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Government Shutdown? Maybe for the Best

Government Shutdown? Maybe for the Best

An earlier version of his column appeared in The Hill on February 6, 2018.

Once again, this year we were threatened with a federal government “shutdown.”

Well, for the future this citizen out in the hinterland says, “Bring it on!”

Most of the interrupted functions aren’t really constitutional anyway, and we could do well without them. In fact, we should defund some of them permanently to help close the federal deficit. Most of the affected workers wouldn’t be out of work for long: Right now the private sector is desperate to use more efficiently the kind of skilled people now employed, and sometimes ineptly utilized, by the federal government.

I put the word “shutdown” in quotation marks because it is really a misnomer. Labeling it as such has been a huge rhetorical coup by apologists for unbridled federal power. In fact, it’s just a temporary pause in the otherwise-inexorable growth of federal spending.

Sometimes this pause occurs because members of Congress can’t agree how much to increase expenditures. (They rarely propose reducing them.) Sometimes it happens because they can’t agree on raising the debt limit. The D.C. crowd considers not raising the debt limit particularly disastrous because it actually forces the federal government to balance its budget in the interim.

Now, let’s look at the agencies whose operations may be interrupted in event of a “shutdown.” The list comes courtesy of Keep in mind, however, that the list is misleading because funding for some of their major operations is on statutory auto-pilot — “mandatory spending,” which is D.C.-speak for “we let it continue without renewing it annually.”

For example, even though the Department of Health and Human Services is on the list below, during a “shutdown” it will continue to cut checks for Social Security and for most of ObamaCare.

So, with that caveat in mind, let’s review the list of agencies that may suffer partial closure:

  • Commerce Department, except the National Oceanic and Atmospheric Administration.
  • Department of Education.
  • Department of Energy (except certain safety functions remain open).
  • Environmental Protection Agency.
  • Food and Drug Administration.
  • Department of Health and Human Services.
  • Department of Housing and Urban Development.
  • Department of the Interior (although the Department will not be shutting down the national parks this time).
  • The Internal Revenue Service, except those processing tax returns.
  • The Department of Labor, including Bureau of Labor Statistics.
  • NASA.
  • The National Institute of Health.
  • The Smithsonian.

Retrieve your pocket Constitution. Look through it and identify those functions the Constitution actually authorizes. Then go over the list of “shutdown” agencies again.

The Constitution empowers the federal government to regulate commerce, which encompasses many functions of the Commerce Department and the Food and Drug Administration. The Constitution also authorizes national defense (including, in part, NASA), and administration of the District of Columbia (including, by implication, the Smithsonian).

But otherwise you won’t find much overlap between what the Constitution authorizes and what a shutdown would interrupt. The Constitution contains not a single word about regulating or funding urban development, education, or labor. But it does contain the Ninth and Tenth Amendments, which reserve such matters to the states and the people.

Some agencies subject to closure already are duplicated, or can be duplicated, by the private sector or by interstate compact, rendering federal involvement unnecessary. Others are operations state governments could handle easily.

For example, during the 2013 shutdown, the Department of the Interior announced it was closing Rocky Mountain National Park in Colorado. No problem: Colorado state government kicked in the money necessary to keep the park open, and it stayed open. A few Coloradans began to ask, “Who needs the feds to run the park after all?”

That kind of question is the real threat of a prolonged government shutdown. It is a threat to federal politicians, functionaries, grant recipients, and the complicit segment of the mass media: Americans might come to realize they can get along very nicely without much of the federal bureaucracy. The ease with which Colorado funded Rocky Mountain National Park is a case in point. In fact, it may be the reason the federal government will not be closing the parks this time.

If, unlike me, you really are worried about a government shutdown, then be assured: Congress will not allow it to continue for too long. Otherwise, Americans might discover just how disposable most federal agencies are.

Where the Constitution’s Word “Convention” Came From

Where the Constitution’s Word “Convention” Came From

“The Congress . . . shall call a Convention for proposing Amendments, which, in either Case, shall be valid . . . when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof . . . ” U.S. Constitution, Article V

“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”                                 U.S. Constitution, Article VII

The late Phyllis Schlafly, when opposing a convention for proposing amendments, repeatedly likened it to the Republican and Democratic National Conventions. The idea, apparently, was to conjure up images of the chaotic mob scenes we have seen on television.

By so doing, Schlafly committed the common fallacy of anachronism: reading into history or a historical text the meanings and values of another time. The most common kind of anachronism is transferring a modern notion into a time or text when things were quite different—as if a scriptwriter for an old Western movie had John Wayne check his smart phone.

Anachronism can lead to grotesque distortion of the truth: In fact, a convention for proposing amendments is almost as different from a national party convention as the eye of a person is from the eye of a hurricane.

The Constitution uses the term convention three times. It appears twice in Article V and once in Article VII (the ratification provision). The “convention for proposing amendments” refers to an interstate gathering. The other two are assemblies within individual states.

We know from prior and subsequent practice how these conventions are chosen. The in-state gatherings consist of delegates directly elected by the people in pre-set geographical districts. The interstate gathering is a diplomatic gathering of representatives of the state legislatures of the kind called a “convention of the states.”

Schlafly did her best to deny that a convention for proposing amendments is a “convention of the states.” But the evidence is both uncontradicted and overwhelming, and has been confirmed by the U.S. Supreme Court. Myths to the contrary were promoted by a disinformation campaign fostered in academic literature and the press during the 1960s, ‘70s, and ‘80s by establishment liberals who opposed amendments to reduce federal power.

Prior to and during the Founding Era, Americans struggled with what to call ad hoc meetings of these kinds. They were not legislatures, because they were temporary and selected outside the usual legislative procedures. So Americans dubbed them with three different words: congress, committee, and convention.

Congress derives from Latin. It means “a walking together.” Before 1775, it referred to a diplomatic meeting of delegations from different governments. Thus, it was a natural term for a conclave among colonies or states. There was a 1754 Albany Congress, a 1765 Stamp Act Congress, the First Continental Congress (1774), and so forth. New York created a “provincial congress” that administered affairs after the colonial legislature was disbanded and until Independence was declared. The name congress reflected the fact that delegates were elected by towns or counties.

Beginning in 1775 the Second Continental Congress became a quasi-permanent legislative body. In 1781 it was succeeded by the Confederation Congress and in 1789 by the Federal Congress. Application of “congress” to the federal legislature discouraged people from applying it to other assemblies.

A small convention of states sometimes was called a committee. (This term, also, is Latin: the verb committere means to commit to, entrust to.) Further, the word could mean a delegation sent to a convention of states. But these “committees” were easy to confuse with committees within other assemblies, as in “the convention’s rules committee” or “the ways and means committee of the legislature.”

Convention (from the Latin convenire, to come together) originally signified only a meeting. However, “convention” became the name of a policy-making body in Scottish Presbyterian practice, and during the constitutional crises of 1660 and 1689 the English called their emergency assemblies “Convention Parliaments.” In the latter year, Americans began to apply the word to temporary “congresses” and to emergency assemblies.

Thus, throughout much of the 18th century, Americans might call the same kind of gathering by several different words. After Independence was declared but before election of the state legislature under the new state constitution, New York was governed by a “Convention of Representatives.” Beginning in January, 1788, the state convention consisted of members of the new state legislature, which had not yet been formally convened.

To add to the confusion, the identical assembly might be referred to by several names. The records of the New York Provincial Congress show it addressing the Continental Congress as the “continental convention” and the Continental Congress addressing the Provincial Congress as the “provincial convention.”

Fortunately, by the time the Constitution was written, this verbal confusion had been pretty much sorted out.  Temporary in-state conclaves increasingly were called conventions. Interstate meetings were nearly always called “conventions” rather than committees or congresses.

That’s why the framers selected the word “convention” rather than some other term for insertion in Articles V and VII.

Fifth (and last) in a Series: John Dickinson and the Ratification of the Constitution

Fifth (and last) in a Series: John Dickinson and the Ratification of the Constitution

This is the last of a five-part series on Founding Father John Dickinson, who published his highly influential “Farmer Letters” exactly 250 years ago. The series was first published by the Washington Post’s blog, The Volokh Conspiracy.

Ill-health motivated John Dickinson to leave the federal convention a day early. Before departing, he instructed his friend and Delaware colleague, George Read, to affix his signature to the document. There are, therefore, 39 signatures to the document but only 38 men physically signed.

In early 1788, Dickinson perceived that ratification momentum was slowing. Accordingly, he composed for publication nine letters written under the pseudonym, “Fabius.” The Letters of Fabius were well-received and widely reprinted.

Unlike The Federalist or the “Aristides” essays of Alexander Contee Hanson, Fabius made no attempt to provide a comprehensive overview of the Constitution. The letters focused primarily on answering the Antifederalist contention that the Constitution was too “high-toned,” and that its adoption would lead to aristocracy. If the reader reviews the Dickinson speech reported in my last post, he or she will see that Dickinson had anticipated this objection.

Fabius centered on a two-fold response. First, the rules governing the House, Senate, and president assured popular control. House members would be elected directly to short terms, and one third of Senators would be elected indirectly every two years. The president would be chosen by a method impervious to corruption; and although he enjoyed a veto, it was not absolute. The British had expanded and retained their liberties with far fewer democratic guarantees.

Second, freedom would be preserved by the confederal or federal (the words then were synonymous) nature of the system. In the original social compact, citizens donated certain rights or powers (words also then largely synonymous) to a central authority so as to protect retained rights/powers. Similarly, in a confederation, member states contributed rights/powers to a central authority so as to protect their remaining rights/powers.

But just as citizens are bound to be ever jealous of their rights and to check government accordingly, so also would the states be obligated to protect their reserved powers. “America is, and will be, divided into several sovereign states, each possessing every power proper for governing within its own limits for its own purposes, and also for acting as a member of the union.” Any states that allowed the federal government to interfere in their sovereign jurisdiction would be guilty of a breach of trust, for the “trustees or servants of the several states” were obliged to protect the authority citizens had placed in them. If state officials lose ground to the federal government, Dickinson maintained, “It will be their own faults.”

In addition to pressing his twofold argument, Dickinson made other points. One was the disadvantages of a confederation in which the central government had insufficient power. Dickinson cited both the Articles of Confederation and the fracture of two ancient Greek federations as examples. He also offered a positive case study: the 1707 union of England with Scotland. After reciting dire pre-union Scottish predictions his readers knew proved to be false, Dickinson identified the union’s benefits: the cultivation of virtues and correction of errors; protection for the lower classes; improvements in agriculture, science, arts, trade, and manufactures; the rule of law; peace and security at home, and increased respectability abroad. Amid the enjoyment of these benefits, the Scottish Church and laws, courts and judicature had remained established and secure.

A well-balanced confederation rendered all its members stronger. In modern terms, it reduced state shirking and free riding. Further, as in the human body, “A stroke, a touch upon any part, will be immediately felt by the whole.” A diseased member of the body severed from the rest could not recover, while one remaining connected could be saved.

Confederation was Dickinson’s answer to Montesquieu’s lament that a large territory cannot be governed by republican forms, and that attempting to do so resulted in fragmentation or tyranny. Confederation, said Dickinson, would ensure that government was effective throughout American territory while still checking the urge to centralize. No confederation had ever featured the protections contained in the Constitution. If they proved inadequate, the Constitution provided yet another response: a method for adopting “amendments on the authority of the people.”

* * * *

The author of Fabius was nearing the end of contemporaneous life expectancy, but in the event he was to live another two decades. During that time he maintained a large correspondence, including with Thomas Jefferson, who even as president always answered his letters.

In 1791-92, Dickinson served as president of the Delaware state constitutional convention, and briefly as a state senator thereafter. He wrote several articles and pamphlets, including new Fabius letters arguing for a pro-French foreign policy.

Most of his remaining life, however, was spent in retirement. He died in 1808, age 75.

What is an Amendments Convention “Application?” What is a “Call?”

What is an Amendments Convention “Application?” What is a “Call?”

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

Article V of the Constitution states that “The Congress . . . on Applications of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments.”

As I pointed out in my book, The Original Constitution: What It Actually Said and Meant, 18th century writers were imbued heavily with Latin language usage, and the English of the time often revealed a Latinate flavor.

The dominant meaning of the Latin verb “applicare” pertained to one thing touching or connecting to another. The word was used, for example, of a ship touching harbor.

A very similar meaning prevailed in 18th century English usage, as revealed by a survey of twelve 18th-century dictionaries. “Apply” and “application” referred to the joining of one thing with another, either literally or (in speech) metaphorically. Thus, when one applied to another, one addressed the other. Today the word sometimes implies a supplication, but when the Constitution was adopted, that was not the principal sense. An “application” could come from an equal, a superior, or a petitioner.

In fact, the language of Article V rules out the possibility that when the states apply to Congress they do so as mere petitioners or suppliants. This is because the applications of two thirds of the states are binding on Congress. If Congress receives the requisite number of applications, it is required to call.

A call was a particular kind of application. Specifically, it was either an invitation (implying that attendance was voluntary) or a summons (implying that attendance was mandatory). The words in the Constitution do not provide explicitly whether a congressional call requires state legislatures to send commissioners to a “Convention for proposing Amendments.” But the courts, quite properly, tell us that Article V is to be read in the context of historical usages, and the prevailing 18-century custom was that state participation in a multi-state convention was voluntary. This conclusion is consistent with the basic idea of a “convention of states” as a gathering of sovereigns or semi-sovereigns.

In view the foregoing, the following facts about 1780s convention practice are not surprising:

* A recommendation by an interstate convention to the states that authorized it sometimes was called an application. Because an application was merely an address from one person or entity to another, a recommendation was indeed a form of application.

* A request to the Confederation Congress to call a convention was sometimes referred to as an application.

* The convention call itself was sometimes referred to as an application.

Article V did not spell out convention details because the procedures were so well known that doing so was unnecessary. But in a few cases, there were ambiguities in usage, so Article V clarified them. One example was that Article V clarified how the terms “application” and “call” were to be used in amendment practice.

One last point: Some activists argue that the state’s right to apply for a convention is a state power retained by the Tenth Amendment because the right of a state to apply predated the Constitution. The courts disagree, so as a practical matter this claim is pretty much academic. The courts have decided that all legislative and convention authority exercised under Article V comes from the Constitution, and not from powers reserved by the Tenth Amendment.

The Impending "Convention for Proposing Amendments" — Part II

The Impending "Convention for Proposing Amendments" — Part II

Rob in the Colorado Rockies
Rob in the Colorado Rockies

Note: This series of six articles originally appeared in the Washington Post’s “Volokh Conspiracy,” a leading constitutional law website. Part I appears below, and Parts III-VI will be posted in the coming weeks.

How Article V was Drafted and Ratified

The commissioners who met in Philadelphia to propose a plan to render the American political system “adequate to the exigencies of the union” decided early in the proceedings to add a mechanism for amendment. Edmund Randolph’s Virginia Plan contemplated such a mechanism. The Virginia Plan did not specify what it would be, other than to provide that the consent of the national legislature should not be required.

The Constitution’s first draft, reported to the convention by the Committee of Detail on August 6, 1787, specified that amendments would be proposed, and presumably ratified, by a convention called by Congress on the application of two thirds of the states. Thus, in the framers’ deliberations, proposal by interstate convention preceded the decision to allow proposal by Congress.

During the ensuing discussion, the convention accepted a motion by Elbridge Gerry that amendments be subject to state ratification and a suggestion by Alexander Hamilton that Congress be allowed to propose. The result was a draft that (1) omitted the convention, (2) allowed Congress to propose sua sponte, and (3) required Congress to draft an amendment demanded by two thirds of the states.

George Mason of Virginia was dissatisfied. He argued that the draft’s language would enable Congress to block any amendment to correct federal abuse. Without dissent the convention altered the language to provide that a convention rather than Congress draft state-initiated amendments.

Article V does not expressly define the composition of an amendments convention. James Madison (whose draft of Article V Mason’s motion altered) initially questioned how it would be constituted. This has led some to suggest that its composition is a mystery or that the Constitution leaves the composition for Congress to determine.

No one who fairly examines the historical record can doubt, however, that the final understanding was that an amendments convention would be constituted as a convention of the states. This is nearly as clear as anything in history ever is. There are several reasons for so concluding.

First, the only model of an interstate convention known to the Founders was the “convention of the states” model.

Second, statements made during the ratification debates — by, among others, Hamilton, Tench Coxe, George Washington and Madison himself — reveal the assumption that the convention was to be a creature of the states.

Third, the initial Article V application, submitted by Virginia in 1788, explicitly identified the gathering as a “convention of the states.”

Fourth, various legislative resolutions and other legislative documents issued during the Founding Era in New York, Pennsylvania and Rhode Island specifically referred to an amendments convention as a convention of the states. A few decades later, the Supreme Court confirmed this designation.

So why did Article V not specify the convention’s composition? Because there was no need to. The framers’ method was not to recite in the Constitution matters that everyone knew. Their method was to focus on issues that might otherwise be in doubt. Everyone knew that an interstate convention was made up of commissioners in delegations (“committees”) from the several states; that the states were equal with respect to suffrage; that state legislatures determined how commissioners were selected and instructed them; that the call could be broad or narrow; and that the convention’s authority was limited to the scope of the call.

Article V did, however, address issues that existing practice had not resolved or could not resolve. They were as follows:

What was an “application,” and what was a “call?” During the Founding Era, either of those terms could designate the formal invitation to meet. Article V determined
that the former referred to a state legislature’s demand for a convention and the latter to the formal invitation.

When would a call issue? Article V required a call when two thirds of the states applied for (demanded) it.

What was the calling agency? During the Founding Era, interstate meetings could be called by Congress, by prior conventions or by individual states. Article V determined that the calling agency for an amendments convention would be Congress.

Could this convention adopt amendments, or would it merely propose? Article V determined that this convention would propose only, and that proposals would be subject to state ratification or rejection.

As Madison recognized in Federalist No. 39, Article V’s final text contained a careful blend of “national” and “federal” features. The proposal process was finely balanced to ensure equality between the national legislature and the states. As Madison observed in Federalist No. 43, Article V “equally enable[d] the general and the State governments to originate the amendment of errors.” One way the balance was achieved was allowing both the national legislature and the states (by convention) to propose amendments. Another was by offsetting supermajority requirements. For example, the states may consider an amendment informally at any time, but they may not initiate official consideration unless two thirds agree. Congress, on the other hand, may consider an amendment by a simple majority, or merely by a member introducing a resolution.

Offsetting this seeming asymmetry is another: A convention of the states may propose by a simple majority, but Congress may do so only with the agreement of two thirds.

Article V’s convention language was discussed during the ratification debates. When the Constitution’s opponents argued that the new federal government might overreach or abuse its powers, its advocates countered that the states could respond by adopting appropriate amendments. New York lawmaker and ratifier Samuel Jones pointed out that:

[It] could not be known to the framers of the constitution, whether there was too much power given by it or too little; they therefore prescribed a mode by which Congress might procure more, if in the operation of the government it was found necessary; and they prescribed for the states a mode of restraining the powers of the government, if upon trial it should be found they had given
too much.

Similarly, Tench Coxe reassured his wide readership that

two thirds of the states can always procure a general convention for the purpose of amending the constitution, and that three fourths of them can introduce those amendments into the constitution, although the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them.

Without the reassuring effect of the Article V convention process, ratification might not have occurred.