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Activists Can Spend Their Time Better Than Trying to Resurrect the Long-Dead “Equal Rights Amendment”

Activists Can Spend Their Time Better Than Trying to Resurrect the Long-Dead “Equal Rights Amendment”

Left-of-center activists are prodding state lawmakers to waste public time “ratifying” a constitutional amendment that, by its very terms, is long dead and can no longer be ratified. Earlier this year they even convinced the Nevada legislature to sign on to their campaign.

They should use their time and energy more wisely by campaigning for amendments that are both feasible and would make life better. One such amendment was proposed by James Madison and approved by Congress over two centuries ago — but could still be ratified today.

In 1972, Congress proposed a measure supporters dubbed the “Equal Rights Amendment” (ERA). On its face, the ERA seemed to ensure equality for women. In a burst of enthusiasm, 35 of the necessary 38 state legislatures ratified it.

As public debate continued, however, it became clear the ERA was a poorly-drafted measure that would do little for women’s rights. It would have transferred massive amounts of power away from local governments and elected representatives, handing it instead to lawyers, judges, and bureaucrats. When state legislatures realized this, the ratifications stopped and several states rescinded.As proposed by Congress, the ERA provided that it would become part of the Constitution only if 38 states approved it within seven years — that is, by 1979. When the ratification campaign bogged down, Congress tried to change the rules by extending the deadline to 1982. Not surprisingly, a federal court ruled that Congress could not do that. Although the court’s decree later proved unnecessary — state legislatures weren’t going to ratify such a flawed amendment anyway—the court’s opinion remains one of the most thorough judicial discussions of the amendment procedure.

Of course, even if Congress’s extension had been valid, the ERA still would have expired long ago.

Do activists have any serious legal basis for raising the ERA zombie? Well, no. Their “legal” arguments are based on a 1997 article written as a law student project. As often happens with student projects, the article is so error-ridden that no court is likely to take it seriously.

Activists should spend their time more productively by promoting useful constitutional reforms overwhelmingly favored by the American people — reforms now blocked by an unresponsive Congress. Examples include federal term limits and a balanced budget rule.

Or, if they want to exercise their fascination for the ancient, they could campaign to complete ratification of James Madison’s original first amendment, which Congress proposed in 1789 as part of the Bill of Rights. Although the requisite number of states have never approved it, unlike the ERA, the original first amendment has no ratification deadline.

As proposed by Congress, the measure provided for growth in the House of Representatives along with the growth in population, until such time as:

the number of representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand.

Adopting this amendment today might induce us to convert the U.S. House of Representatives from a council of Washington D.C. politicians into a large assembly citizen-lawmakers — linked to each other electronically, but residing in and representing their local communities. (The Senate would not be affected.) A large House of Representatives would better represent popular opinion and make it much harder for lobbyists and special interests to control Congress.

It would give citizens much better access to Congress than they have now. It would magnify the voices of the women the activists claim to care about.

Not only has modern technology rendered a very large House of Representatives practical, the cause is also politically feasible: In 1992 dedicated citizens secured ratification of Madison’s original second amendment — now in the Constitution as the 27th.

Whether or not activists undertake that project, they should stop wasting public time. Let the decomposed corpse of the ERA rest in peace.

An Amendments Convention is a “Convention of the States”—Here’s the Proof

An Amendments Convention is a “Convention of the States”—Here’s the Proof

Some opponents of holding a convention for proposing amendments to the U.S. Constitution still claim the nature and composition of an amendments convention is a “mystery.”

That claim has not been viable for several years now, but it certainly is no longer viable with the publication of the copious evidence that an amendments convention is simply a convention of the states—a kind of meeting that has happened many times in our history, and whose protocols and composition are well understood.

The Heartland Institute has just published my article, Why a “Convention for Proposing Amendments” is a Convention of the States. It draws together the copious evidence on the subject. You can get it here.

Third in a Series: John Dickinson During the Continental and Confederation Periods

Third in a Series: John Dickinson During the Continental and Confederation Periods

This is the third of a five-part series on Founding Father John Dickinson, who published his highly influential “Farmer Letters” exactly 250 years ago. The series was first published by the Washington Post’s blog, The Volokh Conspiracy.

In 1774, John Dickinson was elected to the First Continental Congress. As he had in the Stamp Act Congress, he served as principal drafter of public statements. The following year he was returned to the Second Continental Congress, where he again served as principal drafter. He was the primary author of, among other papers, two petitions to the Crown and The Declaration of Causes and Necessity for Taking up Arms. Moreover, he chaired the congressional committee that drafted the Articles of Confederation: Our oldest draft of the Articles is in his handwriting.

Throughout this period he tried to steer a middle course between submission and rebellion. He was a firm believer in moderation, which he once called “a virtue, and the parent of virtues.” Another member of Congress, Thomas Jefferson, wanted to proceed more vigorously. In his Autobiography Jefferson relates a story pertaining to the Declaration of Causes and Necessity for Taking Up Arms and the second petition to the Crown, the Olive Branch Petition. The anecdote reveals how most of Dickinson’s colleagues perceived him:

I prepared a draught of the Declaration committed to us. It was too strong for Mr. Dickinson. He still retained the hope of reconciliation with the mother country, and was unwilling it should be lessened by offensive statements. He was so honest a man, & so able a one that he was greatly indulged even by those who could not feel his scruples. We therefore requested him to take the paper, and put it into a form he could approve. He did so, preparing an entire new statement, and preserving of the former only the last 4 paragraphs & half of the preceding one. We approved & reported it to Congress, who accepted it. Congress gave a signal proof of their indulgence to Mr. Dickinson, and of their great desire not to go too fast for any respectable part of our body, in permitting him to draw their second petition to the King according to his own ideas, and passing it with scarcely any amendment. The disgust against [i.e., distaste for] this humility was general; and Mr. Dickinson’s delight at its passage was the only circumstance which reconciled them to it.

This respect for Dickinson was not universal. John Adams, one of Congress’s leading hotheads, described him as “delicate, and timid” and representative of people of “great Fortune and piddling Genius.”

By the summer of 1776, Dickinson realized Independence was inevitable. He was certain, however, that publicly declaring it was premature. His July 1 speech in opposition to the Declaration, of which we have notes but not the text, shared with his 1764 Pennsylvania assembly oration a careful balancing of risks, probabilities, and benefits. Like his other productions, the July 1 speech was punctuated with sound bites. Thus, of his countrymen, he avowed, “I had rather they should hate me than that I should hurt them,” and he characterized advocates of an immediate declaration as wanting to “brave the storm in a skiff made of paper.”

A modern American may find it difficult to sympathize with Dickinson’s arguments against Independence. But a historian finds it difficult to disagree with all of them. Several of Dickinson’s predictions proved entirely accurate. One was that only American military successes, not the Declaration, would bring France into the war. Unfortunately, Dickinson’s prediction that his stance would destroy his popularity also proved accurate.

Dickinson’s speech against Independence, like his opposition to the 1764 Galloway-Franklin charter plan, illustrates the man’s enormous moral courage. There is no record—and I am not the first to make this observation—that John Dickinson ever backed down in the face of popular opposition when an issue was important.

When it became apparent that a majority of states in Congress would approve the Declaration, Dickinson remained a team player. He and Robert Morris withdrew so the vote could be unanimous. Unlike most in Congress, moreover, Dickinson served two stints in the Revolutionary armed forces.

Another insight into his character is offered by his 1781 decision to free his slaves. Most of the Founders opposed slavery. But Dickinson was one of the few to free his own slaves during his lifetime.

Dickinson’s loss of popularity kept him from political office for about three years. His political comeback began in 1779, when Delaware returned him to Congress. Two years later he was elected president of that state, and in 1783 president of Pennsylvania. He was re-elected to two additional annual terms, thereby serving the constitutionally-permitted maximum.

In 1786, he represented Delaware in the Annapolis Convention, and was elected president of that body. The Annapolis Convention, of course, was the assembly that recommended to the states a wider federal convention in Philadelphia the following May. Virginia (not Congress, as commonly claimed) responded by formally calling the Philadelphia conclave.

Delaware sent Dickinson to Philadelphia as the head of a five-man delegation. In that capacity he impacted the results significantly.

Fifth (and last) in a Series: John Dickinson and the Ratification of the Constitution

Fifth (and last) in a Series: John Dickinson and the Ratification of the Constitution

This is the last of a five-part series on Founding Father John Dickinson, who published his highly influential “Farmer Letters” exactly 250 years ago. The series was first published by the Washington Post’s blog, The Volokh Conspiracy.

Ill-health motivated John Dickinson to leave the federal convention a day early. Before departing, he instructed his friend and Delaware colleague, George Read, to affix his signature to the document. There are, therefore, 39 signatures to the document but only 38 men physically signed.

In early 1788, Dickinson perceived that ratification momentum was slowing. Accordingly, he composed for publication nine letters written under the pseudonym, “Fabius.” The Letters of Fabius were well-received and widely reprinted.

Unlike The Federalist or the “Aristides” essays of Alexander Contee Hanson, Fabius made no attempt to provide a comprehensive overview of the Constitution. The letters focused primarily on answering the Antifederalist contention that the Constitution was too “high-toned,” and that its adoption would lead to aristocracy. If the reader reviews the Dickinson speech reported in my last post, he or she will see that Dickinson had anticipated this objection.

Fabius centered on a two-fold response. First, the rules governing the House, Senate, and president assured popular control. House members would be elected directly to short terms, and one third of Senators would be elected indirectly every two years. The president would be chosen by a method impervious to corruption; and although he enjoyed a veto, it was not absolute. The British had expanded and retained their liberties with far fewer democratic guarantees.

Second, freedom would be preserved by the confederal or federal (the words then were synonymous) nature of the system. In the original social compact, citizens donated certain rights or powers (words also then largely synonymous) to a central authority so as to protect retained rights/powers. Similarly, in a confederation, member states contributed rights/powers to a central authority so as to protect their remaining rights/powers.

But just as citizens are bound to be ever jealous of their rights and to check government accordingly, so also would the states be obligated to protect their reserved powers. “America is, and will be, divided into several sovereign states, each possessing every power proper for governing within its own limits for its own purposes, and also for acting as a member of the union.” Any states that allowed the federal government to interfere in their sovereign jurisdiction would be guilty of a breach of trust, for the “trustees or servants of the several states” were obliged to protect the authority citizens had placed in them. If state officials lose ground to the federal government, Dickinson maintained, “It will be their own faults.”

In addition to pressing his twofold argument, Dickinson made other points. One was the disadvantages of a confederation in which the central government had insufficient power. Dickinson cited both the Articles of Confederation and the fracture of two ancient Greek federations as examples. He also offered a positive case study: the 1707 union of England with Scotland. After reciting dire pre-union Scottish predictions his readers knew proved to be false, Dickinson identified the union’s benefits: the cultivation of virtues and correction of errors; protection for the lower classes; improvements in agriculture, science, arts, trade, and manufactures; the rule of law; peace and security at home, and increased respectability abroad. Amid the enjoyment of these benefits, the Scottish Church and laws, courts and judicature had remained established and secure.

A well-balanced confederation rendered all its members stronger. In modern terms, it reduced state shirking and free riding. Further, as in the human body, “A stroke, a touch upon any part, will be immediately felt by the whole.” A diseased member of the body severed from the rest could not recover, while one remaining connected could be saved.

Confederation was Dickinson’s answer to Montesquieu’s lament that a large territory cannot be governed by republican forms, and that attempting to do so resulted in fragmentation or tyranny. Confederation, said Dickinson, would ensure that government was effective throughout American territory while still checking the urge to centralize. No confederation had ever featured the protections contained in the Constitution. If they proved inadequate, the Constitution provided yet another response: a method for adopting “amendments on the authority of the people.”

* * * *

The author of Fabius was nearing the end of contemporaneous life expectancy, but in the event he was to live another two decades. During that time he maintained a large correspondence, including with Thomas Jefferson, who even as president always answered his letters.

In 1791-92, Dickinson served as president of the Delaware state constitutional convention, and briefly as a state senator thereafter. He wrote several articles and pamphlets, including new Fabius letters arguing for a pro-French foreign policy.

Most of his remaining life, however, was spent in retirement. He died in 1808, age 75.

Convention of States: How the States Meet to Bypass Congress

Convention of States: How the States Meet to Bypass Congress

This article was originally published in Townhall.com.

The idea of a convention of states such as the one scheduled for Phoenix, Arizona on September 12 may be unfamiliar to most people, but similar conventions have gathered throughout American history.

British-American colonies first met in convention in 1677 to negotiate an Indian treaty. After that first meeting, inter-colonial conventions gathered on average every four to five years, up to the time of Independence. They considered Indian relations, defense, and other common issues. The famous Stamp Act Congress (1765) and the First Continental Congress (1774) were both inter-colonial conventions, and the Founding generation referred to them as such.

After the Declaration of Independence, the pace of conventions accelerated. State commissioners (delegates) met ten times between 1776 and 1786, including conclaves in Providence, Rhode Island (1776-77), Yorktown, Pennsylvania (1777), New Haven, Connecticut (1778), Philadelphia, Pennsylvania (1780), and Annapolis, Maryland (1786). These gatherings focused mostly on defense and economic matters. The 11th convention of the Founding era became the most famous: the 1787 Philadelphia conclave destined to draft a new Constitution.

Not all these early conventions were successful, but the convention mechanism proved invaluable. Conventions frequently resolved difficult problems that otherwise would have gone unsolved. And contrary to some of the claims you hear today, commissioners stuck by their agendas and did their jobs. This is why Article V of the U.S. Constitution authorizes a convention of states as a way to propose needed constitutional amendments Congress refuses to propose.

Each convention of states is a temporary task force of duly authorized state representatives convened to address and propose solutions to one or more specific issues. A convention results when states accept an invitation (referred to as a “call”) sent by a state, a prior convention, or, occasionally, Congress. The 2017 Phoenix convention was called by Arizona’s state legislature to prepare for the likelihood that a convention will soon meet to propose an amendment requiring Congress to balance the federal budget.

The Phoenix convention is not the first to be held since the Constitution was adopted. In fact, some of the most interesting conventions of states met in the 19th and 20th centuries. The New England states met in 1814 in Hartford, Connecticut to discuss how those states should respond to the unpopular War of 1812. The Hartford Convention proposed several amendments to the U.S. Constitution.

Southern states assembled twice in Nashville, Tennessee in 1850 to coordinate a response to what they saw as overreach by the North. In early 1861, Virginia called a general convention for Washington, DC. That assembly proposed a constitutional amendment it hoped would stave off the Civil War. (The amendment was not adopted.) At the same time, several seceding states met in Montgomery, Alabama to draft the Confederate Constitution.

Lasting success was enjoyed by the 1889 convention of states called by Kansas for St. Louis, Missouri. It successfully proposed state and national anti-trust laws. During the 20th century, a series of small conventions negotiated the allocation of western river waters. The best known of these was the seven-state Colorado River Compact Commission of 1922. The latest was the five-state convention that divided the waters of the Upper Colorado River in the 1940s.

Historically, most conventions of states have consisted of only a few states within a particular region, such as New England or the Midwest. But seven have been national in scope (“general conventions”). Whether regional or general, however, conventions have followed certain common protocols, including the rule by which participating states have equal votes.

The Article V Information Center in Denver recently posted a list of prior conventions of states. The list shows there have been 38 fully verified conventions and another five for which the Center has partial information. The Center website contains a great deal of additional information about conventions of states and the constitutional amendment process.