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The last convention of states ever held?

The last convention of states ever held?

I recently obtained the records of what may be the last convention of states ever held—records demonstrating that states were meeting in convention well into the mid 20th century.

A “convention of states” as the American Founders and subsequent generations understood the term, is a temporary conclave of legislatively-authorized representatives from three or more states. It is both a diplomatic gathering—the representatives or “commissioners” are essentially ambassadors from their respective legislatures—and a problem-solving task force. Sometimes representatives of sovereignties other than states, such as Indian tribes or the federal government (or, in colonial times, the British crown), have been invited to participate. Conventions of states also have been called “committees of states,” “congresses,” and “commissions.”

Conventions of states, both national (“general”) and regional (“partial”), have met for many different purposes: to plan common defense, work out common responses to political challenges, negotiate treaties with Indian tribes, seek and propose solutions to economic problems, propose constitutional amendments, and, on two occasions (Philadelphia in 1787 and Montgomery in 1861) to prepare new constitutions. Only the last two can properly be called constitutional conventions.

In the 20th century, states used them to hammer out western water compacts. I previously reported on the Santa Fe Convention of 1922, formally called the Colorado River Compact Commission. It was the gathering of seven states and a federal commissioner, then-Secretary of Commerce Herbert Hoover.  It negotiated the Colorado River Compact. I also have reported that similar gatherings met to negotiate the Rio Grande River Compact and an abortive North Platte River compact. My latest acquisition is the official record of the convention that negotiated the compact covering the Upper Colorado River —the portion north and east of Lee Ferry, Arizona.

This was a true convention among five states: Arizona, Colorado, New Mexico, Utah, and Wyoming. It met intermittently from July 22, 1946 to August 5, 1949. Commissioners attended from each state. They were not chosen by their legislatures directly, but legislative statutes authorized the appointment of each and gave each his power. At the request of the states, President Truman named a federal representative to participate as well: Harry W. Bashore, formerly Commissioner of the U.S. Bureau of Reclamation.

The group’s assignment was to divide up the waters of the Upper Colorado River among the five states and determine how much each state had to provide to the states of the Lower Colorado River. This was a highly technical task. Accordingly, unlike most conventions (but like the Santa Fe meeting) there was only one commissioner from each state, but each was assisted by a technical staff. In addition, the group created an engineering advisory committee and a legal advisory committee. The technical nature of the job was why the group had to keep adjourning and reassembling: Engineering studies and negotiations over local streams were performed in the interim.

Another interesting variation is that, like the 1922 convention, the Upper Colorado River group met in different cities and towns at different times: Cheyenne, Wyoming; Denver, Colorado; Salt Lake City and Vernal, Utah; and Santa Fe, New Mexico. In addition, it held public hearings in four other towns. In all, there were 41 days of sessions grouped into eleven formal “meetings.” The first eight meetings led to completion of the compact in 1948. The remaining three, held the following year, were short sessions for wrapping up business.

The conclave also gave itself a name, since its authorizing documents didn’t specify one. It called itself the Upper Colorado River Basin Compact Commisssion.

Within those variations, the group operated according to standard convention of states protocols. Specifically:

* The commissioners established their own procedures. Thus, they made it clear that a preliminary meeting that included the state governors did not bind them, and they re-voted on the decisions made at that preliminary meeting.

* Each state had one vote, cast by its commissioner, no matter how many people from each state happened to be present. After briefly considering a unanimity rule (such as the Colorado River Commission adopted but eventually abandoned), the group retained a rule of decision by a majority. However, it strove for unanimity, and generally was successful. The federal representative had no vote.

* The commissioners elected their own officers: As has been typical among interstate conventions the chairman was a commissioner and the secretary was not. Although he could not vote, Mr. Bashore was elected chairman.

* The record reproduces many roll call votes by states, some quite dramatic. The voting usually was open. But the vote on the overall percentages by which states would divide the river water was by secret ballot.

* The commissioners affirmed that they were negotiating by virtue of the states’ reserved sovereign powers, not by virtue of permission of federal law (as President Truman seemed to think). In this respect, the Upper Colorado River Convention was typical—although a gathering held under Article V would derive its authority from the Constitution rather than from reserved sovereign power.

The proceedings the Upper Colorado River Basin Compact Commission are impressive. The commissioners and staff worked very hard. Most people involved were thoughtful and highly qualified. The engineering studies were voluminous.

Also impressive is the recurrence of some important names. A listed adviser was Ralph Carr, who later as governor of Colorado during World War II, won national attention by opposing the Roosevelt administration’s groundless incarceration of Japanese-American citizens. Another listed adviser was Barry M. Goldwater, later U.S. Senator and the 1964 Republican nominee for President.

The compact the convention negotiated was approved by all five states and by Congress. It is still in effect. It created a permanent administrative body called the Upper Colorado River Commission, to whose staff I am grateful for loaning me the convention record.

The Define and Punish Clause doesn’t authorize vast federal power either

The Define and Punish Clause doesn’t authorize vast federal power either

Legal commentators have spread a good deal of ink trying to show that the Constitution authorizes the enormous expansion of the federal government since the 1930s.

Leading the way have been some associated—as professors, students, or alumni—with the most privileged educational institutions: Harvard, Yale, Chicago, and so forth. Their publications inflated the Commerce Clause to comprehend almost every activity in modern life. They tore the Necessary and Proper Clause from its intended moorings and re-fit it to carry almost unlimited congressional power. They converted the General Welfare Clause from a restriction on taxation into a permit for unrestricted spending. And they reworked the Property and Enclave Clauses until they supposedly authorized the federal government to own almost 30 percent of the land in the country.

Their arguments have been subtle and ingenious, politically self serving, and occasionally appear dishonest.

Now someone has found a basis for vast federal power in another unsuspected place: the Define and Punish Clause. This is the constitutional provision that allows Congress to “define and punish Piracies and Felonies committed on the high Seas and Offences against the Law of Nations.” Apparently those words have been in the Constitution for over 200 years without anyone realizing that they authorize the federal government to pass all sorts of domestic regulations.

Although the conclusion might be surprising, it is no surprise that this latest effort was published in one of the Harvard journals. The author is a law student rather than a professor, judge, or practicing lawyer, but the editors apparently thought the article was so important and powerful that they gave it the status generally reserved for legal professionals.

Ordinarily, I do not respond to student productions. But, who knows? Maybe this is the next popular justification for the federal monster state: After all, some political activists rely on student writings when it serves their purposes. Promoters of reviving the Equal Rights Amendment cite a student law school project  as their legal authority for ignoring the amendment’s ratification deadline.

Now, the truth is that the Define and Punish Clause does not authorize vast federal power. No one should be misled into thinking it does. So I offer the following by way of correction.

The gist of the author’s argument is that the Define and Punish Clause empowers Congress to create offences far outside the scope of the Founding-Era “law of nations” (i.e., international law). For example, Congress may regulate according to international norms established long after the Constitution was ratified. This conclusion would, of course, give a consortium of foreign governments de facto power to change our constitutional system.

The author goes further: Under the Define and Punish Clause, he claims, Congress also may regulate behavior that does not violate established norms at all, but treads merely on the internationally-related preferences of one or more foreign nations. Indeed, Congress may even regulate behavior that Congress thinks should violate international norms, even if no other country agrees!

Now as a general matter, the “vast federal power” literature suffers from certain common defects:

First: During the debates over the ratification of the Constitution, ratification advocates needed to reassure the public about the limited scope of federal power authorized by the Constitution. They issued long lists of subjects that under the Constitution would remain outside the federal sphere. These included social services, most civil and criminal law, agriculture and other land use, manufacturing, and many others. These representations were central to the ratifying public’s understanding of the Constitution. However, “vast federal power” promoters never address them.

Second: These writers usually rely on developments well after the Founding at the expense of material arising before or during the Founding.

Third: They very often present historical and legal sources as meaning something other than what they actually mean. Sometimes they simply misunderstand 18th century language. Sometimes they read a passage out of context or edit it deceptively.

Fourth: It is odd, but true, that in writing about a legal document drafted and promoted mostly by lawyers (i.e., the Constitution), these authors usually under-research Founding Era law.

All four of these defects mar the Define and Punish article.

First: The author does not mention the assurances made by the Constitution’s advocates as to the limited scope of federal power. He certainly does not explain how his expansive view of the Define and Punish Clause could be consistent them.

Second: The author dwells on developments, including court decisions, arising long after the Constitution was ratified. A court decision in 1820 or 1887 may be interesting, but it could not have affected how Americans understood the Constitution in the ratification era (1787-90). (Admittedly, this article does not claim to be purely originalist.)

Third: The author relies on at least one passage deceptively lifted from context. The passage is from Blackstone’s Commentaries. The author reports Blackstone as saying that the “principal offenses” against the law of nations were violations of safe-conducts, infringement of the rights of ambassadors, and piracy. The author then suggests that these were the only existing offenses against the law of nations. So he says Clause must give Congress power over offenses beyond those—because if the framers had wished to limit Congress’s power to them, the framers could have just listed those three areas. Also, the Continental Congress had defined offenses other than those three.

The trouble is that Blackstone never said the three listed offenses were the only offenses against the law of nations. Rather, he stated that they were the only offenses for which Parliament had thus far passed clarifying legislation (“animadverted on as such by the municipal laws of England”). Moreover, even though Blackstone’s treatise was not principally about international law, he identified several other offenses against the law of nations: committing acts of hostility against one’s country in league with a foreign king, making war without a formal declaration, violation of the law merchant (international mercantile law), and violation of immigration law.

Fourth: Although the author (mis)quotes Blackstone, he gives almost no attention to works the Founders relied on that were treatises on the law of nations. The most influential were those written by Hugo Grotius, Samuel Pufendorf, and Emer de Vattel. These scholars spent hundreds of pages outlining the scope of the law of nations, and offenses against that law, as then established.

In several provisions, the Constitution refers to specific bodies of jurisprudence. It does so, for example, in phrases such “on the subject of Bankruptcies,” “regulat[ing] Commerce,” and the “Privilege of the Writ of Habeas Corpus.” The Define and Punish Clause is another illustration of this practice: “Offences against the Law of Nations” denotes violations of established international law, as explicated by writers such as Grotius, Pufendorf, and Vattel. No more.

Fake News: How Two Leading Newspapers Spread the “Runaway Convention” Story in the 1960s & 1970s

Fake News: How Two Leading Newspapers Spread the “Runaway Convention” Story in the 1960s & 1970s

Although there were scattered antecedents, “runaway convention” claims and certain associated myths were first distributed widely during the 1960s and 1970s. In a previous Article V Information Center study, I documented how those stories were publicized by leading opinion-molders in national liberal establishment. Their goal was to disable the Article V convention process to prevent proposal of constitutional amendments to restrain the federal government.

Now a new Article V Information Center study shows how the two leading newspapers of the same liberal establishment worked with those opinion-molders. During the 1960s and 1970s, the New York Times and the Washington Post not only opposed a convention editorially, but their skewed their news stories to promote fake news “runaway” claims.

You can find the new study here.

The Convention of States in American History

The Convention of States in American History

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

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

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

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

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

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

For the entire history click here.