Congress Acts as Clerk to States   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. Furthermore, the Founders were largely federalists in the modern sense of the word. Despite what the propagandists tell us today, even Alexander Hamilton would not be a fan of the big national government we have today. They understood federalism to be a cooperative arrangment of the states directing the national government. Political titles to the side, the Founders held their first allegiance to their state of residence and considered the United States as a cooperative body. A peek at that legal system of the times might be informative.

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 to recommend what the state legislatures might do, but not to obligate the principals to do anything.

Prior to the ratification of the US Constitution there had been many interstate conventions, and all had been composed of delegations from the states, acting as agents of the states. This was NOT a new concept. 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. There are certainly differences there. However, the US Constitution is a compromise document, so 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.

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.”

In other words, 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 wouldn’t make much sense to give the states the ability to bypass Congress only with congressional permission. Therefore, Congress’ role in a states-application-for convention 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 as to its option in choosing between two procedures 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 convoking 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, contrary to some current discussion, Congress 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. Yet, today, our Congress is trying to disqualify applications for a balance budget amendment based on their date of application being “old”. This is something states must fight and insist upon their right to be treated in a constitutional manner.

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.

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