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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

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.

Yes, Mr. President—You Must Enforce Laws You Don’t Like

Yes, Mr. President—You Must Enforce Laws You Don’t Like

Must the president enforce laws he doesn’t like?

The answer to this question lies in the Constitution’s phrase that the president “take Care that the Laws be faithfully executed.” (Article II, Section 3).

Very little of the Constitution’s wording was entirely original with the framers. Most was borrowed and adapted from other sources. This was true of the phrase “take Care.”

Where Did the President’s Duty to Enforce Come From?

The expression “take care,” along with variations such as “take due care” and “take especial care,” regularly appeared in 18th century legal documents. Specifically, they appeared in legal documents issued to American chief executives.

Before 1776, the British Crown, acting through the Privy Council or board of trade, appointed the governors for most of the American colonies. Every new governor received two crucial documents. The first was his commission. The second contained his instructions.

The commission announced the appointment and then granted the governor certain listed (“enumerated”) powers. The instructions regulated how the governor was to use those powers.

As the word “instructions” suggests, they were mandates, not choices. The mandates very often were in the form of directing the governor to “take care” that he perform, or not perform, particular acts.

Illustrative were instructions issued to Governor Dunmore of Virginia in 1771. They consisted of 92 paragraphs of directions. They used the phrase “take care” at least a dozen times, and they employed variations on the phrase at least 14 times. For example, Paragraph 56 stated in part:

And you shall likewise take care that a general survey be made of all our said colony, and of each county, with the several plantations [i.e., settlements] and fortifications in it; and that an exact map or maps thereof be transmitted to us by one of our principal secretaries of state.

Obviously, this is an order, not an option.

Article II of the Constitution deals with the executive branch, including the president. Much of Article II’s language is traceable to royal governors’ commissions and instructions. Like the commissions, it lists enumerated powers, such as the president’s “Power, by and with the Advice and Consent of the Senate, to make Treaties.” Like the instructions, Article II also imposes mandates. Among these is the direction that the president “take Care that the Laws be faithfully executed.”

As this historical background shows, the Constitution’s “take Care” language also is an order, not an option.

Where Else Did His Duty to Enforce Come From?

Further light on the question comes from one of the greatest events in Anglo-American constitutional history. When King James II refused to enforce duly-enacted laws of which he disapproved (“dispensing with” them), his countrymen stripped him of his throne, exiled him from the country, and issued the English Bill of Rights (1689). The English Bill of Rights clarified that the king was obligated to enforce all the laws, whether he liked them or not.

This event is known to history as the Glorious Revolution, and it was an event of which the American founders were highly aware and heartily approved.

A Modern James II?

James II

Recall that when President Obama announced that he would refuse to enforce, or would under-enforce, laws of which he disapproved, some claimed that allowing him to act that way would make him a king rather than a president.

But history shows this claim actually was understated: The English did not tolerate such behavior even from their kings. If the president presumes to pick and choose which laws he wants to enforce, he is not acting like a proper English king. He is acting more like a third-world dictator.

The original version of this column appeared in Townhall.com

American Colonies: Mostly Private Enterprise

American Colonies: Mostly Private Enterprise

Too many of us who are enthusiastic about space exploration and colonization expect the federal government to lead the way. We should learn from the founding of the American colonies.

In his notes to the ninth volume of English Historical Documents, the distinguished historian Merrill Jensen explained how much the English settlement of America relied on private enterprise rather than government. The British crown granted permission by issuing charters, but otherwise contributed very little.

Plymouth Colony: Product of Private Enterprise

Before 1660, most American colonies were founded by merchants operating through joint stock companies—the predecessors of modern corporations. Virginia was created by a private consortium. What really got the Pilgrims to Plymouth Rock was not just the desire to practice their religion, but hard-headed merchant-investors willing to pay for the trip. (Did you learn that in public school? I didn’t.)

After 1660, the crown continued to grant charters to private individuals and groups. Unfortunately, most of these were “proprietary charters” given to royal cronies who wanted to re-create feudalism in America. The exception was William Penn, who obtained a proprietary charter but instituted a government based on freedom and other liberal ideas.

Voting With Buckled Shoes in the American Colonies

What then happened was the typical law of the market: People interested in coming to the New World “voted with their feet”—or boats. Most of them went to the freer places, such as Connecticut and Pennsylvania, and avoided the feudal colonies, such as the Carolinas.

The populations of Connecticut and Pennsylvania exploded; the feudal colonies stagnated—at least for a while. Because most settlers who moved to the feudal colonies were Englishmen, they were used to being free people, and they intended to remain so. They largely ignored the proprietors’ rules and governed themselves. Because the proprietors were not really governments, they couldn’t force their settlers to obey. So, even in those American colonies, white settlers eventually won English-style freedom and self-government.

Thomas Jefferson alluded to the private-enterprise background of the British colonies in the Declaration of Independence, when he wrote: “Nor have we been wanting in our attentions to our British brethren. … We have reminded them of the circumstances of our emigration and settlement here.” He was pointing out that neither the king nor Parliament contributed all that much to the creation and growth of the 13 colonies. The work was done mostly by private enterprise.

By 1763, the American colonists had achieved an unprecedented amount of freedom and a great deal of autonomy. Beginning in 1763, policymakers in London tried to take it away. You know what happened then.

In space exploration, as in colonization, we would be far better off to look to the private sector, leaving to government those things it does best—like encumbering us with debt.

This article was originally published in the Red State blog.