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.) . . . . .
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.
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.
Recent controversy has centered on President Trump’s businesses accepting payments—such as payment for space in the Trump Tower—from foreign governments. Several prominent legal commentators have begun a lawsuit claiming that the president is violating the Constitution’s Foreign Emoluments Clause by accepting “emoluments” from foreign governments.
That Clause, which is Article I, Section 9, Clause 8, provides as follows:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, emolument, Office, or Title of any kind whatever from any King, Prince, or foreign State.
The term “emolument” appears three places in the Constitution. Article I, Section 6, Clause 2 prohibits a member of Congress from being appointed to an office “which shall have been created, or the Emoluments whereof shall have been encreased” during his current congressional term. Article II, Section 1, Clause 7 prohibits the president from accepting any emolument other than his salary from the federal government or from any state. Some argue that President Obama violated that provision by accepting interest payments on government bonds while president.
In a new scholarly article I examine the Constitution’s use of the word “emolument.” I find that during the Founding Era the word often was used in a sense wide enough to cover both Trump’s and Obama’s conduct. However, I also find that there were two common narrower meanings, and that the Constitution adopted one of those. In the Constitution, the term signifies “compensation with financial value, received by reason of public employment.” Thus, neither Trump nor Obama received unconstitutional “emoluments.”
There are at least two other issues concerning the Trump case that the article does not address:
1. Is he covered by the Foreign Emoluments Clause at all? It applies to those holding an “Office . . . under” the United States. There is a respectable view that this particular formulation does not apply to the president, but only to appointed officers. This argument holds that the framers meant to include the president, they used other phrases, such as “officer of the United States.”
2. If a payment from a foreign government is not an emolument, could it still be an unconstitutional “present?” This obviously depends both on the Founders’ understanding and one the circumstances surrounding the payments. I may investigate this question in the near future.
Yes, Mr. President—You Must Enforce Laws You Don’t Like
The answer to this question lies in the Constitution’s phrase that the president “take Care that the Laws be faithfully executed.” (Article II, Section 3).
Very little of the Constitution’s wording was entirely original with the framers. Most was borrowed and adapted from other sources. This was true of the phrase “take Care.”
Where Did the President’s Duty to Enforce Come From?
The expression “take care,” along with variations such as “take due care” and “take especial care,” regularly appeared in 18th century legal documents. Specifically, they appeared in legal documents issued to American chief executives.
Before 1776, the British Crown, acting through the Privy Council or board of trade, appointed the governors for most of the American colonies. Every new governor received two crucial documents. The first was his commission. The second contained his instructions.
The commission announced the appointment and then granted the governor certain listed (“enumerated”) powers. The instructions regulated how the governor was to use those powers.
As the word “instructions” suggests, they were mandates, not choices. The mandates very often were in the form of directing the governor to “take care” that he perform, or not perform, particular acts.
Illustrative were instructions issued to Governor Dunmore of Virginia in 1771. They consisted of 92 paragraphs of directions. They used the phrase “take care” at least a dozen times, and they employed variations on the phrase at least 14 times. For example, Paragraph 56 stated in part:
And you shall likewise take care that a general survey be made of all our said colony, and of each county, with the several plantations [i.e., settlements] and fortifications in it; and that an exact map or maps thereof be transmitted to us by one of our principal secretaries of state.
Obviously, this is an order, not an option.
Article II of the Constitution deals with the executive branch, including the president. Much of Article II’s language is traceable to royal governors’ commissions and instructions. Like the commissions, it lists enumerated powers, such as the president’s “Power, by and with the Advice and Consent of the Senate, to make Treaties.” Like the instructions, Article II also imposes mandates. Among these is the direction that the president “take Care that the Laws be faithfully executed.”
As this historical background shows, the Constitution’s “take Care” language also is an order, not an option.
Where Else Did His Duty to Enforce Come From?
Further light on the question comes from one of the greatest events in Anglo-American constitutional history. When King James II refused to enforce duly-enacted laws of which he disapproved (“dispensing with” them), his countrymen stripped him of his throne, exiled him from the country, and issued the English Bill of Rights (1689). The English Bill of Rights clarified that the king was obligated to enforce all the laws, whether he liked them or not.
This event is known to history as the Glorious Revolution, and it was an event of which the American founders were highly aware and heartily approved.
Recall that when President Obama announced that he would refuse to enforce, or would under-enforce, laws of which he disapproved, some claimed that allowing him to act that way would make him a king rather than a president.
But history shows this claim actually was understated: The English did not tolerate such behavior even from their kings. If the president presumes to pick and choose which laws he wants to enforce, he is not acting like a proper English king. He is acting more like a third-world dictator.
Professor Michael Ramsey of the University of San Diego recently pointed out that commentators who claim Donald Trump will violate the Constitution’s Foreign Emoluments Clause (actually the Foreign Emoluments Subclause) on the day of his inauguration haven’t done their homework. Specifically, they have not sufficiently researched the meaning and scope of the provision. For example, they assume that market-driven payments to Trump’s businesses are “emoluments” within the Constitution’s meaning of the term. It is by no means clear that this is true.
Founding-era records display at least six variations in the meaning of “emolument” in official discourse. The variations differ significantly in their scope. It will take additional research to determine which of them matches the understanding of the Constitution’s ratifiers.
Variations in the Meaning of “Emolument”
Following are the six, each exemplified with a quotation. All the quotations except the last are from the journals of the Continental and Confederation Congresses, where nearly all the framers and leading ratifiers had seen service. The last is from the records of the Constitutional Convention:
* “Emolument” could mean any advantage or benefit whatsoever, as in “they should be permitted . . . to share in the blessings of peace, and the emoluments of victory and conquest.” This was the broadest usage, and the common dictionary definition.
* “Emolument” could mean gain that was specifically pecuniary, including gain attached to a particular office and “private emolument”—that is, money from outside sources, such as trade: Examples: “that honor and emolument should naturally follow the fortune of those who have steered the vessel in the storm and brought her safely to port” and “The emoluments of the trade are not a compensation for the expense of donations.”
* It could mean the compensation—pay and fringe benefits—attached to a particular office, as in “such as his rank entitles him to . . . and without pay or any other emolument whatever.”
* It could mean the fringe benefits attached to a specific office but not the pay, as in “that his emoluments and one half of his pay be suspended” or “his request for pay cannot be complied with, and that all the emoluments he derives from the United States are to cease” or “he should be allowed the emoluments but not the pay.”
* It might include items such as living supplies, extra compensation, and reimbursement for expenses, as in “The value of the additional emoluments of forage and subsistence would amount at the rate of thirty six dollars per month . . .”
* Or it could exclude one or more of these items, as in “the Post-master general make such an allowance to the postmaster . . . in addition to the emoluments of his office, as may be a reasonable compensation for his extra services” or “[Pennsylvania] President Franklin moved . . . that the executive should receive no salary, stipend or emolument for the devotion of his time to the public services, but that his expenses should be paid.”
How Does This Affect Trump?
The first two definitions are broad enough to include outside commercial transactions. The phrase in the Foreign Emoluments Subclause “of any kind whatever” suggests that the term should be read this way.
The other four variations are all tied to compensation for holding a particular office. Presumably they would include a salary from the French government to an American official for holding his office. But they would exclude payments made to President Washington if the British government happened to buy some of Mount Vernon’s exported tobacco, and they would exclude fair market rents paid at the Trump Tower.
Arguing for one of the definitions tied to office is the fact that the Foreign Emoluments Subclause uses the word as one item in a series. Pointing in the same direction are the Constitution’s other two uses of “emoluments,” both of which are directed at compensation for holding office.
I’m currently researching the Clause—doing the “homework” that others should have. I’ll keep you posted on what I find.