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How We Know a National Amendments Convention Is a ‘Convention of the States’

How We Know a National Amendments Convention Is a ‘Convention of the States’

Most state legislatures have filed applications with Congress demanding a national convention for proposing constitutional amendments. Americans are asking just what kind of convention the Constitution requires.Nearly all experts believe an amendments convention is a “convention of the states”—the traditional term for a meeting in which representatives of state legislatures deliberate on the basis of sovereign equality. The rule at a convention of the states is that each state has an equal voice.

This would be a familiar procedure: There have been about 40 conventions of states in American history—although this one would be the first called to propose constitutional amendments under the authority of the Constitution itself.

Other commentators—predominately, but not exclusively, convention opponents—argue an amendments convention should consist of popularly elected delegates, perhaps allocated by population.

The Constitution itself merely refers to the assembly as a “Convention for proposing Amendments.” So we must look at history to understand how the Founders understood the term.

In an 1831 decision, the U.S. Supreme Court said an amendments convention is a convention of the states. My newly-issued research study confirms the Supreme Court was correct.

During the century before the Constitution was drafted, conventions among North American colonies, and later among states, met on average every three or four years. After Independence in 1776, the pace quickened: The Constitutional Convention of 1787 was the 11th interstate gathering in 11 years. All were assemblies of state delegations, operating as ambassadors from their respective states.

The delegates were officially called “commissioners” and the meetings dubbed either “conventions of the states” or by some well-recognized synonym.

The fact that the founders knew only of the “convention of the states” model of interstate meeting suggests strongly they intended an amendments convention to work the same way. The new study shows how the “convention of states” approach fits within the Constitution they drafted and approved.

Additionally, the study collects numerous documents in which Founders specifically labeled an amendments convention a “convention of the states.” All these documents originated when Americans still were debating the new Constitution. Remarkably, everyone seems to have shared the view that an amendments convention would be a “convention of the states,” irrespective of whether he favored the Constitution.

For example, in New York legislative debates, two lawmakers referred to an amendments convention as a “convention of the states.” One was John Lansing Jr., who had served as a framer in Philadelphia. Similarly, in South Carolina, another framer, Charles Cotesworth Pinkney, referred to the amendments convention in much the same way.

Newspaper articles used the same term. Leading founders such as George Washington, James Madison, and Alexander Hamilton made comments that reveal their assumption that an amendments convention is a convention of the states.

Perhaps most persuasive of all are the references to “convention of the states” in state legislative resolutions and other government documents. During 1788 and 1789, several state legislatures debated whether to formally apply to Congress for a convention, primarily to obtain a bill of rights. The very first application, passed by the Virginia legislature, used the term “convention of the states,” and the second (New York’s) used a common synonym.

The study observes: “Within a few months amid the ratification debates, five states in different regions of the country—three in favor, one against, and one neutral—issued seven official documents identifying an amendments convention as a convention of the states.”

For a such a gathering, the state legislatures decide how many commissioners to send to the convention and how they are chosen. Previous experience suggests state legislatures will select most commissioners. That ensures the commissioners are experienced in public policy and official drafting.

When the convention is called to order, each delegation will have an equal voice. Although the assembly theoretically could change that rule, no convention of states ever has.

If delegations from all 50 states attend, then 26 will be able to propose an amendment. Their proposal will, however, be merely a proposal. To become part of the Constitution, three-fourths of the states (38) must approve, thereby assuring the amendment has strong popular support.

This article originally appeared in

A Founder Gives Us a Lesson on the Constitution’s Amendment Process

A Founder Gives Us a Lesson on the Constitution’s Amendment Process

Among the best tools for interpreting the Constitution are public explanations by its advocates made during the ratification fight. These explanations helped shape how the public understood the Constitution. They reassured the public about what the Constitution did NOT mean.

Those statements were at the heart of the ratification deal.

One reason the Federalist Papers are so useful because they were exactly this sort of literature. But they are tough going for many readers, both now and then. That helps explain why the more readable essays of Tench Coxe likely had as much influence with the common people as The Federalist.

So when Coxe explains what the Constitution means, we must attend respectfully.

Here is Tench Coxe writing about the Article V amendment process. This passage comes from an op-ed in the Pennsylvania Gazette of June 11, 1788:

The sovereign power of altering and amending the constitution . . . does not lie with this foederal legislature, whom some have erroneously apprehended to be supreme—That power, which is truly and evidently the real point of sovereignty, is vested in the several legislatures and [ratifying] conventions of the states, chosen by the people respectively within them. The foederal government cannot alter the constitution, but the representative bodies of the states, that is, their legislatures and conventions, only can execute these acts of sovereign power.

From the foregoing circumstances results another reflection equally satisfactory and important, which is, that as the foederal legislature . . . cannot prevent such wholesome alterations and amendments as are now desired, or which experience may hereafter suggest. . . . If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.

This statement is a very fat one, but here’s its skeleton:

1. Some people are claiming that under the Constitution, Congress will hold supreme power.

2. But real supremacy belongs to those who can amend the Constitution.

3. The Constitution puts that power in the hands of the state legislatures and state ratifying conventions—the “representative bodies of the states.”

4. Congress cannot alter the Constitution.

5. And Congress cannot block amendments it doesn’t like—by, for example, refusing to call an amendments convention that two thirds of the state legislatures want.

Let’s look at some of the wider implications:

* Congress can’t pass amendments alone. This argues against claims that Congress can gerrymander the membership of a “convention for proposing amendments,” change deadlines in midstream, or otherwise dominate the amendment process.

* By contrast, state legislatures and state conventions can amend the Constitution any time they want, and Congress can’t block them. This necessarily means that only state legislatures control the convention for proposing amendments. It means they can limit the scope of their applications, of the call, and of the convention. And it means they can choose and instruct their commissioners as they wish.

* This power to amend is in the “representative bodies of the states.” When a state legislature or state convention operates under Article V, it acts as a direct representative of the people, not as an arm of state government. Thus, Coxe’s article tends to support modern case law and undercut claims that state governments can direct or change the amendment process through laws and compacts.

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.

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.