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Author: Rob Natelson

How progressives Promoted the ‘Runaway Convention’ Myth to Protect the Warren Court’s Judicial Activism

How progressives Promoted the ‘Runaway Convention’ Myth to Protect the Warren Court’s Judicial Activism

You may have heard alarms that if we hold a national convention for proposing constitutional amendments the gathering would be an uncontrollable constitutional convention (“con-con”) that could propose anything at all.

The claim is called the “runaway scenario.” It has almost no basis in history or law. But it has long frightened Americans away from using the Constitution’s chief mechanism for bypassing Congress and curing our dysfunctional federal government.

The “runaway” specter has been raised by fringe elements on both the left and the right. It is a ghost that haunts the imagination of groups like the John Birch Society and Common Cause.

Now we have more information about how it was conjured up.

Last year, the Article V Information Center published my paper showing that confusion between an amendments convention and a constitutional convention first arose in the 20th century. The paper further documents how, during the 1960s and 1970s, leading establishment liberals, such as Kennedy speechwriter Theodore Sorensen and Kennedy confidant Arthur Goldberg, capitalized on that confusion by raising the runaway specter.

The paper concluded that their plan was to scare people away from using the Constitution’s convention mechanism. Their goals were twofold. First, they wanted to protect from reversal by constitutional amendment several Supreme Court decisions that had proved highly controversial—among them Roe v. Wade, the case that legalized abortion nationwide. Second, they sought to block growing momentum for amendments imposing term limits and requiring a federal balanced budget.

Now the curator of the Article V Library has produced more evidence confirming these conclusions.

The Article V Library collects every state legislative resolution calling for an amendments convention. It also offers features for screening them by subject and for ascertaining which are still in effect.

Without prior knowledge of my own conclusions, Robert Biggerstaff, the library’s curator, conducted an n-gram search in Google Books to find out when the phrase “runaway convention” arose (now updated to 2008, the last year for which data are available). He discovered that the term was almost unknown until around 1960—when it suddenly became extraordinarily common. Usage rose to counter rising popular demand for constitutional amendments. In the 1990s, as momentum for amendments abated, so also did resort to the runaway scenario. Another n-gram searchshows that the abbreviation “con con,” widely used by convention opponents, also was invented around 1960.

Biggerstaff notes: “In the 1950’s and 60’s progressives actively sought change through courts when it was not possible through legislatures.  This was an express tactical choice to seek through judicial activism what was stymied by legislatures.”

However, their strategy had what he calls an “Achilles’ heel.” Supreme Court decisions can be—and several times have been—overturned by constitutional amendment. After the Supreme Court required states to reapportion their legislatures in the 1960s, for example, 33 of the necessary 34 state legislatures filed applications demanding a convention to propose an amendment reversing the court’s rulings.

“As a result,” Biggerstaff says, “it became important to neuter the Article V Amendment process—particularly to prevent triggering by convention applications—to protect progressive successes achieved in the courts.”

Biggerstaff concludes that this was why the runaway convention fiction suddenly emerged from nowhere during the 1960s. In his view, “generating unwarranted fear of the Article V convention process was a ploy introduced by progressives as a way to prevent states from countering progressives’ use of judicial activism.”

This article originally appeared in The Hill.

How We Know a National Amendments Convention Is a ‘Convention of the States’

How We Know a National Amendments Convention Is a ‘Convention of the States’

Most state legislatures have filed applications with Congress demanding a national convention for proposing constitutional amendments. Americans are asking just what kind of convention the Constitution requires.Nearly all experts believe an amendments convention is a “convention of the states”—the traditional term for a meeting in which representatives of state legislatures deliberate on the basis of sovereign equality. The rule at a convention of the states is that each state has an equal voice.

This would be a familiar procedure: There have been about 40 conventions of states in American history—although this one would be the first called to propose constitutional amendments under the authority of the Constitution itself.

Other commentators—predominately, but not exclusively, convention opponents—argue an amendments convention should consist of popularly elected delegates, perhaps allocated by population.

The Constitution itself merely refers to the assembly as a “Convention for proposing Amendments.” So we must look at history to understand how the Founders understood the term.

In an 1831 decision, the U.S. Supreme Court said an amendments convention is a convention of the states. My newly-issued research study confirms the Supreme Court was correct.

During the century before the Constitution was drafted, conventions among North American colonies, and later among states, met on average every three or four years. After Independence in 1776, the pace quickened: The Constitutional Convention of 1787 was the 11th interstate gathering in 11 years. All were assemblies of state delegations, operating as ambassadors from their respective states.

The delegates were officially called “commissioners” and the meetings dubbed either “conventions of the states” or by some well-recognized synonym.

The fact that the founders knew only of the “convention of the states” model of interstate meeting suggests strongly they intended an amendments convention to work the same way. The new study shows how the “convention of states” approach fits within the Constitution they drafted and approved.

Additionally, the study collects numerous documents in which Founders specifically labeled an amendments convention a “convention of the states.” All these documents originated when Americans still were debating the new Constitution. Remarkably, everyone seems to have shared the view that an amendments convention would be a “convention of the states,” irrespective of whether he favored the Constitution.

For example, in New York legislative debates, two lawmakers referred to an amendments convention as a “convention of the states.” One was John Lansing Jr., who had served as a framer in Philadelphia. Similarly, in South Carolina, another framer, Charles Cotesworth Pinkney, referred to the amendments convention in much the same way.

Newspaper articles used the same term. Leading founders such as George Washington, James Madison, and Alexander Hamilton made comments that reveal their assumption that an amendments convention is a convention of the states.

Perhaps most persuasive of all are the references to “convention of the states” in state legislative resolutions and other government documents. During 1788 and 1789, several state legislatures debated whether to formally apply to Congress for a convention, primarily to obtain a bill of rights. The very first application, passed by the Virginia legislature, used the term “convention of the states,” and the second (New York’s) used a common synonym.

The study observes: “Within a few months amid the ratification debates, five states in different regions of the country—three in favor, one against, and one neutral—issued seven official documents identifying an amendments convention as a convention of the states.”

For a such a gathering, the state legislatures decide how many commissioners to send to the convention and how they are chosen. Previous experience suggests state legislatures will select most commissioners. That ensures the commissioners are experienced in public policy and official drafting.

When the convention is called to order, each delegation will have an equal voice. Although the assembly theoretically could change that rule, no convention of states ever has.

If delegations from all 50 states attend, then 26 will be able to propose an amendment. Their proposal will, however, be merely a proposal. To become part of the Constitution, three-fourths of the states (38) must approve, thereby assuring the amendment has strong popular support.

This article originally appeared in Townhall.com

Yes, the Constitution was adopted legally

Yes, the Constitution was adopted legally

An old myth has showed up in the media again: the myth that delegates to the 1787 Constitution Convention violated their trust—that they produced a new constitution although empowered only to propose amendments to the Articles of Confederation.

Fortunately, the claim that the 1787 convention had no authority to propose a new constitution is pure fiction. I have made the point before, but a new article by constitutional lawyer Michael Farris rebuts the myth in detail.

Its core error is the mistaken belief that the convention was called by a limited February 21, 1787 resolution of the Confederation Congress. In fact, as the wording of that resolution suggests, it was not the convention call.

Conventions of states had long been a staple of American life. They were not held pursuant to the Articles of Confederation. They operated outside the Articles, under sovereign powers reserved to the states.

Here’s how the process worked: First, an official authority, usually a state legislature, would issue a “call” inviting states to meet to address one or more issues. Then each participating state would appoint “commissioners” (delegates). The commissioners and the convention operated under then-prevailing rules of agency law. The agenda was limited by the call’s subject matter and by the instructions the majority of participating states gave their commissioners.

During the 1780s, many people thought the Articles of Confederation were inadequate. In September 1786, delegates to the five-state Annapolis Convention recommended to their respective states another convention in Philadelphia “to devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the Union.”

In the 18th century the word “constitution” usually had a meaning different from that we typically employ today. At the time, “constitution” usually meant the entire political system—just as we still refer to the “unwritten British constitution.” Thus, the Annapolis conclave recommended a convention empowered to propose any changes in the political system deemed “necessary” to render the political system “adequate.”

On November 24, 1786, New Jersey appointed commissioners. On December 1, the Virginia legislature formally approved the convention in language even broader than that used at Annapolis. The Virginia lawmakers then extended an invitation by directing the governor to transmit copies of its resolution to all other states. That invitation—not any congressional resolution—represented the formal call to Philadelphia.

Over the next few weeks, Pennsylvania, North Carolina, New Hampshire, Delaware, and Georgia all accepted. None limited its delegates to amending the Articles.

In Congress, a committee headed by John Dickinson recommended endorsing Virginia’s broad call. Its recommendation would have been merely a statement of moral support with no legal effect.

But congressional delegates from New York and Massachusetts were concerned about the breadth of the call. They wanted Congress to recommend limiting the convention to amending the Articles.

Congress compromised: Instead of a recommendation one way or another, it simply stated an “opinion” that a convention should be held to amend the Articles. This is the resolution often mistaken for the call.

But this resolution had no legal effect, and the call had already been issued. Seven states already had announced participation on wider terms. They were soon joined by South Carolina, Connecticut, and Maryland.

Thus, when twelve states met in Philadelphia, ten had given their commissioners sweeping proposal powers. This led Gouverneur Morris to observe that the convention was authorized to “propose any thing.”

Eventually, the convention decided to propose an entirely new document. Of the commissioners from the two states without full power, most never signed the Constitution. One who did sign (Alexander Hamilton of New York), acted as an individual, not as a representative of his state.

Pursuant to the instructions set forth in most of the state commissions, the convention sent the Constitution to Congress. Congress unanimously sent it to the states for ratification. Eventually, popular conventions in all 13 states approved it.

All of this seems quite regular. So where did the myth of the runaway convention arise? Why has it been so persistent?

It began with opponents of the Constitution, among whom legal knowledge was not a strong point. The myth has been kept alive by people—including some academics—who are unaware of 18th century law, terminology, and convention practice.

Unfortunately, fringe groups whose idea of “defending” the Constitution is arguing that it was adopted illegally assiduously continue to perpetuate the myth.

This article originally was published in The Hill.

All In One Place: The Evidence that an Amendments Convention is a Traditional “Convention of the States”

All In One Place: The Evidence that an Amendments Convention is a Traditional “Convention of the States”

You may have heard opponents of the Article V convention process claim that the make-up of a convention for proposing amendments is a “mystery”—that we have no idea of how the membership would be selected, how they would vote, etc.

Those active in the Article V movement have known for some time that this is inaccurate. For one thing, scholarly research by myself and other scholars, such as Professor Michael Rappaport at the University of San Diego School of Law, has established that an amendments convention is a convention of the states—something the Supreme Court itself acknowledged in 1831. Conventions of the states (and, before them, conventions of colonies) have a 300 year history and have played a prominent part in American life. Their protocols are well understood.

I thought it would be a good idea to collect in a single article all the major pieces of evidence that an amendments convention is a “convention of the states.” The material includes the Supreme Court opinion, pre-constitutional history, and records from the Founding era: comments by the Founders, formal state papers, and resolutions by state legislatures.

Pending selection of a final publisher, you can obtain a copy of the article here.

Court rulings on Trump travel ban endanger state rules used to block school choice

Court rulings on Trump travel ban endanger state rules used to block school choice

Liberal politicos celebrating court decisions voiding President Trump’s travel orders seem not to have noticed something: Those decisions pose a direct threat to the state constitutional language they rely on to block school choice programs.

This danger is not merely theoretical: The state constitutional language they rely on will come under Supreme Court scrutiny later this year.

The state constitutional provisions at risk are called “Blaine clauses” or, less accurately, “Blaine amendments.” They ban state aid to schools and other institutions deemed “sectarian” or “denominational.” Liberal lawyers, judges, and pressure groups have long argued that Blaine clauses ban school choice programs that include religious schools.

But if Trump’s travel orders violate the U.S. Constitution, then Blaine clauses probably do as well. Indeed, the case against the Blaine clauses is stronger in some ways than the case against the travel orders.

Blaine clauses are named for the prominent 19th century federal politician James G. Blaine. During Blaine’s political career, many Americans disliked new Catholic immigrants and their religion. Many states forced immigrant children into public schools imbued with Protestant theology. The idea was to wedge them into a non-denominational Protestant mold.

Catholics naturally asked for public assistance in funding their own schools. Blaine, whose mother was Catholic, seems not to have been prejudiced himself. However, his ambition led him to cater to prejudiced voters. In 1875, while serving as speaker of the U.S. House of Representatives, he proposed an amendment to the U.S. Constitution to permanently block “sectarian” (i.e., Catholic) institutions from enjoying equal treatment.

Blaine’s amendment failed to pass, but Protestant majorities wrote similar clauses into most state constitutions.

The word “sectarian” was carefully chosen. Some modern lawyers and courts think it meant merely “religious,” but they are mistaken. After all, the public schools receiving state aid were religious (Protestant).

The dictionaries of the time show that “sectarian” carried negative meanings of dissent, bigotry, and heresy. These were terms by which many Protestants described Catholics.

In his new study, Blaine’s Shadow, Ross Izard, an educational analyst at Denver’s Independence Institute, shows the direct connection between the Colorado constitution’s Blaine clause and religious and ethnic prejudice. He points out, for example, that Colorado’s Catholic population consisted largely of unpopular Mexican-Americans. He quotes from anti-Catholic newspaper editorials. And he observes that the state constitutional convention itself met in the lodge of a secret society that refused to admit Catholics!

Is this sort of evidence useful for determining whether a rule violates the First Amendment? The court decisions voiding Trump’s travel orders hold that it is. Those rulings rely on allegedly-anti-Muslim statements issued around the same time the orders were issued. The evidence of anti-Catholic bias surrounding Blaine provisions is far more extensive and unequivocal.

Moreover, courts traditionally don’t defer to alleged state violations of the First Amendment nearly as much as they defer to federal foreign affairs and immigration policies.

Liberal defenders of the Blaine clauses sometimes note that evidence of anti-Catholic bias does not exist in all the states that adopted them. This is true. For example, although Montana’s Blaine clause originated in that state’s 1889 constitution, its current version dates only to 1972—when anti-Catholic bias was presumably less.

But Blaine clauses can be used as weapons to attack any unpopular religious denomination. All state courts need do is brand a disfavored denomination as “sectarian,” and —presto!—the state constitution thrusts them into a position of inequality. Even under proper modern usage, a non-denominational Protestant school is “non-sectarian,” while a Catholic, Mormon, or Orthodox Jewish denominational school is “sectarian.”

The First Amendment’s Establishment Clause does not permit government to play favorites in that manner. It does not permit the government to make judgments about which religions are acceptably “non-denominational” (good!), and which are “sectarian” (bad!).

Suppose a state constitution contained a clause that read, “Freedom of speech is guaranteed, except for any speech judges find to be contrary to the public good.”

Would such a clause survive review under the First Amendment to the U.S. Constitution? No it would not.

By the same reasoning, neither should Blaine clauses.

This article first appeared in The Hill.