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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

How the New York Times Misrepresents the Supreme Court

How the New York Times Misrepresents the Supreme Court

A recent New York Times story, titled “A Polarized Supreme Court, Growing More So,” illustrates how left-of-center media distort perceptions of the U.S. Supreme Court.

The story’s problems begin with the lead paragraph’s assertion that Justice Neil Gorsuch’s appointment is “a conservative replacing another conservative.” What the Times probably intended to say is that the appointment replaces an originalist with an originalist. Originalism and conservatism are not the same thing.

Originalism is untied to political results, whether liberal or conservative. It applies the methods English and American judges have used for centuries to interpret most documents, including constitutions. The primary difference between modern originalists and non-originalists hinges on whether judges should be consistent or whether they should change the rules of interpretation for some hot-button constitutional issues.

In the article, as elsewhere, the Times describes the Court as split five-to-four, with the majority constituting a “conservative bloc.” It is more accurate to describe the Court as split four ways: (1) liberal activists (Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor), (2) originalists (Clarence Thomas and Gorsuch), (3) advocates of judicial deference (John Roberts, Samuel Alito), and (4) an erratic social libertarian (Anthony Kennedy).

“And, in a shift in recent years,” the Times writes, “partisan affiliation has become a very strong predictor of voting trends for all its members.” The sentence is technically true but substantially misleading. This description would be better: although Democratic appointees have been reliably liberal on most issues, Republican appointees have commonly slipped to the left—a slippage reduced recently as GOP administrations have adopted better vetting procedures.

The article’s thigh-slapper is its description of Kennedy as “a moderate conservative.” Anyone familiar with Kennedy’s judicial style knows that he is not a moderate anything, much less a conservative. It is true that he has voted to strike down some particularly ambitious pieces of congressional legislation, but he has also reaffirmed the very liberal view that the federal government may exercise almost unfettered control over the national economy. More importantly, he has written a series of opinions reaching radical social results through an untethered and virtually unprecedented methodology.

Similarly revealing are the “experts” the Times chose to quote. Apparently, there are no experts in flyover country or in the South. Everyone worth hearing is from the Northeast or West Coast.  This is an extraordinary omission because the nomination of Gorsuch, a Coloradan, was widely viewed as an effort to rebalance the court toward the country’s center.

Neither do practicing lawyers exist in the Times’ world. Everyone quoted is affiliated with an academic or policy institution.

Nor do consistent originalist experts exist—even though the Gorsuch hearings dwelt largely on originalism. The Times quotes four liberals and one activist libertarian. No originalist scholars at all.

The Times article cites just one case by name: Citizens United v. Federal Election Commission. The Times treats that case, as is common among liberal writers, as an unqualified “conservative” victory. In fact, it was a split decision, with originalists winning on one issue but losing on the other.

Several years ago, the Times was properly criticized for describing the Court’s activist liberals as its “four moderates.” While the latest article doesn’t make that mistake, it does reveal the Times’ propensity for putting its left-of-center views at the hub of the ideological universe. Thus the reporter describes Obama appointee Merrick Garland as “not especially liberal.” And he selected for publication an unrebutted claim that Garland was “centrist.”

Yet the reporter’s own article shows this to be untrue. It includes another unrebutted quotation in which a long liberal wish list is described as “safe” with Garland. If he were a centrist, presumably liberals would lose sometimes!

In fairness, the Times does quote an expert who cautions against its stereotyped nomenclature—pointing out that labeling Gorsuch and Garland as “‘conservative” or “liberal” is “too simplistic and unfair to both of them.” That caution, however, is buried at the end.

This article was originally published in the American Conservative.

Yes, Mr. President—You Must Enforce Laws You Don’t Like

Yes, Mr. President—You Must Enforce Laws You Don’t Like

Must the president enforce laws he doesn’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.

A Modern James II?

James II

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.

The original version of this column appeared in Townhall.com

Trump’s Businesses May Not Violate the Emoluments Clause

Trump’s Businesses May Not Violate the Emoluments Clause

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.

An earlier version of this post first appeared in The Originalism Blog.

Term Limits: Conditions May Justify Them

Term Limits: Conditions May Justify Them

2015-0830-RGN-FrazerMeadowThis is the full version of a term limits op-ed  first appearing in the Detroit Daily News.

Advocates for term limits want to amend the Constitution to add them. Their most common argument is that restricting how long an elected official may serve will curb special interest influence and other federal abuse.

The Articles of Confederation, the document governing the United States between 1781 and 1789, restricted members of Congress to three years of service out of every six. But when drafting the Constitution, the framers consciously decided not to include term limits.

Were the framers correct to omit them? Or are modern advocates correct to seek them?

The answer may be that both were or are correct: the framers were right for their times and modern advocates are right for ours.

One reason the framers included an amendment process was to enable Americans to keep the Constitution abreast of changing conditions. We have amended the Constitution several times for precisely this reason.

For example, the founding generation provided for a lengthy gap between Election Day and the inauguration of the newly-chosen Congress and president. Eighteenth-century transportation technology rendered the time period necessary, because a move to the national capital might consume weeks. The disadvantage of this delay was that it gave lame-duck officials over four months to act in ways contrary to the popular will.

By 1933, the successive inventions of the steamship, train, automobile, and airplane enabled people from anywhere else in the country to travel to Washington, D.C. within a day or two. Hence, the 20th amendment accelerated presidential and congressional inauguration from March to January.

Of course, not every alteration in political or social conditions justifies an amendment. The change must be a relevant one. The mere fact that we now drive automobiles instead of buggies does not justify repealing the congressional power to coin money or the First Amendment’s protection for freedom of religion.

One helpful way of thinking about whether a change is relevant is to ask, “If the framers had known about it, might they have written the Constitution differently?”

In fact, there have been several developments that may well have induced the framers to include term limits:

*          The federal government is far larger, and does many more things, than anyone imagined when the Constitution was written. The founding generation was very skeptical about giving anyone so much power, especially over an extended period of time.

*          Relatively few members of Congress retire voluntarily after a few years, as the framers thought they would—and as they frequently did for many years after the Constitution was written. The growth of federal influence has discouraged retirement by augmenting the charms and perks of office.

*          The framers believed that a member of Congress who lost contact with his or her district would be vulnerable to challengers from back home. But today large congressional staffs and modern transportation and communication methods enable members of Congress to maintain well-oiled local machines to promote their own re-election even while quietly betraying most of their constituents.

As a result of such factors, the average tenure of members of Congress has increased enormously. A Congressional Research Service study documented the trend:  Two hundred years ago, members served on average about 2-3 years. One hundred years ago, they served 4-6 years. The corresponding figure today is more than ten years.

Change has affected more than Congress. The justices of the Supreme Court, who are appointed for life terms, are deciding far more social questions than anyone expected in 1787. Their average tenure was about 8-9 years in the decade after the Constitution was adopted, but it now exceeds 21 years.

In 1951 Americans adopted the 22nd amendment, which successfully limited all subsequent presidents to two terms. That amendment also arose from altered conditions: At a time of growing life expectancy and increasing federal power, President Franklin D. Roosevelt had discarded the two-term custom established in the founding-era.

Federal abuse may be one reason for term limits, but it is not the only reason. Even if no abuses had crept into the system, they might well be a necessary response to dramatic political and social change.