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Author: Rob Natelson

Convention Rules for a Convention of the States

Convention Rules for a Convention of the States

The convention of the states meeting in Phoenix, Arizona in September will need a set of rules. Moreover, that convention will be engaged in further rule-writing because the Arizona Legislature called it partly to suggest rules for a prospective Article V Convention for Proposing Amendments.

I suggest the planners start with the Model Rules provided here. It is an update of rules prepared by a drafting team I headed in 2015 and 2016. It offers advantages no other proposed rules have:

  • There was an extended deliberation period—about a year and a half.
  • The drafting team included two experienced constitutional lawyers and four seasoned state legislators, one of whom had served in legislative leadership in two different states.
  • The Model Rules were not the product of theory or speculation. Although updated for modern conditions, they derive directly from prior convention and legislative experience. Earlier versions worked in Philadelphia in 1787 and, under extremely difficult circumstances, at the Washington Convention of 1861.
  • These Model Rules are relatively simple.
  • We know they actually work: They were tested at a two-day simulated convention in Williamsburg, VA in 2016, where they operated almost flawlessly. Based on that experience, we had to make only very minor amendments.

Obviously, no set of rules can be taken unchanged. But I recommend these for a place to start.

Where Congress’s Power to Regulate Immigration Comes From

Where Congress’s Power to Regulate Immigration Comes From

Introduction. Earlier this year, a law journal published an exchange between two respected law professors—a conservative and a libertarian—about whether the Constitution authorizes Congress to regulate immigration. (The Constitution does not mention immigration except to say that Congress cannot ban it before 1808.) The conservative said “Yes,” and supported his position with some extremely liberal (!) readings of parts of the Constitution. The libertarian said, “No”—that except in special circumstances Congress could not restrict immigration (although the states could).

Surprisingly, both contributors missed the actual source of Congress’s immigration authority: the power “To define and punish . . . Offences against the Law of Nations”) (Article I, Section 8, Clause 10).

The law journal already had been published, so it was too late to join the discussion on its pages. Accordingly, I wrote an article in The Hill detailing why the “Define and Punish Clause” applies to immigration. The libertarian replied on the pages of the Volokh Conspiracy, a Washington Post blog to which he regularly contributes, and for which I have occasionally written as well.

I thought this issue was worth a full explanation of why the Define and Punish Clause covers immigration, because its applicability to immigration is not well known, even among legal experts. Accordingly, I prepared the essay below for readers interested in immigration issues. As should be apparent from this essay, I am NOT taking a stand on immigration policy, just on an issue of constitutional interpretation. This essay appeared in Josh Blackman’s Blog.

Links to some of the earlier writings appear in the essay.

Why the Define and Punish Clause Grants Congress Power to Regulate Immigration

By Robert G. Natelson

            In a recent article in The Hill, I wrote that the Constitution’s grant to Congress of power “To define and punish . . . Offences against the Law of Nations” confers authority to restrict immigration. Professor Ilya Somin has responded and argues the contrary.

Before addressing his argument, I should make clear I agree with Professor Somin on several key issues about the Constitution and immigration. I agree that the original meaning of the Commerce Clause does not include a general power to restrict immigration, and that the Naturalization Clause probably does not, either. In company with him, I reject the claim that the federal government possesses extra-constitutional inherent sovereign authority—because that claim is starkly inconsistent with the ratification-era debates, the structure of the Constitution, and the text of the Tenth Amendment.

Where we differ is about whether the power to “define and punish Offences against the Law of Nations” includes authority to restrict immigration.

“The Law of Nations” was the usual 18th century term for international law. Most of the law of nations governed how nations interacted with other nations. However, some aspects governed how they interacted with foreigners and a few aspects—such as the law merchant—regulated how citizens of different countries interacted with each other.

The law of nations was based on natural law, custom, and international agreements. However, the rules were not always clearly defined, and they were not self-executing. For this reason, legislatures adopted implementing statutes. Examples of such statutes were those protecting safe-conduct passes from disrespect and foreign ambassadors from insult. The Define and Punish Clause granted Congress authority to adopt implementing measures.

The law of nations held, as a general principle, that nations should not harm each other. Hence, it provided that nations must refrain from unauthorized incursions into other nations’ territory. To violate international law, the unauthorized entry need not be led by a foreign government. As the Founders’ favorite international law scholar, Emer de Vattel observed, “Private persons, who are members of one nation . . . may injure a foreign sovereign.” Immigration statutes implemented the “no unauthorized entry” norm against “private persons” from other countries.

Professor Somin acknowledges that “the law of nations did indeed assume that each state has the authority to restrict the entry of aliens, largely as it sees fit.” But he notes that the mere fact that the law of nations authorized a sovereign to adopt legislation did not render the legislation part of the law of nations. For example, the law of nations recognized a sovereign’s prerogative to enact statutes forbidding murder. However, most murders were not offenses against the law of nations. Moreover, if it were true that any statute consistent with international jurisprudence were part of international jurisprudence, the Define and Punish Clause would empower Congress to adopt any ordinary police legislation permitted by international law. Such a sweeping grant of power to Congress would be inconsistent with the Founders’ design.

On these points Professor Somin is correct.

On the other hand, some domestic statutes surely did define offences against the law of nations. An example is a statute prohibiting a citizen from insulting or impeding a foreign ambassador. Thus, to state that the Define and Punish Clause does not authorize all domestic laws does not answer the question of which domestic laws it does authorize. Is a statute restricting immigration in the class with ordinary murder laws or in the class with protections for ambassadors? Immigration limits have international implications that ordinary murder laws do not have. So reasoning would seem to place immigration restrictions in the “law of nations” category.

But questions of constitutional meaning cannot be answered through pure reason, however acute. Nor does the constitutional answer lie in what we moderns think international law is or should be—a mistake into which Professor Somin’s essay slips once or twice.

At least to an originalist who follows Founding-Era norms of interpretation, the meaning of a constitutional term is fixed by the understanding of those who ratified it or, in absence of sufficient coherent evidence on that subject, by the original public meaning. When, as here, the constitutional debates provide little relevant evidence on the sense of a legal term, our best evidence of its meaning may be Founding-Era jurisprudence. (I say “may be” because contemporaneous congressional and state records are sometimes more helpful.)

To a modern reader, some of the classifications adopted by 18th century jurisprudence appear arbitrary. Yet those classifications often serve to define constitutional meaning. The framers treated bankruptcy and commerce separately, despite their interrelated nature, because they were distinct legal categories. Similarly, the legal phrase of “to regulate Commerce” encompassed travel by ship but not (most) travel by foot. So under the Constitution’s original legal force, the power to regulate commerce included boat travel from Canada but not (usually) walking across the border.

Helpful to grasping international law jurisprudence as the Founders understood it are three treatises they held in high esteem: Samuel Pufendorf’s 17th century work, Of the Law of Nature and Nations, and two 18th century works: Emer de Vattel’s The Law of Nations and Blackstone’s Commentaries.

Vattel wrote that the law of nations derived from the natural law applicable to individuals, as modified by convention and by the special circumstances of sovereigns: “[C]onsequently, the law of nations is originally no other than the law of nature applied to nations” (emphasis in original). Indeed, both Vattel and Pufendorf frequently drew upon rules of natural law applicable to individuals to deduce or justify substantive rules of international law. By way of illustration, here is how Pufendorf justifies immigration restrictions:

The Case is somewhat like that of a private Man, who in his House or Gardens, possesses some rare Curiosity, or other valuable Sight; such an one does not apprehend himself tied freely to let in all Spectators . . . And this seems the more reasonable, because the Grounds of prudent Caution and Suspicion are so numerous. . . .

And farther, that it seems very gross and absurd, to allow others an indefinite or unlimited Right of traveling and living among us, without reflecting either on their Number, or on the Design of their coming; whether supposing them to pass harmlessly, they intend only to take a short view of our Country, or whether they claim a Right of fixing themselves with us for ever. And that he who will stretch the Duty of Hospitality to this extravagant Extent, ought to be rejected as a most unreasonable, and most improper Judge of the Case.

As to our main Question, it is look’d on by most as the safest way of resolving it, to say, That it is left in the power of all States, to take such Measures about the Admission of Strangers, as they think convenient . . . .

I suppose Professor Somin might respond that Pufendorf was merely asserting the power of nations to exclude foreigners—that Pufendorf was not saying the intrusion violated the law of nations. But this does not seem justified by the context. Pufendorf was engaged in the common methodology of using rules of domestic law to deduce rules of international law. Domestic law not only gives permission to a householder to decide to exclude. Domestic law also makes it an offense to disregard the householder’s decision. I see no reason why international law would not encompass both the decision to exclude and unauthorized disregard of that decision. As noted earlier, immigration laws are not purely domestic in their effect; they have important international implications.

Blackstone understood this passage the same way I do, and for purposes of constitutional interpretation Blackstone’s exposition matters a great deal. Explicitly relying on this passage, Blackstone wrote, “Upon exactly the same reason stands the prerogative of granting safe-conducts, without which by the law of nations no member of one society has a right to intrude into another. (emphasis added).” To Blackstone, then, the law of nations does not merely grant a sovereign the right to exclude. A violation is itself an offence against the law of nations.

Now we turn to Vattel’s treatise. It consists of four books. The first was entitled “Of Nations considered in themselves.” A major theme of this first book is the derivation of rules of governance from natural law principles. Despite the title, the book goes beyond questions of internal governance to deduce conclusions about the law of nations. Among those conclusions:

*          “A nation or state has a right to every thing that can help to ward off imminent danger;”

*          nations may limit or ban imports;

*          they may refuse to trade with others; and

*          they may restrict emigration and immigration, taking into consideration a range of factors, including available land, health concerns, avoiding religious strife, and factors of safety and culture. Indeed, the nation “has a right, and is even obliged, to follow, in this respect, the suggestions of prudence.”

Now, these seem like rules of international law to me. And in respect to immigration at least, they go beyond mere permission: They extend to obligation—for a sovereign “is even obliged” to legislate according to likely consequences.

Vattel further supports the conclusion that the law of nations includes the substance of immigration statutes. In this book, he mentions a rule among some European states denying citizenship to foreigners. Vattel characterizes the rule—not merely the authorization—as “the law of nations, established there by custom.” Professor Somin observes that this custom regulated citizenship rather than immigration. But that distinction actually cuts against his argument: If even an internal citizenship rule dealing with foreigners—a rule central to the life of a polity—is part of the law of nations, then a limit on foreigners crossing the border is one a fortiorari. (As Professor Somin correctly states, Vattel didn’t like the custom of denying citizenship to foreigners. But that is wholly beside the point.)

Yet, perhaps one might object that Vattel’s first book is really only about “Nations considered in themselves,” and that we should therefore be cautious about treating its conclusions as part of the law of nations.

So let us examine Vattel’s second book. Its title tells us it is wholly about the law of nations: “Of a Nation Considered in its Relation to Others.” (The third and fourth books are about war and peace, respectively.) Here are some passages from the second book, presented in order of appearance:

As every thing included in the country belongs to the nation—and as none but the nation, or the person on whom she has devolved her right, is authorised to dispose of those things,— if she has left uncultivated and desert places in the country, no person whatever has a right to take possession of them without her consent. Though she does not make actual use of them, those places still belong to her: she has an interest in preserving them for future use, and is not accountable to any person for the manner in which she makes use of her property.

 * * * *

Since the least encroachment on the territory of another is an act of injustice . . . the limits of territories ought to be marked out with clearness and precision.

 * * * *

We should not only refrain from usurping the territory of others; we should also respect it, and abstain from every act contrary to the rights of the sovereign: for a foreign nation can claim no right in it.

    * * * *

The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this, that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual. But the prohibition ought to be known, as well as the penalty annexed to disobedience: those who are ignorant of it, ought to be informed of it when they approach to enter the country.

 * * * *

Since the lord of the territory may, whenever he thinks proper, forbid its being entered, he has no doubt a power to annex what conditions he pleases to the permission to enter. This, as we have already said, is a consequence of the right of domain.

Perhaps one might rejoin, “Here again, Vattel says only that the law of nations permits sovereigns to restrict immigration; he does not say that violations are part of the law of nations.” On the contrary, though, Vattel does more than describe the prerogative of the sovereign to exclude. In this book (remember: focusing on international norms) Vattel also prescribes the duty to obey:

*          “We should not only refrain from usurping the territory of others; we should also respect it, and abstain from every act contrary to the rights of the sovereign;” and

*          “[E]very one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual.”

Even if these passages of obligation were absent, I don’t think it is the most natural reading of the text to infer that the right to enact a restrictive statute is a component of international law but violation of the statute is not. I doubt many Americans reading Vattel during the Founding Era would think a book entitled “Of a Nation Considered in its Relation to Others” was telling them, “The law of nations authorizes restrictive immigration statutes but is wholly agnostic about their violation.” Certainly Vattel never says that.

One last point—not fully germane, but worth mentioning. Professor Somin writes, “But in the eighteenth century, and even today, states have no international law obligation to prevent the peaceful migration of their citizens to foreign nations that might wish to exclude them.” Vattel, at least, may well have disagreed:

If a sovereign, who might keep his subjects within the rules of justice and peace, suffers them to injure a foreign nation either in its body or its members, he does no less injury to that nation, than if he injured it himself.

* * * *

Finally, there is another case where the nation in general is guilty of the crimes of its members. That is when by its manners and by the maxims of its government it accustoms and authorizes its citizens . . . to make inroads into neighboring countries.

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.