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The Impending Convention for Proposing Amendments — Part VI

The Impending Convention for Proposing Amendments — Part VI

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Rob in the Colorado Rockies

Note: This is the last in a series of six articles that originally appeared in the Washington Post’s “Volokh Conspiracy,” a leading constitutional law website. Parts I – V appear below this post.

How the Procedures for a Modern Amendments Convention May Unfold

Parts I to V of this series discussed the background and nature of the Constitution’s “Convention for proposing Amendments.” This final installment surveys the most likely scenarios for calling a convention, and possible developments if 34 states apply on any one subject or an overlapping group of subjects.

The subject matter for amendments submitted to a convention will depend on which of several application drives induces Congress to issue the first call. The possibilities are complicated by the fact that some applications are vulnerable legally. For example, convention opponents have argued that applications that are “too old” are invalid or “stale” on that account. This argument was significantly weakened by adoption of the 27th amendment, in which unrepealed ratifications two centuries old were accepted as valid.

More serious is the fact that many extant applications purport to limit the convention to considering only an amendment with prescribed wording. That may render them inherently invalid or inaggregable with more general applications.

The number of unrepealed applications is in the hundreds, although no one subject has attained the threshold of 34. Some are from now-abandoned campaigns, such as those for banning polygamy and repealing the 16th amendment (which dropped the apportionment requirement for the income tax). The application totals are at the website of the Article V Library.

Among the currently active campaigns, the frontrunner is the Balanced Budget Amendment Task Force, which claims applications from 27 states. In 2014, Citzens for Self-Governance began its “Convention of States” project. Relying on grassroots enthusiasm, it has won the endorsement of four state legislatures. All four applications closely track the form recommended by “Convention of States” activists: They would empower the convention to consider fiscal restraints on the federal government, term limits and reductions in federal power.

Also enjoying the endorsement of four states is the Wolf PAC movement, which seeks campaign finance reform. Realistically, Wolf PAC is unlikely to reach the threshold of 34. This is partly because of the conservative political composition of most state legislatures and partly because not all of its applications are fully consistent. In addition, while the general idea of campaign finance reform enjoys strong public support, most specific proposals involve granting more power to Congress. This is a tough sell at a time when the electorate is deeply dissatisfied with Congress.

Other Article V campaigns include those aiming to impose a single subject rule on Congress, a revived push for congressional term limits and the Act 2 Movement, which promotes term limits, fiscal restraints, campaign finance reform and creation of a fourth branch of government to enforce the law against the other three.

Once a campaign claims to have reached the 34-state minimum, Congress will have to determine whether the applications truly “aggregate” with each other. If the campaign is for a balanced-budget amendment, Congress may have to exercise some discretion. Although most balanced-budget applications simply demand a convention to consider the subject, three purport to limit the convention to prescribed language. Congress may have to determine whether to aggregate the two sets. Congressional discretion also may be necessary to decide whether applications that demand an unlimited convention should be included in the total.

How Congress reacts will, of course, be influenced by the then-current political environment. I have stressed to state legislators the need to communicate forcefully both to Congress and the general public the conditions under which Congress must call and the proper limits of a call. State legislative planners have responded well to this advice.

Interstate conventions held earlier in our history included commissioners who had attended prior interstate conventions. Because that sort of experience is lacking today, state legislative planning groups have sprung up to prepare: the State Legislators Article V Caucus, the Assembly of State Legislatures and the Convention of States Caucus. In addition, two trade organizations of state lawmakers, the National Conference of State Legislatures and the American Legislative Exchange Council, have presented programs on convention issues.

Necessarily, there have been some mistakes. Recently the executive committee of the Assembly of State Legislatures recommended to the general membership an impractical system of convention rules mandating super-majorities and weighted voting, and even co-presidents and co-committee chairs from opposite parties. The general membership’s firm rejection of those rules suggests that wisdom is likely to prevail over the long term, and that when a convention does meet it will have the benefit of a viable procedural template.

Earlier this year, I undertook a study of prior convention rules to ascertain their modern applicability. Here are some of my conclusions:

* Most of the rules applied at 18th and 19th century conventions are still viable. In fact, some these rules are echoed in modern legislative practice.

* Any set of convention rules must be supplemented by default rules. For this purpose, I recommended “Mason’s Manual,” by far the most commonly used rule book in American state legislatures. Both the Assembly of State Legislatures and the Convention of States project have adopted this recommendation.

* The principles of one state/one vote and decision-by-simple-majority sometimes have been challenged, but ultimately every convention has retained or returned to them for most purposes.

* Although in theory a bare majority of low-population states could cause the
convention to propose an unpopular amendment, modern political conditions render this highly improbable.

* Ratification is quite a different process from proposal. A proposal’s margin of victory at the convention is probably not a strong predictor of whether or not it is ratified.

* Some traditional rules will have to be modified. For example, rules barring
commissioners from access to written materials will yield to the world of electronic hand-held devices. Traditional rules of secrecy will yield to modern values of transparency.

* In prior conventions, the distances between the state capital and the convention site required most legislatures to rely heavily on their commissioners’ discretion once those commissioners had received their initial instructions. Modern communications will enable commissioning authorities to exercise more influence on their representatives. On balance, this is probably a good development, since it reduces the chance of commissioners exceeding their authority, and it involves a wider group in the negotiating process.

* A modern 50-state convention probably will consist of between 200 and 250
commissioners. Some states may appoint alternates as well. Each state legislature is free to fix the size of its own “committee,” but at my suggestion most planners are contemplating convention rules that limit the number of commissioners on the floor from any state at any one time. This will reduce the incentives for states to flood the assembly, as Tennessee did at the 1850 Nashville convention.

* Some states may boycott, as Rhode Island boycotted the Constitutional Convention. Over the three-plus centuries of American multi-government conventions, none has ever attained 100 percent participation.

Whether or not a modern convention actually proposes an amendment, and whether any such amendment is ratified, the event will provoke new public interest in our constitutional system. It may also revivify awareness of the role of the states in American federalism.

How A Famous English Convention Clarifies the Role of a Convention of States

How A Famous English Convention Clarifies the Role of a Convention of States

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Atop St. Paul's Cathedral, London

Note: This article first appeared on the American Thinker website.

In the Anglo-American constitutional tradition, a “convention” can mean a contract, but the word is more often applied to an assembly, other than a legislature, convened to address ad hoc political problems. The “Convention for proposing Amendments” authorized by Article V of the Constitution is designed to be that kind of assembly.

The first political conventions were held in England in 1660 and 1688-89. These gatherings looked something like parliaments, but they were entitled “conventions” because only the Crown could call a parliament, and they were not called by the Crown. Moreover, they were convened to address specific constitutional issues, not to legislate.

The 1660 convention led to the restoration of the Stuart line of kings after the failed English experiment with republicanism under Oliver and Richard Cromwell. The 1688-89 convention dealt with the political crisis arising when the second James Stuart (i.e., James II) was forced to flee the kingdom by popular outrage over his arbitrary and unconstitutional misrule and by the invading army of William of Orange.

The American Founders were much influenced by the English convention experience, which they grouped with the gathering of the barons that forced King John to agree to Magna Carta (1215). Between 1689 and 1787, Americans themselves frequently used the convention device, either to address problems within particular polities (conventions of the people) or to address issues of regional or continental importance (conventions of colonies or states).

Particularly important to the American Founders were the proceedings of the 1688-89 convention because it led to parliamentary supremacy over the Crown and adoption of the English Bill of Rights—or, as that document was entitled after adoption, the “Declaration of Right.” Both our own Declaration of Independence and our Bill of Rights owe a great deal to the English Declaration of Right.

After James II’s flight had left the throne vacant, the two houses of the previous parliament instructed William of Orange to call a “Convention of the Estates of the Realm.” The estates of the realm were the lords and the commons, and they met separately. Each elected its own officers and decided on its own procedures. In essence, each estate had one vote, and the concurrence of each was necessary for the convention to approve any measure.

Thomas Babington Macaulay, the great 19th century English literary figure, described in Chapter 10 of his History of England the general philosophy under which the 1688-89 convention operated:

The business of an extraordinary convention of the Estates of the Realm was not to do the ordinary work of Parliaments . . . but to put right the great machine of government. . . .

On these grounds the Commons wisely determined to postpone all reforms till the ancient constitution of the kingdom should have been restored in all its parts, and forthwith to fill the throne without imposing on William and Mary any other obligation than that of governing according to the existing laws of England. In order that the questions which had been in dispute between the Stuarts and the nation might never again be stirred, it was determined that the instrument by which the Prince and Princess of Orange were called to the throne, and by which the order of succession was settled, should set forth, in the most distinct and solemn manner, the fundamental principles of the constitution. This instrument [was] known by the name of the Declaration of Right . . .

After describing the contents of the Declaration, Macaulay added:

But, though a new constitution was not needed, it was plain that changes were required. The misgovernment of the Stuarts, and the troubles which that misgovernment had produced, sufficiently proved that there was somewhere a defect in our polity; and that defect it was the duty of the Convention to discover and to supply.

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Thus the Convention had two great duties to perform. The first was to clear the fundamental laws of the realm from ambiguity. The second was to eradicate from the minds, both of the governors and of the governed, the false and pernicious notion that the royal prerogative was something more sublime and holy than those fundamental laws. The former object was attained by the solemn recital and claim with which the Declaration of Right commences; the latter by the resolution which pronounced the throne vacant, and invited William and Mary to fill it.

Today, the role of the Convention for Proposing Amendments should be seen, and usually is seen, in much the same light: not to alter the fundamentals of the Constitution, but to

* clarify the Constitution’s true meaning by sweeping away false interpretations that have accrued over the years and

* adopt changes that require the federal government to comply with the vision of the Founders in modern conditions.

The first goal can be met by amendments overruling rogue Supreme Court decisions, just as amendments previously have been used for that purpose. The second can be met by, for example, requiring a balanced budget, more firmly limiting federal authority, and reorganizing the judiciary so that it more fairly applies the constitutional system of checks and balances.

More discussion of the law of Article V Conventions, appears in my legal treatise on the subject.

The Legal Case for Federal Land Disposal is Much Stronger than Critics Think

The Legal Case for Federal Land Disposal is Much Stronger than Critics Think

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The American Lands Council is a Utah-based organization that argues that the federal government should transfer part of its massive land holdings to the states. In recent weeks, apologists for federal land ownership have been savaging the American Lands Council and its leader, Utah Rep. Ken Ivory, in the Utah press.

I don’t agree with every position the American Lands Council takes, but they have a reasonable legal case. I wrote the following in the Salt Lake Tribune to defend Rep. Ivory and the Council against certain politically-motivated charges:
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The American Lands Council and its leader, Utah Rep. Ken Ivory, argue that the federal government is illegally retaining vast tracts of Western lands, some of which should be conveyed to the states.

This is not a new position, but it is making new progress in American state legislatures. It also is drawing the charge that it has “no legal foundation.”

The truth, however, is that Ivory’s position is grounded much more firmly than critics admit.

There are at least three legal bases for concluding that the federal government is obligated to dispose of surplus acreage:

• The original meaning of the Constitution—the meaning attached to it by the Founders—largely supports this view.
• Some of the congressional laws creating Western states (“organic acts”) strongly imply that the federal government has the duty to dispose of excess land.
• To the extent that some of those laws suggest otherwise, they may be constitutionally defective.

Critics point to court cases that assume the federal government may own any land it wants to. But critics should be cautious about relying on those cases. They were sparsely reasoned and therefore are subject to ready judicial re-examination. Moreover, they were decided before the Supreme Court’s renewed interest in the original meaning of the Constitution’s text.

Significantly, that text does not grant the federal government an open-ended, unconditional power to own land. It grants an unconditional power to dispose, but merely conditional and limited authority to retain or acquire.

I first examined the meaning behind this text in a 2005 study published by the University of Colorado Law Review. I learned that the Founders intended the federal government to enjoy more power to own real estate than some right-wing activists admit. But I also learned that the Constitution conveyed to the federal government a good deal less power than Ivory’s critics claim. Essentially, the Constitution, as originally understood, grants the federal government authority to own land for purposes enumerated in the document, but requires the government to dispose of the remainder.

The Supreme Court should have the opportunity to analyze the original meaning of these provisions in the same way it has analyzed provisions applying to federal elections, habeas corpus, guns, and other issues. Perhaps Ken Ivory will give the Court that opportunity.

Another legal basis for Ivory’s position arises from the organic acts of states containing large federal holdings. Those laws support his view when read in light of prevailing rules of judicial interpretation and historical and legal context.

To illustrate: Each organic act grants the state a share of proceeds from federal land sales. From share-of-proceeds terms, courts commonly infer an obligation to maximize proceeds—in this case, a duty to maximize sales. Similarly, each organic act provides that the state disclaims title to federal lands. Although critics claim those disclaimers allow the federal government to retain lands, the disclaimers’ actual purpose was to clear title for sale. The states can legitimately contend that if the federal government sabotages the agreed purpose of the disclaimers, then the states may withdraw them.

Some state organic acts do have terms suggesting the federal government may retain land permanently, but for several reasons those terms may be constitutionally defective.

For example: The Supreme Court voids federal laws (including organic acts) that interfere too much with a state’s core sovereignty. Control over land within state boundaries always has been part of core state sovereignty.

Admittedly, the mere fact that the federal government owns some property within a state does not necessarily violate that state’s core sovereignty. But how far does this rule go?

Washington, D.C. does not claim merely title to the land it owns, but vast sovereign-style authority over it as well. Presumably, therefore, it would be unconstitutional for the feds to own and exercise that kind of authority over all of a state’s territory. But what if they own and control half the state’s land, as in Idaho? Two-thirds, as in Utah? Over 80 percent, as in Nevada?

These are serious and legitimate questions, and Rep. Ivory is performing a public service by raising them.

Evidence on the Powers the Constitution Leaves Exclusively to the States

Evidence on the Powers the Constitution Leaves Exclusively to the States

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This column also appears at CNSNews.

The Constitution enumerates the powers of the federal government. But has anyone listed the exclusive powers of states—the realm the federal government may not invade without violating the Constitution?

When discussing state authority, the Founders usually pointed out only that the federal government’s powers were, as Madison said, “few and defined,” and that the states and people retained everything else. But that presents a problem for modern readers, who often aren’t familiar with 18th century language. For example, if a reader doesn’t know that the word “commerce” in 18th century constitutional discourse usually was defined as “mercantile trade and certain closely related activities,” he might think it means “business” as in the phrase “Chamber of Commerce.” The modern reader might therefore conclude that the Constitution’s Commerce Clause grants to Congress general authority to regulate business.

Fortunately, during the ratification debates some advocates of the Constitution did clarify the document by listing for the public certain designated activities that would remain outside the federal sphere. One reason the Constitution was ratified was that the general public relied on these representations.

In 2003, I collected many of them in an article entitled The Enumerated Powers of States.

As is typical in academia, few law journals were interested in publishing an article that explained the original meaning of the Constitution and how it limited federal authority. Nevertheless, the Nevada Law Journal, then a relatively new publication, did agree to publish it. This proved to be a very good move for the Nevada Law Journal: In the ensuing years, The Enumerated Powers of States has become one of my most cited scholarly articles.

The Enumerated Powers of States listed area after area that the Constitution’s advocates represented as outside of federal control:

* training the militia and appointing its officers;
* control over local government;
* regulating real estate;
* regulating personal property outside of commerce;
* the law of family and domestic affairs;
* most criminal law;
* civil justice between citizens of the same state;
* religion;
* education;
* social services;
* agriculture; and
* control of most business enterprises.

Since 2003, I have found several sources confirming this list. One example is a enumeration that appeared in the Pennsylvania Gazette on Dec. 26, 1787, which is reprinted in Volume 2 of the Documentary History of the Ratification of the Constitution at p.650.

The very recent publication of the Maryland volumes in the Documentary History has turned up other examples. Thus, a 1787 article by a writer using the name “Aratus” represented that only state courts would adjudicate “Cases of property and right within the state, and between citizens thereof, and criminal cases, wherein the United States are not concerned.” (Vol. 11, p. 41). Another author—“Uncus”—wrote a few days later as follows:

“Congress will have no direction of religion or the clergy,—with the universities, academies, schools, or any part of education. They will have no direction with the state judicial courts, or assemblies—with their pleadings, or manner of proceeding. Beyond the ten miles square [ie., Washington, D.C.], few are the civil officers which they can appoint.” (Vol. 11, p.66.)

One of the two new Maryland volumes contains a draft speech by Charles Carroll of Carrollton to be delivered in 1788. Although the speech was not delivered, it is evidence of the educated understanding of the time—especially because Carroll had served as a delegate to the Constitutional Convention, and therefore helped write the document. The Carroll speech specifically affirmed that wills and property conveyances were within the jurisdiction only of state courts, not federal courts (vol. 12, p. 844).

The new Maryland volumes also reproduce another undelivered speech. This one may have had public impact, because it was published well before all the states had ratified. Although it was anonymous, it was almost certainly the finished version of Carroll’s address.

This speech emphasized that Congress would be powerless to regulate inheritances, alter the laws of wills, or establish a national church. (Vol. 12, p. 881). It went on to say that each state will have exclusive control over

“the whole regulations of property, the regulations of the penal law, the promotion of useful arts [i.e., technology], the internal government of its own people.”

Today, of course, the federal government has intruded into almost all the areas that the Founders represented as outside its sphere. In other words, the modern federal government is a creature very different from the one ordained by the Constitution that “We The People” ratified.

Resisting Federal Usurpation: Comments by Theophilus Parsons

Resisting Federal Usurpation: Comments by Theophilus Parsons

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Several years ago, I wrote on this site about the contributions to the American Founding of Josiah Quincy.

Another little-known Founder who should be more widely celebrated today was Theophilus Parsons.

Parsons was from the same Massachusetts circle that produced Quincy. He was an an outstanding lawyer and an eloquent spokesman for republican government and for federalism.

Although Hamilton’s Federalist No. 28 and Madison’s Federalist No. 46 are justly famous for their expositions of how states and individuals should resist federal usurpation, Parsons also was making the same case about the same time.

Parsons was a leader of the pro-Constitution forces at the Massachusetts ratifying convention. On January 23, 1788—three weeks after the publication of Federalist No. 28 and six days before the Federalist No. 46—he rose in that gathering to point out certain checks and balances inherent in the document.

The oath the several legislative, executive, and judicial officers of the several states take to support the federal Constitution, is as effectual a security against the usurpation of the general government as it is against the encroachment of the state governments. For an increase of the powers by usurpation is as clearly a violation of the federal Constitution as a diminution of these powers by private encroachment; and that the oath obliges the officers of the several states as vigorously to oppose the one as the other. But there is another check, founded in the nature of the Union, superior to all the parchment checks that can be invented. If there should be a usurpation, it will not be on the farmer and merchant, employed and attentive only to their several occupations; it will be upon thirteen legislatures, completely organized, possessed of the confidence of the people, and having the means, as well as inclination, successfully to oppose it. Under these circumstances, none but madmen would attempt a usurpation.

But, sir, the people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his own fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainty will pronounce him, if the supposed law he resisted was an act of usurpation.

Parsons played a key role at the convention in other ways. He helped negotiate the deal whereby Massachusetts would ratify while simultaneously proposing amendments—the very seed from which the Bill of Rights grew. He also had been an important figure before the convention, drafting the fine statement of republican principles known as the Essex Result (1778). That document contains a clear explanations of the concept of inalienable v. alienable rights, the basis of which the Founders rarely explained, because they took it for granted:

All men are born equally free. The rights they possess at their births are equal, and of the same kind. Some of those rights are alienable, and may be parted with for an equivalent. Others are unalienable and inherent, and of that importance, that no equivalent can be received in exchange. Sometimes we shall mention the surrendering of a power to controul our natural rights, which perhaps is speaking with more precision, than when we use the expression of parting with natural rights–but the same thing is intended. Those rights which are unalienable, and of that importance, are called the rights of conscience.

After the Constitution was adopted, Parsons continued to practice law and for several years served in the state legislature. Among the clerks educated in his law office was John Quincy Adams, the future president. From 1806 until his death in 1813, he was Chief Justice of the Massachusetts Supreme Judicial Court, where, among his other contributions, he helped shape modern American corporate law.

As if that weren’t enough, he was also a mathematician, classicist, and amateur astronomer.