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The last convention of states ever held?

The last convention of states ever held?

I recently obtained the records of what may be the last convention of states ever held—records demonstrating that states were meeting in convention well into the mid 20th century.

A “convention of states” as the American Founders and subsequent generations understood the term, is a temporary conclave of legislatively-authorized representatives from three or more states. It is both a diplomatic gathering—the representatives or “commissioners” are essentially ambassadors from their respective legislatures—and a problem-solving task force. Sometimes representatives of sovereignties other than states, such as Indian tribes or the federal government (or, in colonial times, the British crown), have been invited to participate. Conventions of states also have been called “committees of states,” “congresses,” and “commissions.”

Conventions of states, both national (“general”) and regional (“partial”), have met for many different purposes: to plan common defense, work out common responses to political challenges, negotiate treaties with Indian tribes, seek and propose solutions to economic problems, propose constitutional amendments, and, on two occasions (Philadelphia in 1787 and Montgomery in 1861) to prepare new constitutions. Only the last two can properly be called constitutional conventions.

In the 20th century, states used them to hammer out western water compacts. I previously reported on the Santa Fe Convention of 1922, formally called the Colorado River Compact Commission. It was the gathering of seven states and a federal commissioner, then-Secretary of Commerce Herbert Hoover.  It negotiated the Colorado River Compact. I also have reported that similar gatherings met to negotiate the Rio Grande River Compact and an abortive North Platte River compact. My latest acquisition is the official record of the convention that negotiated the compact covering the Upper Colorado River —the portion north and east of Lee Ferry, Arizona.

This was a true convention among five states: Arizona, Colorado, New Mexico, Utah, and Wyoming. It met intermittently from July 22, 1946 to August 5, 1949. Commissioners attended from each state. They were not chosen by their legislatures directly, but legislative statutes authorized the appointment of each and gave each his power. At the request of the states, President Truman named a federal representative to participate as well: Harry W. Bashore, formerly Commissioner of the U.S. Bureau of Reclamation.

The group’s assignment was to divide up the waters of the Upper Colorado River among the five states and determine how much each state had to provide to the states of the Lower Colorado River. This was a highly technical task. Accordingly, unlike most conventions (but like the Santa Fe meeting) there was only one commissioner from each state, but each was assisted by a technical staff. In addition, the group created an engineering advisory committee and a legal advisory committee. The technical nature of the job was why the group had to keep adjourning and reassembling: Engineering studies and negotiations over local streams were performed in the interim.

Another interesting variation is that, like the 1922 convention, the Upper Colorado River group met in different cities and towns at different times: Cheyenne, Wyoming; Denver, Colorado; Salt Lake City and Vernal, Utah; and Santa Fe, New Mexico. In addition, it held public hearings in four other towns. In all, there were 41 days of sessions grouped into eleven formal “meetings.” The first eight meetings led to completion of the compact in 1948. The remaining three, held the following year, were short sessions for wrapping up business.

The conclave also gave itself a name, since its authorizing documents didn’t specify one. It called itself the Upper Colorado River Basin Compact Commisssion.

Within those variations, the group operated according to standard convention of states protocols. Specifically:

* The commissioners established their own procedures. Thus, they made it clear that a preliminary meeting that included the state governors did not bind them, and they re-voted on the decisions made at that preliminary meeting.

* Each state had one vote, cast by its commissioner, no matter how many people from each state happened to be present. After briefly considering a unanimity rule (such as the Colorado River Commission adopted but eventually abandoned), the group retained a rule of decision by a majority. However, it strove for unanimity, and generally was successful. The federal representative had no vote.

* The commissioners elected their own officers: As has been typical among interstate conventions the chairman was a commissioner and the secretary was not. Although he could not vote, Mr. Bashore was elected chairman.

* The record reproduces many roll call votes by states, some quite dramatic. The voting usually was open. But the vote on the overall percentages by which states would divide the river water was by secret ballot.

* The commissioners affirmed that they were negotiating by virtue of the states’ reserved sovereign powers, not by virtue of permission of federal law (as President Truman seemed to think). In this respect, the Upper Colorado River Convention was typical—although a gathering held under Article V would derive its authority from the Constitution rather than from reserved sovereign power.

The proceedings the Upper Colorado River Basin Compact Commission are impressive. The commissioners and staff worked very hard. Most people involved were thoughtful and highly qualified. The engineering studies were voluminous.

Also impressive is the recurrence of some important names. A listed adviser was Ralph Carr, who later as governor of Colorado during World War II, won national attention by opposing the Roosevelt administration’s groundless incarceration of Japanese-American citizens. Another listed adviser was Barry M. Goldwater, later U.S. Senator and the 1964 Republican nominee for President.

The compact the convention negotiated was approved by all five states and by Congress. It is still in effect. It created a permanent administrative body called the Upper Colorado River Commission, to whose staff I am grateful for loaning me the convention record.

Fake News: How Two Leading Newspapers Spread the “Runaway Convention” Story in the 1960s & 1970s

Fake News: How Two Leading Newspapers Spread the “Runaway Convention” Story in the 1960s & 1970s

Although there were scattered antecedents, “runaway convention” claims and certain associated myths were first distributed widely during the 1960s and 1970s. In a previous Article V Information Center study, I documented how those stories were publicized by leading opinion-molders in national liberal establishment. Their goal was to disable the Article V convention process to prevent proposal of constitutional amendments to restrain the federal government.

Now a new Article V Information Center study shows how the two leading newspapers of the same liberal establishment worked with those opinion-molders. During the 1960s and 1970s, the New York Times and the Washington Post not only opposed a convention editorially, but their skewed their news stories to promote fake news “runaway” claims.

You can find the new study here.

The Convention of States in American History

The Convention of States in American History

In this short essay, constitutional historian Rob Natelson thumbnails the three-centuries long history of “conventions of the states.”

When delegations from the states assemble in Phoenix, Arizona later this year, they will be basking in a long and rich American tradition.

As far back as 1677, British colonies in North America sent “commissioners” (delegates) to meet with each other to discuss common issues. These gatherings were essentially problem-solving task forces. That is, they were temporary assemblies charged with proposing solutions to prescribed problems.

During the colonial era, most conventions met in New York City, Boston, or Albany, New York: Albany was popular because it was close to the homes of the Iroquois tribes, who frequently participated. However, one of the most notable conventions occurred in Lancaster, Pennsylvania (1744).

The convention agenda was always set in advance. It sometimes involved common defense against hostile Indians or against French Canada. Often, the colonies convened to hammer out treaties with Indian tribes.

“Convention” was not the only name for these conclaves. Occasionally, they were called councils; more often congresses. (In the international practice of the time a “congress” was a diplomatic meeting of governments on equal terms.) . . . . .

For the entire history click here.

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.