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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.

Where Congress’s Power to Regulate Immigration Comes From

Where Congress’s Power to Regulate Immigration Comes From

Introduction. Earlier this year, a law journal published an exchange between two respected law professors—a conservative and a libertarian—about whether the Constitution authorizes Congress to regulate immigration. (The Constitution does not mention immigration except to say that Congress cannot ban it before 1808.) The conservative said “Yes,” and supported his position with some extremely liberal (!) readings of parts of the Constitution. The libertarian said, “No”—that except in special circumstances Congress could not restrict immigration (although the states could).

Surprisingly, both contributors missed the actual source of Congress’s immigration authority: the power “To define and punish . . . Offences against the Law of Nations”) (Article I, Section 8, Clause 10).

The law journal already had been published, so it was too late to join the discussion on its pages. Accordingly, I wrote an article in The Hill detailing why the “Define and Punish Clause” applies to immigration. The libertarian replied on the pages of the Volokh Conspiracy, a Washington Post blog to which he regularly contributes, and for which I have occasionally written as well.

I thought this issue was worth a full explanation of why the Define and Punish Clause covers immigration, because its applicability to immigration is not well known, even among legal experts. Accordingly, I prepared the essay below for readers interested in immigration issues. As should be apparent from this essay, I am NOT taking a stand on immigration policy, just on an issue of constitutional interpretation. This essay appeared in Josh Blackman’s Blog.

Links to some of the earlier writings appear in the essay.

Why the Define and Punish Clause Grants Congress Power to Regulate Immigration

By Robert G. Natelson

            In a recent article in The Hill, I wrote that the Constitution’s grant to Congress of power “To define and punish . . . Offences against the Law of Nations” confers authority to restrict immigration. Professor Ilya Somin has responded and argues the contrary.

Before addressing his argument, I should make clear I agree with Professor Somin on several key issues about the Constitution and immigration. I agree that the original meaning of the Commerce Clause does not include a general power to restrict immigration, and that the Naturalization Clause probably does not, either. In company with him, I reject the claim that the federal government possesses extra-constitutional inherent sovereign authority—because that claim is starkly inconsistent with the ratification-era debates, the structure of the Constitution, and the text of the Tenth Amendment.

Where we differ is about whether the power to “define and punish Offences against the Law of Nations” includes authority to restrict immigration.

“The Law of Nations” was the usual 18th century term for international law. Most of the law of nations governed how nations interacted with other nations. However, some aspects governed how they interacted with foreigners and a few aspects—such as the law merchant—regulated how citizens of different countries interacted with each other.

The law of nations was based on natural law, custom, and international agreements. However, the rules were not always clearly defined, and they were not self-executing. For this reason, legislatures adopted implementing statutes. Examples of such statutes were those protecting safe-conduct passes from disrespect and foreign ambassadors from insult. The Define and Punish Clause granted Congress authority to adopt implementing measures.

The law of nations held, as a general principle, that nations should not harm each other. Hence, it provided that nations must refrain from unauthorized incursions into other nations’ territory. To violate international law, the unauthorized entry need not be led by a foreign government. As the Founders’ favorite international law scholar, Emer de Vattel observed, “Private persons, who are members of one nation . . . may injure a foreign sovereign.” Immigration statutes implemented the “no unauthorized entry” norm against “private persons” from other countries.

Professor Somin acknowledges that “the law of nations did indeed assume that each state has the authority to restrict the entry of aliens, largely as it sees fit.” But he notes that the mere fact that the law of nations authorized a sovereign to adopt legislation did not render the legislation part of the law of nations. For example, the law of nations recognized a sovereign’s prerogative to enact statutes forbidding murder. However, most murders were not offenses against the law of nations. Moreover, if it were true that any statute consistent with international jurisprudence were part of international jurisprudence, the Define and Punish Clause would empower Congress to adopt any ordinary police legislation permitted by international law. Such a sweeping grant of power to Congress would be inconsistent with the Founders’ design.

On these points Professor Somin is correct.

On the other hand, some domestic statutes surely did define offences against the law of nations. An example is a statute prohibiting a citizen from insulting or impeding a foreign ambassador. Thus, to state that the Define and Punish Clause does not authorize all domestic laws does not answer the question of which domestic laws it does authorize. Is a statute restricting immigration in the class with ordinary murder laws or in the class with protections for ambassadors? Immigration limits have international implications that ordinary murder laws do not have. So reasoning would seem to place immigration restrictions in the “law of nations” category.

But questions of constitutional meaning cannot be answered through pure reason, however acute. Nor does the constitutional answer lie in what we moderns think international law is or should be—a mistake into which Professor Somin’s essay slips once or twice.

At least to an originalist who follows Founding-Era norms of interpretation, the meaning of a constitutional term is fixed by the understanding of those who ratified it or, in absence of sufficient coherent evidence on that subject, by the original public meaning. When, as here, the constitutional debates provide little relevant evidence on the sense of a legal term, our best evidence of its meaning may be Founding-Era jurisprudence. (I say “may be” because contemporaneous congressional and state records are sometimes more helpful.)

To a modern reader, some of the classifications adopted by 18th century jurisprudence appear arbitrary. Yet those classifications often serve to define constitutional meaning. The framers treated bankruptcy and commerce separately, despite their interrelated nature, because they were distinct legal categories. Similarly, the legal phrase of “to regulate Commerce” encompassed travel by ship but not (most) travel by foot. So under the Constitution’s original legal force, the power to regulate commerce included boat travel from Canada but not (usually) walking across the border.

Helpful to grasping international law jurisprudence as the Founders understood it are three treatises they held in high esteem: Samuel Pufendorf’s 17th century work, Of the Law of Nature and Nations, and two 18th century works: Emer de Vattel’s The Law of Nations and Blackstone’s Commentaries.

Vattel wrote that the law of nations derived from the natural law applicable to individuals, as modified by convention and by the special circumstances of sovereigns: “[C]onsequently, the law of nations is originally no other than the law of nature applied to nations” (emphasis in original). Indeed, both Vattel and Pufendorf frequently drew upon rules of natural law applicable to individuals to deduce or justify substantive rules of international law. By way of illustration, here is how Pufendorf justifies immigration restrictions:

The Case is somewhat like that of a private Man, who in his House or Gardens, possesses some rare Curiosity, or other valuable Sight; such an one does not apprehend himself tied freely to let in all Spectators . . . And this seems the more reasonable, because the Grounds of prudent Caution and Suspicion are so numerous. . . .

And farther, that it seems very gross and absurd, to allow others an indefinite or unlimited Right of traveling and living among us, without reflecting either on their Number, or on the Design of their coming; whether supposing them to pass harmlessly, they intend only to take a short view of our Country, or whether they claim a Right of fixing themselves with us for ever. And that he who will stretch the Duty of Hospitality to this extravagant Extent, ought to be rejected as a most unreasonable, and most improper Judge of the Case.

As to our main Question, it is look’d on by most as the safest way of resolving it, to say, That it is left in the power of all States, to take such Measures about the Admission of Strangers, as they think convenient . . . .

I suppose Professor Somin might respond that Pufendorf was merely asserting the power of nations to exclude foreigners—that Pufendorf was not saying the intrusion violated the law of nations. But this does not seem justified by the context. Pufendorf was engaged in the common methodology of using rules of domestic law to deduce rules of international law. Domestic law not only gives permission to a householder to decide to exclude. Domestic law also makes it an offense to disregard the householder’s decision. I see no reason why international law would not encompass both the decision to exclude and unauthorized disregard of that decision. As noted earlier, immigration laws are not purely domestic in their effect; they have important international implications.

Blackstone understood this passage the same way I do, and for purposes of constitutional interpretation Blackstone’s exposition matters a great deal. Explicitly relying on this passage, Blackstone wrote, “Upon exactly the same reason stands the prerogative of granting safe-conducts, without which by the law of nations no member of one society has a right to intrude into another. (emphasis added).” To Blackstone, then, the law of nations does not merely grant a sovereign the right to exclude. A violation is itself an offence against the law of nations.

Now we turn to Vattel’s treatise. It consists of four books. The first was entitled “Of Nations considered in themselves.” A major theme of this first book is the derivation of rules of governance from natural law principles. Despite the title, the book goes beyond questions of internal governance to deduce conclusions about the law of nations. Among those conclusions:

*          “A nation or state has a right to every thing that can help to ward off imminent danger;”

*          nations may limit or ban imports;

*          they may refuse to trade with others; and

*          they may restrict emigration and immigration, taking into consideration a range of factors, including available land, health concerns, avoiding religious strife, and factors of safety and culture. Indeed, the nation “has a right, and is even obliged, to follow, in this respect, the suggestions of prudence.”

Now, these seem like rules of international law to me. And in respect to immigration at least, they go beyond mere permission: They extend to obligation—for a sovereign “is even obliged” to legislate according to likely consequences.

Vattel further supports the conclusion that the law of nations includes the substance of immigration statutes. In this book, he mentions a rule among some European states denying citizenship to foreigners. Vattel characterizes the rule—not merely the authorization—as “the law of nations, established there by custom.” Professor Somin observes that this custom regulated citizenship rather than immigration. But that distinction actually cuts against his argument: If even an internal citizenship rule dealing with foreigners—a rule central to the life of a polity—is part of the law of nations, then a limit on foreigners crossing the border is one a fortiorari. (As Professor Somin correctly states, Vattel didn’t like the custom of denying citizenship to foreigners. But that is wholly beside the point.)

Yet, perhaps one might object that Vattel’s first book is really only about “Nations considered in themselves,” and that we should therefore be cautious about treating its conclusions as part of the law of nations.

So let us examine Vattel’s second book. Its title tells us it is wholly about the law of nations: “Of a Nation Considered in its Relation to Others.” (The third and fourth books are about war and peace, respectively.) Here are some passages from the second book, presented in order of appearance:

As every thing included in the country belongs to the nation—and as none but the nation, or the person on whom she has devolved her right, is authorised to dispose of those things,— if she has left uncultivated and desert places in the country, no person whatever has a right to take possession of them without her consent. Though she does not make actual use of them, those places still belong to her: she has an interest in preserving them for future use, and is not accountable to any person for the manner in which she makes use of her property.

 * * * *

Since the least encroachment on the territory of another is an act of injustice . . . the limits of territories ought to be marked out with clearness and precision.

 * * * *

We should not only refrain from usurping the territory of others; we should also respect it, and abstain from every act contrary to the rights of the sovereign: for a foreign nation can claim no right in it.

    * * * *

The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this, that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual. But the prohibition ought to be known, as well as the penalty annexed to disobedience: those who are ignorant of it, ought to be informed of it when they approach to enter the country.

 * * * *

Since the lord of the territory may, whenever he thinks proper, forbid its being entered, he has no doubt a power to annex what conditions he pleases to the permission to enter. This, as we have already said, is a consequence of the right of domain.

Perhaps one might rejoin, “Here again, Vattel says only that the law of nations permits sovereigns to restrict immigration; he does not say that violations are part of the law of nations.” On the contrary, though, Vattel does more than describe the prerogative of the sovereign to exclude. In this book (remember: focusing on international norms) Vattel also prescribes the duty to obey:

*          “We should not only refrain from usurping the territory of others; we should also respect it, and abstain from every act contrary to the rights of the sovereign;” and

*          “[E]very one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual.”

Even if these passages of obligation were absent, I don’t think it is the most natural reading of the text to infer that the right to enact a restrictive statute is a component of international law but violation of the statute is not. I doubt many Americans reading Vattel during the Founding Era would think a book entitled “Of a Nation Considered in its Relation to Others” was telling them, “The law of nations authorizes restrictive immigration statutes but is wholly agnostic about their violation.” Certainly Vattel never says that.

One last point—not fully germane, but worth mentioning. Professor Somin writes, “But in the eighteenth century, and even today, states have no international law obligation to prevent the peaceful migration of their citizens to foreign nations that might wish to exclude them.” Vattel, at least, may well have disagreed:

If a sovereign, who might keep his subjects within the rules of justice and peace, suffers them to injure a foreign nation either in its body or its members, he does no less injury to that nation, than if he injured it himself.

* * * *

Finally, there is another case where the nation in general is guilty of the crimes of its members. That is when by its manners and by the maxims of its government it accustoms and authorizes its citizens . . . to make inroads into neighboring countries.

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

First National Convention of States in 150 Years!

First National Convention of States in 150 Years!

Americans finally have a real chance to “clean up the mess in Washington.” That’s the implication of the news that the Arizona legislature has called the first national “convention of states” in over 150 years.

The conclave will meet in Phoenix on September 12. Its purpose is to plan for a later convention to propose a balanced budget amendment to the U.S. Constitution.

Contrary to some histrionic claims, neither the planning assembly nor the subsequent gathering will be constitutional conventions. Each will be a taskforce limited to narrow topics. Any amendment suggested by the later convention would become part of the Constitution only if approved by 38 states.

State lawmakers nationwide have become increasingly frustrated by federal dysfunction. One complaint is Congress’s persistent failure to balance its budget, which has resulted in a skyrocketing national debt.

The Constitution’s chief mechanism for addressing such long-term problems is a special kind of convention of the states the Constitution calls a “convention for proposing amendments.” This assembly must be called if two-thirds of the state legislatures (34 of 50) demand it. Most state legislatures already have done so.

The Arizona legislature is among them, and it apparently believes the 34-state threshold will be crossed soon.

Convention History

Although the last national convention of states was held in 1861, such gatherings — both national and regional — have had prominent roles in American history.

Before American Independence, inter-colony conventions deliberated over defense matters and relations with the Indians and with the British. Examples include the Stamp Act Congress (1765) and the First Continental Congress (1774). After Independence, several interstate conventions addressed defense, as well as such issues as trade and monetary inflation. In 1787, an interstate convention with an unusually broad mandate proposed the U.S. Constitution.

Later conventions of the states have been far more limited than the Constitutional Convention. Gatherings in 1814 and 1861 informally proposed specific constitutional amendments. An 1889 regional convention recommended uniform anti-trust laws. One of its recommendations induced Congress to pass the Sherman Anti-Trust Act the following year.Regional conventions in the 1920s, 1930s, and 1940s negotiated interstate water compacts.

The latest call is Arizona House Concurrent Resolution 2022, passed on March 30. It also requires a strictly limited conclave. It provides: “The State of Arizona respectfully calls a planning convention of the states, consisting of commissioners chosen and authorized in the manner that each respective state legislature determines… on September 12, 2017 in Phoenix.”

The planning convention will recommend (1) rules and procedures for the balanced budget convention and (2) a date and location that Congress can use when calling the balanced budget convention.

The resolution also recommends that the planning convention adopt “Mason’s Manual” — the same guide currently used by the legislatures of most states — for its parliamentary procedures.

Convention Procedure Well Understood

Despite some uninformed assertions on the subject, there is no mystery surrounding the protocols governing conventions of states. Those protocols have been firmly established for over two centuries. For example, each state has equal voting power; the convention elects its own officers; and the convention is limited by the scope of its “call.”

The Arizona resolution recognizes all these protocols.

This is the latest in a parade of events showing the state legislatures are becoming serious about addressing problems the feds refuse to face. In 2016, the Assembly of State Legislatures, a national bipartisan group, proposed rules for amendments conventions. In October, representatives from nearly all the state legislatures met in a simulated convention held in Williamsburg, Virginia in October. They adopted rules based on a set I had put together based on prior convention experience.

In addition, 10 states have demanded a convention to propose federal term limits and controls on federal power.

The American Legislative Exchange Council, a state legislative trade group, has published a popular guide to the process, which I authored.

This article first appeared in the American Spectator.

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.