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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 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.

State Lawmakers! Don’t Put Extraneous Matter in Your Article V Application

State Lawmakers! Don’t Put Extraneous Matter in Your Article V Application

by Robert G. Natelson

State lawmakers sponsoring an Article V convention application often find that other lawmakers want to add extraneous matter to the application. This may include conditions beyond the mere subject-matter, instructions to commissioners, specific amendment language, convention rules, and pronouncements of various kinds.

Don’t agree! Adding such material is both unprofessional and unwise. At the very least, those offering the additional language should prove that their addition will not render the application void or incapable of being counted with other states’ applications.

Remember that there is a strong likelihood that a hostile judge will be reviewing this application—just looking for an excuse to strike it down. Don’t give the judge the tools to do so.

Adding material such as instructions to commissioners and convention rules is unprofessional because it is inappropriate in a document of this kind. An application is an address to Congress, not to the convention or to other states. What the convention rules are or how you instruct your commissioners is, frankly, none of Congress’s business.

Adding such material is unwise because a hostile judge or an unfriendly Congress may use it as an excuse to void the application. Remember that an Article V convention is a check on their power, and they are not likely to take kindly to it. If, for example, the necessary 34 state legislatures have applied for a balanced budget amendment but one or two of those applications are marred by conditions and requirements, judges or Congress can decide that:

* The applications with conditions and requirements are valid, but too different from the others to be “aggregated” with them, or

* the applications are void because they represent an unconstitutional effort to unduly control the discretion of the convention. (The courts have repeatedly struck down amendment procedures they view as overly restrictive.)

The correct way for a legislature to instruct commissioners and advise the convention is by separate resolutions—not by an application addressed to Congress.

*****

About the author. Professor Natelson is widely acknowledged to be the leading active scholar on the Constitution’s amendment process. He has served as adviser to the Montana legislature’s state-federal relations committee, and now is on the board of scholars of the American Legislative Exchange Council, a trade group of state lawmakers. Professor Natelson’s constitutional research is frequently quoted at the U.S. Supreme Court, both by justices and by parties. He is also the author of the leading handbook on Article V for state legislators.

Constitutional Convention: John Jay Letter Shows Its Power Came from State Legislatures, not Congress

Constitutional Convention: John Jay Letter Shows Its Power Came from State Legislatures, not Congress

A persistent constitutional myth has it that (1) Congress called the Constitutional Convention under the Articles of Confederation, (2) the convention drew its power from Congress, and (3) the convention exceeded its power when it recommended a new Constitution rather than merely propose amendments to the Articles.

As readers of this website know, however, the Constitutional Convention was not called by the Confederation Congress. It was called by Virginia and the commissioners (delegates) drew their authority from their respective state legislatures. All but two of those legislatures granted their commissioners full authority to recommend a new government.

This is further shown by a January 7, 1787 letter written by John Jay to George Washington. The letter also helps explain why the convention provided that the people, rather than the state legislatures, would ratify the Constitution.

The Jay Letter

John Jay - Not A Constitutional Convention Delegate
John Jay

In his letter, Jay first tells Washington that he is glad Washington will participate in the convention. Jay specifically says the delegates’ authority “is to be derived from acts of the State Legislatures.” But he says he has some doubts: Only the people—not state legislatures—can change constitutions. However, Jay then acknowledges that the state commissioners can recommend change. What they can’t do is mandate change. Yet Jay fears that after the convention makes its recommendation, “party Heats” may ensue.

Jay then suggests an alternative procedure: First, Congress should issue a statement that the Articles are inadequate, but without any particulars. Next, the state legislatures should authorize popular conventions to choose delegates to a general convention. The latter assembly would both write the changes and bind the people to them.

Thus, Jay understood that:

  • the Constitutional Convention’s power came from the state legislatures, not from Congress;
  • even without a popular mandate the Convention was free to propose; and
  • popular consent was necessary to ratify a new constitution.

Of course, in predicting “party Heats” once the convention’s recommendations became public, Jay proved to be a prophet.

The Constitutional Convention Chooses a Different Procedure

Jay was not a commissioner to the Constitutional Convention. That body, with congressional approval, agreed that the people’s consent was necessary for the new Constitution. But the Constitutional Convention opted for a different procedure: Instead of popular conventions electing a general convention that would bind everyone to change, the general convention would propose change and the popular gatherings would ratify or reject.

The letter is in manuscript form here. Because it is difficult to read, I’ve reproduced the relevant portion below:

A convention is in contemplation, and I am glad to find your name among those of its intended members.

To me the Policy of such a Convention appears questionable. Their authority is to derived from acts of the State Legislatures. Are the State Legislatures authorized either by themselves or others to alter constitutions? I think not. They who hold commissions can by virtue of them neither retrench nor expand the Powers conveyed by them. Perhaps it is intended that this convention shall not ordain, but only recommend—if so there is Danger that their Recommendations will produce endless Discussions, and perhaps Jealousies and party Heats.

Would it not be better, for congress plainly and in strong Terms to declare, that the present foederal government is inadequate to the Purposes for which it was instituted — that they forbear to point out its particular Defects, or to ask for an Extension of any particular powers, as improper. Jealousies should thence arise; but that in their opinion it would be expedient for the People of the States without Delay to appoint State conventions (in the way they chuse their general assemblies) with the sole and express power of appointing Deputies to a general convention, who or the majority of whom should take into consideration the Articles of Confederation, and make such alterations amendments and additions thereto as to them should appear necessary and proper; and which being by them ordained and published should have the same force and obligation which all or any of the present articles now have.

No alterations in the government should I think be made, nor if attempted will easily take place, unless deduceable from the only Source of just authority, The People.