would be held under the “forms of the Constitution” and therefore would be bound by the very clear ratification procedures specified by the Constitution.
Suppose, however, that it were true that the 1787 convention “ran away?” Would this prove that a future convention would do so?
There were many multi-state conventions during the 18th and 19th centuries. Why consider as evidence only one? The Providence Conventions of 1776-77 and 1781 did not run away. The 1777 Springfield and York Town Conventions did not run away. Neither the New Haven Price Convention of 1778 nor the Hartford Conventions of 1779 and 1780 ran away. The 1780 Philadelphia Price Convention and Boston Convention did not run away. And, more recently, the 1861 Washington Conference Convention did not run away. Why is the 1787 convention “evidence” while nearly 20 others are not?
The answer is that for all their vaunted constitutional knowledge, “runaway” theorists are ignorant of all or most of those other conventions. Or, if any of them do know about them, they’re not talking.
Now, let’s get back to reality: As a practical matter, there are redundant protections against a runaway convention for proposing amendments:
* Political factors: the damage that disregard of clear limits can do to a commissioner’s reputation;
* Popular opinion;
* State applications defining the scope;
* The limit on the scope of the call;
* The potential for lawsuits to enforce the foregoing;
* State instruction of commissioners;
* State power to recall commissioners;
* The need to garner a majority of state committees (delegations) at the convention;
* Congress’s ability (and duty) to refuse to choose a mode of ratification for an ultra vires proposal;
* The requirement that proposals be ratified by 38 states;
* The potential for more judicial challenge, at every stage of the process.
You can argue against the efficacy of any one or two of these if you like. But combined together, they reduce the risks almost to the vanishing point. Consider, by contrast, the unrestrained reality of the runaway Congress.
One last observation: The Founders adopted the state application and convention procedure as an integral portion of the Constitution’s checks and balances. It is a way of preserving the state/federal balance, and its disuse has had predictable results.
In part this disuse may stem less from a desire to defend the Constitution as from dissatisfaction with the Constitution: Mr. Michaelis, for example, writes of a “flaw in the language of Article V” and that “[t]he language that needs to be there is simply missing.” Others in his same camp have suggested that Article V be ignored in perpetuity or that it be skipped in favor of extra-constitutional remedies such as nullification.
If their view is that parts of the Constitution are radically defective, then they should be careful what they ask for: Because if state legislatures do not step forward soon to establish their “ownership” of the state application and convention procedure, others—people hostile to the Founders’ design—certainly will. They are preparing to do so as I write.
The Founders inserted this procedure for the state legislatures to use, and to use particularly in times of federal overreaching. If James Madison and John Dickinson were to come among us today, and we were to tell them of our current predicament, what would they say?
No doubt, they would ask if we had resorted to the state-driven process in Article V to correct the problem. And when we admitted that we had not—that we had allowed ourselves to be gulled by alarmists and quacks—what would these Founders say then?
They would tell us that the whole mess was our own fault.
And they would be right.
http://constitution.i2i.org/2013/02/15/a-response-to-the-%E2%80%9Crunaway-scenario%E2%80%9D/
NOTE: A PDF form of this lengthy essay is available here.
Many lawmakers and activists, and most of the public, now favor a constitutional amendment to impose financial restraint on Congress. Because experience shows that Congress is unlikely to propose such an amendment itself, there is growing interest in the Constitution’s procedure enabling the states to propose an amendment. The Constitution calls the states’ mechanism for doing so a convention for proposing amendments.
A convention for proposing amendments has never been held. While there are a number of reasons for this, a primary reason over the last 50 years has been the “runaway” scenario, first widely popularized in the 1960s and 1970s by liberal politicians, judges, and activists eager to block suggested amendments that would have overruled some liberal Supreme Court decisions. In one of the ironies of history, a handful of deeply conservative groups subsequently decided to promote the scenario to block the process from being used for any purpose.
The essence of the “runaway” scenario is that a convention for proposing amendments would be a “constitutional convention” in which the delegates could disregard prescribed limits on their authority, and push America further along the road to perdition. The scenario seems to have misled enough people to effectively disable a core mechanism in our Constitution’s system of checks and balances.
I am a constitutional historian—a former constitutional law professor with training in history and classics—who focuses on explicating the meaning of parts of the Constitution. Before undertaking a research project, I typically scan the existing scholarly literature to determine what has been written on a particular subject, and how thorough that writing is. I began to investigate Article V questions in 2009 when I found that the relevant commentary was relatively sparse and mostly of poor quality. My legal and historical research not only corrected much of what had been written, but also forced me to change my mind about several key issues (such as the controllability of a convention). This research has resulted in a half-dozen major articles and free standing studies (including a three-parter), and a fair number of writings for the general public. See http://constitution.i2i.org/articles-books-on-the-constitution-by-rob-natelson/; http://constitution.i2i.org/category/article-v-convention/.
Although I have addressed the “runaway” scenario briefly in a few of these studies, several people have asked me to respond in more detail. I am doing so only reluctantly: Like most scholars, I prefer to pursue my own inquiries rather than respond in detail to uninformed claims. Moreover, I’ve learned that answering “runaway” assertions is a fool’s game—rather like shooting wooden ducks in a carnival shooting gallery: Once you knock down a series of objections, a new bunch always pops up, as two-dimensional as the last.
Be assured that once this essay is published, I do not plan to waste my time shooting new rows of carnival ducks. But perhaps these comments will convince enough people to ignore the alarmists when they raise their next set of objections.
To be candid, many of the “runaway” writings are so confused and frantic that they are not worth answering. One of the better articles—and apparently a source for others—was composed by Chuck Michaelis, a businessman and amateur historian. (See http://www.principledpolicy.com/policy-statements/position-on-an-article-v-federal-constitutional-amendment-convention/). To be sure, the Michaelis article, like all the others, contains enough inaccuracies and misunderstandings to cause a professional to shake his head. But it does set a higher tone than many of its genre, so I have decided to frame this essay as a response to the Michaelis piece.
In order to strengthen his case, however, I have re-organized Mr. Michaelis’ argument so that each step leads more logically to the next. The results are as follows:
* A convention for proposing amendments is a constitutional convention akin to the 1787 Philadelphia gathering, which, according to Mr. Michaelis, was America’s “first constitutional convention.” He does not say it explicitly, but clearly assumes that 1787 assembly was the only federal constitutional convention ever convened.
* Mr. Michaelis finds gaps in the language of Article V that, he says, ultimately leave delegate selection and allocation in the hands of Congress, the body Article V charges with the duty of “calling” the convention. Article V, he says, thereby lodges critical power over the process in the same institution that has been abusing its authority.
* An American convention is an inherently uncontrollable body: conventions are instruments of the people’s sovereign will, and the gaps in Article V leave the convention for proposing amendments unbridled.
* A convention likely will disregard limits set in the state applications. Not only do conventions enjoy sovereign power, but the “first Constitutional Convention” proved a runaway, despite “strongly worded” congressional language to control it.
* The convention could obtain the changes it desires by altering the ratification process, as the “first Constitutional Convention” did.
* Such uncertainties render the process a “risky gamble.”
* The existing Constitution is sufficient to deal with the current federal crisis if we elect conscientious people, repeal the 17th amendment, and reclaim the 10th amendment.
The last point—which Mr. Michaelis actually makes early in this article—is more of a policy call than a matter of constitutional interpretation. But it is easily disposed of: We’ve been doing things his way for the last 50 years, and the situation has only gotten worse. Conscientious people have been elected, but they operate in a spending environment that renders it impossible for any but a handful to both be constitutionally-scrupulous and survive in office. There is no realistic chance of the 17th amendment being repealed. Even if there were, we would have to use the state application and convention process to force the Senate to act—which is how the amendment was passed in the first place. (Anyway, the research on the 17th amendment’s actual effects on federalism has been ambiguous.) As for the 10th amendment, states have been attempting for decades now to reclaim it, but without consistent success.
So the real question is whether state application and convention process is such a “risky gamble” that we should abandon it and thereby resign ourselves to leaving the constitutional system unbalanced and on the short road to bankruptcy.
But is the process a “risky gamble?” Like some other writers, Mr. Michaelis uses an out-of-context quote from a constitutional scholar to support his view that the process is risky. In this case, the language he quotes is my own acknowledgment that “abuses of the Article V amendment process are possible.” But that is no more than an acknowledgment that everything in politics is possible in at least a small degree. It is not an acknowledgment that the process is risky. For reasons explained below, the risks posed by the “runaway” scenario are actually quite small.
To know how the process will work, you must understand the meaning of the language in Article V as the courts and other actors are likely to interpret it. This, in turn, requires knowledge of (1) the historical, legal, and linguistic background behind the language, (2) two centuries of post-Founding usage and analysis, (3) governing principles of constitutional, international, and agency law, (4) a long line of Article V court decisions extending from 1798 into the 21st century, and (5) certain modern political realities.
Runaway alarmists display almost none of this knowledge. Even Mr. Michaelis, the most erudite among them, seems to have little of it. For example, although he cites the first part of my three-part Goldwater Institute study, he seems unfamiliar with the rest of my work or with the writings of scholars such as Russell Caplan, Ann Stuart Diamond, and Professor Michael Rappaport. Self-restriction to the first part of a single study may be why he claims I base my conclusions solely on original “intent.” But he must not have read even that first part carefully, or he would know that, strictly speaking, I do not base even originalist constitutional conclusions on original “intent.” And in fact my overall conclusions rest on all of the five factors set forth above, including post-Founding practice, standard legal rules, court decisions, and political realities.
Now, Mr. Michaelis’ next bit of confusion lies in classifying a “convention for proposing amendments” as a “constitutional convention.”
As Professor Diamond has pointed out, the difference between the two is evident. A constitutional convention is charged with drafting, proposing, and sometimes adopting, a new basic charter. A convention for proposing amendments is charged with drafting and proposing one or more amendments to that charter. James Madison added that in our system the first is “plenipotentiary,” while the second operates subject to the “forms of the constitution.” This was well understood by the Founders and by subsequent generations: No one labeled a convention for proposing amendments a “constitutional convention” until long after the Founding.
Yet Mr. Michaelis is not the first to confuse the two: The tendency to conflate them began late in the 19th century. No doubt it arose from ignorance, but it has been fostered by opponents of the process ever since. It serves them well.
Mr. Michaelis might respond that it is fair to refer to any gathering that addresses changes in constitutional rules as a “constitutional convention.”
The problem with this answer is that it renders the term far too broad. If we apply the term that way, the 1787 gathering was not, as he says, our “first constitutional convention.” One must also count the 1754 Albany Congress, which proposed a plan of colonial union; the First Continental Congress, which institutionalized interstate cooperation; the 1780 Hartford Convention, which formally recommended amending the Articles of Confederation; the 1786 Annapolis Convention, which also was called to recommend amendments; and perhaps the Second Continental Congress, which drafted and proposed the Articles.
Moreover, by that definition, we have had many constitutional conventions since: the many state conventions that ratified the Constitution or one of its amendments, and the 1861 Washington Conference Convention, an assembly of 21 states that proposed a complicated constitutional amendment to avert the Civil War.
Of course it stretches the term to call any of these gatherings “constitutional conventions”—for the same reason it stretches the term to apply it to a convention for proposing amendments.
Our next issue consists of those gaps in the language of Article V that Mr. Michaelis claims he has found.
If you know the Founding Era record, you know the gaps mostly don’t exist. This is because the Framers employed the key terms in Article V in universally accepted ways. Everyone knew that a general convention would be a meeting of the states. Everyone knew that a “call” did not include authority to dictate the apportionment or selection of commissioners (delegates). Everyone knew—and the ratification record amply confirms—that the applying states would control the subject matter and that each state legislature would control its commissioners. There was no need to restate the obvious.
But are the Founding Era convention customs and understandings part of Article V? Yes, they are.
This is where Mr. Michaelis would find legal knowledge helpful: The Supreme Court has held repeatedly that Article V consists of grants of enumerated powers to named assemblies (legislatures and conventions). As some very modern Supreme Court opinions make clear, Founding Era customs and understandings largely define the scope of the Constitution’s words and its grants. And while the courts have not always applied the Founders’ understandings to other parts of the Constitution, they have been generally reliable in doing so in Article V cases.
So why does the language of Article V seem sparse? Because rather than re-state the obvious, the Framers focused on resolving uncertainties not resolved by existing convention practice. The words “application” and “call” sometimes were used interchangeably, so Article V distinguished them. In the Founding Era, moreover, a “call” could come from a state, Congress, or a prior convention—so Article V stipulated who did the calling. In Founding Era practice, a convention might be merely a proposing body or a deciding one. The Framers settled on the former. Article V also specified the ratification procedure and placed certain amendments off limits.
By the way, Founding Era convention protocols did not go away after the Constitution was ratified. They remain much the same even today. The last multi-state convention, the Washington Conference Convention of 1861, proved their viability among large bodies and in times of extreme stress. Similar protocols governed the state conventions that ratified the 21st amendment in the 1930s.
Next we come to the “any convention can do anything” claim. The general idea is that, as the direct representative of the people, no convention can be controlled by any outside force because each convention is sovereign.
You can marshal a few writers in support of that opinion, and in the middle of the American Revolution a few state conventions acted that way. But this view runs contrary to both prevailing practice and established law. When the Constitution was adopted nearly all interstate conventions had been limited by topic, and in the intervening years also this has been true of nearly all conventions.
Moreover, the “any convention can do anything” view directly contradicts established constitutional law. That law holds that when they act under Article V, all assemblies—both legislatures and conventions—derive all their authority exclusively from the Constitution. Their power is limited accordingly. To take one example: A state convention commissioned to consider only a particular amendment can be limited to that purpose. In Re Opinions of the Justices, 204 N.C. 306, 172 S.E. 474 (1933); see also the relevant bibliography at http://constitution.i2i.org/about/ for citations to cases.)
Some alarmists counter with a speculative essay written by Yale professor Akhil Amar when he was fresh out of law school. (The essay was written long ago and without the benefit of modern Article V scholarship.) In it, the youthful Amar argued that the people can, by convention, change the political system extra-constitutionally. Now, to anyone familiar with the Declaration of Independence, this is an unsurprising thesis. Amar also suggested that some parts of the Constitution recognize this “popular sovereignty” power. But—and this is the important point—Amar explicitly distinguished the whole idea from Article V.
We now turn to Mr. Michaelis’ assertion that the 1787 convention was called by Congress for the limited purpose of amending the Articles of Confederation, but instead “ran away” by drafting a new document. I address this common misconception briefly in the first part of my Goldwater study, for which Mr. Michaelis accuses me of “equivocation” and “a long and complex argument regarding the meanings of words.”
But the facts are neither equivocal nor complex. They are as follows:
* The Constitutional Convention was not called by Congress. It was called by Virginia and, secondarily, by New Jersey in response to the recommendation of the Annapolis Convention. (During the Founding Era, most multi-state conventions were called by individual states.)
* The Articles of Confederation were, unlike the Constitution, essentially a treaty among sovereign states. The role of the Confederation Congress was much like the role of the UN among sovereign nations today. Signatories of treaties always have the power to reconsider the terms of their connections, even if their coordinating agent (such as the UN or the Confederation Congress) objects.
* Ten of the 12 states participating in the Constitutional Convention authorized their delegates (“commissioners”) to consider changes in the “federal constitution” without limiting them to amending the Articles of Confederation. The unanimous authority of 18th century dictionaries (including the first American edition of Perry’s) tells us that “constitution” in this context meant the entire political system, not merely the Articles as such.
* This was well understood in Congress. That’s why after seven states already had signed up to join in the convention, two states where anti-federalist sentiment was powerful—New York and Massachusetts—asked Congress to recommend that the convention be limited to amending the Articles. But the congressional resolution was certainly not “strongly worded,” as Mr. Michaelis claims. It was about as weak-tea as possible: watered down from a “recommendation” to the mere statement that “in the opinion of Congress it is expedient” that the convention be so limited. This is understandable, because Congress, as a mere agent of the participating parties, had no power to limit their decision, and it was presumptuous to try.
* In Philadelphia, only seven commissioners from two states lacked power to propose a new form of government. Of the seven, only three signed the Constitution, one in an individual capacity (Hamilton). Perhaps Nathaniel Gorham and Rufus King “ran away,” but no one else did.
Mr. Michaelis seems to argue—he is not quite clear on this point—that because 16 commissioners failed to sign the Constitution, all 16 recognized that proposing the document was beyond their power. This is simply untrue. Elbridge Gerry and two New York delegates did refuse to subscribe for lack of authority. But most of the 16 non-signers failed to subscribe for very different reasons: Edmund Randolph wanted to maintain political flexibility (a good choice in retrospect). George Wythe went home early to tend a dying wife. Luther Martin, George Mason, and John Mercer all opposed the terms of the document. Alexander Martin favored the Constitution, but left (probably for health reasons) before the convention ended. And so forth.
As for the convention’s decision to “change” the ratifying process: It is true that the 1787 gathering adopted a process different from that in the Articles, but the 1787 convention was not called under, or empowered by, the Articles. By contrast, a convention for proposing amendments would be held under the “forms of the Constitution” and therefore would be bound by the very clear ratification procedures specified by the Constitution.
Suppose, however, that it were true that the 1787 convention “ran away?” Would this prove that a future convention would do so?
There were many multi-state conventions during the 18th and 19th centuries. Why consider as evidence only one? The Providence Conventions of 1776-77 and 1781 did not run away. The 1777 Springfield and York Town Conventions did not run away. Neither the New Haven Price Convention of 1778 nor the Hartford Conventions of 1779 and 1780 ran away. The 1780 Philadelphia Price Convention and Boston Convention did not run away. And, more recently, the 1861 Washington Conference Convention did not run away. Why is the 1787 convention “evidence” while nearly 20 others are not?
The answer is that for all their vaunted constitutional knowledge, “runaway” theorists are ignorant of all or most of those other conventions. Or, if any of them do know about them, they’re not talking.
Now, let’s get back to reality: As a practical matter, there are redundant protections against a runaway convention for proposing amendments:
* Political factors: the damage that disregard of clear limits can do to a commissioner’s reputation;
* Popular opinion;
* State applications defining the scope;
* The limit on the scope of the call;
* The potential for lawsuits to enforce the foregoing;
* State instruction of commissioners;
* State power to recall commissioners;
* The need to garner a majority of state committees (delegations) at the convention;
* Congress’s ability (and duty) to refuse to choose a mode of ratification for an ultra vires proposal;
* The requirement that proposals be ratified by 38 states;
* The potential for more judicial challenge, at every stage of the process.
You can argue against the efficacy of any one or two of these if you like. But combined together, they reduce the risks almost to the vanishing point. Consider, by contrast, the unrestrained reality of the runaway Congress.
One last observation: The Founders adopted the state application and convention procedure as an integral portion of the Constitution’s checks and balances. It is a way of preserving the state/federal balance, and its disuse has had predictable results.
In part this disuse may stem less from a desire to defend the Constitution as from dissatisfaction with the Constitution: Mr. Michaelis, for example, writes of a “flaw in the language of Article V” and that “[t]he language that needs to be there is simply missing.” Others in his same camp have suggested that Article V be ignored in perpetuity or that it be skipped in favor of extra-constitutional remedies such as nullification.
If their view is that parts of the Constitution are radically defective, then they should be careful what they ask for: Because if state legislatures do not step forward soon to establish their “ownership” of the state application and convention procedure, others—people hostile to the Founders’ design—certainly will. They are preparing to do so as I write.
The Founders inserted this procedure for the state legislatures to use, and to use particularly in times of federal overreaching. If James Madison and John Dickinson were to come among us today, and we were to tell them of our current predicament, what would they say?
No doubt, they would ask if we had resorted to the state-driven process in Article V to correct the problem. And when we admitted that we had not—that we had allowed ourselves to be gulled by alarmists and quacks—what would these Founders say then?
They would tell us that the whole mess was our own fault.
And they would be right.
http://constitution.i2i.org/2013/02/15/a-response-to-the-%E2%80%9Crunaway-scenario%E2%80%9D/
PDF LIBRARY ARTICLE V (5) BELOW
Article V and the Single Amendment Convention
Can an Article V convention for proposing amendments be limited to considering a single amendment specified by the state legislatures in their applications? Even within the relatively sparse literature on the Article V convention, little attention has been paid to this question. Professor Rob Natelson, who has written extensively in support of the proposition that a convention may be limited to a particular subject, has expressed skepticism regarding the viability of a “single amendment convention.” Natelson’s view, however, is less a firm conclusion about the original meaning of Article V than a prediction regarding the practical difficulties likely to attend an effort to hold a single amendment convention, including the possibility that Congress or the courts would refuse to recognize it.
Recently a prominent originalist scholar, Professor Michael Rappaport (well known to the readers of this blog), has concluded that Article V permits a convention for proposing amendments to be limited by either subject or the wording of a particular amendment. See Michael B. Rappaport,The Constitutionality of a Limited Convention: An Originalist Analysis, 81 Const. Comm. 53, 56 (2012) (“The Constitution allows the state legislatures to apply not merely for a convention limited to a specific subject matter [but allows them] to draft a specially worded amendment and then to apply for a convention limited to deciding only whether to propose that amendment.”).
Although the issue is not free from doubt, I agree with Rappaport that the state legislatures have the power to limit an Article V convention to a single amendment. This is so for five reasons:
1. Constitutional Text. Although some commentators suggest that the term “Convention for proposing Amendments” in Article V implies that the convention must at least have discretion over the specific wording of an amendment, nothing in the constitutional language itself supports that conclusion. The “proposing” of an amendment occurs when it is formally offered for adoption. See Rappaport, 81 Const. Comm. at 65 (“The proposing convention has the formal power to offer an amendment for adoption by the ratifiers.”). The ordinary meaning of the word does not imply that the amendment was originated or drafted by those doing the “proposing.”
Similarly, the word “convention” does not imply discretion beyond holding an up-or-down vote on whether to propose a specific amendment. Indeed, Article V provides for state ratifying conventions, which are limited to holding an up-or-down vote on whether to accept a specific amendment. Thus, “a convention can be limited as to whether or not to propose a specific amendment and still be a convention.” Id. at 70.
This point is bolstered by looking at the state resolutions leading up to the Philadelphia Convention of 1787. Many of these resolutions explicitly referred to the Convention’s function of “devising” (e.g., New Jersey), or “devising and discussing” (e.g., Virginia and New Hampshire), or “devising, deliberating on and discussing” (e.g., Pennsylvania and Delaware), alterations and provisions related to the federal constitution. If the Framers had wanted to specify that the Article V convention would be drafting or originating the amendments it proposed, they could have easily incorporated such terms.
2. Equality of the Federal and State Governments in Proposing Amendments. A key precept of Article V, reflected in constitutional structure, drafting history and contemporaneous statements of the Framers, is that Congress and the state legislatures are to have an equal ability to originate constitutional amendments. Thus, two-thirds of each house of Congress or two-thirds of the state legislatures is required to initiate the amendment process. As James Madison explained in Federalist No. 43, Article V “equally enables the general and the state governments, to originate the amendment of errors, as they may be pointed out by the experience on one side or the other.”
Natelson argues persuasively that this equality principle strongly supports the authority of the state legislatures to specify the subject matter on which the Article V convention will deliberate. See Robert G. Natelson,Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693, 726-27 (2011) (Federalist representations of equality suggest that in construing Article V, preference should be given to interpretations that raise the states toward the congressional level and treat the convention as their joint assembly. This, in turn, suggests that if Congress may specify a subject when it proposes amendments, the states may do do as well,”); see also Rappaport, 81 Const. Comm. at 90 (“[T]he limited convention view will further the constitutional purpose of permitting the convention method to be an effective alternative to the congressional proposal method.”).
This argument applies at least as forcefully to a single amendment convention. Congress, after all, drafts the actual wording of a proposed amendment; it does not merely identify the subject matter. Thus, if the state legislatures are to be treated equally to Congress, they must have the power to draft a specific amendment, just as Congress does. It is difficult to explain why the equality principle requires that the state legislatures be able to limit the convention to a particular subject, but not to a particular amendment.
3. Constitutional Purpose. As Natelson explains, the state-initiated method of amendment was created specifically in contemplation of amendments needed to limit the power of and/or curb abuses by Congress and the federal government. The Framers believed the state legislatures were best able to decide when such amendments were needed. Thus, in Federalist No. 85, Alexander Hamilton said that “[w]e may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.”
Both common sense and the record of the framing and ratification periods indicate that the Framers expected the state legislatures to act in response to some particular congressional abuse or to obtain a particular desired amendment. See, e.g., William W. Van Alstyne, The Limited Constitutional Convention- The Recurring Answer, 1979 Duke L. J. 985, 990 (1979) (Article V convention most likely will be called to address “particular usurpations” by Congress) (emphasis in original), Thus, Hamilton stated in Federalist No. 85 that “every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. . . . And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.” As Natelson observes, Hamilton’s reference to nine states “represented the two thirds then necessary to force a convention” (while 10 were needed to ratify). Natelson, 78 Tenn. L. Rev. at 727. This in turn indicates that two thirds of the states could initiate the amendment process when they were already “united in the desire of a particular amendment.”
If the applying states have already decided that they desire a particular amendment (including, perhaps, the exact wording of the amendment), there are significant costs to allowing the convention to propose other amendments. This rule would impose an “uncertainty tax” on the state initiation of amendments and make it less likely that state legislatures will apply for a convention in the first place. Rappaport, 81 Const. Comm. at 89. It also may make it less likely that the convention, if called, will be able to reach consensus on the desired amendment. Id. at 90. In either case it would tend to undercut Hamilton’s assurance that the amendment “must infallibly take place.”
By contrast, what purpose is served if the convention, called at the behest of state legislatures “united in the desire of a particular amendment,” is free to propose a different amendment? See Michael Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765, 774 (2011) (“Scholars who believe that an Article V Convention must be unlimited have struggled to explain the constitutional purposes that would be advanced by this interpretation.”). Hypotheses have been offered to the effect that the Article V convention would serve as a check on the state legislatures, but these claims make little sense (the convention can provide a check by refusing to propose the desired amendment and does not need the power to propose an alternative). In any event, they have no foundation in the actual purposes of Article V discussed during the Philadelphia Convention and the ratification period. See Rappaport, 81 Const. Comm. at 90-91; Stern, 78 Tenn. L. Rev. at 775-78.
Once it is accepted that the state legislatures have the power to limit an Article V convention, “[n]o constitutional principle appears to support distinguishing a convention limited to a single subject from one limited to a single amendment.” Stern, 78 Tenn. L. Rev. at 785. There may be reasons of pragmatism or efficiency that militate against seeking a convention limited to a single amendment, but these are questions that state legislators themselves, not courts or constitutional scholars, are in the best position to evaluate. There is little reason, either in 1787 or today, to constitutionalize the answers to these questions.
4. Contemporaneous Statements. We have already discussed statements by Madison and Hamilton which support the limited convention view. Other contemporaneous statements, compiled by Natelson, provide additional support for a limited convention, including one limited to a single amendment.
For example, Natelson cites 1788 letter by George Washington, in which he explained that “a constitutional door is open for such amendments as shall be thought necessary by nine States.” Natelson, 78 Tenn. L. Rev. at 727 & n.230 (quoting Letter of Apr. 25, 1788 from George Washington to John Armstrong). Again the implication is that the applying states would identify the amendments they thought necessary, not merely a subject matter or a problem to be solved, prior to the convention.
Even more strikingly, the Federalist writer Tench Coxe wrote in 1788:
If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such proposed amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.
Natelson, 78 Tenn. L. Rev. at 727 & n.232 (quoting A Pennsylvanian to the New York Convention, PA Gazette, June 11, 1788)).
As Natelson notes, Coxe’s statement “reveals an assumption that states would make application explicitly to promote particular amendments,” which would be known (and possibly disliked) by Congress before the Article V convention. Natelson, 78 Tenn. L. Rev. at 728. He cites several others, including Patrick Henry, who shared the same assumption and spoke as if “the states rather than the convention would do the proposing.” Id. at 730.
One might argue that these statements were imprecise and that the Founders only anticipated that the state legislatures would identify the substance, rather than the exact wording, of a desired amendment. But even if that is so, this evidence shows that the Founders did not assume the Article V convention would necessarily be originating or devising the amendments it proposed. All of these statements are therefore consistent with the view that the state legislatures may prescribe the wording of a particular amendment in the applications and confine the deliberations of the convention to whether to propose that amendment.
5. Background Law. Much of Natelson’s work in this area is devoted to showing that the Founders understood there to be a principal-agent relationship between the state legislatures and the convention, which relationship was governed by well-established principles of fiduciary law. See, e.g., Robert G. Natelson, Amending the Constitution by Convention: Lessons for Today from the Constitution’s First Century 2 (Independence Inst. 2011) (“Conventions for proposing amendments, like other federal conventions, are made up of delegates who are agents of the state legislatures. In effect, the entire convention is a collective agent of the state legislatures.”). It follows that the Article V convention is bound to comply with the limitations placed upon it by the state legislatures, unless the Constitution affirmatively prohibits those limitations.
As we have seen, nothing in the constitutional text, structure or purpose forbids the state legislatures from limiting the convention to a single amendment. It is true that those interstate conventions held before 1787 had discretion beyond an up-or-down vote on a single text (although there were intrastate conventions of this nature), but this may simply reflect the fact that there was no occasion to hold a more limited convention. By itself, this fact cannot provide the basis for finding an affirmative constitutional prohibition. See also Rappaport, 81 Const. Comm. at 71 (“[T]he question is not whether some conventions had discretion. Rather, it is whether all conventions must have discretion and, most importantly, whether a proposing convention must have discretion. The answer to those questions is no.”).
Thus, despite Natelson’s own reservations about the single amendment convention, I think his work as a whole supports the constitutionality, if not the wisdom, of such a convention. I explain more fully here why this is the more “Natelsonian” position.
As discussed in an earlier post, Professor Rob Natelson has done groundbreaking work on the Article V convention and the rules that apply to such a convention. One of the issues Natelson explores is whether and how state legislatures can limit the scope of the convention’s deliberations. His study of pre-constitutional interstate (or “multi-government”) conventions shows that states could and did ordinarily limit the scope of such conventions. See, e.g., Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments,” 65 Fla. L. Rev. 615, **18-66 (forthcoming 2013) (hereinafter “Founding-Era Conventions”); Robert G. Natelson,Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693, 715-32 (2011)(hereinafter “Rules Governing the Process”).
Natelson finds that this practice exemplified the principal-agent relationship that existed between state legislative bodies and an interstate convention. See Robert G. Natelson, Amending the Constitution by Convention: Lessons for Today from the Constitution’s First Century 2 (Independence Institute 2011) (hereinafter “Independence Institute Paper II”) (“Conventions for proposing amendments, like other federal conventions, are made up of delegates who are agents of the state legislatures. In effect, the entire convention is a collective agent of the state legislatures.”). Pre-constitutional interstate conventions were governed by principles of eighteenth-century fiduciary and agency law, in which the state legislatures were the principals, and the convention was the agent with fiduciary obligations to the principal. See Robert G. Natelson, Amending the Constitution by Convention: A More Complete View of the Founders’ Plan 3 (Independence Institute 2010) (hereinafter “Independence Institute Paper I”); Rules Governing the Process, 78 Tenn. L. Rev. at 703-06.
There are actually two types of principal/agent relationships involved: one running from each state legislature to the delegates from that state and one running from the state legislatures collectively to the convention as a whole. Under the first type, “[t]he state legislature, or its designee, grants and defines the authority of the commissioners, instructs them, and may recall them.” Robert G. Natelson, The Article V Convention Process and the Restoration of Federalism, 36 Harv. J. L. Pub. Pol’y 955, 959 (2013) (hereinafter “The Article V Convention Process”); see also Rules Governing the Process, 78 Tenn. L. Rev. at 747 (“As in all prior federal conventions, delegates to a convention for proposing amendments are representatives of the state legislatures, and therefore subject to instructions.”). A state legislature can limit the authority of its own delegation either through instructions or through the “commissions” that each delegate (also referred to in pre-constitutional practice as a “commissioner”) receives.
Under the second type of principal/agent relationship, the authority of the convention as a whole may be limited. Natelson draws this conclusion not only from eighteenth-century convention practice, but “from the record of the framing, from debates over the Constitution’s ratification, and from subsequent history and some subsequent case law.” The Article V Convention Process, 36Harv. J. L. & Pub. Pol’y at 958. For example, Natelson points out that if state legislatures could not limit the authority of the Article V convention to the types of amendments they desire, it would undercut the fundamental purpose of the convention, which is to serve as an “effective congressional bypass” allowing states to obtain amendments to rein in the national government. Independence Institute Paper II at 11.
Natelson also relies on the principle, evident from both the Philadelphia Convention and the debate over ratification, that Article V establishes equality between Congress and the state legislatures in originating amendments. Madison emphasized this principle in Federalist No. 43, noting that Article V “equally enables the general and the State governments to originate the amendment of errors.” This, Natelson argues, “suggests that if Congress may specify a subject when it proposes amendments, the states may do so as well.” Independence Institute Paper II at 11;see also Independence Institute Paper I at 14 (“Since Congress may propose amendments directly to the states for ratification or rejection, granting equal (or nearly) equal power to the states requires either that they have the power to propose directly (which they do not) or that the convention be their agent. There is no third alternative.”).
In one respect, however, Natelson believes that the state legislatures lack the power to confine the deliberations of the Article V convention. He maintains that “[t]he states may not dictate the precise wording of an amendment or require the convention to propose it.” Independence Institute Paper I at 2.
Natelson acknowledges that this conclusion qualifies the general principal/agent relationship between the state legislatures and the convention:
Because the convention for proposing amendments is the state legislatures’ fiduciary, it must follow the instructions of its principals—that is, limit itself to the agenda, if any, that the states specify in their convention applications. . . .
However, the obligation of an agent to submit to the principal’s instructions may be altered by governing law. The Constitution assigns to the convention, not the states, the task of “proposing” amendments. This implies that the convention has discretion over drafting. If two-thirds of the states could dictate the precise language of an amendment, there would be no need for a convention.
Independence Institute Paper II at 17-18.
The textual argument here is that the word “proposing” somehow “implies that the convention has discretion over drafting.” But I am not aware of any definition of “proposing” that encompasses the act of drafting. There is nothing illogical or incoherent about saying that a convention has proposed an amendment drafted by someone else. One might argue that the phrase “convention for proposing amendments” implies that the convention itself makes the decision as to whether a particular amendment should be proposed, but it is difficult to see how it implies that the convention originated, devised or specified the wording of the amendment.
This point becomes clearer when one looks at the state resolutions leading up to the Philadelphia Convention of 1787. Many of these resolutions explicitly referred to that Convention’s function of “devising” (e.g., New Jersey), or “devising and discussing” (e.g., Virginia and New Hampshire), or “devising, deliberating on and discussing” (e.g., Pennsylvania and Delaware), alterations and provisions related to the federal constitution. If the Framers had wanted to specify that the Article V convention would be drafting or originating the amendments it proposed, they could have easily incorporated such terms. The fact that Article V merely refers to a “convention for proposing amendments” would seem to dispel, rather than support, any notion that the Framers were attempting to limit or qualify the convention’s fiduciary duties to the state legislatures.
Natelson also argues that if Article V permitted state legislatures to dictate the precise wording of any amendment, there would be no need for a convention at all. In other words, why not simply provide that if two-thirds of the state legislatures agree on a specific amendment, Congress is obligated to submit that amendment to the states for ratification?
It seems to me that there are several possible answers to this question. In the eighteenth century, it may have been thought highly unlikely that multiple state legislatures could agree on specific wording of an amendment without holding a physical meeting of their delegates. Or it may have been thought necessary (or at least preferable) to have a joint meeting so that delegates could sign a single document reflecting the proposed amendment, thereby avoiding any confusion or misunderstanding as to the agreed text. Or the Framers may not have thought, one way or the other, about a separate procedure for this situation. None of these answers necessarily implies that the state legislatures should be prohibited from dictating the wording of the desired amendment to the convention.
There is also a more fundamental reason for holding a convention even if two-thirds of the states have already agreed on the text of an amendment. The proposed amendment, if ratified by three-quarters of the states, will bind every state. A convention provides an opportunity for any states that object to the amendment to express their views and seek to dissuade their sister states from proposing it.
In this regard the Article V convention is different from the pre-constitutional interstate conventions with which the Framers were familiar. The latter were voluntary meetings, the sole purpose of which was for the participating states to attempt to reach agreement on a matter of common interest. States that chose not to participate were not legally bound by the outcome in any way.
It is therefore not surprising that there are no historical examples of interstate conventions in which the states had already agreed on the precise outcome prior to the convention. There would have been little, if any, point to holding a convention if the participating states had already reached a complete agreement on the particular issue to be discussed. On the other hand, as far as I know, there is no historical evidence to suggest that it would have been viewed as illegal or improper to hold a convention for the sole purpose of formally ratifying an agreement that the states had already reached.
Natelson argues that pre-constitutional interstate conventions invariably exercised discretion beyond simply voting up or down on a proposed agreement. See Founding-Era Conventions, 65 Fla. L. Rev. at *74 (“Before and during the Founding Era, American multi-government conventions enjoyed even more deliberative freedom than ratifying conventions—as, indeed, befits the dignity of a diplomatic gathering of sovereignties. No multi-government convention was limited to an up-or-down vote.”). The question, however, is whether this is simply a byproduct of how states happened to use conventions in the eighteenth century or whether it demonstrates something about the meaning of a “convention for proposing amendments” in Article V. It seems that there is nothing about the term “convention” itself that implies delegates must have discretion beyond voting up or down on a particular proposal. Article V provides for state ratifying conventions that are limited to an up or down vote. And, as already discussed, “proposing” does not imply any additional measure of discretion.
In short, nothing in constitutional text or history suggests that state legislatures are precluded from agreeing in advance on the particular wording of an amendment to be considered by an Article V convention. Even absent affirmative evidence of an intent to authorize a single amendment convention, therefore, it would seem that such a convention is permitted under the background rules established by agency law.
In fact, however, there is a significant amount of historical evidence, compiled by Natelson himself, that affirmatively supports the conclusion that an Article V convention may be limited to a single amendment. See, e.g., Rules Governing the Process, 78 Tenn. L. Rev. at 727-31. First there is Hamilton’s observation in Federalist No. 85 that “every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. . . . And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.” As Natelson observes, Hamilton’s reference to nine states “represented the two thirds then necessary to force a convention,” implying that two thirds of states would initiate the amendment process when they were already “united in the desire of a particular amendment.” Rules Governing the Process, 78 Tenn. L. Rev. at 727.
Similarly, Natelson cites George Washington’s April 1788 letter to John Armstrong, in which Washington explained that “a constitutional door is open for such amendments as shall be thought necessary by nine States.” Id. at 727 & n.230 (quoting Letter from George Washington to John Armstrong (Apr. 25, 1788)). Again the implication is that the applying states would identify the amendments they thought necessary, not merely a subject matter or a problem to be solved, prior to the convention.
Even more strikingly, the Federalist writer Tench Coxe wrote in 1788:
If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such proposed amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.
Rules Governing the Process, 78 Tenn. L. Rev. at 727 & n.232 (quoting A Pennsylvanian to the New York Convention, PA Gazette, June 11, 1788)).
As Natelson notes, Coxe’s statement “reveals an assumption that states would make application explicitly to promote particular amendments,” which would be known (and possibly disliked) by Congress before the Article V convention. Rules Governing the Process, 78 Tenn. L. Rev. at 728. He cites several others, including Patrick Henry, who shared the same assumption and spoke as if “the states rather than the convention would do the proposing.” Id. at 730.
One might argue that these statements were imprecise and that the Founders only anticipated that the state legislatures would identify the substance, rather than the exact wording, of a desired amendment. But even if that is so, this evidence shows that the Founders did not assume the Article V convention would necessarily be originating or devising the amendments it proposed. Moreover, the fact that they sometimes attributed the acts of an Article V convention to the states or state legislatures seems entirely consistent with Natelson’s description of the governing rules, under which the convention was the fiduciary or “instrumentality” of the states. Founding-Era Conventions, 65 Fla. L. Rev. at *69. It is also consistent with the principle of equality between Congress and the state legislatures in the Article V process because Congress, obviously, does not merely identify subjects but drafts specific amendments to be proposed.
All of this suggests that the best legal view is that the state legislatures may prescribe the wording of a particular amendment in their applications and confine the deliberations of the convention to whether to propose that amendment. Natelson, however, argues that this approach presents significant practical difficulties. He notes that “the more terms and conditions applications contain, the less likely they will match each other sufficiently to be aggregated together to reach the two-thirds threshold.” Rules Governing the Process, 78 Tenn. L. Rev. at 742.Moreover, “Members of Congress and judges who dislike the contemplated amendments may seize upon wording differences to just refusal to aggregate.” Id.
Natelson also contends “the courts are likely to reject any effort by state legislatures to impose rules or specific language on the convention.” Id. Although he presents this as a legal difficulty, it is also a practical difficulty for state legislatures concerned about the potential for judicial interference with an Article V convention, regardless of whether such interference would be constitutionally justified.
Although these practical difficulties do not bear directly on the meaning of Article V, some may argue (I am not sure if Natelson would be one of them) that they are indirectly relevant in that the Founders should be presumed to have established a coherent and workable system. Others might argue that the task of “constitutional construction” requires establishing a workable doctrine for applying Article V to real-world problems so that the practicalities are relevant even if they do not shed light on the interpretation of the constitutional text. For purposes of argument, I will assume the practicalities are legally relevant, though they may be merely matters for the political and practical judgment of the state legislatures.
On balance, though, I believe that the practicalities cut against recognizing a “single amendment” exception to the principal-agent relationship between state legislatures and the Article V convention. Whether or not it is feasible for two-thirds of the state legislatures to reach agreement on the text of a specific amendment in advance of the Article V convention is a highly situation-dependent question that legislators themselves, not courts or constitutional scholars, are in the best position to answer. There would seem to be little reason, either in 1787 or today, to constitutionalize the answer to this question.
Furthermore, while the danger of Congress (or, to a lesser degree, the courts) refusing to aggregate applications is a real one, the problem is actually greater for subject-matter limited applications than for single-amendment applications. In the latter case it is clear that the states must agree on the exact text of the desired amendment; doing so should largely eliminate the aggregation issue. In the case of subject-matter limited applications the rules are murkier. State legislatures may be tempted to rely on non-standardized descriptions of the convention’s subject and this risks a finding (justified or not) that the applications cannot be aggregated.
Finally, there is the question of whether a single-amendment convention is more likely to be held invalid by the courts. For the reasons already discussed, I do not believe that a court should hold such a convention invalid (assuming that it reaches the merits at all), but that is different from predicting what a court will do. Given that no Article V convention has ever been held and there is little if any case law to provide guidance, confident predictions are difficult.
My own view is that the courts will not want to interfere in the Article V convention process if they can possibly avoid it. There are plenty of reasons for finding challenges to an Article V convention non-justiciable (e.g., standing, ripeness, political question). On the other hand, if a court is strongly inclined to reach the merits, it will not be difficult it to find a ground to “seize upon,” as Natelson puts it, to reach the conclusion it desires. This is true whether the convention is limited to a subject or to a particular amendment.
Will it be marginally easier for a court to justify invalidating a convention if it is limited to a single amendment, rather than to a single subject? Perhaps. But it will also be easier for a court (or Congress) to justify invalidating a limited subject convention if its supporters embrace the proposition that a single amendment convention is invalid.
For one thing, this proposition undercuts some of the very rationales Natelson invokes in favor of a subject matter limited convention. He argues that such limitation furthers the equality between Congress and the states that lies at the heart of Article V’s dual track amendment process. Congress, of course, drafts the actual wording of a proposed amendment; it does not merely identify the subject matter. Thus, if the state legislatures are to be treated equally to Congress, they must have the power to draft a specific amendment, just as Congress does. It is difficult to explain why the equality principle requires that the state legislatures be able to limit the convention to a particular subject, but not to a particular amendment.
Similarly, the principle that the Article V convention is entitled to some deliberative independence can be used to attack any limited convention. Natelson stresses that the Article V convention was designed to be a “deliberative body.” See, e.g.,Robert G. Natelson, The State-Application-and-Convention Method of Amending the Constitution: The Founding Era Vision, 28 Thomas M. Cooley L. Rev. 9, 19 (2011) (“[T]he convention was to be a deliberative body.”); id. (“[T]he applications were to identify areas of concern or amendments designed to accomplish particular purposes, leaving it to the convention to discuss, draft, and propose amendments.”). Of course, as Natelson acknowledges, even conventions limited to an up-or-down vote are deliberative to some extent. Founding-Era Conventions, 65 Fla. L. Rev. at **73-74. How much deliberation or deliberative independence, then, is required in a “convention for proposing amendments”?
Some subject matter limited conventions could be quite narrow. For example, a convention to propose an amendment for the direct popular election of U.S. senators (which many states applied for before the adoption of the 17th Amendment) leaves relatively little to the discretion of the delegates. It might be argued that such a convention lacks sufficient deliberative scope or independence to satisfy constitutional standards.
Would it have the constitutional right to consider alternative solutions (like, say, requiring a popular vote but making it merely advisory)? Or suppose the state legislatures prescribed the exact wording of the desired amendment, but authorized the convention to make non-substantive changes? Or authorized changes but only with a super-majority vote? Or suppose they draft a modular amendment, giving the convention a specific number of limited choices (e.g., whether the Governor be able to fill senatorial vacancies on a temporary basis) to make before voting on proposing the amendment? All of these slippery slope issues invite judicial or congressional review of any limited convention the state legislatures may seek.
Another area of concern relates to instructions. Under pre-constitutional practice, a state legislature could limit the authority of its own delegates, even if the convention as a whole had a broader mandate. Founding-Era Conventions, 65 Fla. L. Rev. at *17 (“A delegate’s commission or instructions could restrict his authority to a scope narrower than the scope of the call.”). This could sharply limit or even eliminate entirely the deliberative independence of the delegation:
Universal pre-constitutional practice tells us that states may select, commission, instruct, and pay their delegates as they wish, and may alter their instructions and recall them. Although the states may define the subject and instruct their commissioners to vote in a certain way, the convention as a whole makes its own rules, elects its own officers, establishes and staffs its own committees, and sets its own time of adjournment. Id. at *73 (emphasis added).
This approach creates a dichotomy in which the convention as a whole enjoys some measure of constitutionally protected deliberative independence, but each delegation does not. But if Article V is interpreted as protecting the deliberative independence of the convention, there will be a strong tendency among lawyers and judges to apply this principle to instructions as well. Even anoriginalist might reason that if Article V’s “convention for proposing amendments” implies some degree of deliberative independence, instructions that infringe on this independence are invalid. Non-originalists, of course, would be even more likely to curtail the authority of state legislatures on this basis.
It is thus not difficult to imagine a court using the principle of deliberative independence to conclude either (a) state legislatures lack the power to impose any limitations on an Article V convention or (b) the court must strike down those limitations, in applications and/or instructions, which unduly infringe (however that may come to be defined) on the deliberative independence of the convention. This danger seems to me far greater than the possibility that a court will conclude that single amendment conventions alone are invalid.
For all of these reasons, I believe it is a mistake, both legal and practical, to constitutionalize limitations on the principal/agent relationship between state legislatures and the Article V convention. Applying for a convention limited to a single amendment may be a bad idea, but that is a judgment for the state legislatures to make.
I am loath to take this position contrary to Professo Natelson, who is the leading expert on the Article V convention. However, I take some comfort in two facts. First, for the reasons explained above, I think my position is the one better supported by Natelson’s own work- the purer Natelsonian view, as it were. Second, if I am wrong, at least I am in good company. See Michael B. Rappaport, The Constitutionality of a Limited Convention: An Originalist Analysis, 81 Const. Comm. 53, 70-72 (2012).
http://www.pointoforder.com/2013/09/01/article-v-and-the-single-amendment-convention/
Recently a prominent originalist scholar, Professor Michael Rappaport (well known to the readers of this blog), has concluded that Article V permits a convention for proposing amendments to be limited by either subject or the wording of a particular amendment. See Michael B. Rappaport,The Constitutionality of a Limited Convention: An Originalist Analysis, 81 Const. Comm. 53, 56 (2012) (“The Constitution allows the state legislatures to apply not merely for a convention limited to a specific subject matter [but allows them] to draft a specially worded amendment and then to apply for a convention limited to deciding only whether to propose that amendment.”).
Although the issue is not free from doubt, I agree with Rappaport that the state legislatures have the power to limit an Article V convention to a single amendment. This is so for five reasons:
1. Constitutional Text. Although some commentators suggest that the term “Convention for proposing Amendments” in Article V implies that the convention must at least have discretion over the specific wording of an amendment, nothing in the constitutional language itself supports that conclusion. The “proposing” of an amendment occurs when it is formally offered for adoption. See Rappaport, 81 Const. Comm. at 65 (“The proposing convention has the formal power to offer an amendment for adoption by the ratifiers.”). The ordinary meaning of the word does not imply that the amendment was originated or drafted by those doing the “proposing.”
Similarly, the word “convention” does not imply discretion beyond holding an up-or-down vote on whether to propose a specific amendment. Indeed, Article V provides for state ratifying conventions, which are limited to holding an up-or-down vote on whether to accept a specific amendment. Thus, “a convention can be limited as to whether or not to propose a specific amendment and still be a convention.” Id. at 70.
This point is bolstered by looking at the state resolutions leading up to the Philadelphia Convention of 1787. Many of these resolutions explicitly referred to the Convention’s function of “devising” (e.g., New Jersey), or “devising and discussing” (e.g., Virginia and New Hampshire), or “devising, deliberating on and discussing” (e.g., Pennsylvania and Delaware), alterations and provisions related to the federal constitution. If the Framers had wanted to specify that the Article V convention would be drafting or originating the amendments it proposed, they could have easily incorporated such terms.
2. Equality of the Federal and State Governments in Proposing Amendments. A key precept of Article V, reflected in constitutional structure, drafting history and contemporaneous statements of the Framers, is that Congress and the state legislatures are to have an equal ability to originate constitutional amendments. Thus, two-thirds of each house of Congress or two-thirds of the state legislatures is required to initiate the amendment process. As James Madison explained in Federalist No. 43, Article V “equally enables the general and the state governments, to originate the amendment of errors, as they may be pointed out by the experience on one side or the other.”
Natelson argues persuasively that this equality principle strongly supports the authority of the state legislatures to specify the subject matter on which the Article V convention will deliberate. See Robert G. Natelson,Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693, 726-27 (2011) (Federalist representations of equality suggest that in construing Article V, preference should be given to interpretations that raise the states toward the congressional level and treat the convention as their joint assembly. This, in turn, suggests that if Congress may specify a subject when it proposes amendments, the states may do do as well,”); see also Rappaport, 81 Const. Comm. at 90 (“[T]he limited convention view will further the constitutional purpose of permitting the convention method to be an effective alternative to the congressional proposal method.”).
This argument applies at least as forcefully to a single amendment convention. Congress, after all, drafts the actual wording of a proposed amendment; it does not merely identify the subject matter. Thus, if the state legislatures are to be treated equally to Congress, they must have the power to draft a specific amendment, just as Congress does. It is difficult to explain why the equality principle requires that the state legislatures be able to limit the convention to a particular subject, but not to a particular amendment.
3. Constitutional Purpose. As Natelson explains, the state-initiated method of amendment was created specifically in contemplation of amendments needed to limit the power of and/or curb abuses by Congress and the federal government. The Framers believed the state legislatures were best able to decide when such amendments were needed. Thus, in Federalist No. 85, Alexander Hamilton said that “[w]e may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.”
Both common sense and the record of the framing and ratification periods indicate that the Framers expected the state legislatures to act in response to some particular congressional abuse or to obtain a particular desired amendment. See, e.g., William W. Van Alstyne, The Limited Constitutional Convention- The Recurring Answer, 1979 Duke L. J. 985, 990 (1979) (Article V convention most likely will be called to address “particular usurpations” by Congress) (emphasis in original), Thus, Hamilton stated in Federalist No. 85 that “every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. . . . And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.” As Natelson observes, Hamilton’s reference to nine states “represented the two thirds then necessary to force a convention” (while 10 were needed to ratify). Natelson, 78 Tenn. L. Rev. at 727. This in turn indicates that two thirds of the states could initiate the amendment process when they were already “united in the desire of a particular amendment.”
If the applying states have already decided that they desire a particular amendment (including, perhaps, the exact wording of the amendment), there are significant costs to allowing the convention to propose other amendments. This rule would impose an “uncertainty tax” on the state initiation of amendments and make it less likely that state legislatures will apply for a convention in the first place. Rappaport, 81 Const. Comm. at 89. It also may make it less likely that the convention, if called, will be able to reach consensus on the desired amendment. Id. at 90. In either case it would tend to undercut Hamilton’s assurance that the amendment “must infallibly take place.”
By contrast, what purpose is served if the convention, called at the behest of state legislatures “united in the desire of a particular amendment,” is free to propose a different amendment? See Michael Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765, 774 (2011) (“Scholars who believe that an Article V Convention must be unlimited have struggled to explain the constitutional purposes that would be advanced by this interpretation.”). Hypotheses have been offered to the effect that the Article V convention would serve as a check on the state legislatures, but these claims make little sense (the convention can provide a check by refusing to propose the desired amendment and does not need the power to propose an alternative). In any event, they have no foundation in the actual purposes of Article V discussed during the Philadelphia Convention and the ratification period. See Rappaport, 81 Const. Comm. at 90-91; Stern, 78 Tenn. L. Rev. at 775-78.
Once it is accepted that the state legislatures have the power to limit an Article V convention, “[n]o constitutional principle appears to support distinguishing a convention limited to a single subject from one limited to a single amendment.” Stern, 78 Tenn. L. Rev. at 785. There may be reasons of pragmatism or efficiency that militate against seeking a convention limited to a single amendment, but these are questions that state legislators themselves, not courts or constitutional scholars, are in the best position to evaluate. There is little reason, either in 1787 or today, to constitutionalize the answers to these questions.
4. Contemporaneous Statements. We have already discussed statements by Madison and Hamilton which support the limited convention view. Other contemporaneous statements, compiled by Natelson, provide additional support for a limited convention, including one limited to a single amendment.
For example, Natelson cites 1788 letter by George Washington, in which he explained that “a constitutional door is open for such amendments as shall be thought necessary by nine States.” Natelson, 78 Tenn. L. Rev. at 727 & n.230 (quoting Letter of Apr. 25, 1788 from George Washington to John Armstrong). Again the implication is that the applying states would identify the amendments they thought necessary, not merely a subject matter or a problem to be solved, prior to the convention.
Even more strikingly, the Federalist writer Tench Coxe wrote in 1788:
If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such proposed amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.
Natelson, 78 Tenn. L. Rev. at 727 & n.232 (quoting A Pennsylvanian to the New York Convention, PA Gazette, June 11, 1788)).
As Natelson notes, Coxe’s statement “reveals an assumption that states would make application explicitly to promote particular amendments,” which would be known (and possibly disliked) by Congress before the Article V convention. Natelson, 78 Tenn. L. Rev. at 728. He cites several others, including Patrick Henry, who shared the same assumption and spoke as if “the states rather than the convention would do the proposing.” Id. at 730.
One might argue that these statements were imprecise and that the Founders only anticipated that the state legislatures would identify the substance, rather than the exact wording, of a desired amendment. But even if that is so, this evidence shows that the Founders did not assume the Article V convention would necessarily be originating or devising the amendments it proposed. All of these statements are therefore consistent with the view that the state legislatures may prescribe the wording of a particular amendment in the applications and confine the deliberations of the convention to whether to propose that amendment.
5. Background Law. Much of Natelson’s work in this area is devoted to showing that the Founders understood there to be a principal-agent relationship between the state legislatures and the convention, which relationship was governed by well-established principles of fiduciary law. See, e.g., Robert G. Natelson, Amending the Constitution by Convention: Lessons for Today from the Constitution’s First Century 2 (Independence Inst. 2011) (“Conventions for proposing amendments, like other federal conventions, are made up of delegates who are agents of the state legislatures. In effect, the entire convention is a collective agent of the state legislatures.”). It follows that the Article V convention is bound to comply with the limitations placed upon it by the state legislatures, unless the Constitution affirmatively prohibits those limitations.
As we have seen, nothing in the constitutional text, structure or purpose forbids the state legislatures from limiting the convention to a single amendment. It is true that those interstate conventions held before 1787 had discretion beyond an up-or-down vote on a single text (although there were intrastate conventions of this nature), but this may simply reflect the fact that there was no occasion to hold a more limited convention. By itself, this fact cannot provide the basis for finding an affirmative constitutional prohibition. See also Rappaport, 81 Const. Comm. at 71 (“[T]he question is not whether some conventions had discretion. Rather, it is whether all conventions must have discretion and, most importantly, whether a proposing convention must have discretion. The answer to those questions is no.”).
Thus, despite Natelson’s own reservations about the single amendment convention, I think his work as a whole supports the constitutionality, if not the wisdom, of such a convention. I explain more fully here why this is the more “Natelsonian” position.
As discussed in an earlier post, Professor Rob Natelson has done groundbreaking work on the Article V convention and the rules that apply to such a convention. One of the issues Natelson explores is whether and how state legislatures can limit the scope of the convention’s deliberations. His study of pre-constitutional interstate (or “multi-government”) conventions shows that states could and did ordinarily limit the scope of such conventions. See, e.g., Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments,” 65 Fla. L. Rev. 615, **18-66 (forthcoming 2013) (hereinafter “Founding-Era Conventions”); Robert G. Natelson,Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693, 715-32 (2011)(hereinafter “Rules Governing the Process”).
Natelson finds that this practice exemplified the principal-agent relationship that existed between state legislative bodies and an interstate convention. See Robert G. Natelson, Amending the Constitution by Convention: Lessons for Today from the Constitution’s First Century 2 (Independence Institute 2011) (hereinafter “Independence Institute Paper II”) (“Conventions for proposing amendments, like other federal conventions, are made up of delegates who are agents of the state legislatures. In effect, the entire convention is a collective agent of the state legislatures.”). Pre-constitutional interstate conventions were governed by principles of eighteenth-century fiduciary and agency law, in which the state legislatures were the principals, and the convention was the agent with fiduciary obligations to the principal. See Robert G. Natelson, Amending the Constitution by Convention: A More Complete View of the Founders’ Plan 3 (Independence Institute 2010) (hereinafter “Independence Institute Paper I”); Rules Governing the Process, 78 Tenn. L. Rev. at 703-06.
There are actually two types of principal/agent relationships involved: one running from each state legislature to the delegates from that state and one running from the state legislatures collectively to the convention as a whole. Under the first type, “[t]he state legislature, or its designee, grants and defines the authority of the commissioners, instructs them, and may recall them.” Robert G. Natelson, The Article V Convention Process and the Restoration of Federalism, 36 Harv. J. L. Pub. Pol’y 955, 959 (2013) (hereinafter “The Article V Convention Process”); see also Rules Governing the Process, 78 Tenn. L. Rev. at 747 (“As in all prior federal conventions, delegates to a convention for proposing amendments are representatives of the state legislatures, and therefore subject to instructions.”). A state legislature can limit the authority of its own delegation either through instructions or through the “commissions” that each delegate (also referred to in pre-constitutional practice as a “commissioner”) receives.
Under the second type of principal/agent relationship, the authority of the convention as a whole may be limited. Natelson draws this conclusion not only from eighteenth-century convention practice, but “from the record of the framing, from debates over the Constitution’s ratification, and from subsequent history and some subsequent case law.” The Article V Convention Process, 36Harv. J. L. & Pub. Pol’y at 958. For example, Natelson points out that if state legislatures could not limit the authority of the Article V convention to the types of amendments they desire, it would undercut the fundamental purpose of the convention, which is to serve as an “effective congressional bypass” allowing states to obtain amendments to rein in the national government. Independence Institute Paper II at 11.
Natelson also relies on the principle, evident from both the Philadelphia Convention and the debate over ratification, that Article V establishes equality between Congress and the state legislatures in originating amendments. Madison emphasized this principle in Federalist No. 43, noting that Article V “equally enables the general and the State governments to originate the amendment of errors.” This, Natelson argues, “suggests that if Congress may specify a subject when it proposes amendments, the states may do so as well.” Independence Institute Paper II at 11;see also Independence Institute Paper I at 14 (“Since Congress may propose amendments directly to the states for ratification or rejection, granting equal (or nearly) equal power to the states requires either that they have the power to propose directly (which they do not) or that the convention be their agent. There is no third alternative.”).
In one respect, however, Natelson believes that the state legislatures lack the power to confine the deliberations of the Article V convention. He maintains that “[t]he states may not dictate the precise wording of an amendment or require the convention to propose it.” Independence Institute Paper I at 2.
Natelson acknowledges that this conclusion qualifies the general principal/agent relationship between the state legislatures and the convention:
Because the convention for proposing amendments is the state legislatures’ fiduciary, it must follow the instructions of its principals—that is, limit itself to the agenda, if any, that the states specify in their convention applications. . . .
However, the obligation of an agent to submit to the principal’s instructions may be altered by governing law. The Constitution assigns to the convention, not the states, the task of “proposing” amendments. This implies that the convention has discretion over drafting. If two-thirds of the states could dictate the precise language of an amendment, there would be no need for a convention.
Independence Institute Paper II at 17-18.
The textual argument here is that the word “proposing” somehow “implies that the convention has discretion over drafting.” But I am not aware of any definition of “proposing” that encompasses the act of drafting. There is nothing illogical or incoherent about saying that a convention has proposed an amendment drafted by someone else. One might argue that the phrase “convention for proposing amendments” implies that the convention itself makes the decision as to whether a particular amendment should be proposed, but it is difficult to see how it implies that the convention originated, devised or specified the wording of the amendment.
This point becomes clearer when one looks at the state resolutions leading up to the Philadelphia Convention of 1787. Many of these resolutions explicitly referred to that Convention’s function of “devising” (e.g., New Jersey), or “devising and discussing” (e.g., Virginia and New Hampshire), or “devising, deliberating on and discussing” (e.g., Pennsylvania and Delaware), alterations and provisions related to the federal constitution. If the Framers had wanted to specify that the Article V convention would be drafting or originating the amendments it proposed, they could have easily incorporated such terms. The fact that Article V merely refers to a “convention for proposing amendments” would seem to dispel, rather than support, any notion that the Framers were attempting to limit or qualify the convention’s fiduciary duties to the state legislatures.
Natelson also argues that if Article V permitted state legislatures to dictate the precise wording of any amendment, there would be no need for a convention at all. In other words, why not simply provide that if two-thirds of the state legislatures agree on a specific amendment, Congress is obligated to submit that amendment to the states for ratification?
It seems to me that there are several possible answers to this question. In the eighteenth century, it may have been thought highly unlikely that multiple state legislatures could agree on specific wording of an amendment without holding a physical meeting of their delegates. Or it may have been thought necessary (or at least preferable) to have a joint meeting so that delegates could sign a single document reflecting the proposed amendment, thereby avoiding any confusion or misunderstanding as to the agreed text. Or the Framers may not have thought, one way or the other, about a separate procedure for this situation. None of these answers necessarily implies that the state legislatures should be prohibited from dictating the wording of the desired amendment to the convention.
There is also a more fundamental reason for holding a convention even if two-thirds of the states have already agreed on the text of an amendment. The proposed amendment, if ratified by three-quarters of the states, will bind every state. A convention provides an opportunity for any states that object to the amendment to express their views and seek to dissuade their sister states from proposing it.
In this regard the Article V convention is different from the pre-constitutional interstate conventions with which the Framers were familiar. The latter were voluntary meetings, the sole purpose of which was for the participating states to attempt to reach agreement on a matter of common interest. States that chose not to participate were not legally bound by the outcome in any way.
It is therefore not surprising that there are no historical examples of interstate conventions in which the states had already agreed on the precise outcome prior to the convention. There would have been little, if any, point to holding a convention if the participating states had already reached a complete agreement on the particular issue to be discussed. On the other hand, as far as I know, there is no historical evidence to suggest that it would have been viewed as illegal or improper to hold a convention for the sole purpose of formally ratifying an agreement that the states had already reached.
Natelson argues that pre-constitutional interstate conventions invariably exercised discretion beyond simply voting up or down on a proposed agreement. See Founding-Era Conventions, 65 Fla. L. Rev. at *74 (“Before and during the Founding Era, American multi-government conventions enjoyed even more deliberative freedom than ratifying conventions—as, indeed, befits the dignity of a diplomatic gathering of sovereignties. No multi-government convention was limited to an up-or-down vote.”). The question, however, is whether this is simply a byproduct of how states happened to use conventions in the eighteenth century or whether it demonstrates something about the meaning of a “convention for proposing amendments” in Article V. It seems that there is nothing about the term “convention” itself that implies delegates must have discretion beyond voting up or down on a particular proposal. Article V provides for state ratifying conventions that are limited to an up or down vote. And, as already discussed, “proposing” does not imply any additional measure of discretion.
In short, nothing in constitutional text or history suggests that state legislatures are precluded from agreeing in advance on the particular wording of an amendment to be considered by an Article V convention. Even absent affirmative evidence of an intent to authorize a single amendment convention, therefore, it would seem that such a convention is permitted under the background rules established by agency law.
In fact, however, there is a significant amount of historical evidence, compiled by Natelson himself, that affirmatively supports the conclusion that an Article V convention may be limited to a single amendment. See, e.g., Rules Governing the Process, 78 Tenn. L. Rev. at 727-31. First there is Hamilton’s observation in Federalist No. 85 that “every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. . . . And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.” As Natelson observes, Hamilton’s reference to nine states “represented the two thirds then necessary to force a convention,” implying that two thirds of states would initiate the amendment process when they were already “united in the desire of a particular amendment.” Rules Governing the Process, 78 Tenn. L. Rev. at 727.
Similarly, Natelson cites George Washington’s April 1788 letter to John Armstrong, in which Washington explained that “a constitutional door is open for such amendments as shall be thought necessary by nine States.” Id. at 727 & n.230 (quoting Letter from George Washington to John Armstrong (Apr. 25, 1788)). Again the implication is that the applying states would identify the amendments they thought necessary, not merely a subject matter or a problem to be solved, prior to the convention.
Even more strikingly, the Federalist writer Tench Coxe wrote in 1788:
If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such proposed amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.
Rules Governing the Process, 78 Tenn. L. Rev. at 727 & n.232 (quoting A Pennsylvanian to the New York Convention, PA Gazette, June 11, 1788)).
As Natelson notes, Coxe’s statement “reveals an assumption that states would make application explicitly to promote particular amendments,” which would be known (and possibly disliked) by Congress before the Article V convention. Rules Governing the Process, 78 Tenn. L. Rev. at 728. He cites several others, including Patrick Henry, who shared the same assumption and spoke as if “the states rather than the convention would do the proposing.” Id. at 730.
One might argue that these statements were imprecise and that the Founders only anticipated that the state legislatures would identify the substance, rather than the exact wording, of a desired amendment. But even if that is so, this evidence shows that the Founders did not assume the Article V convention would necessarily be originating or devising the amendments it proposed. Moreover, the fact that they sometimes attributed the acts of an Article V convention to the states or state legislatures seems entirely consistent with Natelson’s description of the governing rules, under which the convention was the fiduciary or “instrumentality” of the states. Founding-Era Conventions, 65 Fla. L. Rev. at *69. It is also consistent with the principle of equality between Congress and the state legislatures in the Article V process because Congress, obviously, does not merely identify subjects but drafts specific amendments to be proposed.
All of this suggests that the best legal view is that the state legislatures may prescribe the wording of a particular amendment in their applications and confine the deliberations of the convention to whether to propose that amendment. Natelson, however, argues that this approach presents significant practical difficulties. He notes that “the more terms and conditions applications contain, the less likely they will match each other sufficiently to be aggregated together to reach the two-thirds threshold.” Rules Governing the Process, 78 Tenn. L. Rev. at 742.Moreover, “Members of Congress and judges who dislike the contemplated amendments may seize upon wording differences to just refusal to aggregate.” Id.
Natelson also contends “the courts are likely to reject any effort by state legislatures to impose rules or specific language on the convention.” Id. Although he presents this as a legal difficulty, it is also a practical difficulty for state legislatures concerned about the potential for judicial interference with an Article V convention, regardless of whether such interference would be constitutionally justified.
Although these practical difficulties do not bear directly on the meaning of Article V, some may argue (I am not sure if Natelson would be one of them) that they are indirectly relevant in that the Founders should be presumed to have established a coherent and workable system. Others might argue that the task of “constitutional construction” requires establishing a workable doctrine for applying Article V to real-world problems so that the practicalities are relevant even if they do not shed light on the interpretation of the constitutional text. For purposes of argument, I will assume the practicalities are legally relevant, though they may be merely matters for the political and practical judgment of the state legislatures.
On balance, though, I believe that the practicalities cut against recognizing a “single amendment” exception to the principal-agent relationship between state legislatures and the Article V convention. Whether or not it is feasible for two-thirds of the state legislatures to reach agreement on the text of a specific amendment in advance of the Article V convention is a highly situation-dependent question that legislators themselves, not courts or constitutional scholars, are in the best position to answer. There would seem to be little reason, either in 1787 or today, to constitutionalize the answer to this question.
Furthermore, while the danger of Congress (or, to a lesser degree, the courts) refusing to aggregate applications is a real one, the problem is actually greater for subject-matter limited applications than for single-amendment applications. In the latter case it is clear that the states must agree on the exact text of the desired amendment; doing so should largely eliminate the aggregation issue. In the case of subject-matter limited applications the rules are murkier. State legislatures may be tempted to rely on non-standardized descriptions of the convention’s subject and this risks a finding (justified or not) that the applications cannot be aggregated.
Finally, there is the question of whether a single-amendment convention is more likely to be held invalid by the courts. For the reasons already discussed, I do not believe that a court should hold such a convention invalid (assuming that it reaches the merits at all), but that is different from predicting what a court will do. Given that no Article V convention has ever been held and there is little if any case law to provide guidance, confident predictions are difficult.
My own view is that the courts will not want to interfere in the Article V convention process if they can possibly avoid it. There are plenty of reasons for finding challenges to an Article V convention non-justiciable (e.g., standing, ripeness, political question). On the other hand, if a court is strongly inclined to reach the merits, it will not be difficult it to find a ground to “seize upon,” as Natelson puts it, to reach the conclusion it desires. This is true whether the convention is limited to a subject or to a particular amendment.
Will it be marginally easier for a court to justify invalidating a convention if it is limited to a single amendment, rather than to a single subject? Perhaps. But it will also be easier for a court (or Congress) to justify invalidating a limited subject convention if its supporters embrace the proposition that a single amendment convention is invalid.
For one thing, this proposition undercuts some of the very rationales Natelson invokes in favor of a subject matter limited convention. He argues that such limitation furthers the equality between Congress and the states that lies at the heart of Article V’s dual track amendment process. Congress, of course, drafts the actual wording of a proposed amendment; it does not merely identify the subject matter. Thus, if the state legislatures are to be treated equally to Congress, they must have the power to draft a specific amendment, just as Congress does. It is difficult to explain why the equality principle requires that the state legislatures be able to limit the convention to a particular subject, but not to a particular amendment.
Similarly, the principle that the Article V convention is entitled to some deliberative independence can be used to attack any limited convention. Natelson stresses that the Article V convention was designed to be a “deliberative body.” See, e.g.,Robert G. Natelson, The State-Application-and-Convention Method of Amending the Constitution: The Founding Era Vision, 28 Thomas M. Cooley L. Rev. 9, 19 (2011) (“[T]he convention was to be a deliberative body.”); id. (“[T]he applications were to identify areas of concern or amendments designed to accomplish particular purposes, leaving it to the convention to discuss, draft, and propose amendments.”). Of course, as Natelson acknowledges, even conventions limited to an up-or-down vote are deliberative to some extent. Founding-Era Conventions, 65 Fla. L. Rev. at **73-74. How much deliberation or deliberative independence, then, is required in a “convention for proposing amendments”?
Some subject matter limited conventions could be quite narrow. For example, a convention to propose an amendment for the direct popular election of U.S. senators (which many states applied for before the adoption of the 17th Amendment) leaves relatively little to the discretion of the delegates. It might be argued that such a convention lacks sufficient deliberative scope or independence to satisfy constitutional standards.
Would it have the constitutional right to consider alternative solutions (like, say, requiring a popular vote but making it merely advisory)? Or suppose the state legislatures prescribed the exact wording of the desired amendment, but authorized the convention to make non-substantive changes? Or authorized changes but only with a super-majority vote? Or suppose they draft a modular amendment, giving the convention a specific number of limited choices (e.g., whether the Governor be able to fill senatorial vacancies on a temporary basis) to make before voting on proposing the amendment? All of these slippery slope issues invite judicial or congressional review of any limited convention the state legislatures may seek.
Another area of concern relates to instructions. Under pre-constitutional practice, a state legislature could limit the authority of its own delegates, even if the convention as a whole had a broader mandate. Founding-Era Conventions, 65 Fla. L. Rev. at *17 (“A delegate’s commission or instructions could restrict his authority to a scope narrower than the scope of the call.”). This could sharply limit or even eliminate entirely the deliberative independence of the delegation:
Universal pre-constitutional practice tells us that states may select, commission, instruct, and pay their delegates as they wish, and may alter their instructions and recall them. Although the states may define the subject and instruct their commissioners to vote in a certain way, the convention as a whole makes its own rules, elects its own officers, establishes and staffs its own committees, and sets its own time of adjournment. Id. at *73 (emphasis added).
This approach creates a dichotomy in which the convention as a whole enjoys some measure of constitutionally protected deliberative independence, but each delegation does not. But if Article V is interpreted as protecting the deliberative independence of the convention, there will be a strong tendency among lawyers and judges to apply this principle to instructions as well. Even anoriginalist might reason that if Article V’s “convention for proposing amendments” implies some degree of deliberative independence, instructions that infringe on this independence are invalid. Non-originalists, of course, would be even more likely to curtail the authority of state legislatures on this basis.
It is thus not difficult to imagine a court using the principle of deliberative independence to conclude either (a) state legislatures lack the power to impose any limitations on an Article V convention or (b) the court must strike down those limitations, in applications and/or instructions, which unduly infringe (however that may come to be defined) on the deliberative independence of the convention. This danger seems to me far greater than the possibility that a court will conclude that single amendment conventions alone are invalid.
For all of these reasons, I believe it is a mistake, both legal and practical, to constitutionalize limitations on the principal/agent relationship between state legislatures and the Article V convention. Applying for a convention limited to a single amendment may be a bad idea, but that is a judgment for the state legislatures to make.
I am loath to take this position contrary to Professo Natelson, who is the leading expert on the Article V convention. However, I take some comfort in two facts. First, for the reasons explained above, I think my position is the one better supported by Natelson’s own work- the purer Natelsonian view, as it were. Second, if I am wrong, at least I am in good company. See Michael B. Rappaport, The Constitutionality of a Limited Convention: An Originalist Analysis, 81 Const. Comm. 53, 70-72 (2012).
http://www.pointoforder.com/2013/09/01/article-v-and-the-single-amendment-convention/
The Constitutionality of a Limited Convention: An Originalist Analysis
Michael B. Rappaport
University of San Diego School of Law
April 6, 2012
Constitutional Commentary, Vol. 81, p. 53, 2012
Abstract:
This article revisits the classic question of whether the Constitution allows limited conventions. The Constitution provides two methods for proposing constitutional amendments: the congressional proposal method and the convention method. Under the convention method, when two thirds of the state legislatures apply for a convention, the Congress is required to call for a “Convention for proposing Amendments.” An issue much debated over the years has been whether the state legislatures can apply for a limited convention – either a convention limited to proposing an amendment on a specific subject or, even more restrictively, a convention limited to deciding whether to propose a specifically worded amendment. A long line of leading constitutional scholars, such as Bruce Ackerman, Alexander Bickel, Charles Black, Walter Dellinger, Gerald Gunther, and Michael Paulsen, have argued that the Constitution does not authorize limited conventions.
In this article, I argue that the Constitution’s original meaning allows for both types of limited conventions. In making this argument, I supply the first rigorous account of how the original meaning of the constitutional text permits such limited conventions. In particular, I show, based on evidence from contemporary dictionaries, from other parts of the Constitution, from conventions existing at the time, and from other evidence of word usage, that the original meaning of the Constitution’s phrase a “Convention for proposing Amendments” includes both limited and unlimited conventions. I also show that the Constitution’s authorization of state legislatures to apply for a “Convention for proposing Amendments” allows them to apply for limited conventions. Finally, the article critiques the leading theories arguing for the contrary view, focusing on the work of Charles Black and Walter Dellinger.
Number of Pages in PDF File: 57
Keywords: constitutional convention, constitutional amendment, originalism
Accepted Paper Series
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2035638
University of San Diego School of Law
April 6, 2012
Constitutional Commentary, Vol. 81, p. 53, 2012
Abstract:
This article revisits the classic question of whether the Constitution allows limited conventions. The Constitution provides two methods for proposing constitutional amendments: the congressional proposal method and the convention method. Under the convention method, when two thirds of the state legislatures apply for a convention, the Congress is required to call for a “Convention for proposing Amendments.” An issue much debated over the years has been whether the state legislatures can apply for a limited convention – either a convention limited to proposing an amendment on a specific subject or, even more restrictively, a convention limited to deciding whether to propose a specifically worded amendment. A long line of leading constitutional scholars, such as Bruce Ackerman, Alexander Bickel, Charles Black, Walter Dellinger, Gerald Gunther, and Michael Paulsen, have argued that the Constitution does not authorize limited conventions.
In this article, I argue that the Constitution’s original meaning allows for both types of limited conventions. In making this argument, I supply the first rigorous account of how the original meaning of the constitutional text permits such limited conventions. In particular, I show, based on evidence from contemporary dictionaries, from other parts of the Constitution, from conventions existing at the time, and from other evidence of word usage, that the original meaning of the Constitution’s phrase a “Convention for proposing Amendments” includes both limited and unlimited conventions. I also show that the Constitution’s authorization of state legislatures to apply for a “Convention for proposing Amendments” allows them to apply for limited conventions. Finally, the article critiques the leading theories arguing for the contrary view, focusing on the work of Charles Black and Walter Dellinger.
Number of Pages in PDF File: 57
Keywords: constitutional convention, constitutional amendment, originalism
Accepted Paper Series
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2035638
PROPOSING CONSTITUTIONAL AMENDMENTS BY CONVENTION: RULES GOVERNING THE PROCESS
ROBERT G. NATELSON* ABSTRACT
Much of the mystery surrounding the Constitution’s state-application- and-convention amendment process is unnecessary: History and case law enable us to resolve most questions. This Article is the first in the legal literature to access the full Founding-Era record on the subject, including the practices of inter-colonial and interstate conventions held during the 1770s and 1780s. Relying on that record, together with post-Founding practices, understandings, and case law, this Article clarifies the rules governing applications and convention calls, and the roles of legislatures and conventions in the process. The goal of the Article is objective exposition rather than advocacy or special pleading.
http://constitution.i2i.org/files/2011/01/Rules_for_Art_V_Conventions.pdf 58 pages.
Much of the mystery surrounding the Constitution’s state-application- and-convention amendment process is unnecessary: History and case law enable us to resolve most questions. This Article is the first in the legal literature to access the full Founding-Era record on the subject, including the practices of inter-colonial and interstate conventions held during the 1770s and 1780s. Relying on that record, together with post-Founding practices, understandings, and case law, this Article clarifies the rules governing applications and convention calls, and the roles of legislatures and conventions in the process. The goal of the Article is objective exposition rather than advocacy or special pleading.
http://constitution.i2i.org/files/2011/01/Rules_for_Art_V_Conventions.pdf 58 pages.
Law School
THE LIMITED CONSTITUTIONAL CONVENTION - THE RECURRING ANSWER
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1982795 15 pages
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1982795 15 pages
REOPENING THE CONSTITUTIONAL ROAD TO REFORM: TOWARD A SAFEGUARDED ARTICLE V CONVENTION
MICHAEL STERN∗
“[A] constitutional road to the decision of the people, ought to be marked out, and kept open, for certain great and extraordinary occasions.”
–James Madison, The Federalist No. 491
Every one of the twenty-seven amendments to the United States Constitution has been proposed by the Congress.2 Even though the First Congress proposed a number of amendments that limited congressional powers or privileges (namely the Bill of Rights3 and the amendment to limit congressional pay raises4), subsequent Congresses have shown little interest in following this example. They have proposed amendments that significantly expand congressional power (such as the Sixteenth Amendment that authorized a federal income tax5) but have proposed none that significantly limit congressional power or prerogatives. Recent Congresses, for example, have declined to propose amendments to require a balanced budget or impose term limits.6 This would have come as no surprise to the Framers, who understood that Congress could not be expected to provide a check on itself.7 The system they designed not only divided powers within the federal government, but also between the federal and state governments to provide a “double security” for the rights of the people.8 As James Madison explained in The Federalist No. 51, under this http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1904587
24 pages
“[A] constitutional road to the decision of the people, ought to be marked out, and kept open, for certain great and extraordinary occasions.”
–James Madison, The Federalist No. 491
Every one of the twenty-seven amendments to the United States Constitution has been proposed by the Congress.2 Even though the First Congress proposed a number of amendments that limited congressional powers or privileges (namely the Bill of Rights3 and the amendment to limit congressional pay raises4), subsequent Congresses have shown little interest in following this example. They have proposed amendments that significantly expand congressional power (such as the Sixteenth Amendment that authorized a federal income tax5) but have proposed none that significantly limit congressional power or prerogatives. Recent Congresses, for example, have declined to propose amendments to require a balanced budget or impose term limits.6 This would have come as no surprise to the Framers, who understood that Congress could not be expected to provide a check on itself.7 The system they designed not only divided powers within the federal government, but also between the federal and state governments to provide a “double security” for the rights of the people.8 As James Madison explained in The Federalist No. 51, under this http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1904587
24 pages
Amending the Constitution
by Convention: Lessons for todAy from the Constitution’s first Century
Written by Robert G. Natelson*
http://liberty.i2i.org/files/2012/03/IP_5_2011_c.pdf
18 pages
Written by Robert G. Natelson*
http://liberty.i2i.org/files/2012/03/IP_5_2011_c.pdf
18 pages
FOUNDING-ERA CONVENTIONS AND THE MEANING OF THE CONSTITUTION’S “CONVENTION FOR PROPOSING AMENDMENTS”
Robert G. Natelson* Abstract
Under Article V of the U.S. Constitution, two thirds of state legislatures may require Congress to call a “Convention for proposing Amendments.” Because this procedure has never been used, commentators frequently debate the composition of the convention and the rules governing the application and convention process. However, the debate has proceeded almost entirely without knowledge of the many multi-colony and multi-state conventions held during the eighteenth century, of which the Constitutional Convention was only one. These conventions were governed by universally-accepted convention practices and protocols. This Article surveys those conventions and shows how their practices and protocols shaped the meaning of Article V.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2044296
76 pages
Under Article V of the U.S. Constitution, two thirds of state legislatures may require Congress to call a “Convention for proposing Amendments.” Because this procedure has never been used, commentators frequently debate the composition of the convention and the rules governing the application and convention process. However, the debate has proceeded almost entirely without knowledge of the many multi-colony and multi-state conventions held during the eighteenth century, of which the Constitutional Convention was only one. These conventions were governed by universally-accepted convention practices and protocols. This Article surveys those conventions and shows how their practices and protocols shaped the meaning of Article V.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2044296
76 pages
PROPOSING CONSTITUTIONAL AMENDMENTS BY CONVENTION: RULES GOVERNING THE PROCESS
ROBERT G. NATELSON* ABSTRACT
Much of the mystery surrounding the Constitution’s state-application- and-convention amendment process is unnecessary: History and case law enable us to resolve most questions. This Article is the first in the legal literature to access the full Founding-Era record on the subject, including the practices of inter-colonial and interstate conventions held during the 1770s and 1780s. Relying on that record, together with post-Founding practices, understandings, and case law, this Article clarifies the rules governing applications and convention calls, and the roles of legislatures and conventions in the process. The goal of the Article is objective exposition rather than advocacy or special pleading.
http://constitution.i2i.org/files/2011/01/Rules_for_Art_V_Conventions.pdf
58 pages
Much of the mystery surrounding the Constitution’s state-application- and-convention amendment process is unnecessary: History and case law enable us to resolve most questions. This Article is the first in the legal literature to access the full Founding-Era record on the subject, including the practices of inter-colonial and interstate conventions held during the 1770s and 1780s. Relying on that record, together with post-Founding practices, understandings, and case law, this Article clarifies the rules governing applications and convention calls, and the roles of legislatures and conventions in the process. The goal of the Article is objective exposition rather than advocacy or special pleading.
http://constitution.i2i.org/files/2011/01/Rules_for_Art_V_Conventions.pdf
58 pages
Amending the Constitution by Convention
A More Complete View of the founders’ plan
Written by Robert G. Natelson1 Senior Fellow
IP-7-2010 December 2010
http://constitution.i2i.org/files/2010/12/IP_7_2010_a.pdf
28 pages
Written by Robert G. Natelson1 Senior Fellow
IP-7-2010 December 2010
http://constitution.i2i.org/files/2010/12/IP_7_2010_a.pdf
28 pages
Founding-Era Conventions and the Meaning of the Constitution’s 'Convention for Proposing Amendments'
Robert G. Natelson
The Independence Institute; Montana Policy Institute
April 22, 2012
Florida Law Review, Vol. 65, 2013
Abstract:
Under Article V of the U.S. Constitution, two thirds of state legislatures may require Congress to call a “Convention for proposing Amendments.” Because this procedure has never been used, commentators frequently debate the composition of the convention and the rules governing the application and convention process. However, the debate has proceeded almost entirely without knowledge of the many multi-colony and multi-state conventions held during the eighteenth century, of which the Constitutional Convention was only one. These conventions were governed by universally-accepted convention practices and protocols. This Article surveys those conventions and shows how their practices and protocols shaped the meaning of Article V.
Number of Pages in PDF File: 76
Keywords: constitution, constitutional law, constitutional amendments, Article V, convention, constitutional convention, amendments convention, Article V convention, constitutional amendments
JEL Classification: K1, K20, K30, K49
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=204429
The Independence Institute; Montana Policy Institute
April 22, 2012
Florida Law Review, Vol. 65, 2013
Abstract:
Under Article V of the U.S. Constitution, two thirds of state legislatures may require Congress to call a “Convention for proposing Amendments.” Because this procedure has never been used, commentators frequently debate the composition of the convention and the rules governing the application and convention process. However, the debate has proceeded almost entirely without knowledge of the many multi-colony and multi-state conventions held during the eighteenth century, of which the Constitutional Convention was only one. These conventions were governed by universally-accepted convention practices and protocols. This Article surveys those conventions and shows how their practices and protocols shaped the meaning of Article V.
Number of Pages in PDF File: 76
Keywords: constitution, constitutional law, constitutional amendments, Article V, convention, constitutional convention, amendments convention, Article V convention, constitutional amendments
JEL Classification: K1, K20, K30, K49
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=204429
THE STATE-APPLICATION-AND-CONVENTION METHOD OF AMENDING THE CONSTITUTION: THE FOUNDING ERA VISION
ROBERT G. NATELSON*
I. THE NATURE OF ARTICLE V AND THE CONVENTION PROCESS
Thank you all for coming. This is my first trip to Lansing, and I’ve seen enough to hope that I get to come back—a lot. I’d like to thank everybody responsible for setting up this Symposium. That would of course include Professor Trudeau, who has been unfailingly competent and professional throughout; Justice Brennan, who literally wrote the seminal article on this subject;1 the Cooley Law Review; and perhaps most of all, those people who were responsible for setting up the tables, putting in the microphones, getting the food and drink here, and making the general arrangements.
My primary area of research is the Founding Era.2 So, as the moderator has just told you, I’m going to be setting the stage. I only have a half hour, and there is a lot of material to cover, so I’ll speak a little bit faster than I normally like to; if you have questions or concerns, we can raise those on Q and A. Don’t try to get everything into your brain all at once.
http://constitution.i2i.org/files/2012/01/STATE-APP-CONVENTION-METHOD-CooleyLR.pdf 15 pages
I. THE NATURE OF ARTICLE V AND THE CONVENTION PROCESS
Thank you all for coming. This is my first trip to Lansing, and I’ve seen enough to hope that I get to come back—a lot. I’d like to thank everybody responsible for setting up this Symposium. That would of course include Professor Trudeau, who has been unfailingly competent and professional throughout; Justice Brennan, who literally wrote the seminal article on this subject;1 the Cooley Law Review; and perhaps most of all, those people who were responsible for setting up the tables, putting in the microphones, getting the food and drink here, and making the general arrangements.
My primary area of research is the Founding Era.2 So, as the moderator has just told you, I’m going to be setting the stage. I only have a half hour, and there is a lot of material to cover, so I’ll speak a little bit faster than I normally like to; if you have questions or concerns, we can raise those on Q and A. Don’t try to get everything into your brain all at once.
http://constitution.i2i.org/files/2012/01/STATE-APP-CONVENTION-METHOD-CooleyLR.pdf 15 pages
