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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.

The Convention of States in American History

The Convention of States in American History

In this short essay, constitutional historian Rob Natelson thumbnails the three-centuries long history of “conventions of the states.”

When delegations from the states assemble in Phoenix, Arizona later this year, they will be basking in a long and rich American tradition.

As far back as 1677, British colonies in North America sent “commissioners” (delegates) to meet with each other to discuss common issues. These gatherings were essentially problem-solving task forces. That is, they were temporary assemblies charged with proposing solutions to prescribed problems.

During the colonial era, most conventions met in New York City, Boston, or Albany, New York: Albany was popular because it was close to the homes of the Iroquois tribes, who frequently participated. However, one of the most notable conventions occurred in Lancaster, Pennsylvania (1744).

The convention agenda was always set in advance. It sometimes involved common defense against hostile Indians or against French Canada. Often, the colonies convened to hammer out treaties with Indian tribes.

“Convention” was not the only name for these conclaves. Occasionally, they were called councils; more often congresses. (In the international practice of the time a “congress” was a diplomatic meeting of governments on equal terms.) . . . . .

For the entire history click here.

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.


Proposed Rules for An Article V Convention!

Proposed Rules for An Article V Convention!

2009 RGN

If 34 state legislatures forced Congress to call a convention for proposing amendments, what would the rules look like?

The Convention of States movement (CoS) wanted an answer to this question. So its president asked me to take the lead in drafting sample rules. Then CoS would present them to state legislators for comment. This process might also provide the convention itself with a starting-point for preparing its own rules.

We presented the results at a conference last month in San Diego, California. The conference was sponsored by the American Legislative Exchange Council, one of the nation’s largest associations of state lawmakers.

The sample rules are available here. BEFORE READING THEM, PLEASE OBSERVE THE FOLLOWING:

* Important explanations appear in the footnotes.

* The final decision on convention rules is up to the convention itself. However, state legislators can recommend particular rules or instruct their commissioners (delegates) to vote only for particular rules. In calling the convention, Congress may recommend rules but may not prescribe them.

* These proposals were not invented out of thin air by me or by anyone else. For the most part, they are similar to rules actually adopted by previous conventions of states—notably the 1861 Washington Conference Convention, but also the 1787 Constitutional Convention and others.

* There have been updates to take into account modern conditions. Those updates are explained in the footnotes.

* Most of these rules can be adapted to any amendments convention, but the last two are designed especially for a convention called under the three-part application sponsored by the Convention of States movement. The three parts are (1) fiscal restraints on the federal government, (2) limits on the power and jurisdiction of the federal government, and (3) federal term limits. Those would be only subjects allowed, and the rules provide that other subjects are out of order. (Claims that the convention could consider other subjects are misinformed.)

CoS soon will offer a website that will allow public comment.

How Do We Know an Article V Amendments Convention is a “Convention of the States?” Because Both the Founders and the Supreme Court Said So

How Do We Know an Article V Amendments Convention is a “Convention of the States?” Because Both the Founders and the Supreme Court Said So

Rob at James Madison's home in Virginia
Rob at James Madison's home in Virginia

Article V of the Constitution authorizes a “Convention for proposing Amendments.” However, it does did not specify how the convention is to be composed. People unfamiliar with constitutional history sometimes claim the makeup of an amendments convention is either a complete mystery or subject to the determination of Congress.

Nonsense. For one thing, the Supreme Court already has spoken on the matter. In 1831, the Court decided Smith v. Union Bank, in which it specifically characterized (on page 528) an amendments convention as a “convention of the states”—that is, a gathering of representatives of state legislatures.

The Court’s characterization was, in fact, the dominant one in America until misunderstandings on the subject arose in the mid-to-later 20th century. It was also the Founders’ view of an amendments convention.

The history of the 30+ conventions held among colonies and states before and during the Founding Era shows that they always were gatherings of state “committees” (delegations) of “commissioners” (delegates) appointed by the several states. Furthermore, participants in the ratification debates repeatedly referred to this process as one in which the states were the drivers.

But beyond that, there is a series of Founding-Era official documents specifically identifying a convention for proposing amendments as a “convention of the states.” For example:

*    The very first Article V application was adopted by the Virginia legislature on November 14, 1788. It recited that “happily . . . the Constitution hath presented an alternative, by admitting the submission [of an amendment] to the convention of the states.”

*    The Pennsylvania legislature did not favor Virginia’s application, and said so in a resolution adopted on March 5, 1789. The resolution recited that “it must ever be [pain]ful to the House, when obliged to dissent from the opinion of that [Virginia] Assembly upon any point of common concern to the two states, as members of the union; and particularly, on a measure of such importance as the one proposed, the calling of a convention of the states for amending the constitution . . . ” Minutes, Pa. Gen. Assembly, 124-25 (March 5, 1789)

*    On the other hand, New York’s governor, George Clinton, favored such a convention. A letter from the Virginia legislature to Governor Clinton reproduced in the New York legislative journals successfully urged New York to adopt its  own Article V application: “The propriety of immediately calling a Convention of the States, to take into consideration the defects of the Constitution, was admitted, and, in consequence thereof, an application agreed to, to be presented to the Congress, so soon as it shall be convened, for the accomplishment of that important end.”  Letter from John Jones & Thomas Mathews to Gov. George Clinton, Nov. 20, 1788, reproduced in N.Y. Assem. J., p. 25 (Dec. 27, 1788).

* On February 4, 1789, during debate in the New York legislature over its proposed application for an Article V convention, lawmakers twice referred to such a gathering as a “convention of the states.” (23 Doc’y History of the Ratification of the Constitution, pp. 2522 & 2523) One of the references was by Samuel Jones, who had served as a leading New York ratifier. The other was by John Lansing, Jr., who had been a delegate to the Constitutional Convention.

*    The Rhode Island legislature generally looked favorably on the idea, and responded as follows:

“Whereas, His Excellency George Clinton, president of the convention of New York, hath transmitted to the legislature of this state a proposal, that a general convention of the states should take place, in order that such necessary amendments may be made in the constitution proposed for a federal government, as will secure to the people at large their rights and liberties, and to remove the exceptionable parts of the said proposed constitution:
It is therefore voted and resolved, that the secretary forthwith cause to be printed a sufficient number of copies of Governor Clinton’s letter, with the amendments proposed by the convention of the state of New York, and transmit one as soon as possible to each town clerk in the state; who is hereby directed, upon receipt thereof, to issue his warrant to call the freemen of such town to convene in town meeting, to take the same into consideration, and thereupon to give their deputies instructions whether they will have delegates appointed to meet in convention with the state of New York, and such other states as shall appoint the same; or such other instructions as they may deem conducive to the public good; that this General Assembly may know their determination at the session to be holden by adjournment on the last Monday in December next. . . . ”

Records of the State of Rhode Island, vol. 10, pp. 309-10 (Oct. 27, 1788).

By contrast, a convention held within a state was thought of as a convention of the people.

All of these documents were issued while discussion over ratification of the Constitution was continuing. Eleven states had ratified, but in North Carolina and Rhode Island the outcome was still very much in doubt. Moreover, these are all official documents, not the product of individual eccentrics. As such, they are powerful evidence that a “Convention for proposing Amendments” was understood to be a gathering of the states. The Framers of Article V didn’t need to spell it out, precisely because everyone knew it.