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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

A Founder Gives Us a Lesson on the Constitution’s Amendment Process

A Founder Gives Us a Lesson on the Constitution’s Amendment Process

Among the best tools for interpreting the Constitution are public explanations by its advocates made during the ratification fight. These explanations helped shape how the public understood the Constitution. They reassured the public about what the Constitution did NOT mean.

Those statements were at the heart of the ratification deal.

One reason the Federalist Papers are so useful because they were exactly this sort of literature. But they are tough going for many readers, both now and then. That helps explain why the more readable essays of Tench Coxe likely had as much influence with the common people as The Federalist.

So when Coxe explains what the Constitution means, we must attend respectfully.

Here is Tench Coxe writing about the Article V amendment process. This passage comes from an op-ed in the Pennsylvania Gazette of June 11, 1788:

The sovereign power of altering and amending the constitution . . . does not lie with this foederal legislature, whom some have erroneously apprehended to be supreme—That power, which is truly and evidently the real point of sovereignty, is vested in the several legislatures and [ratifying] conventions of the states, chosen by the people respectively within them. The foederal government cannot alter the constitution, but the representative bodies of the states, that is, their legislatures and conventions, only can execute these acts of sovereign power.

From the foregoing circumstances results another reflection equally satisfactory and important, which is, that as the foederal legislature . . . cannot prevent such wholesome alterations and amendments as are now desired, or which experience may hereafter suggest. . . . If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.

This statement is a very fat one, but here’s its skeleton:

1. Some people are claiming that under the Constitution, Congress will hold supreme power.

2. But real supremacy belongs to those who can amend the Constitution.

3. The Constitution puts that power in the hands of the state legislatures and state ratifying conventions—the “representative bodies of the states.”

4. Congress cannot alter the Constitution.

5. And Congress cannot block amendments it doesn’t like—by, for example, refusing to call an amendments convention that two thirds of the state legislatures want.

Let’s look at some of the wider implications:

* Congress can’t pass amendments alone. This argues against claims that Congress can gerrymander the membership of a “convention for proposing amendments,” change deadlines in midstream, or otherwise dominate the amendment process.

* By contrast, state legislatures and state conventions can amend the Constitution any time they want, and Congress can’t block them. This necessarily means that only state legislatures control the convention for proposing amendments. It means they can limit the scope of their applications, of the call, and of the convention. And it means they can choose and instruct their commissioners as they wish.

* This power to amend is in the “representative bodies of the states.” When a state legislature or state convention operates under Article V, it acts as a direct representative of the people, not as an arm of state government. Thus, Coxe’s article tends to support modern case law and undercut claims that state governments can direct or change the amendment process through laws and compacts.

First National Convention of States in 150 Years!

First National Convention of States in 150 Years!

Americans finally have a real chance to “clean up the mess in Washington.” That’s the implication of the news that the Arizona legislature has called the first national “convention of states” in over 150 years.

The conclave will meet in Phoenix on September 12. Its purpose is to plan for a later convention to propose a balanced budget amendment to the U.S. Constitution.

Contrary to some histrionic claims, neither the planning assembly nor the subsequent gathering will be constitutional conventions. Each will be a taskforce limited to narrow topics. Any amendment suggested by the later convention would become part of the Constitution only if approved by 38 states.

State lawmakers nationwide have become increasingly frustrated by federal dysfunction. One complaint is Congress’s persistent failure to balance its budget, which has resulted in a skyrocketing national debt.

The Constitution’s chief mechanism for addressing such long-term problems is a special kind of convention of the states the Constitution calls a “convention for proposing amendments.” This assembly must be called if two-thirds of the state legislatures (34 of 50) demand it. Most state legislatures already have done so.

The Arizona legislature is among them, and it apparently believes the 34-state threshold will be crossed soon.

Convention History

Although the last national convention of states was held in 1861, such gatherings — both national and regional — have had prominent roles in American history.

Before American Independence, inter-colony conventions deliberated over defense matters and relations with the Indians and with the British. Examples include the Stamp Act Congress (1765) and the First Continental Congress (1774). After Independence, several interstate conventions addressed defense, as well as such issues as trade and monetary inflation. In 1787, an interstate convention with an unusually broad mandate proposed the U.S. Constitution.

Later conventions of the states have been far more limited than the Constitutional Convention. Gatherings in 1814 and 1861 informally proposed specific constitutional amendments. An 1889 regional convention recommended uniform anti-trust laws. One of its recommendations induced Congress to pass the Sherman Anti-Trust Act the following year.Regional conventions in the 1920s, 1930s, and 1940s negotiated interstate water compacts.

The latest call is Arizona House Concurrent Resolution 2022, passed on March 30. It also requires a strictly limited conclave. It provides: “The State of Arizona respectfully calls a planning convention of the states, consisting of commissioners chosen and authorized in the manner that each respective state legislature determines… on September 12, 2017 in Phoenix.”

The planning convention will recommend (1) rules and procedures for the balanced budget convention and (2) a date and location that Congress can use when calling the balanced budget convention.

The resolution also recommends that the planning convention adopt “Mason’s Manual” — the same guide currently used by the legislatures of most states — for its parliamentary procedures.

Convention Procedure Well Understood

Despite some uninformed assertions on the subject, there is no mystery surrounding the protocols governing conventions of states. Those protocols have been firmly established for over two centuries. For example, each state has equal voting power; the convention elects its own officers; and the convention is limited by the scope of its “call.”

The Arizona resolution recognizes all these protocols.

This is the latest in a parade of events showing the state legislatures are becoming serious about addressing problems the feds refuse to face. In 2016, the Assembly of State Legislatures, a national bipartisan group, proposed rules for amendments conventions. In October, representatives from nearly all the state legislatures met in a simulated convention held in Williamsburg, Virginia in October. They adopted rules based on a set I had put together based on prior convention experience.

In addition, 10 states have demanded a convention to propose federal term limits and controls on federal power.

The American Legislative Exchange Council, a state legislative trade group, has published a popular guide to the process, which I authored.

This article first appeared in the American Spectator.

A Burst of New Article V Progress

A Burst of New Article V Progress

For a few weeks earlier this year, it looked like the Article V movement might have stalled.

Some state lawmakers thought the election of President Trump would be a sufficient solution to federal dysfunction. Wyoming’s passage of a balanced budget application was offset by rejection in conservative Idaho and rescission in liberal New Mexico. The idea of the Tennessee legislature sponsoring a convention of states later this year to plan for a balanced budget convention passed Tennessee’s senate, but was stalled in its house of representatives. US Term Limits won approval of the Utah house, but had not added to its application count. The liberal WolfPAC group, which wants a campaign finance reform amendment, was stuck at five states. Most notably, the grassroots driven Convention of States movement seemed unable to add to its existing total of eight states.

In politics, though, events often ripen over a long time behind the scenes and then burst into view with blinding suddenness—much as the Berlin Wall suddenly crashed after years of being quietly undermined. Within the last few days, we have seen:

  • The “planning convention” idea being reborn in the Tennessee house;
  • Arizona adopting the balanced budget amendment application;
  • Less predicably, Arizona also adopting the Convention of States application;
  • North Dakota adopting the Convention of States application, becoming the 10th state to do so.

David Guldenschuh, a Rome, Georgia attorney and Article V expert, keeps track of applications and rescissions with his Article V Convention Legislative Progress Report, which you can get by subscribing by email at dfg@guldenschuhlaw.com. All historical applications are collected, reproduced, and categorized through the diligence of Robert Biggerstaff at the Article V Library.