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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.

 

More 20th Century Conventions of States Discovered—Many More!

More 20th Century Conventions of States Discovered—Many More!

As I have reported previously, there have been many conventions of states (and, before Independence, of colonies). Some of these conventions proposed amendments to the Articles of Confederation or to the Constitution.

Among these gatherings have been more than 20 inter-colonial conventions, eleven interstate conventions held between 1776 and 1787, six during the 19th century, and the Colorado River Compact Commission (CRCC) of 1922. Most of these were regional meetings, but they also included seven “general” or national conclaves—held in 1754, 1765, 1774, 1780, 1786, 1787, and 1861.

Do not confuse the 1922 Colorado River Compact Commission, which negotiated the Colorado River Compact, with a permanent regulatory commission. The CRCC was a temporary body consisting of duly authorized state representatives empowered to propose a solution to a designated problem: in other words, a true convention of states. It met in four different cities, but most of its sessions were held in Santa Fe, New Mexico.

The CRCC gathering in Santa Fe did feature some variations on the convention theme. For one thing, the federal government was invited to send a representative and participate, since under the Constitution Congress would have to approve the resulting agreement. Moreover, the Santa Fe conclave operated pursuant to the respective states’ reserved, Tenth Amendment powers. (An Article V convention, by contrast, derives its authority directly from the Constitution.) The Santa Fe formula was worked out by Delphus Carpenter, a prominent Colorado water lawyer and former state senator who served as his state’s representative in Santa Fe. However, neither variation was unique: Other conventions of states (including those held in 1684, 1754, and 1889) have invited non-state sovereignties to participate, and most of them relied on reserved power rather than direct constitutional authorization.

More Conventions of States!

Now I have learned that the Santa Fe convention was only the foam on the top of the river. In recent days, I have discovered:

* A convention of Colorado River states that met in Salt Lake City in 1920.

* A convention of three states that negotiated the Rio Grande River Compact. The states met informally (without legislative credentialing) in Colorado Springs in 1924. They then broke up and, after all commissioners had been fully credentialed, met again in Santa Fe at the end of 1928. They concluded a temporary compact in early 1929—the basis for the permanent Rio Grande compact that become effective in 1939.

* The North Platte River Commission, also consisting of three states, began meeting in Washington, D.C. in 1924, and then intermittently until negotiations broke down.

* The three lower basin Colorado River states—California, Arizona, and Nevada—apparently met after 1922 to resolve water issues among them, but unsuccessfully.

* Colorado, New Mexico, Utah, Arizona, and Wyoming, together with a federal representative, convened in Denver beginning December 3, 1929. They successfully negotiated the Upper Colorado River Basin Compact.

* In 2003, Professor Daniel Tyler, Delphus Carpenter’s biographer, wrote: “Of the sixteen water allocation compacts negotiated and approved between 1922 and 1971, all but three followed a similar pattern developed by Carpenter of negotiation by commissioners, participation by a federal representative, and approval by Congress.”

Were All of These True Conventions of States?

Were all of these true conventions of states? I don’t know yet. For an event to qualify historically as a true convention of states, there must be actual meetings, not mere long-range contact, as in some interstate compact negotiations. Participation must be multi-lateral—that is, more than two states must take part. Participation must be authorized by each state legislature, with the legislature designating, or providing for designation, of commissioners. The gathering must be an ad hoc, temporary one, designed to address pre-designated issues.

I don’t yet have sufficient information to identify all of these conclaves as “conventions,” but it is already clear that some of them were.

Why Isn’t This More Widely Known?

You might ask: Why isn’t it more generally known that conventions of states were a regular feature of American life well into the 20th century?

Let me suggest three reasons:

(1) Historically, some conventions have been designated by different labels. Prior to establishment of the federal Congress as a national institution, conventions frequently were called “congresses,” although they were called conventions as well. History books label the 1765 gathering as the “Stamp Act Congress,” not the Stamp Act Convention—even though contemporaries regularly referred to it as a “congress or convention.” Throughout our history, some conventions have been called “commissions” and a few referred to as “committees.” The unintended effect has been to distract people from their common nature.

(2) Most of these gatherings addressed narrow topics not of universal interest. This was true even of the Colorado River Compact Commission. The water was, and is, of supreme importance to many Westerners. But it is of little concern to the Eastern elite that traditionally control the media, the foundations, the federal bureaucracy, and academia—and therefore the national flow of information.

(3) Those who control the flow of information have vested interests in central control of other aspects of life as well. It is certainly against their interest to inform people that states can solve problems without federal direction. Many view a convention of states in particular as a threat to their influence. Hence they try to convince you that it would be an untried, dangerous mechanism.

In fact, conventions of states represent a venerable American tradition—older than the Constitution itself, and extending well into very modern times.