Well over a hundred state lawmakers from 33 states met this past week to plan for an Article V “Convention for Proposing Amendments.” Most attendees had been appointed officially as delegates by the leaders of their respective state legislatures.
The highly successful meeting dealt with such issues as convention rules and procedures, how to involve more legislatures in the process and how Congress should count applications. A key committee decided that, as with all prior interstate conventions, any Article V gathering should be conduced on the “one state/one vote” principle. The committee also decided that the basic source for convention rules would be Mason’s Manual, a familiar source now used by 70 of the 99 state legislative bodies (99 because there are two legislative chambers in 49 states each and one in Nebraska).
This was the second meeting of this group, formerly called the Mt. Vernon Assembly, but now the Assembly of State Legislatures. The effort is strictly bipartisan, and no special interest contributions are accepted.
A highlight of the proceedings came when the general session of the Assembly held its first rollcall vote—by states! The counting process was a little ragged the first time, but smoother the second. It was an electric moment. One member said later, “I was thinking, ‘Wow, this is really how it’s going to be!’”
Among those to be credited with conceiving and leading the Assembly are Rep. Chris Kapenga (Wisc.), Sen. David Long (Ind.), and Rep. Gary Banz (Okl.) The presiding officer for the general sessions was Rep. Matt Huffman (Ohio).
It increasingly looks like a “convention for proposing amendments” is really going to happen. The last 18 months have witnessed a flood of new state legislative applications for such a convention.
New Hampshire re-booted the process in 2012 with an application for a convention limited to considering a balanced budget amendment.
Late last year, the Ohio legislature passed a similar application by strong bipartisan majorities. The Tennessee legislature soon followed, by an overwhelming vote. Next came Michigan and Georgia. Florida then cured a defective 2010 application. The most recent action was in Louisiana, where the vote was not only bipartisan, but unanimous.
The balanced budget advocates now claim 24 of the 34 states necessary to force a convention, although my reading of the applications and the law puts the figure at 21. Either way, it is an extraordinary development.
In addition, four states have passed “faithful delegate acts” providing for discipline of convention commissioners, most recently Florida. (I’ll review the Florida law next week.)
There’s more: This year three states adopted the broader Convention of States application that permits the convention to consider amendments (but only amendments) that “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.” Those states are Florida, Georgia, and Alaska.
In addition, the Vermont legislature adopted the only “progressive” application—a proposal to restrict the scope of First Amendment freedoms. No other states have followed suit, and there is little chance that many will. Whatever dissatisfaction there may be with “money in politics,” most people recognize that far greater problems are federal overreach and looming federal bankruptcy.
A spate of new applications from state legislatures for a “convention for proposing amendments” make it more likely that we will have an amendments convention in the near future. In order to get ready for this historic event, lawyers, legislators, and others involved in the process need a reliable guide to the law governing amendment conventions.
Citizens for Self Governance has just published my legal treatise on the subject as part of their Convention of States project. It is called A Compendium for Lawyers and Legislative Drafters. In addition to over 80 pages of original material, it includes important and reliable scholarly articles on the subject. You can download it for free here.
Filed under: All Postings, Article V, The Founding, supreme court
(This article originally appeared in the American Thinker.)
Opponents of a Convention of States long argued that there was an unacceptable risk a convention might do too much. It now appears they were mistaken. So they increasingly argue that amendments cannot do enough.
The “too much” contention was first promulgated in modern times by apologists for the liberal, ultra-activist Earl Warren/Warren Burger Supreme Court. Specifically, these apologists feared a convention might propose amendments to reverse their favorite judicial decisions. Their tactic was to claim that an amendments convention, even if legally limited, could turn into a “con-con” that disregarded its limits, repealed the Bill of Rights, and restored slavery. (Yes, some of them really said that.)
The liberals who promoted this scenario must have been amused when some deeply conservative groups fell into the trap and began using the same argument to kill conservative amendments.
The “too much” line, however, has been losing its persuasiveness. New research shows it to be legally and historically weak, and Americans increasingly are pondering the very real dangers of not resorting to the convention process the Founders bequeathed to us.
Hence the shift to the “too little” argument. Its gist is that amendments would accomplish nothing because federal officials would violate amendments as readily as they violate the original Constitution.
Opponents will soon find their new position even less defensible than the old. This is because the contention that amendments are useless flatly contradicts over two centuries of American experience — experience that demonstrates that amendments work. In fact, amendments have had a major impact on American political life, mostly for good.
* * * *
The Framers inserted an amendment process into the Constitution to render the underlying system less fragile and more durable. They saw the amendment mechanism as a way to:
* correct drafting errors;
* resolve constitutional disputes, such as by reversing bad Supreme Court decisions;
* respond to changed conditions, and
* correct and forestall governmental abuse.
The Framers turned out to be correct, because in the intervening years we have adopted amendments for all four of those reasons. Today, nearly all of these amendments are accepted by the overwhelming majority of Americans, and all but very few remain in full effect. Possibly because ratification of a constitutional amendment is a powerful expression of popular political will, amendments have proved more durable than some parts of the original Constitution.
Following are some examples:
Correcting drafting errors
Although the Framers were very great people, they still were human, and they occasionally erred. Thus, they inserted in the Constitution qualifications for Senators, Representatives, and the President, but omitted any for Vice President. They also adopted a presidential/vice presidential election procedure that, while initially plausible, proved unacceptable in practice.
The founding generation proposed and ratified the Twelfth Amendment to correct those mistakes. The Twenty-Fifth Amendment addressed some other deficiencies in Article II, which deals with the presidency. (My reference to a particular amendment does not mean I agree with every provision in it.)
Both the Twelfth and Twenty-Fifth Amendments are in full effect today.
Resolving constitutional disputes and overruling the Supreme Court
The Framers wrote most of the Constitution in clear language, but they knew that, as with any legal document, there would be differences of interpretation. The amendment process was a way of resolving interpretative disputes.
The founding generation employed it for this purpose just seven years after the Constitution came into effect. In Chisholm v. Georgia, the Supreme Court misinterpreted the wording of Article III that defines the jurisdiction of the federal courts. The Eleventh Amendment reversed that decision.
In 1857, the Court issued Dred Scott v. Sandford, in which it erroneously interpreted the Constitution to deny citizenship to African Americans. The Citizenship Clause of the Fourteenth Amendment reversed that case.
In the 1970, the Court decided Oregon v. Mitchell, whose misinterpretation of the Constitution created a national election law mess. A year later, Americans cleaned up the mess by ratifying the Twenty-Sixth Amendment.
All these Amendments are in full effect today, and fully respected by the courts. Some argue, in fact, that the Supreme Court actually over-enforces the Eleventh Amendment — a contention with which I do not agree.
Responding to Changed Conditions
The Twentieth Amendment is the most obvious example of a response to changed conditions. Reflecting improvements in transportation since the Founding, it moved the inauguration of Congress and President from March to the January following election.
Other amendments as well were wholly or partially triggered by changed conditions. The Seventeenth Amendment, which transferred elections for Senators from the state legislatures to the people, is still controversial in some quarters. But it was adopted only after social changes had caused widespread breakdown in the prior election system. (That is why the state legislatures themselves sought the change.) With the partial exception of Mark Levin, few if any of its critics address the very real problems the Seventeenth Amendment was designed to solve.
Similarly, the Nineteenth Amendment, which assured women the vote in states not already granting it, was passed for reasons beyond simple fairness. When the Constitution was written, overwhelming domestic duties and very short female life expectancies effectively disqualified most women from politics. During the 1800s, medical and technological advances made possible by a vigorous market economy improved the position of women immeasurably and rendered their political participation far more feasible. Without these changes, I doubt the Nineteenth Amendment would have been adopted.
Needless to say, the Seventeenth, Nineteenth, and Twentieth Amendments all are in full effect many years after they were ratified.
Correcting and forestalling government abuse
Avoiding and correcting government abuse was a principal reason the Constitutional Convention unanimously inserted the state-driven convention procedure into Article V. Our failure to use that procedure helps explain why the earlier constitutional barriers against federal overreaching seem a little ragged. Before looking at the problems, however, let’s look at some successes:
* In 1992, we ratified the Twenty-Seventh Amendment, 203 years after James Madison first proposed it. It limits congressional pay raises, although some would say not enough.
* In 1951, we adopted the Twenty-Second Amendment, limiting the President to two terms. Eleven Presidents later, it remains in full force, and few would contend it has not made a difference.
Now the problems: Because we have not used the convention process, the first ten amendments (the Bill of Rights) remain almost the only amendments significantly limiting congressional overreaching. I suppose that if the Founders had listened to the “amendments won’t make any difference” crowd, they would not have adopted the Bill of Rights either. But I don’t know anyone today who seriously claims the Bill of Rights has made no difference.
In fact, the Bill of Rights continues to have a huge impact more than two centuries after adoption. The courts enforce, to at least some extent, all of the original ten except, arguably, the Ninth. Some, such as the First Amendment, have been “super enforced.” Others, such as the Second and Fourth are under relentless pressure, but remain far better than nothing at all.
What about the Ninth and Tenth? They are certainly under-enforced today, but we must remember that they enjoyed full effect for nearly 150 years. No reasonable person would classify 150 years of effect as anything but a stellar political success. Even today, the Tenth retains some of its power, as Congress learned when the Supreme Court upended its effort to corral all the states into the Obamacare Medicaid expansion.
“I have but one lamp by which my feet are guided; and that is the lamp of experience,” Patrick Henry said. “I know of no way of judging of the future but by the past.”
In this case, the lamp of experience sheds light unmistakably bright and clear: Constitutional amendments work.
Many opponents of an Article V convention seem to think that it would be a nearly unique event, for which the “only precedent” would be the 1787 constitutional convention. Some even go so far as to oppose non-Article V gatherings among the states.
As regular readers know, the idea that a convention of states would be a nearly unique event is pure balderdash. Meetings among sovereign states (and before Independence, American colonies) on constitutional and other issues, have been a staple of American life for over 300 years. I’ve counted at least 35 of them since 1689—21 before Independence, ten in the first 11 years of Independence, and another four since the Constitution was ratified (1814, 1850, 1861, and 1922). Several of these conventions proposed constitutional changes.
In addition, the states have often commissioned problem-solving task forces that look a lot like conventions even if they don’t comply with all the technical criteria. Here’s a modern example:
The Delaware River Basin Advisory Committee was a task force consisting of commissioners from four states (Delaware, Pennsylvania, New York, and New Jersey) and two cities (New York and Philadelphia). In 1959 and 1960, it negotiated the Delaware River Basin Compact. The states arranged this compact largely to preempt federal efforts to control the waters of the Delaware River. Despite being upstaged, Congress ultimately approved the deal, as required by Article I, Section 10 of the Constitution.
One could argue that Delaware River Basin Advisory Committee fits all the criteria for “a convention of states.” Participation by the cities certainly didn’t disqualify it as such: Representatives from other governmental units participating in multi-state conventions, while unusual, was not unprecedented. But because of its informality and the length of its existence (handling several tasks over several years), I’d prefer to call the Delaware River Basin Advisory Committee a “quasi-convention.”
Yet it certainly represents yet another event in the long history of conventions and convention-style meetings among states.
In other words, for an Article V convention, we have precedents by the bushel. For the legal and practical implications of this, see this prior posting.
For over 300 years, American states (and before Independence, American colonies) have cooperated with each other as equal sovereigns to address common problems.
One device for doing so is the formal, diplomatic meeting of state delegations (called “committees”) consisting of delegates (called “commissioners”). Meetings of state commissioners may be bilateral—as when two states form a boundary commission to resolve a boundary dispute. Such gatherings also may be multilateral—that is, with three or more state committees participating. The usual label for a multi-state meeting is convention.
Most commentators on the Constitution have shown no familiarity with any multi-state conventions other than the 1787 Constitutional Convention and (sometimes) the Annapolis Convention held the previous year. Some opponents of the Article V “convention for proposing amendments” have even argued that the 1787 gathering is our only historical precedent.
The truth is dramatically different. Far from the 1787 Philadelphia convention being unique, at the time it was more like business as usual. Over the previous century, there had been more 30 conventions among colonies and states. The Constitutional Convention was the 11th held since Independence had been declared in 1776. Others had been held in Providence (twice), York Town, PA (1777), Springfield (1777), Hartford (twice), New Haven (1778), Philadelphia (1780), Boston (1780), and Annapolis (1786).
After the Constitution was adopted the states met less frequently, but they did continue to meet. The New England states convened in Hartford, Connecticut in 1814. The Southern states gathered in Nashville, Tennessee in 1850. And the states held a general convention—one to which every state was invited—in Washington, D.C. in 1861. The Washington Conference Convention, as it was labeled, was called to propose to Congress a constitutional amendment to ward off Civil War. It did produce such an amendment, but Congress failed to act on it.
There was at least one more recent gathering as well. In 1922, seven southwestern states sent commissioners to negotiate the Colorado River Compact. Although the assembly was called the Colorado River Commission, it was in all respects a convention of states, and it may be called the “Santa Fe Convention,” after the city where its most important sessions were held.
The group convened 27 times over the course of a single year. The first seven sessions occurred in Washington, D.C., the eighth in Phoenix, the ninth in Denver, and the remaining 18 in Santa Fe.
The convention consisted of seven commissioners, one from each participating state. This made it one of the smaller interstate conventions, but by no means the smallest. The group decided to include a federal representative, Secretary of Commerce Herbert Hoover—then perhaps the best known and most highly-regarded engineer in the world. Including a federal representative was advisable because, unlike proposed constitutional amendments, interstate compacts must be approved by Congress.
However, inclusion of a representative of another sovereignty in a multi-state convention was well-precedented: several inter-colonial conventions had included commissioners from the British Crown or from sovereign Indian tribes.
The Colorado River Commission followed all the principal rules for a convention of states:
* Each state had one vote;
* The convention decided on its own procedures;
* The convention elected its own officers—a chairman who was a commissioner and a secretary who was not;
* After the initial call, the convention controlled the time and place of meeting;
* The commissioners stayed within their prescribed agenda; and
* They produced a recommendation ultimately ratified by the participating states.
There also were three more unusual aspects. First, because of the special needs of interstate compacting, the group adopted a unanimous voting rule. By unanimous vote, they later changed this temporarily, allowing approval of resolutions by a majority of states. Second, the convention adjourned for weeks at a time to allow the technical staff to do its work. This was not unprecedented: The Nashville Convention first met in June, 1850 and then adjourned to November. Finally, the convention decided to rotate its meetings among several different cities.
Most importantly, the Santa Fe gathering provides us with yet another, relatively recent, instance of sovereign American states meeting in convention.
NB: Thanks to Nick Dranias of the Goldwater Institute for his insights into interstate-compact negotiation process. They were helpful in preparing this post. Also, thanks to Peg Brady for her research.
The Cato Institute has published a new paper by Professor John Dinan that summarizes all the credible ways in which the states can and do push back against Washington, D.C. The only omission to this excellent summary is the states’ amendment powers under the Constitution’s Article V. (Although the states have never forced Congress to call an amendments convention, they often have used their Article V powers, successfully or unsuccessfully, to force changes in federal policy.)
Professor Dinan’s paper summarizes such techniques as state lawsuits against federal officials, refusal to participate in federal programs, refusal to cooperate with federal criminal law, and others. It is a good resource for citizens and state officials who wish to restore the Constitution’s balance of power between the states and the central government.
Groups opposed to calling an Article V convention often cite an old letter written by the late Chief Justice Warren Burger opposing such a convention. It is strange that those groups should be quoting Berger, because they also purport to oppose the liberal activism—notably the abortion decision of Roe v. Wade—practiced by the Court when Burger was Chief Justice. (Burger voted with the majority in Roe.) Naturally, those groups never acknowledge that Justice Antonin Scalia, a far more principled and talented justice than Burger, has strongly advocated for an amendments convention.
In any event, Roe v. Wade does offer a hint as to why Burger would write a letter opposing a convention for proposing amendments.
First, consider that Burger seems to have known very little about Article V. He wrote his letter well before the publication of modern research on the subject. Unlike Justices Rehnquist and Stevens, he appears never to have heard an Article V case. Supreme Court justices sometimes publish articles on issues they have researched, but the legal databases reveal nothing on Article V ever published by Burger. Indeed, his ignorance of the subject appears in the letter itself, which erroneously labels the gathering a “constitutional convention” and repeats the old myth the 1787 convention exceeded its authority.
So, why would he write so firmly about a procedure of which he apparently knew little? Again, Roe v. Wade offers a clue.
In the 1960s (before Burger was Chief Justice) the Supreme Court embarked on a course of extreme liberal activism. The Court’s decisions triggered repeated calls for constitutional amendments to overrule them. For example, Senator Everett Dirksen (R.-Ill.) led a very successful application campaign (33 states signed on) for a convention to partially reverse some of the Court’s edicts on legislative apportionment. In response, liberal defenders of the Court widely popularized the claim—repeated by Burger in his letter—that an Article V convention would be uncontrollable.
Contrary to some expectations, the Court continued to be nearly as activist after Burger became Chief Justice. Roe v. Wade is a premier example. That case, and some others, provoked more calls for constitutional amendments to curb what many believed was very arrogant bench.
Burger’s letter was the last of three featured by convention opponents. The first two were written while he was still serving as Chief Justice. One of them reveals concern with the fact that President Reagan was then advocating a convention to amend the Constitution—a procedure that eventually could lead to reversal of his own court’s ultra-activist decisions, including but not limited to, Roe v. Wade.
In other words, Burger was protecting his court from popular efforts to control it through the amendment procedure of Article V.
This was a natural impulse on Burger’s part. But it is hardly the kind of evidence that should persuade anyone on the merits of holding an Article V convention. Particularly anyone who purports to oppose judicial activism of the kind represented by Roe v. Wade.
Some alarmists are comparing an Article V convention to the Republican and Democratic National Conventions. The argument is that an amendments convention can be manipulated or stampeded just as a national party convention can be.
The comparison is absurd—so much so that it shows mostly a lack of knowledge of the Article V process.
First, consider the national party mob scenes. The 2012 Democratic convention had 5554 delegates; the GOP conclave 2286. To forestall any stampede, each was tightly time-limited and controlled from the front. Most of the delegates were not particularly distinguished: They were selected for party loyalty and because they had agreed to support a particular candidate. They had little or no effective input.
Now contrast this with the practice of multi-state conventions.
America’s last general convention of states (Washington, D.C., 1861) had 132 commissioners. All were selected as their respective state legislatures determined. In practice, most were chosen either by the legislatures themselves or by governors with the consent of one or both chambers. The commissioners were certainly not at the intellectual level of our Founding Fathers, but they were a distinguished and sophisticated group. They successfully crafted a compromise amendment that, if ratified, might well have prevented the Civil War.
Of course, there are more states now than there were in 1861, so we can expect a bigger convention. But because each state has one vote, there is little incentive to send huge delegations.
How large is a modern multi-state conclave likely to be? History gives us a clue.
I have been able to identify 14 official multi-state conventions since 1776. (By “official” I mean that participation was authorized by the state legislature or, in the recess of the legislature, the executive.) The average size of each state committee has been about five. The median has been between three and four.
Thus, a reasonable estimate is that a convention for proposing amendments might contain about 250 commissioners—less than 5% the size of the Democratic National Convention. It could be even smaller if the states agreed beforehand to limit the size of their committees.
Because these commissioners will be selected by and responsible to their respective state legislatures, they, too, will be a seasoned group. They certainly will not be readily manipulated or stampeded.
Article V opponents need to stop fabricating objections and work to ensure that if a convention happens, it does so successfully.
Filed under: All Postings, Article V, The Founding, supreme court
In 1988, Oxford University Press published Russell Caplan’s book Constitutional Brinksmanship. It revealed some of the extensive history behind the Convention for Proposing Amendments in Article V of the Constitution.
More recently, we have learned much more about that history. We now know that there were over 30 multi-colony and multi-state conventions before the Constitution was adopted, and that the Convention for Proposing Amendments was based on them. We know what their rules were and how they used the terms that the Framers used in Article V. We also have uncovered a rich history of multi-state conventions and Article V activity after the Constitution was adopted.
Anti-convention alarmists were generally unaware of this history and have been embarrassed by these findings. Some of them, therefore, are now making the astounding claim that all of this prior practice is simply irrelevant!
But the U.S. Supreme Court says they are wrong. So do many other courts. In fact, for over two centuries now, the judiciary has used historical practice to interpret the words in Article V. The courts know that they must consult the Founders’ experience to understand how they used terms like “legislature,” “application,” “call,” “ratify, and “convention.” When that evidence isn’t decisive, the courts turn to later practice for guidance. This is settled constitutional law.
And as any constitutional lawyer can tell you, in recent years the Supreme Court has become even more attuned to history in answering constitutional questions.
Since the courts may have to resolve future Article V issues, their precedents provide far more insight than the unsupported speculations of alarmists.
Listed below are a few of the cases that have used history to interpret Article V. A “U.S.” citation means the case was decided by the U.S. Supreme Court. Most of the others are federal court cases; two were issued by state courts.
* Hollingsworth v. Virginia, 3 U.S. 381 (1798) (following the practice used in proposing the first ten amendments to uphold the 11th).
* Hawke v. Smith, 253 U.S. 221 (1920) (citing Founding-Era evidence to define what the Framers meant by the Article V word “legislature”)
* Barlotti v. Lyons, 182 Cal. 575, 189 P. 282 (1920) (also citing Founding-Era evidence to define what the Framers meant by the Article V word “legislature”).
* Leser v. Garnett, 258 U.S. 130 (1922) (relying on history to affirm the procedure that ratified the 19th amendment).
* Opinion of the Justices, 132 Me. 491, 167 A. 176, 179 (1933) (consulting history to determine how delegates are chosen to a state ratifying convention).
* United States v. Gugel, 119 F.Supp. 897 (E.D. Ky. 1954) (citing the history of judicial reliance on the 14th amendment as evidence that it had been validly adopted)
* Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975) (Justice Stevens) (relying extensively on history to determine whether Illinois had validly ratified a proposed amendment)
* Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho 1981) (also relying on history in discussing a range of questions)