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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

Yes, the Constitution was adopted legally

Yes, the Constitution was adopted legally

An old myth has showed up in the media again: the myth that delegates to the 1787 Constitution Convention violated their trust—that they produced a new constitution although empowered only to propose amendments to the Articles of Confederation.

Fortunately, the claim that the 1787 convention had no authority to propose a new constitution is pure fiction. I have made the point before, but a new article by constitutional lawyer Michael Farris rebuts the myth in detail.

Its core error is the mistaken belief that the convention was called by a limited February 21, 1787 resolution of the Confederation Congress. In fact, as the wording of that resolution suggests, it was not the convention call.

Conventions of states had long been a staple of American life. They were not held pursuant to the Articles of Confederation. They operated outside the Articles, under sovereign powers reserved to the states.

Here’s how the process worked: First, an official authority, usually a state legislature, would issue a “call” inviting states to meet to address one or more issues. Then each participating state would appoint “commissioners” (delegates). The commissioners and the convention operated under then-prevailing rules of agency law. The agenda was limited by the call’s subject matter and by the instructions the majority of participating states gave their commissioners.

During the 1780s, many people thought the Articles of Confederation were inadequate. In September 1786, delegates to the five-state Annapolis Convention recommended to their respective states another convention in Philadelphia “to devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the Union.”

In the 18th century the word “constitution” usually had a meaning different from that we typically employ today. At the time, “constitution” usually meant the entire political system—just as we still refer to the “unwritten British constitution.” Thus, the Annapolis conclave recommended a convention empowered to propose any changes in the political system deemed “necessary” to render the political system “adequate.”

On November 24, 1786, New Jersey appointed commissioners. On December 1, the Virginia legislature formally approved the convention in language even broader than that used at Annapolis. The Virginia lawmakers then extended an invitation by directing the governor to transmit copies of its resolution to all other states. That invitation—not any congressional resolution—represented the formal call to Philadelphia.

Over the next few weeks, Pennsylvania, North Carolina, New Hampshire, Delaware, and Georgia all accepted. None limited its delegates to amending the Articles.

In Congress, a committee headed by John Dickinson recommended endorsing Virginia’s broad call. Its recommendation would have been merely a statement of moral support with no legal effect.

But congressional delegates from New York and Massachusetts were concerned about the breadth of the call. They wanted Congress to recommend limiting the convention to amending the Articles.

Congress compromised: Instead of a recommendation one way or another, it simply stated an “opinion” that a convention should be held to amend the Articles. This is the resolution often mistaken for the call.

But this resolution had no legal effect, and the call had already been issued. Seven states already had announced participation on wider terms. They were soon joined by South Carolina, Connecticut, and Maryland.

Thus, when twelve states met in Philadelphia, ten had given their commissioners sweeping proposal powers. This led Gouverneur Morris to observe that the convention was authorized to “propose any thing.”

Eventually, the convention decided to propose an entirely new document. Of the commissioners from the two states without full power, most never signed the Constitution. One who did sign (Alexander Hamilton of New York), acted as an individual, not as a representative of his state.

Pursuant to the instructions set forth in most of the state commissions, the convention sent the Constitution to Congress. Congress unanimously sent it to the states for ratification. Eventually, popular conventions in all 13 states approved it.

All of this seems quite regular. So where did the myth of the runaway convention arise? Why has it been so persistent?

It began with opponents of the Constitution, among whom legal knowledge was not a strong point. The myth has been kept alive by people—including some academics—who are unaware of 18th century law, terminology, and convention practice.

Unfortunately, fringe groups whose idea of “defending” the Constitution is arguing that it was adopted illegally assiduously continue to perpetuate the myth.

This article originally was published in The Hill.

Scalia Probably Favored An Amendments Convention — But Does It Matter?

Scalia Probably Favored An Amendments Convention — But Does It Matter?

A majority of state legislatures have voted to trigger the U.S. Constitution’s most important procedure for reforming the federal government. This is the gathering that Article V of the Constitution calls “a convention for proposing amendments”—more popularly known as a “convention of states.”

Advocates of a convention of states rely on a supportive statement made by the late Supreme Court Justice Antonin Scalia in 1979, when he was still a law professor. Opponents counter with a 2014 statement they claim contradicts his earlier one.

Was Scalia inconsistent? Did he change his mind after he became part of the government? Or, can these two statements be reconciled? The answer is: They probably can be reconciled—and in a way helpful to those supporting a convention.

But another question is: Should we give much weight to either of these statements? The answer to that one is, “Probably not.”

Scalia’s Earlier Statement About a Convention

In 1979, when supporting a convention, Scalia argued that it could be limited in scope. The only problem with his statement was that he showed limited understanding of the institution when he referred to it as a “constitutional convention”—something it clearly is not.

A constitutional convention is an assembly held to produce an entirely new document. A convention for proposing amendments, on the other hand, merely suggests one or more amendments. Earlier generations of Americans understood this, but during the 20th century, the two terms became confused. When Scalia spoke in 1979, that confusion had not yet been cleared up.

Scalia’s Later Statement

In his 2014 interview, Scalia said he opposed a “constitutional convention.” This time, however, he may have been using the phrase correctly. If you watch the 2014 video, you can see that the context suggests a broad general rewrite, rather than merely an amendment or two.

It is not hard to figure out why Scalia’s usage may have changed. Shortly before 2014, seven articles were published in law journals correcting the confusion between the two kinds of conventions. One of those articles appeared in the Harvard Journal of Law and Public Policy, a magazine with which Scalia had a long-standing connection.

Moreover, I authored five of those seven, including the one published by the Harvard Journal, and there is good evidence that Scalia was familiar with my work. In 2008, our articles (on other subjects) appeared together in the same issue of the Harvard Journal. Later that year, Scalia sent me a handwritten letter inviting me to visit him when I came to Washington, DC. I never took him up on his invitation, but in 2014, he cited still another of my Harvard Journal articles three times in a Supreme Court opinion.

It is likely, therefore, that by 2014 Scalia knew that a convention for proposing amendments is not a constitutional convention, and that he was opposing a general rewrite, not the amendments procedure.

Does All This Really Matter?

But does all of this really matter? Probably not.

Scalia is a revered figure, and rightly so. He was learned, eloquent, principled, and courageous. He also researched and published on many subjects, but Article V law was not one of them. And he seems never to have decided a case involving Article V. When Supreme Court justices, like other people, make statements on topics they have not studied, their views may not be well grounded.

In this respect, Scalia may have been in the same position as Chief Justice Warren Burger and Justice Arthur Goldberg, whose uninformed comments sometimes are trotted out by convention opponents. Two other modern justices—William Rehnquist and John Paul Stevens—did preside over important Article V cases, but neither opined on whether we should hold a convention.

The Constitution’s amendments process is not taught in law school and not widely understood. Despite his brilliance and wisdom, there is no reason to believe that Scalia was an expert in Article V.

This article originally appeared in the Daily Caller.

Using a convention of states to bypass Congress

Using a convention of states to bypass Congress

Convinced that Congress is unlikely to cure federal dysfunction, most state legislatures have triggered the Constitution’s most important reform mechanism: They have applied for what the Constitution calls “a convention for proposing amendments”—a kind of convention of states

This year, Wyoming became the 29th state to apply for a convention to propose a balanced budget amendment. The Utah House of Representatives applied for a convention to propose congressional term limits. Arizona became the ninth state to endorse a convention that could do both, and Texas is likely to become the tenth.

Unfortunately, opponents of reform have launched a media disinformation campaign to stop it.

Article V of the Constitution provides that three fourths of the states (now 38 of 50) must ratify an amendment before it becomes effective. Before ratification, however, it must be formally proposed—either by Congress or by a “convention for proposing amendments.” A convention is called when two thirds of state legislatures (34 of 50) adopt overlapping resolutions in favor of one.

The founders inserted the convention procedure so the people, acting through their state legislatures, could propose reforms that Congress would rather block. The founders viewed the procedure as a crucial constitutional right. Without it, the Constitution may not have been adopted.

The Disinformation Campaign Against a Convention of States

Opponents’ disinformation campaign is designed to frighten Americans away from using a convention to bypass the Washington power establishment. In some ways, their campaign resembles efforts to suppress voting among targeted groups. It propagates four central assertions—all of them constitutional junk.

Opponents sometimes cite “experts” or “legal scholars” for these claims. These almost always turn out to be people who know little about the subject and have never published any serious research on it.

The Facts About a Convention of States to Propose Amendments

Why are these four claims false? To begin with, a “convention for proposing amendments” cannot change the Constitution’s ratification procedure or impose amendments unilaterally. It can only propose amendments for ratification. According to the Supreme Court, everyone acting in the amendment process is subject to the Constitution’s rules.

Also, there is no “mystery” about the nature of the convention: Both founding-era documents and the U.S. Supreme Court inform us that it is a “convention of the states.”

Conventions of states (or, before independence, of colonies) have been a recurrent feature in American life for more than three centuries. When the Constitution was ratified, there already had been at least thirty. Subsequent conventions of states met in 1814, 1850, 1861, 1889, and several times during the 1920s and 1930s. For example, the 1861 convention of states met in Washington, D.C.  It was national in scope and it proposed a constitutional amendment. But it was not a “constitutional convention,” and neither is any other convention for proposing amendments.

The courts tell us that Article V of the Constitution is applied according to historical practice.  Convention protocols have been standardized for more than two centuries. When the Constitution was written, those protocols were so familiar there was no need to reproduce them in the document—just as there was no need to explain the phrase “trial by jury.”

Convention of states protocols provide that the state legislatures determine how commissioners are selected. They provide that the convention adopts its internal procedures and elects its officers. Each state has equal voting power. Congress has no authority over these issues. None.

Deliberations are limited to its prescribed subject matter—a limit virtually all conventions of states have respected. The assertion that the 1787 Constitutional Convention exceeded its authority is also false: It derives from failure to read or understand that body’s governing documents.

After deliberation, a convention of states decides whether to recommend solutions to the assigned problems. For example, in 1889, the Kansas state legislature called a regional convention of states to address anti-competitive business practices. The conclave met, deliberated, and issued several recommendations. One of its recommendations induced Congress to pass the Sherman Anti-Trust Act the following year.

Finally, when its business is performed, the convention adjourns.

The convention of states process is well-honed, safe, and effective. Americans need to consider carefully whether the Constitution should be amended. But they should not allow disinformation to influence their choice.

Note: This article first appeared in The Hill.