Archive for August 2013

Fuzzy History Keeps Us in the Dark   Leave a comment

One of the biggest problems we have today in the United States is that people do not know history. It’s not even a matter of not studying history. It’s that our history has been changed, obfuscated, and manipulated to make us think about it differently than what the people who lived through those times thought.

There were several uses of the state-application-for-convention process between 1789 and the adoption of the 17th Amendment in 1913. Although no Article V convention was called during this period, states resorted repeatedly to the application process in times of crisis.

State applications helped to convince Congress to adopt the Bill of Rights. During the Nullification Crisis, the intervention of the elderly James Madison led states to apply for an Article V convention as a way to resolve constitutional deadlock. Prior to the Civil War, leaders attempted to use the process to resolve congressional deadlock and civil war, although their campaign proved too little, too late. At the turn of the century, advocates of direct election of senators employed the process to win a major constitutional victory.

The required nine states ratified the Constitution in 1788, and the new federal government got under way in Spring of 1789. From that time until the end of the 18th century, events:

  1. confirmed the Founding-era understanding that an Article V convention is not a directly popular body, but a “convention of the states”;
  2. confirmed that states may apply either for a general or a limited-subject convention; and
  3. confirmed that neither the federal nor state executives have a role in the process.

By the time Congress met in the spring of 1789, 11 of the original 13 states had ratified the Constitution. (North Carolina and Rhode Island had not yet done so). However, several states were still unhappy with the Constitution as written and wanted early action on proposed amendments – most important a Bill of Rights. Two of those states, Virginia and New York, applied for a convention for proposing amendments.

Virginia’s November 14, 1788 application demanded:

that a convention be immediately called, of deputies from the several States, with full power to take into their consideration the defects of this Constitution that have been suggested by the State Conventions, and report such amendments thereto as they shall find best suited to promote our common interests, and secure to ourselves and our latest posterity, the great and unalienable rights of mankind.

New York’s February 5, 1789 application contained similar wording:

that a Convention of Deputies from the several States be called as early as possible, with full powers to take the said Constitution into their consideration, and to propose such amendments thereto, as they shall find best calculated to promote our common interests, and secure to ourselves and our latest posterity, the great and unalienable rights of mankind.

Although these early applications were not successful in the sense that a convention was not called, they did help spur Congress to propose its own Bill of Rights.

Both legislatures referred in their applications to an amendments convention as a gathering of “deputies [agents] from the several States,” as federal conventions always had been, rather than as a gathering of direct representatives of the people, as conventions were within individual states. When the Pennsylvania legislature refused to join Virginia and New York, it also referred to the proposed meeting as “a convention of the states.”

The wording of the New York application contemplated a convention free to propose any amendments (“such amendments thereto, as they shall find best calculated”), but the Virginia language suggests a subject matter that was limited to a single broad category. Virginia’s succeeding language (“such amendments thereto as they shall find best suited … ”) has been interpreted as authorizing an open convention; but the preamble’s limiting words reveal an intent for the convention to address only those “defects suggested by the State Conventions.” Thus, the Virginia application arguably reflects the prevailing view that state applications could limit the scope of the convention.

Congress adopted its proposed Bill of Rights in the fall of 1789. It’s significant for modern day argument to note that it was not presented to the President for signature, nor did he sign it. George Washington made no objection to this and the highly influential Federalist writer, Tench Coxe, had publicly stated that the president had no role in the state-application-for-convention process.

The War of 1812 could rightfully be called the first major constitutional crisis since the New England states opposed it strongly, but no applications for amendments seem to have arisen during that period. The second constitutional crisis, however, did generate Article V activity.

In the late 1820s, several Southern states, notably South Carolina, were angered by a federal protective tariff . South Carolina politicians promoted the doctrine of interposition – popularly called “nullification” – by which state legislatures or conventions could declare invalid within state limits any federal law they saw as violating the federal “compact.” Upon such a declaration, the federal government would have to yield, resort to force, or submit the matter to arbitration by a “convention of the states.” For support, South Carolinians pointed to the famous Virginia and Kentucky resolutions of 1798, authored respectively by James Madison and Thomas Jeff erson.

In a letter to the editor published in 1830, Madison denied forcefully ever sanctioning nullification. Instead, he adhered to a view Jefferson had expressed in 1821 that the state-application-for-convention procedure was the better way to resolve disputes about the balance of state and federal powers. In the wake of Madison’s letter, South Carolina refined its nullification theory to make clear that the ultimate arbiter of the dispute should be a “Convention of the States” called under Article V. The state legislature sent the following application to Congress late in 1832:

Resolved, That it is expedient that a Convention of the States be called as early as practicable, to consider and determine such questions of disputed power as have arisen between the States of this confederacy and the General Government.

The important point here is that the application was for a gathering limited to subject matter (“questions of disputed power” arising between the states and the federal government) and did not seek to dictate particular language to the convention.

Although this probably was intended as an Article V application, its wording led some to believe that South Carolina was seeking a plenipotentiary (“constitutional”) convention, since it asked for an assembly “to consider and determine … questions of disputed power.” In his 1833 response to South Carolina’s nullification resolution, President Jackson adopted Madison’s position about the role of an Article V “convention of all the states,” but did not take notice of the South Carolina application.

At about the same time, Georgia applied for an Article V convention. The resolution as adopted by the state house listed a range of areas in which the house believed the Constitution needed amendment. That version appears in the U.S. House Journal. In fact, the final application, approved in December 1832, referred only to amendments on the subject of tariff s and taxation. Yet the operative words appear to contemplate a convention unlimited as to subject matter:

for the call of a Convention of the people to amend the constitution aforesaid in the particulars herein enumerated, and in such others as the people of the other States may deem needful of amendment.

On the other hand, in early 1833, the Alabama legislature adopted and transmitted to Congress the following application with clearly limited subject matter:

This Assembly further recommends to the Congress of the United States, as she has already done to her co-States, the call of a Federal Convention for proposing such amendments to our Federal Constitution as may seem necessary and proper to restrain the Congress of the United States from exerting the taxing power for the substantive protection of domestic manufactures.

Most state legislatures took the South Carolina, Georgia, and Alabama calls under active consideration, but rejected them, either explicitly or tacitly, usually on the ground that a convention at that time would be “inexpedient.” A few states rejected the suggestion that a convention for proposing amendments was the proper forum for arbitrating such questions, preferring to rely on the courts instead. Some state officials saw the applications as too broad. The governor of New Jersey in particular argued that the applications should have more narrowly defined the subject matter for the convention.

These petitions confirm the Founding-era view that an Article V convention could and usually would be limited to subject matter and the South Carolina and Alabama petitions confirmed the idea that the assembly would be a creature of the states. Hence, the South Carolina application referred to the gathering as a “convention of the states,” the Alabama application called it a “Federal Convention,” and President Jackson’s 1833 proclamation approved similar language. The Georgia application, to be sure, characterized it as a “Convention of the people,” and in Illinois there was an unsuccessful eff ort in the legislature to insist that any such assembly would be a “convention of the people” rather than of the states. In the other states considering the issue, however, the most common characterization was as a “convention of the states.”

The Supreme Court took the same view. In 1831, the Court decided Smith v. Union Bank of Georgetown, which presented the issue of whether to apply to a decedent’s estate the law of Virginia or the law of Maryland. The Court held that by reason of pre-existing law and the nature of the federal union, the law of Maryland should be applied. It acknowledged, however, that result could be changed by amendment “by a convention of the states, under constitutional sanction….”

Prevailing practice during this period generally was consistent with the Founders’ views. Leaders usually understood the Article V convention as an assembly of the states rather than a directly popular body. State applications usually focused on particular subject areas, but no state legislature purported to dictate specific language. Madison performed an important service in drawing attention to the convention’s potential as a mechanism for adjudicating power disputes through amendments to alter or clarify jurisdictional boundaries.

Congress is Not In Charge   Leave a comment

The Founders sought to establish a government for the people, by the people, of the people. They didn’t trust government that could do anything it wanted without the consent of the people. They balanced this with the historical knowledge that unrestrained democracy also tends to drive itself off the rails if not provided sufficient limitations. Furthermore, the Founders were largely federalists in the modern sense of the word. Political titles to the side, they held their first allegiance to their state of residence and considered the United States as a cooperative body ruled by the states. Under agency law in the 18th century, delegates to a convention for proposing amendments to the Constitution were acting in a fiduciary capacity. Fiduciaries had no authority apart from the authority delegated by the principals and the principals were not obligated to act according to any recommendation the fiduciary might make that was outside of his authority.

The Founders’ understanding of the state-application-for-convention process shows the convention for proposing amendments would be a fiduciary institution – an agent of the state legislatures.

CONTRARY TO POPULAR BELIEF — Prior to the ratification there had been many interstate conventions, and all had been composed of delegations from the states, acting as agents of the states. The Continental and Confederation Congresses, the limited purpose conventions in Annapolis and elsewhere, and the 1787 Philadelphia Convention all fit this description.

While the Constitution changed many things, the numerous Founding-era writings cited in my previous postings show a general understanding that the state-application-for-convention method would be a state-driven process, with the state legislatures having power to control the convention agenda.

The first two state applications for an amendments convention reflect the same understanding. In 1789 Virginia and New York submitted applications for amendment convention after the federal government was in existence but before all of the original thirteen states had ratified.  The Virginia application provided in part:

The Constitution hath presented an alternative, by admitting the submission to a convention of the States….  We do, therefore, in behalf of our constituents … make this application to Congress, that a convention be immediately called, of deputies from the several States, with full power to take into their consideration the defects of the Constitution that have been suggested by the State Conventions, and report such amendments thereto as they shall find best suited to promote our common interests, and secure to ourselves and our latest posterity, the great and unalienable rights of mankind.

 The New York application sent the same message:

We, the Legislature of the State of New York, do, in behalf of our constituents … make this application to the Congress, that a Convention of Deputies from the several States be called as early as possible, with full powers to take the said Constitution into their consideration, and to propose such amendments thereto, as they shall find best calculated to promote our common interests, and secure to ourselves and our latest posterity, the great and unalienable rights of mankind.

 The convention for proposing amendments is the “servant” of the state legislatures. Under both the Articles of Confederation and the Constitution, Congress was a fiduciary institution. Under the Confederation, Congress generally was the agent of the states. Under the Constitution, Congress generally is the agent of the American people. However, the congressional role in the state-application-for-convention procedure differs importantly from its usual role as an agent of the people. In calling the convention and sending the convention’s proposals to the states, Congress acts as an agent of the state legislatures. In this instance, the Framers retained the Confederation way of doing things in the interest of allowing the states to bypass Congress.

We are so blessed to have the notes from the convention debates. During the 1787 convention, the initial Virginia Plan called for an amendments convention to be triggered only by the states, leaving Congress without the right to call one on its own motion. The delegates altered this to allow only Congress to call an amendments convention.  George Mason then pointed out that if amendments were made necessary by Congress’s own abuses, Congress might block them unless the Constitution contained a way to circumvent Congress. Accordingly, “Mr. Govr. Morris & Mr. Gerry moved to amend the article so as to require a Convention on application of 2/3 of the Sts.” If the proper number of states applied, Congress would have no choice in the matter; it would be constrained to do their bidding.

As an agent, Congress was expected to follow rules of fiduciary law, except as otherwise provided by the Constitution. These included honoring its duties as outlined in the empowering instrument (the Constitution) and treating all of its principals (the state legislatures) impartially.

Because the state-application-for-convention procedure was designed to bypass congressional discretion, the congressional discretion had to be strictly limited. It had to be chiefly clerical (ministerial). The various stages of drafting through which Article V passed convey that the state mode for getting amendments proposed was not to be contingent upon any significant cooperation or discretion in Congress. Except for its authority to choose between two methods for ratification, either “by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof,” Congress was supposed to be mere clerk of the process convening state-called conventions.

Copious evidence supports the conclusion that Congress may not refuse to call a convention for proposing amendments upon receiving the required number of applications. When some Anti-Federalists suggested that Congress would not be required to call a convention, Hamilton, writing in Federalist No. 85, affirmed that the call would be mandatory. This was also the understanding of Federalists like James Iredell, John Dickinson, James Madison, and Tench Coxe. In the state-application-for-convention process, Congress acts primarily as the legislatures’ agent. Congress may not impose rules of its own on the states or on the convention.

For example, it may not limit the period within which states must apply. Time limits are for principals, not agents, to impose: If a state legislature believes its application to be stale, that legislature may rescind it. During the constitutional debates, participants frequently noted with approval the Constitution’s lack of time requirements for the amendment process. Because of its agency role, Congress must limit the subject matter of the convention to the extent specified by the applying states. In order to carry out its agency responsibility, Congress has no choice, when counting applications toward the two-thirds needed for convention, but to group them according to subject matter. Whenever two-thirds of the states have applied for a convention based on the same general subject matter, Congress must issue the call for a convention for proposing amendments related to that subject matter.

Founders Put the States in Charge   Leave a comment

Article V provides that Congress shall call a convention for proposing amendments “on the Application of the Legislatures of two thirds of the several States.”

Those opposing an Article V convention insist, without offering much in the way of proof, that the states have no control over the subject matter of a convention once they apply for it. They insist we won’t like the outcome because we can’t control the process. Founding-era records deny that claim.

As my previous post showed, Founding era conventions were mostly limited in subject matter; delegating entities held the universally recognized prerogative of restricting their delegates’ authority.

Uh, yeah, the Founding generation were not stupid or naïve! They were well-read, had lived through major international conflict, and some of them had traveled more than our current president did before we started paying for the trips.

The amendments conventions under the existing constitutions of Vermont, Pennsylvania, and Georgia were explicitly limited, while Massachusetts was implicitly limited, and the Georgia procedure seems to have been the basis for the Article V process.

The evidence suggests strongly that a convention for proposing amendments to the federal constitution would not have been treated as different.

Our Founders were, by and large, states-rights advocates. John Adams stated clearly that Massachusetts was his country of citizenship. Many others held the same opinion. They saw the federal government as a creature of the states’ need to cooperate together. The state application-for-convention procedure was to serve as an effective congressional bypass in the event that Congress arrived where it is today – less than 10% approval rating and unable/unwilling to make meaningful necessary changes because those changes might impact its own power. Without the power to specify the kinds of amendments they wanted, the states could apply for a convention only if they wished to open the entire Constitution for reconsideration, which would undercut the value of the procedure and impair its principal purpose.

Comments from Federalists promoting the Constitution during the ratification debates emphasized the essential equality of Congress and the states in proposing amendments. In Federalist No. 43, Madison wrote that the Constitution “equally enables the general and the State governments to originate the amendment of errors.” As far as amendments were concerned, Congress and the states were on equal ground. Congress may propose directly, while the states must operate through a convention; if Congress may specify a subject when it proposes amendments, the states may also.

The ratification-era records reveal a prevailing understanding that states could and usually would specify particular subject matter at the beginning of the process. Madison wondered at the Philadelphia convention why, if states applied for one or more amendments, a convention was even necessary. He felt the application was sufficient to require Congress to send that amendment to the states for ratification. Similarly, in Federalist No. 85, Hamilton wrote 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.

Hamilton’s reference to nine states represented the two-thirds then necessary to force a convention, and his reference to ten states represented the three-quarters necessary to ratify the convention’s proposals. Later in the same paper, he referred to “two thirds or three fourths of the State legislatures” uniting in particular amendments.

George Washington understood that applying states would specify the convention subject matter. In April 1788, he wrote “a constitutional door is open for such amendments as shall be thought necessary by nine States.”  When explaining that Congress could not block the state-application-for-convention procedure, Tench Coxe wrote:

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.

Coxe understood that states would make application explicitly to promote particular amendments. Madison, Hamilton, Washington, and Coxe were all Federalists, but on this issue their opponents agreed. An Anti-Federalist writer, “An Old Whig,” argued that amendments were unlikely:

[T]he legislatures of two thirds of the states, must agree in desiring a convention to be called. This will probably never happen; but if it should happen, then the convention may agree to the amendments or not as they think right; and after all, three fourths of the states must ratify the amendments….” (“The amendments” here presumably means the amendments proposed in advance of the convention.) Another Anti-Federalist, Abraham Yates, Jr., wrote, “We can’t get the Amendments unless 2/3 of the States first Agree to a Convention And as Many to Agree to the Amendments – And then 3/4 of the Several Legislatures to Confirm them.”

Delegates to the state ratifying convention also believed that the states, more often than not, would determine the subject matter to be considered in the convention. In Rhode Island, convention delegate Col. William Barton celebrated Article V by saying that it “ought to be written in Letters of Gold” because there was a “Fair Opportunity furnished” of “Amendments provided by the states.”  In Virginia, Anti-Federalists argued that before the Constitution was ratified, a new plenary constitutional convention should be called to rewrite the document and add a bill of rights. A Federalist leader, George Nicholas, rejoined that it made more sense to ratify first and then employ Article V’s state-application-for-convention route:

On the application of the legislatures of two thirds of the several states, a convention is to be called to propose amendments, which shall be a part of the Constitution when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof. It is natural to conclude that those states who will apply for calling the convention will concur in the ratification of the proposed amendments.

Of course, such a conclusion would be “natural” only if the convention was expected to stick to the agenda of the states that “apply for calling the convention.” That was Nicholas’ understanding:

There are strong and cogent reasons operating on my mind, that the amendments, which shall be agreed to by those states, will be sooner ratified by the rest than any other that can be proposed. The [ratifying] conventions which shall be so called will have their deliberations confined to a few points; no local interest to divert their attention; nothing but the necessary alterations. They will have many advantages over the last [plenary] Convention. No experiments to devise; the general and fundamental regulations being already laid down.

There seems to have been little dissent to the understanding that the applying states would fix the agenda. The belief was so widespread that it sometimes led to the assumption that the states, rather than the convention, would do the proposing.

By the way, the procedure followed for adopting the Bill of Rights bears this out, as it closely followed the one initially proposed by Edmund Randolph at the federal convention. As a first step, seven states (although through their ratifying conventions rather than their legislatures) adopted sample amendments for consideration by a later proposing body. Samuel Adams urged this step to the Massachusetts ratifying convention, saying the states should “particularize the amendments necessary to be proposed.” Second, an Article V convention – or Congress, because it acted quickly enough – would choose among the state suggestions, draft the actual amendments, and send them to the states for ratification or rejection. Third, the states would either ratify or reject.

This historical evidence pretty well disproves the view that state applications referring to subject matter are void. It also disables the arguments that amendments conventions cannot be limited and that federal conventions to propose amendments were to be governed by rules different from those of other conventions. Evidence strongly suggests that the states legally could limit the scope of a convention for proposing amendments, and that the Founders expected this to happen more often than not.

Delegates in 1787 Did As AUTHORIZED   5 comments

The 18th century concept of agency law dictated that government representatives, acting as agents of the people, could not act outside of their authority and if they did, the principal (the consenting governed as represented by their state legislatures) were under no obligation to take up what would be viewed as a mere recommendation.

 The Annapolis Convention had asked that Congress call a plenary (unlimited) convention to deal with the massive failures of the Articles of Confederation, which had – foolishly – been enacted without a clause for amendments. However, the Annapolis resolution was merely a recommendation, outside that assembly’s powers. As such, it had no legal force. It could not be the source of the power for delegates at the Philadelphia Convention.

In response to the Annapolis recommendation, Congress resolved as follows:

Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a convention of delegates who shall have been appointed by the several States be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the States render the federal Constitution adequate to the exigencies of Government and the preservation of the Union.

This resolution contemplated a convention of narrower scope (“the sole and express purpose of revising the Articles of Confederation”). However, as its wording suggests, it also was only a recommendation. Under the strictly limited terms of the Articles, Congress had no power to call such a convention or fix the scope of the call. Because the congressional resolution was without legal force, states could participate or not as they wished and under such terms as they wished, and if they did so, they would fix the scope of their delegates’ authority. In other words, whether the Philadelphia delegates exceeded their authority is to be determined by the terms of their state commissions, not by the terms of the congressional resolution.

One state, Rhode Island, elected not to participate. Two states, Massachusetts and New York, decided to participate, but restricted their delegates’ commissions to the scope recommended by Congress. Not surprisingly, therefore, it was a Massachusetts delegate, Elbridge Gerry, who raised the question early in the convention as to that body’s authority to recommend changes extending beyond amendment of the Articles. Likewise, the New York commissions limited the three New York delegates to acting:

for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress, and to the several Legislatures, such alterations and Provisions therein, as shall, when agreed to in Congress, and confirmed by the several States, render the federal Constitution adequate to the Exigencies of Government, and the preservation of the Union.

So it was not surprising that, when it became apparent that the 1787 convention was proceeding beyond the scope of the New York commissions, two of the three New York delegates left early and never signed the Constitution.

The commissions of 10 states authorized the delegates to discuss changes necessary to render the federal political system “adequate to the exigencies” of the union. Delegates from those states were within their delegated authority to act as they did. Only the delegates from Massachusetts and New York were restricted in their scope of participation. One Massachusetts delegate, Caleb Strong, left the convention early, although he later supported the Constitution. Elbridge Gerry refused to sign, although he had (in violation of his commission) participated in the drafting. He defended himself by pointing out that without his participation, the document would have been even further from an amendment of the Articles than it turned out to be. Two Massachusetts delegates, Rufus King and Nathaniel Gorham, and one New Yorker, Alexander Hamilton, signed the document.

In addition, the credentials of the Delaware delegates, while broad enough to authorize scrapping most of the Articles, did limit the delegates in one particular way:

they were not to agree to any changes that altered the rule that “in the United States in Congress Assembled each State shall have one Vote.” Because the new federal Congress was a very different entity with a very different role than the Confederation’s

“United States in Congress Assembled,” the Delaware delegates remained within the strict letter of their commission, although they likely exceeded its spirit. Concluding, however, that eight of 39 signers exceeded their authority leaves one well short of the usual charge that the Philadelphia convention as a whole was a “runaway.” More importantly, the recommendations of the convention were merely recommendations – totally non-binding and utterly without independent legal force. Under agency law, any agent was entitled to make such recommendations, but the principals were not obligated to do as recommended. The convention could not and did not impose its handiwork on the states or on the American people. States could approve or not as they liked, with no state bound that refused to ratify. In fact, unlike a convention for proposing amendments, the Philadelphia assembly was not even entitled to have its decisions transmitted to the states or considered by them. James Wilson summed up the delegates’ position as “authorized to conclude nothing, but … at liberty to propose any thing.”

Regardless if the federal convention was plenary, the conventions authorized by the Constitution all were limited. There were three kinds:

  • state conventions for ratifying the Constitution, 
  • state conventions for ratifying amendments, and 
  • federal conventions for proposing amendments.

Just as a state ratifying convention also has no inherent authority unilaterally to rewrite the state constitution, a convention for proposing amendments has no authority unilaterally to rewrite the U.S. Constitution. As its name indicates, the convention is limited to proposing amendments.

I’m not just surmising this. Madison made this clear while ratification was still pending. In a November 1788 letter to George Lee Turberville, he distinguished between a convention that considers “first principles,” which “cannot be called without the unanimous consent of the parties who are to be bound to it” and a convention for proposing amendments, which could be convened under the “forms of the Constitution” by “previous application of 2/3 of the State legislatures.”

Additionally, the federal convention delegates actively considered including in the Constitution a provision for future plenary conventions, but specifically rejected that approach. Edmund Randolph’s initial sketch in the Committee of Detail and the first draft of the eventual Constitution by that committee both contemplated plenary conventions that would prepare and adopt amendments. During the proceedings, the delegates opted instead for a convention that would merely propose amendments. Later on, Roger Sherman moved to revert to a plenary convention, but his motion was soundly rejected. Principal credit for replacing a plenary convention with a convention for proposing amendments belongs to Elbridge Gerry. He objected to a draft authorizing the convention to modify the Constitution without state approval. The other delegates agreed, considered a requirement that any amendments the convention adopted be approved by two-thirds of the states, but later strengthening that requirement to three-quarters. The final wording came primarily from the pen of James Madison, who during the ratification process, explained the difference between a plenary convention and a limited one:

The former is based on “first principles,” and unanimous consent is necessary of all states to be bound, while the latter is held under the Constitution, so unanimity is not necessary.

Madison’s ally at the Virginia ratifying convention, future Chief Justice John Marshall, also distinguished between the former plenary convention held in Philadelphia and the more narrow amending procedure:

“The difficulty we find in amending the Confederation will not be found in amending this Constitution. Any amendments, in the system before you, will not go to a radical [i.e., fundamental] change; a plain way is pointed out for the purpose.”

 Another ally, George Nicholas, distinguished between plenary constitutional conventions and limited-purpose conventions. Limited-purpose conventions had “no experiments to devise; the general and fundamental regulations being already laid down.”

 In the same vein, James Iredell, a Federalist leader who later sat on the U.S. Supreme Court, emphasized that proposals from an amendments convention had to be approved by three-fourths of the states.

It is clear that a convention for proposing amendments is a limited-purpose assembly and not a plenary or “constitutional” convention. So why persist in interpreting Article V as an open gate to a runaway convention? It’s a rhetorical ploy to terrify otherwise sensible people from pursuing a course some see as a threat to their amassed power.

Real History of 1787 Convention   Leave a comment

The fame of the 1787 Constitutional Convention has encouraged us to think of any convention created for constitutional purposes as a “constitutional convention.” We are further led to believe that a “constitutional convention” is an assembly with limitless (plenary) power to draft or re-draft the basic law of a nation or state.

Alarmists claim such a convention could repeal the Bill of Rights, restore slavery and work other fundamental changes. The notion that a national convention is inherently plenary was primarily a product of the 19th century. In the Founders’ 18th century view, conventions might be plenary, but most of them enjoyed only restricted authority. The Founders viewed government officials as wielding fiduciary responsibility and falling under agency law, which meant the agents (in this case, the delegates to a convention) could act only as authorized and when they made recommendations beyond their authority, the principal (in this case the public) was not obligated to accept the recommendation.

During the period between independence and the writing of the Constitution, states repeatedly sent delegates with limited powers to conventions to address specific problems. The Pennsylvania Constitution of 1776 and the Vermont Constitution of 1786 both provided for limited amendments conventions, each restricted in authority by a charge from the state “council of censors,” while the Massachusetts Constitution provided for conventions to consider amendments proposed by the towns. The Georgia Constitution of 1777 prescribed a procedure that might have been the template for the convention procedure in Article V:

No alteration shall be made in this constitution without petitions from a majority of the counties … at which time the assembly shall order a convention to be called for that purpose, specifying the alterations to be made, according to the petitions preferred to the assembly by the majority of the counties as aforesaid.

All four of these state constitutions provided for a method by which general ideas for amendment were referred to a limited-purpose convention, which then undertook the actual drafting.

It is a common misunderstanding that a convention for proposing amendments must be plenary, because the convention could simply choose to exceed the scope of its call and there’d be no way to stop it. It could rewrite the Constitution, establish a junta, seize control of the military and become the new USSR. More realistically, it might send amendments not contemplated by the call to the states for ratification, and the states would simply rubber-stamp whatever was. Obviously, we must avoid that at all costs.

This fear mongering points to the 1787 federal convention, which (it is claimed) was called “for the sole and express purpose of revising the Articles of Confederation,” but which proved to be a “runaway” convention, scrapping the Articles and writing an entirely new Constitution instead. History may have been changed just a bit on this subject.

Founders Support for States Rights   Leave a comment

Article V of the U.S. Constitution states:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or   by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress….

There are two ways of proposing amendments:

  •  Proposal by two-thirds of each house of Congress, and
  • Proposal through the state-application-for-convention process.

 Under the latter procedure, two thirds of the states (34 of the current 50) file “Applications” with Congress. Congress “shall” call a convention for proposing amendments. That convention then may propose one or more amendments.

 There also are two ways of ratifying amendments:

  1. approval by three-fourths of the state legislatures, and
  2. approval by three-fourths of state conventions.

Congress selects the ratification method used in each case. Under either ratification method, no proposed amendment becomes part of the Constitution unless approved by 38 of the 50 states.

Although this text seems clear, uncertainties arise when it is read separated from its Founding-era background. Some of the uncertainties pertaining to the state-application-for-convention are as follows:

  • Would a convention for proposing amendments be (or could it become) a “constitutional convention” with unlimited power to change (or even rewrite) the Constitution?
  • Can states applying for a convention for proposing amendments limit the subject matter the convention may consider?
  • If there are sufficient applications, must Congress call such a convention?
  • How should Congress count the applications to meet the two-thirds threshold – that is, are all applications aggregated, or are they separated by subject matter?
  • Can Congress determine the rules and composition of the convention?
  • Is Congress obliged to send a convention’s proposals to the states for ratification?

Founding-era documents suggest that the two procedures for proposing amendments were designed to be equally usable, valid, and effective. Congress received power to initiate amendments because the Framers believed that Congress’ position would enable it readily to see defects in the system. If Congress refused to adopt a needed amendment, however – particularly one to curb its own power – the states could initiate it.  As one Anti-Federalist writer predicted,

“We shall never find two thirds of a Congress voting or proposing anything which shall derogate from their own authority and importance.”

 In the New York legislature, Samuel Jones explained the plan this way:

The reason why there are two modes of obtaining amendments prescribed by the constitution I suppose to be this – it could not be known to the framers of the constitution, whether there was too much power given by it or too little; they therefore prescribed a mode by which Congress might procure more, if in the operation of the government it was found necessary; and they prescribed for the states a mode of restraining the powers of the government, if upon trial it should be found they had given too much.

 Wow, don’t we live in that second reason!

The Federalist essayist Tench Coxe, then serving in the Confederation Congress, was widely read during the ratification debates and he described the role of the state-application-for-convention procedure:

It has been asserted, that the new constitution, when ratified, would be fixed and permanent, and that no alterations or amendments, should those proposed appear on consideration ever so salutary, could afterwards be obtained. A candid consideration of the constitution will shew [sic] this to be a groundless remark. It is provided, in the clearest words, that Congress shall be obliged to call a convention on the application of two thirds of the legislatures; and all amendments proposed by such convention, are to be valid when approved by the conventions or legislatures of three fourths of the states. It must therefore be evident to every candid man, that two thirds of the states can  always procure a general convention for the purpose of amending the constitution, and that three fourths of them can introduce those amendments into the constitution, although the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them. Congress therefore cannot hold any power, which three fourths of the states shall not approve, on experience.

 James Madison stated it more mildly in Federalist No. 43:

The Constitution “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.”

Thus, the state-application-for-convention process was inserted for specific reasons, and it was designed to be used. We may have personal doubts on whether the process is a good idea in the 21st century, but the Founders thought it was good idea regardless of circumstance.

Reasons for an Article V Convention   Leave a comment

You know how sometimes you start to research a project and you find a treasure trove of information scattered across the web? This was what happened to me when I studies Article V. I started out with certain misconceptions about Article V that were corrected as I went along, so pardon my lack of organization.

It should be recognized that the writing of the United States Constitution has been viewed by some as an act of rebellion. It was a necessary act because the Articles of Confederation were not working and did not allow a mechanism for amendment. Shay’s Rebellion was just the tip of the iceberg of the frustration that was fomenting in the 13 states. The Articles were designed by people in the midst of a war against the only government they had ever known and thus was only one step back from anarchy. No government sounds good after you’ve lived with tyranny for a while, but it turns out to be rather hard on society. It also turns out that “virtually no government” is not a great improvement over no government at all. Thus, the US Constitution, which provided for limited government under the consent of the governed, was a further, necessary step back from anarchy. It was a brilliant idea, but it wasn’t a perfect idea.

With remarkable insight, our Founders perceived a day when the Constitution would need amendment and they set forth a provision for how to do that. Although modern historians say the Framers were in the midst of a wide-open convention that made its own rules and answered to no one, the true history is somewhat different from what we’ve been taught, which may explain why Article V puts limits on conventions for amendment of the constitution. This does not mean Article V cannot be abused, but that the possibility must be viewed against the clear and present danger to individual rights and freedom from doing nothing in the face of an out-of-control federal government.

Polls show that a growing number of Americans are deeply concerns by the inability of all three branches of the federal government to operate within their constitutional or financial limits. The Constitution needs amendment, either to clarify the scope of federal power or to impose restrictions upon its exercise with the ultimate goal of reviving the Founders’ view of the federal government as a fiscally responsible entity that protects human liberties.

Article V of the Constitution provides that either Congress or a convention of delegates may propose amendments for the states to ratify. A convention arises when two-thirds (34) states send applications to Congress direction it to call such a convention. An amendment must be approved by three-quarters (38) states before it can become effective, regardless of whether it is proposed by Congress or by the states.

Our Founders had just experienced the endless debate that was Congress under the Articles of Confederation. They recognized that Congress might become irresponsible or corrupt and refuse to proposed needed changes, particularly if those changes might restrain the power of Congress. The state-application-for-convention process allows states to curb federal abuses by their own initiative.

And aren’t we living in those times today? States have sent hundreds of convention applications to Congress over the years, primarily arising from widespread efforts to solve serious problems that the federal government seemed unable or unwilling to solve. None of these applications succeeded in triggering a convention because usually Congress finally felt compelled to act just before the threshold for a convention was met.

A mid-19th century campaign to call a convention to reconcile North and South over the issues of slavery was blocked by politicians more interested in debate than solutions. The Civil War imposed unconstitutional reconstruction upon the South that has had widespread repercussions on the western states ever since.

In the Progressive Era, a carefully orchestrated propaganda campaign focused on corruption in state legislatures caused efforts to call a convention to force direct election of US Senators. This movement was then torpedoed by fear-mongering about the “runaway constitutional convention” that would ensue if Congress didn’t act. The Senate finally yielded and submitted the 17th amendment to the states. The problem of corruption in state legislatures then shifted to corruption in the Senate.

The 20th century balance budget movement was torpedoed by the same fears. When Congress failed to pass an amendment to restrict its own power, it left Congress still unable to balance its budget, resulting in a loss of political legitimacy and a federal debt now almost as large as the entire annual economy.

I think it’s important to understand how this process of state-petition-for-convention was meant to work, so that we’re not confused by the propaganda. We’ll return to potential changes in the Constitution in a bit.

Analyzing the Constitution Part 2   Leave a comment

I’m still looking at the reasons for a constitutional convention and the risks to the existing Constitution from such a gathering.

Article Four starts the federal relationships. It outlines the relationship between the states and the federal government. Mostly, I don’t see a need for changes here, except for the Territorial Clause. Really, it’s ridiculous that the federal government thinks it owns Alaska’s land. The federal government is we the people. We the people who live here in Alaska should be allowed to own our land.
Article Five outlines amendments process. This entire series of articles is on Article Five. I can’t see discussing it here.

Article Six – the federal government structure. Does anyone see a need for amendment here? Do we foresee a big push to amend Article Six? I mean a serious one that the states wouldn’t oppose.

Article Seven – I can’t see states voting to restrict their authority to ratify constitutional amendments. You? And, I think cooler heads in at least 13 elected state bodies would refuse to ratify any push to lower the ratification bars.

I see no more danger to a constitutional convention authorized to propose amendments to the Constitution than I do from Congress proposes amendments. The same number of states must ratify any amendment in both procedures. The only difference is that a convention empowers the states rather than Congress which is essentially gridlocked. As a modern-day federalist, I am in favor of any move that puts the states back in control of the federal government as the Constitution was originally designed and interpreted.

Do we think that a constitutional convention would do more harm to the Constitution than an armed overthrow of our own government?

Do we think it would do more harm than a number of states seceding from the union followed by an armed (successful or not) reconstruction by the federal government?

Nothing ventured, nothing gained and it might prevent a revolution or the second American Civil War.

Analyzing the Constitution Part 1   2 comments

Let’s look at what a Constitutional Convention might look at if called. Let’s say that this Constitutional Convention wasn’t given any strict guidelines and is going to look at everything in the Constitution and not just decide whether to propose the balanced budget amendment and go home to watch Dancing with the Stars.

The Preamble to the US Constitution is a lovely opening statement for a document and we might be pretty attached to it. Something that so elegantly asserts the right of self-government should be considered a national treasure. I encountered a few folks who fear that a constitutional convention would completely rewrite the constitution and do away with the Preamble, replacing it with something akin to the preamble of the Universal Declaration of Human Rights, which lacks elegance as well as any hint of self-governance or liberty. I can understand wanting to avoid that. Truly I can, but ….

Do we see 75 legislative bodies out of 99 being less than attached to the Preamble of the US Constitution? I don’t, but I look forward to the debate because it will provide us ownership of our Constitution. Nobody living in America today agreed to be governed by the Constitution of the United States. While I think it is the best form of government we have today, I think a lot of people don’t understand it and need to. A debate on its merits would do that. Will people not agree? Sure. Will 75 legislative bodies out of 99 vote with them? I don’t think so.

Our Founders created a great form of government, but they weren’t omniscient or prophetic and they made a few mistakes. So, let’s look at what might need tweaking or reform and what should be kept.

First, recognize that the body of the Constitution and the existing amendments cannot be deleted. They can be amended. The original language remains in force, but modified.
Article One – the structure and function of the Legislature. Only Nebraska has a unicameral legislature. Do we think they’ll convince the rest of us that it’s a good idea to go that way? There are people who believe that we should make that change – do away with the Senate – but as I have stated several times, 75 of 99 legislative bodies would have to agree to any changes. Changes I could see happening are:

· Term limits
· Benefits – the American people are, by and large, annoyed by the idea that you can service one year as a Congressman and have benefits for life.
· Enumerated powers could use some tweaking and limitations, especially clarifying the Necessary and Proper Clause – perhaps requiring these unenumerated powers to be “ratified” by the states whenever they’re exercised.

Article Two – the structure and function of the Executive. There are a few folks out there that would like to see us move to a Parliamentary system with a prime minister. I don’t see them winning the day enough to get over the three-quarters bar. States are likely to vote for what they’re used to and every state in the union has a governor similar to a president, so the structure is unlikely to change. Possible amendments could be:

· Making it clear that the President must be an American citizen with a properly executed birth certificate that shows him/her born in the US or one of the territories or military reservations to American citizen parents, naturalized or born.
· Restricting the authority to do recess appointments.
· Allowing a clause for states to issue impeachment proceedings.

Article Three – structure and function of the Judiciary. I don’t see a lot of changes occurring to the structure of the federal judiciary. No, the 9th Circuit doesn’t work for Alaskans, but I can’t think of an alternative. A big change I think is necessary is a term limit for justices. Lifetime appointments no longer work since people started living so long. There should also be something that allows states in a circuit to petition Congress for redress when the circuit court appears to have become dictatorial. Yeah, I haven’t thought out.

By all means, let me know what YOU think.

Why Do We Fear a Constitutional Convention?   4 comments

Many people do not realize how close we are to a Article V constitutional convention. Article V of the US. Constitution allows for 2/3s of state legislatures to petition Congress for a convention. Thirty-two states have asked for such a convention over the issue of a balanced budget amendment. Two more states and the threshold has been reached.

We’ve never had such a convention, not since the one that tossed out the Articles of Confederation and replaced them with the US Constitution. There are a lot of people who are terrified of such a circumstance. They’re right to be circumspect, given that history. Article V puts no limits on the topics, so “anything goes” is a possibility. On the other hand …

We are at a point in our history where the ballot box no longer works. It especially doesn’t work if you’re a conservative because neither of the two major parties really represents us. Ideas like the balanced budget amendment or term limits for Congress cannot make it through the current Congressional system, so we the people become increasing frustrated. We vote for meaningful change, but we get the same reshuffling of partisan professional politicians that has been going on for decades. Many of us know it should be different, but peaceful solutions don’t appear to work. So, increasingly, people are starting to discuss revolution.

I’ve just finished going through the Declaration of Independence, drawing parallels between the patriot complaints about King George and our current situation. This is not about President Obama. Yes, I think he’s been a dismal failure as a president. He took a country mired in debt and dug the hole twice as deep. He’s racially divisive, dismissive of anyone who doesn’t agree with him, and he’s expanded the surveillance state beyond even George W. Bush. But, ultimately, he is not the problem. The whole government structure as existing in the 21st century is the problem. He’s just the current face-man for the dictatorship. When he exits stage-left, he’ll be replaced by another puppet dictator who will start off saying what some of us want to hear, but ultimately the same problems will exist when he leaves office and when his successor leaves office and ….

The problem is that the United States of America was founded upon the simple, radical idea of self-governance, but we’re at the wrong end of a century of liberty restrictions. It’s not the foundation of the country that is the problem, but the superstructure that has been added to it that is threatening to bring it all down. The Constitution and the first 10 or 11 amendments are fine, but slip-shod, short-sighted, and ill-conceived latter editions have expanded government power and circumscribed citizen liberty. In addition, we really do have to have a debate about the role of government in our society and the unseen, but ever felt administrative state.

When the ballot box no longer works, the alternative is usually the bullet-box. Fortunately, we have alternatives. I’m just suggesting one for now.

Currently, 32 states are calling upon Congress, pursuant to Article V of the Constitution, to send a balanced budget amendment to the states for ratification. A similar attempt in the 1990s revolved around term-limits. It didn’t make the threshold and Congress has not voted for an amendment to limit itself even slightly in the 15 years since. Wow, are we surprised?

The merits of term limits or balanced budgets or discontinuing the federal income tax aside, constitutional conventions are scary. The last time a con-con was threatened, it was the early 20th century and it resulted in the Progressive Era amendments being passed – direct election of senators, the income tax, and prohibition of alcohol. One was so bad it’s already been repealed and the other two …. These amendments were passed by Congress to avoid a con-con. Enough states had already petitioned on the subject of direct election that the only way to avoid it was to pass the 17th amendment. Congress put out the idea that a con-con would be fraught with peril because it would essentially set aside the Constitution and operate by rules set by the delegates.

It’s not true! The Constitution does NOT provide for a Constitutional Convention such as was held in 1787. It provides for a “Convention for proposing Amendments” to the Constitution. That is NOT a trivial difference. Yes, such a convention would make its own rules and Article V does not provide limits on the topics. There is no part of the Constitution, including the amendment provisions themselves, that a convention might not try to amend. Congress and state legislatures could not limit the agenda. However, a convention may only “propose” amendments. No proposal becomes constitutional law until it is ratified by the states.

There is a great deal of difference between a free-standing “Constitutional Convention”—authorized to write even its own rules of ratification—and a convention for proposing amendments to an existing constitution that already prescribes how any such amendments are to be ratified. In no way does Article V authorize the former. Any proposals to amend the existing Constitution that proceed by either of the methods prescribed in Article V must be ratified by the procedures prescribed there. Even a proposal to change the ratification procedure itself must be ratified by the existing ratification procedure.

It’s no accident that in 230-odd years there have only been 27 amendments ratified. Ratification must be by the concurrence of “the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof.” Given the unlikelihood of the latter method, the numbers alone tell the story. It takes majorities in 75 of the 99 state legislative bodies in America to ratify any change in the Constitution. Only 13 such bodies can block any change. You do the math!

Are there not 13 bodies in the states several that would rise to block all but the most popular of proposals? Less than a generation ago, not even the Equal Rights Amendment—which enjoyed wide support—was able to make it through the ratification process.

Article V was put in the Constitution to be used, but not for light and transient reasons. By overwhelming majorities, averaging 75%, Americans of every creed and color have come to understand that there is something fundamentally wrong with a system that, under modern conditions, has resulted in our being ruled year in and year out by a class of professional politicians and bureaucrats. Why don’t we just call them the Ruling Class. Oh, yeah, I have already! We passed light and transient a LONG time ago.

The situation is neither healthy nor right in a limited, constitutional republic. Fortunately, the Framers provided a way to do something about it, a way to make fundamental change while ensuring that our fundamental principles remain in place.

Yeah, there are risks. Life entails risk. Usually, fixing something that’s broken holds risk, but fixing it also holds rewards.

So do we just keep holding elections that do nothing or are you going to research if your state is one of the states that needs to advance a petition and get going on that? I’ve already checked. Alaska is in favor of a constitutional convention.

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