Archive for the ‘amendments convention’ Tag

Most Successful Use of Article V   2 comments

I’m not a fan of the 17th Amendment, so this is a hard topic to discuss dispassionately. For now, I don’t wish to discuss the merits of direct election of senators, but rather the process that was used to bring it about. The merits or lack thereof are a different topic.

After the Civil War, members of Congress occasionally suggested that states apply for a convention for proposing amendments, but there was little campaigning for one. I’m going to suggest that the Civil War pretty much cowed most states, even the northern ones, from asserting their rights, by sending a clear message that the federal government would put down by force any attempts at state sovereignty.

It was nearly 40 years (about a generation, interestingly) before there was a wide-spread outcry for a states-application-for-convention movement. Those who had not lived through the Civil War felt a bit more comfortable asserting states rights once more. It was the turn of the 20th century when mankind tends to embrace change. The progressive movement was gaining speed. If you remember the history of the progressives, they were mostly resort liberals from the east coast who thought America should emulate Europe. Additionally, they believed (believe) themselves to be of superior intellect and moral fiber compared to the rest of American society.

The original Constitution had specified that members of the House of Representatives were to be elected for two-year terms by those voters in each state who had “the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” Because in nearly all states voting qualifications for the lower legislative chamber were fairly minimal, this rendered the House a very democratic institution – a creature of the people.

To balance that democratic influence with seasoning and stability and to give the states a role in federal governance, the Framers prescribed that two Senators be elected by each state legislature for six-year terms. I’m not conjecturing this. Read the Anti-Federalist Papers which includes the notes from debates at the 1787 Convention. This was a deliberate republican safeguard to provide balance against the inherent excesses of democracy. This method of election has been credited widely with producing, at least during the first half of the 19th century, a Senate of good quality and some Senators of outstanding quality. There were, however, at least three drawbacks to the system:

• smaller electorates (e.g., state lawmakers) are easier to corrupt than larger electorates (e.g., the entire people). Although cases where candidates purchased Senate seats from state lawmakers were few during the early years, they multiplied after 1850 (this coincided with the rise of large corporations, interestingly).
• the system was prone to deadlock. State legislatures sometimes had to ballot for months on end while their state remained underrepresented 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, there were 45 deadlocked senatorial elections in 20 different states. Deadlock often was broken by “stampeding” – last-minute election of a dark horse who no one previously had thought to be of senatorial material.
• because people “voted” for a Senate candidate by voting for state legislators, federal and state issues became bundled, with state issues often entirely submerged, both among the voters (the Lincoln-Douglas senatorial race of 1858 is the most famous example) and among state lawmakers.

Allegedly to cure all of these ills, the progressives sought to move election of U.S. senators from the legislatures to the people of the several states. American historians, who tend to sympathize with the progressives, sometimes imply that direct election was the only possible corrective, and they sometimes depict the campaign as opposing idealistic progressive reformers to the “greedy corporations” that controlled a “Millionaires’ Club” of “plutocratic” senators. As is often the case in history, the truth is more complicated.

There were available remedies short of constitutional amendment. Article I, Section 4, Clause 1 of the Constitution provides as follows:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.

Although each state initially set its own election rules for both House and Senate, Congress was permitted to override those rules to a considerable extent. Thus, Congress could alter the “Manner of holding Elections” for senators within the state legislatures to specify procedures less subject to deadlock. For example, Congress could require that elections be conducted by joint votes of both legislative chambers. It could mandate that a winner need only a plurality rather than a majority of votes.

The Senate had the power, which it had occasionally exercised, to expel members for corruption. A constitutional amendment was not required to strengthen the relevant law or Senate rules. The worst abuses of the legislative election system were solvable without taking the election from the legislatures.

Congress enacted poorly-crafted regulatory legislation in 1866 to relieve the deadlock problem. The progressives used this as “proof” that a mere change in the law would not do. The fact that Congress considered and rejected the plurality winner rule several times strongly suggests that progressives had more on their minds than corruption, deadlock and issue bundling.

What else might they have been after? Statistical research by historian John D. Buenker shows that the contest was not really between “idealists” and “plutocrats”. Buenker concludes that a key component in the coalition for direct election consisted of the big-city political machines, mostly (but not exclusively) Democrat. The urban bosses saw direct election as a way to amass greater share of power for themselves and for the ethnic groups they represented. In some states, the goal was more purely partisan – direct election was seen as a way to weaken Republican senatorial candidates while benefitting Democrats and Populists. For example, Rhode Island pitted urban-based Democrats, aided by a few Progressives and Republicans from similar constituencies against the rural and small-town-based Republican organization.

Interesting how we’re still struggling with the dichotomy between the big cities and the rural-exurban communities.

More importantly, the progressives strongly favored augmenting federal power. Direct election would end state participation in Congress, and thereby facilitate federal incursion into areas of policy traditionally under state control – education, health, safety, food inspections, manufacturing, road construction, elections, parks, etc.

Direct election enjoyed very high levels of popular support – perhaps even higher than the modern popularity of a balanced-budget requirement. Direct election seemed a viable way of attacking corruption and state legislative deadlock, just as a balanced-budget requirement is seen now as a way of imposing more fiscal restraint.

State legislators also appreciated the cause. Even though transferring senatorial elections to the voters would reduce the power of state lawmakers, most of those lawmakers had become thoroughly disgusted with deadlock, long periods without senatorial representation, and the overshadowing of state issues in state legislative elections.

Efforts to induce Congress to propose an amendment had proved fruitless. When the state application campaign began in 1899, the House of Representatives already had voted three times for such an amendment; the Senate killed it each time. The same thing happened again in 1900 and 1902. Most senators simply had no interest in altering the method of election that had elected them. A cause with overwhelming public support seemed permanently blocked in Congress, just as more recent causes with overwhelming public support, such as proposals for a balanced budget amendment and term limits, have been blocked in Congress.

Advocates of direct election understood that Americans often have amended their Constitution not so much to change the fundamentals of the system as to restore or reinforce those fundamentals. Those advocates therefore cast their amendment in those terms. As the 1911 Senate Judiciary Committee report, recommending the 17th Amendment, said, social change required altering the mode of election, “not for the purpose of changing the fundamental principles of our Government, but for the purposes of maintaining the very principles which the fathers sought to establish.” America, it was said, is a democracy, but there’s this whole chamber in DC that is not elected by the people. We need to correct that.

Americans at the time of the direct election movement remembered most of their constitutional history, understanding that when applications from two-thirds of the states are received, Congress has no choice in the matter – it must call a convention. They also understood that state applications can limit the subject matter, but that the convention, not the states, actually drafts the amendment. States targeted their applications toward direct elections, while not purporting to dictate the amendment’s precise language.

On the other hand, there was enough constitutional amnesia that opponents were able to argue that a convention for proposing amendments was a “constitutional convention” which held an inherent risk of runaway. This appears to be the first time such beliefs were widely broadcast and some proponents played into their adversaries’ hands by referring to the assembly as a “constitutional convention.” The belief was not widely enough held to derail the movement.

The campaign began with various efforts to induce Congress to report an amendment of its own. Nebraska, Texas and Pennsylvania requested during the 1890s, while Georgia, Arkansas and Oklahoma formed committees to explore the issue in the first decade of the 20th century.

The Pennsylvania application form, which it sent on to other states, read:

Whereas, A large number of State Legislatures have at various times adopted Memorials and Resolutions in favor of election of United States Senators by popular vote; And Whereas, The National House of Representatives has on four separate occasions, within recent years, adopted resolutions in favor of this proposed change in the method of electing United States Senators, which was not adopted by the Senate;
And Whereas, Article V of the Constitution of the United States provides that Congress, on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing amendments, and believing there is a general desire upon the part of the citizens of the State of Pennsylvania that the United States Senators should be elected by a direct vote of the people Therefore, be it resolved … That the Legislature of the State of Pennsylvania favors the adoption of an amendment to the Constitution which shall provide for the election of United States Senators by popular vote, and joins with other States of the Union in respectfully requesting that a convention be called for the purpose of proposing an amendment to the Constitution of the United States, as provided for in Article V of the said Constitution, which amendment shall provide for a change in the present method of electing United States Senators, so that they can be chosen in each State by a direct vote of the people.
Resolved, That a copy of this concurred Resolution, and application to Congress for the calling of a convention, be sent to the Secretary of State of each of the United States, and that a similar copy be sent to the President of the United States Senate, and the Speaker of the House of Representatives.

This carefully drafted form clarified that the legislature was applying formally for an Article V convention to consider only the particular subject matter of direct election of senators. This was consistent with the Founders’ expectations and it reassured others that the applying state did not seek to rewrite the entire Constitution. The approach of limiting the convention to a single issue also was familiar to state lawmakers since a single-subject rule commonly was (and still is) applied to state bills. The form properly named the assembly sought as a “convention … for the purpose of proposing an amendment,” rather than a “constitutional convention.”

Soon, there was a flood of similar direct-election applications based on the same principles as the Pennsylvania application. Minnesota, South Dakota, Washington, Oregon, Oklahoma, Louisiana all filed applications in short order. Despite some confusion sowed by the opposition, for the most part the organizers of the direct election application campaign remembered constitutional rules laid down by the Founders:

  1. single-subject applications were permitted and expected,
  2. applications could not actually draft the amendment, and
  3. the procedure was designed to make reforms that Congress would not undertake itself.
  4. an amendments convention was a gathering of delegates of states.

The Article V convention never took place because the Senate voted the amendment out for ratification by the states just short of the requisite number of applications. Since that time, there has been strong public sentiment against such a convention, owing to a lack of understanding of the constitutional constraints that have always been in place.

It’s important to note, however, that we are two states applications away from a Article V convention for a balanced budget amendment. Historically, Congress acts at this point.

Do we think this Congress will??????

Could We have Avoided the Civil War?   7 comments

If you’re like me, you wonder why the states did not make use of the Article V state-application-for-convention process to avoid the Civil War? My high school history books (and I confirmed this in my daughter’s high school history book) informs us that Congress was hopelessly deadlocked because slavery had become the 19th century third-rail of politics. So why didn’t the states take action?

The simple answer is that some of them did try to make use of the system, but they tarried unduly, contributing to the tragedy that would follow.

Compromise to stave off war and preserve the union typically included one or more constitutional amendments. Senator John J. Crittenden of Kentucky was a highly respected moderate. To modern thinking, the Crittenden plan is unacceptable. It proposed to protect slavery where it existed, enforced the fugitive slave laws and admitted slavery into western territories south of the old Missouri Compromise line. It also reversed Dred Scott, which said slavery was forever legal in all the territories. It would have eventually ended slavery by isolating it in a region of diminishing relative economic and political importance. It would have preserved the union and saved 600,000 lives, 500,000 wounded and the domination of the South by the North for the next century. Crittenden’s plan received a good amount of public support, but Congress was never going to propose a constitutional amendment of this sort. They lacked the two-thirds majority to make it happen.

Advocates for maintaining the union considered the state-application-for-convention method when they realized Congress could not and would not act. At a cabinet meeting on November 9, 1860, President Buchanan supported an Article V convention to propose an “explanatory amendment” on the subject of slavery. In the ensuing months, several members of Congress – including Representatives Charles Larrabee of Wisconsin, John C. Burch of California, and Reuben Fenton of New York – all offered congressional resolutions encouraging the states to apply under Article V. George E. Pugh of Ohio and James W. Grimes of Iowa did the same in the Senate. On March 4, President Lincoln, now newly inaugurated, said that while he had no specific amendments to recommend, he had no objection to amendments generally, and that he preferred proposal by a convention to proposal by Congress. He probably knew Congress was not going to act.

Meanwhile, the Commonwealth of Virginia – which had not yet seceded – called for a less formal interstate convention. The Commonwealth commissioned former President John Tyler as its envoy to Washington. Congress took no action, but throughout most of February 1861, 133 commissioners from 21 of the 34 states met in what came to be known as the Washington Peace Conference. Tyler served as chairman. At the Peace Conference, Virginia recommended a settlement based on the Crittenden plan, and the ultimate recommendation of the conference was a variation of that proposal. Unlike an Article V convention, however, the Peace Conference had no constitutional standing to propose amendments directly to the states. Instead of promoting an Article V convention, the Peace Conference decided to submit its proposal to Congress, which was in political deadlock. The Senate rejected the recommendation of the Peace Conference, and the House refused even to consider it.

Doesn’t that sound familiar?

Several states decided to attempt to break the deadlock by filing Article V applications. We do not know how many valid applications there were because all do not appear in the congressional records. They may not have been transmitted or Congress, which had no established way of handling such documents, simply failed to record them. Illinois’ application does not appear in the congressional records, but those records do state that on February 28, 1861, New York Senator William Seward announced that Kentucky, New Jersey, and Illinois already had applied; two days later, Illinois Senator Lyman Trumbell said the same thing. Kentucky applied first (January 24, 1861), suggesting as a basis for settlement the compromise offered by that state’s favorite son, Senator Crittenden. The application’s operative wording was for a general convention rather than one limited by subject matter:

“Resolved … That application to Congress to call a convention for proposing amendments to the Constitution of the United States, pursuant to the fifth article, thereof, be, and the same is hereby now made.”

New Jersey applied the next day, stating in part:

4. And be it resolved, Th at the resolutions and propositions submitted to the Senate of the United States by Hon. JOHN J. CRITTENDEN, of Kentucky, for the compromise of the questions in dispute between the people of the northern and of the southern States, or any other constitutional method of settling the slave question permanently, will be acceptable to the people of the State of New Jersey, and the Senators and Representatives in Congress from New Jersey be requested, and earnestly urged, to support these resolutions and propositions. 5. And be it resolved, That as the Union of these States is in imminent danger unless the remedies before suggested be speedily
adopted, then, as a last resort, the State of New Jersey hereby makes application, according to the terms of the Constitution, of the Congress of the United States, to call a convention (of the States) to propose amendments to said Constitution.

The Illinois legislature adopted its application on February 12. Indiana sent their application to Congress on March 8, requesting Congress to call a convention of the States to take into consideration the propriety of amending the Constitution, so that its meaning may be definitely understood in all sections of the Union…. The Ohio legislature applied March 10, bringing the tally to five states. Unfortunately, the movement had not begun in time. When Ohio submitted its application, seven Southern states already had seceded, though there were three applications transmitted after the Civil War had begun. One was a reaffirmation from Kentucky, adopted in 1863. In March 1864, North Carolina, although still in rebellion, applied for an Article V convention to resolve the war, and in September 1864, Oregon submitted a single-subject-matter application for an amendment abolishing slavery:

Whereas, article five, section one of the Constitution of the United States provides for its own amendment … and whereas in the process of the rebellion, it has become apparent that African slavery has been the cause thereof, and that there can be no permanent peace with slavery as a political element in the government, or with any of the attendant laws in force in States thereof, and believing that the Constitution ought to be so amended as to forever prohibit involuntary servitude, except for crimes within the United States and the territories thereof, therefore,
Resolved That application is hereby made to the Congress of the United States for calling a convention for proposing amendments to the Constitution of the United States.

The lessons from the state application process during the Civil War and the years leading up to the war reinforce certain conclusions reached earlier. The Founding-era view was that an Article V convention was the creature of the state legislatures, and not of the people directly. During this period, the assembly was referred to repeatedly by the phase “convention of the states” and certain variants. This was true not only in the South, but in border states (i.e., slave states that had not seceded) and in the North. Others called it by its constitutional name – a “convention for proposing amendments.” It is notable that few, if any, mistook it for a constitutional convention.

Most state applications during this era asked for a general, rather than limited-subject, convention, because the crisis required a comprehensive solution. Yet Oregon’s application for an amendment abolishing slavery showed that the constitutional option of a limited-subject convention had not been forgotten.

Might a convention for proposing amendments averted Civil War? Certainly some of the most respected political leaders of the day – including Presidents Buchanan and Lincoln, and a number of U.S. senators – thought that it might. What if wasn’t, so we’ll never know certainly, but it certainly would have been a prudent step to take before Americans started shooting at Americans. I can’t see how a convention of state delegates to propose amendments to the Constitution could have been any more harmful to the Union than what actually happened.

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.

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.

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