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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 Townhall.com

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.

A Burst of New Article V Progress

A Burst of New Article V Progress

For a few weeks earlier this year, it looked like the Article V movement might have stalled.

Some state lawmakers thought the election of President Trump would be a sufficient solution to federal dysfunction. Wyoming’s passage of a balanced budget application was offset by rejection in conservative Idaho and rescission in liberal New Mexico. The idea of the Tennessee legislature sponsoring a convention of states later this year to plan for a balanced budget convention passed Tennessee’s senate, but was stalled in its house of representatives. US Term Limits won approval of the Utah house, but had not added to its application count. The liberal WolfPAC group, which wants a campaign finance reform amendment, was stuck at five states. Most notably, the grassroots driven Convention of States movement seemed unable to add to its existing total of eight states.

In politics, though, events often ripen over a long time behind the scenes and then burst into view with blinding suddenness—much as the Berlin Wall suddenly crashed after years of being quietly undermined. Within the last few days, we have seen:

  • The “planning convention” idea being reborn in the Tennessee house;
  • Arizona adopting the balanced budget amendment application;
  • Less predicably, Arizona also adopting the Convention of States application;
  • North Dakota adopting the Convention of States application, becoming the 10th state to do so.

David Guldenschuh, a Rome, Georgia attorney and Article V expert, keeps track of applications and rescissions with his Article V Convention Legislative Progress Report, which you can get by subscribing by email at dfg@guldenschuhlaw.com. All historical applications are collected, reproduced, and categorized through the diligence of Robert Biggerstaff at the Article V Library.

 

More 20th Century Conventions of States Discovered—Many More!

More 20th Century Conventions of States Discovered—Many More!

As I have reported previously, there have been many conventions of states (and, before Independence, of colonies). Some of these conventions proposed amendments to the Articles of Confederation or to the Constitution.

Among these gatherings have been more than 20 inter-colonial conventions, eleven interstate conventions held between 1776 and 1787, six during the 19th century, and the Colorado River Compact Commission (CRCC) of 1922. Most of these were regional meetings, but they also included seven “general” or national conclaves—held in 1754, 1765, 1774, 1780, 1786, 1787, and 1861.

Do not confuse the 1922 Colorado River Compact Commission, which negotiated the Colorado River Compact, with a permanent regulatory commission. The CRCC was a temporary body consisting of duly authorized state representatives empowered to propose a solution to a designated problem: in other words, a true convention of states. It met in four different cities, but most of its sessions were held in Santa Fe, New Mexico.

The CRCC gathering in Santa Fe did feature some variations on the convention theme. For one thing, the federal government was invited to send a representative and participate, since under the Constitution Congress would have to approve the resulting agreement. Moreover, the Santa Fe conclave operated pursuant to the respective states’ reserved, Tenth Amendment powers. (An Article V convention, by contrast, derives its authority directly from the Constitution.) The Santa Fe formula was worked out by Delphus Carpenter, a prominent Colorado water lawyer and former state senator who served as his state’s representative in Santa Fe. However, neither variation was unique: Other conventions of states (including those held in 1684, 1754, and 1889) have invited non-state sovereignties to participate, and most of them relied on reserved power rather than direct constitutional authorization.

More Conventions of States!

Now I have learned that the Santa Fe convention was only the foam on the top of the river. In recent days, I have discovered:

* A convention of Colorado River states that met in Salt Lake City in 1920.

* A convention of three states that negotiated the Rio Grande River Compact. The states met informally (without legislative credentialing) in Colorado Springs in 1924. They then broke up and, after all commissioners had been fully credentialed, met again in Santa Fe at the end of 1928. They concluded a temporary compact in early 1929—the basis for the permanent Rio Grande compact that become effective in 1939.

* The North Platte River Commission, also consisting of three states, began meeting in Washington, D.C. in 1924, and then intermittently until negotiations broke down.

* The three lower basin Colorado River states—California, Arizona, and Nevada—apparently met after 1922 to resolve water issues among them, but unsuccessfully.

* Colorado, New Mexico, Utah, Arizona, and Wyoming, together with a federal representative, convened in Denver beginning December 3, 1929. They successfully negotiated the Upper Colorado River Basin Compact.

* In 2003, Professor Daniel Tyler, Delphus Carpenter’s biographer, wrote: “Of the sixteen water allocation compacts negotiated and approved between 1922 and 1971, all but three followed a similar pattern developed by Carpenter of negotiation by commissioners, participation by a federal representative, and approval by Congress.”

Were All of These True Conventions of States?

Were all of these true conventions of states? I don’t know yet. For an event to qualify historically as a true convention of states, there must be actual meetings, not mere long-range contact, as in some interstate compact negotiations. Participation must be multi-lateral—that is, more than two states must take part. Participation must be authorized by each state legislature, with the legislature designating, or providing for designation, of commissioners. The gathering must be an ad hoc, temporary one, designed to address pre-designated issues.

I don’t yet have sufficient information to identify all of these conclaves as “conventions,” but it is already clear that some of them were.

Why Isn’t This More Widely Known?

You might ask: Why isn’t it more generally known that conventions of states were a regular feature of American life well into the 20th century?

Let me suggest three reasons:

(1) Historically, some conventions have been designated by different labels. Prior to establishment of the federal Congress as a national institution, conventions frequently were called “congresses,” although they were called conventions as well. History books label the 1765 gathering as the “Stamp Act Congress,” not the Stamp Act Convention—even though contemporaries regularly referred to it as a “congress or convention.” Throughout our history, some conventions have been called “commissions” and a few referred to as “committees.” The unintended effect has been to distract people from their common nature.

(2) Most of these gatherings addressed narrow topics not of universal interest. This was true even of the Colorado River Compact Commission. The water was, and is, of supreme importance to many Westerners. But it is of little concern to the Eastern elite that traditionally control the media, the foundations, the federal bureaucracy, and academia—and therefore the national flow of information.

(3) Those who control the flow of information have vested interests in central control of other aspects of life as well. It is certainly against their interest to inform people that states can solve problems without federal direction. Many view a convention of states in particular as a threat to their influence. Hence they try to convince you that it would be an untried, dangerous mechanism.

In fact, conventions of states represent a venerable American tradition—older than the Constitution itself, and extending well into very modern times.

The 1889 St. Louis Convention of States

The 1889 St. Louis Convention of States

A frequent argument against a convention for proposing constitutional amendments is that there are “no precedents” for determining the rules and procedures for such a gathering, other than the Constitutional Convention of 1787.

Although opponents persist in this claim, it has long been debunked: The Constitutional Convention was far from the only meeting of its kind. On the contrary, inter-colonial conventions met over 20 times before Independence, and conventions of states met eleven times between Independence and the Constitution’s ratification. Since that ratification, conventions of states have gathered at least an additional half dozen times, most recently in 1922.

Thus, contrary to the claim that there are “no precedents,” in fact there are nearly forty. Six were “general” (national) conventions. They were held in 1754, 1765, 1774, 1780, 1787, and 1861. The rest were conclaves among states in particular regions of the country. The fundamental protocols were similar for all of these gatherings, although they also display interesting variations in detail.

Illustrative of the “convention of states” process was the meeting in St. Louis, Missouri, in 1889. It is interesting for a number of reasons. One is that it demonstrates the solid chain of continuity that ties all these conventions together. Another is that it rebuts another unfounded claim raised by some opponents—that conventions of states serve only reactionary purposes. The St. Louis Convention was called for a Progressive purpose, and it served its cause well. The interstate convention mechanism, like the right to vote, is the inheritance of all Americans, irrespective of their political views.

The story of the St. Louis gathering, as revealed in the official convention journal, state legislative records, and contemporaneous newspaper reports, is as follows:

The Call for the St. Louis Convention of States

Like most conventions of states, the St. Louis  convention was called to propose solutions to a specific problem. At the time, many believed that four big Chicago meat packing companies had conspired together to drive down the prices paid to midwestern and western beef and pork ranchers. The conspiracy was alternatively called a “trust,” “the beef and pork combine,” and “the dressed beef monopoly.” Over the preceding five years, cattlemen and pork raisers had seen their profits tumble. Their distress was a serious issue for states whose economies depended on agriculture.

A Kansas state senator named Frank E. Gillette was determined to help them. He may have become aware of the “convention of states” device from history. Not only was the Constitution itself the product of two such conventions (Annapolis in 1786 and Philadelphia in 1787), but similar assemblies had met in Nashville, Tennessee in 1850 and in Washington, D.C. and Montgomery, Alabama in 1861. Accordingly, he proposed that Kansas call a convention of states to plan a campaign against the Chicago meat packing monopolists.

Senator Gillette successfully persuaded his legislative colleagues that Kansas should issue the call. However, this call, unlike most others, was not contained in a single document. Rather, it was the product of three. The first was “Concurrent Resolution No. 9,” sponsored by Senator Gillette and adopted by the Kansas legislature in January, 1889. It authorized and requested Kansas Governor Lyman U. Humphrey to communicate with other governors to invite them to a convention of states “with a view to securing and the perfection of uniform legislation concerning such ‘trust’ or ‘combine.’” Resolution No. 9 further suggested that the convention be composed of delegations consisting of five representatives and three senators from each state. But unlike a complete convention call, it did not specify a place or time for the meeting. Instead, it authorized the governor to designate those items.

On January 28, Governor Humphrey wrote to the chief executives of those states he deemed would be most sympathetic to the cause: Nebraska, Iowa, Colorado, Texas, Illinois, Missouri, Indiana, Michigan, Arkansas, Ohio, and Wisconsin. Governor Humphrey also invited participation from three federal territories: Dakota (later divided into the states of North and South Dakota), New Mexico, and Wyoming. Governor Humphrey’s letter was the second component of the convention call.

On February 11, the governor reported to the Kansas legislature that he had received several positive responses. However, rather than exercise his delegated power to select a time and place, he suggested that the favorable reception from other states implied agreement that the Kansas legislature designate time and place. By Senate Joint Resolution No. 5, adopted the following day, the legislature named St. Louis, Missouri as the place and March 12, 1889 as the time. This completed the call.

By March 11, state lawmakers had assembled from all over the West and Midwest, and the rotunda and lobby of St. Louis’s venerable Southern Hotel was buzzing with them. The convention’s proceedings began at noon the following day, probably at the Southern. However, the convention promptly accepted the invitation of the St. Louis mayor to move to more appropriate facilities (“House of Delegates Hall”). The move illustrates a continuing feature of interstate conventions: Although the call designates the initial place of meeting, the convention is always free to relocate.

Attendees at the Convention of States

Several states may have sent unofficial observers, but there were fully-accredited delegations from nine: Kansas, Colorado, Michigan, Missouri, Nebraska, Iowa, Illinois, Indiana, and Texas.

All these delegations consisted of state lawmakers, but not all states followed the recommended formula of five representatives and three senators. Another continuing feature of interstate conventions is that the composition and size of a state’s delegation is ultimately within the discretion of that state’s legislature. Iowa sent three senators but only four representatives. Colorado sent two senators and three representatives, and Missouri accredited five from each legislative chamber. Illinois, Indiana, Minnesota, Texas, Illinois, and Nebraska each followed the recommended formula.

Thus, there were 62 fully-credentialed commissioners in all. This meeting thereby ranks as one of history’s more populous conventions of states—although far from the largest. The assembly further recognized the governor of Missouri and the Mayor of St. Louis as honorary, non-voting members.

Wyoming Territory had selected a delegation, but it never arrived. Instead, the convention was asked to seat a representative from that territory’s livestock commission. Obviously, the livestock commission was not the Territory’s legislature, and the request was denied.

The records are not complete, but state commissioners appear to have been selected differently in different states. In Kansas, for example, the state senate’s three commissioners were chosen by the senate president. In Iowa, the legislature delegated the selection to the governor.

Continuity with other Conventions of States

In many respects, the St. Louis convention of states was similar to its predecessors:

*    It was limited to a fairly narrow topic.

*   It remained within the scope of the call.

*   It created standing committees. At St. Louis there were committees on rules, credentials, permanent organization (essentially a nominating board), resolutions, and “recommendations of needed legislation.”

* After the governor of Missouri, the host state, had called the assembly to order, it elected a temporary chairman. This turned out to be Senator Gillette.

* It adopted formal rules, elected a president and vice president from among the commissioners, and chose non-delegates as secretary and assistant secretary.

Variations from the Convention of States Pattern

Yet the St. Louis convention adopted some variations as well. One was to elect its temporary chairman as permanent president. Insofar as I can determine, this had never been done before. The group adopted Jefferson’s Manual, the guide for U.S. Senate procedures, as its source of default rules. This move was not unique—the 1850 Nashville convention had done the same—but the default rules for most conventions have come from other sources.

To better ensure equality among states, the St. Louis convention provided that each delegation would appoint one member to each standing committee. Previous conventions had created individual committees with one member from each state, but had not applied to rule to all standing committees. Moreover, this convention was the first to impose a time limit on speeches: ten minutes.

Perhaps the most unusual decision pertained to state voting. In all other assemblies of this type, matters on the floor were resolved by a one state/one vote rule, with a majority of each state’s delegation decided how its state’s ballot would be cast. In St. Louis, each state enjoyed eight votes, generally cast by individual commissioners. If a state had fewer than eight commissioners, it still received eight votes, but those not cast by individuals were announced by the delegation chairman in accordance with the delegation’s instruction. The records do not specifically state how Missouri’s eight votes were allocated among its ten commissioners, but the recorded tallies imply that each Missouri commissioner received eight-tenths of a vote.

The Results of the St. Louis Convention of States

The convention had to struggle with a few proposals that arguably exceeded the scope of the call. Several motions pertained to a proposed investigation of the beef and pork trust. Those motions were quickly interred. Another would have recommended to Congress construction of a deep-sea harbor in Texas, on the Gulf of Mexico. The resolutions committee rejected it as not within the convention’s scope. Later, however, the proposal was amended to clarify that its purpose was to crack the Chicago packing monopoly, and in that form it passed.

The convention finished its work in two long days. It recommended a state anti-trust law based on a Texas model and a state statute requiring local inspection of beef on the hoof. It further recommended that Congress enact an anti-trust law.

The St. Louis Convention must be accounted a success. Not only did several states adopt laws in accordance with the body’s suggestions, but Congress famously followed another convention recommendation when it passed the Sherman Anti-Trust Act only fourteen months later.

NOTE: The author acknowledges Ken Quinn of Maine for his work in re-discovering this historic convention.