The Silver Lining in the Mistakes at the Assembly of State Legislatures

November 17, 2015 by Rob Natelson · Leave a Comment
Filed under: All Postings, Article V, The Founding 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: This article was first published in the American Thinker.

The Assembly of State Legislatures (ASL) has adjourned from its latest meeting, still without having produced a set of rules for an Article V amendments convention.

I have been an enthusiastic supporter of ASL. I have to acknowledge, however, that missteps have impeded its progress.

Fortunately, there is a very plush silver lining within the mistakes. For more on that, see below.

The latest missteps involved a set of rules proposed by the ASL executive committee. Some of these missteps involved procedure: Apparently there was insufficient consultation with professional drafters or with members of the ASL standing rules committee.

Not surprisingly, therefore, the product was marred by substantive deficiencies. Some of these were glaringly obvious to everyone except the drafters—specifically, a system of supermajority, weighted voting, and co-officer rules reminiscent of the political theories of John C. Calhoun. These devices directly violated the balance struck by the Constitution in Article V. They also would have rendered the convention unworkable by granting a veto at every stage to a minority unsympathetic with the convention’s goal.

The principal argument for this approach was that for an amendment to have a chance at ratification it had to enjoy supermajority support at the convention. But as I pointed out in two articles covering the subject (here and here), this argument is simply unsupported by actual convention experience.

I also predicted that the supermajority approach would promote extortion from the unsympathetic minority. As it turns out, my prediction was validated even earlier than I expected: During the ASL meeting itself, the supermajority/co-officer/weighted voting requirements encouraged minority lobbyists to demand, as the price of their support, that the convention agenda be expanded beyond the likely scope of its call. They demanded that the convention be designed to produce an amendment that very few states have applied for.

The general ASL membership attempted to address the glaring deficiencies by altering the executive committee draft. But in the pressure of time they largely overlooked something: That draft suffered from many other deficiencies as well.

These were not minor or merely typographical. They were of the type that would have impeded convention operations. A few days before the ASL meeting, another Article V scholar alerted me to the scope of the problem. The two of us, assisted by a third Article V specialist, soon identified at least 19 fundamental defects. They included:

* important omissions, such as failure to define the term “qualified majority,” the measure for electing co-presidents;

* oversights, such the one that rendered convention amendments to its rules unalterable;

* rules that flatly contradicted each other, such as two conflicting ways of electing the parliamentarian (or parliamentarians); and

* provisions that were legally void, such as an attempt to impose these rules as the initial pattern for future conventions.

Now the silver lining: These missteps happened only in planning sessions, not in the convention itself. To explain:

In the century before the Constitution was written, colonies and states met in convention at least 30 times—in other words, every 3-4 years. Not all of these gatherings was successful, but the failures of some laid the foundations for the success of others. The framers wrote Article V in the expectation, therefore, that state officials would be knowledgeable about, and comfortable with, the interstate convention process.

However, in the years since the Constitution was adopted, the states have met in convention only a handful of times. The last general convention was in 1861 and the last regional convention met in 1922. Hence, there is a lot of re-learning to be done.

Because it is so difficult to call an Article V convention, we have re-learn either through close study of the historical and legal record or through planning mistakes.

The ASL’s latest difficulties teach the following lessons:

* Don’t draft in secret or bypass normal processes;
* Don’t include provisions that impede the convention operations or contradict the balance struck by Article V;
* Obtain professional drafting assistance; and
* Remain non-partisan, but don’t try to forge an artificial bipartisanship with people who will oppose the goals of any convention likely in the near future.

On that last point: American history has included several events of significant constitutional reform. Some have been formal (the post-Civil War Amendments, the Progressive Era amendments). One has been informal (the New Deal).

The more important constitutional proposals did not result from compromise between parties with radically different visions. Significant reform came only after controversial proposals were presented for public consideration, and public consideration led to lopsided support.

But the proposals had to come first.

Answering Questions About the Voting Rules at a Convention for Proposing Amendments

November 2, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding, supreme court 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: This column appeared originally at the American Thinker.

In a recent post, I examined suggestions that a convention of the states for proposing amendments adopt a supermajority rule for proposing any amendment. Most commonly suggested is that the convention replace the traditional “majority of states decides” standard with a two thirds requirement.

I explained that this departure from history was politically unnecessary, would make it very difficult for the convention to propose anything, and likely would destroy the convention’s popular support.

This post answers other questions about the issue—including the possibility of a convention that fails to propose because it chokes on its own rules. No statesman will want to be part of such a convention.

In this Q&A I assume the supermajority is two thirds.

Q. Does the convention have the power to adopt a two thirds rule?

A. Yes. Contrary to ill-informed claims that Congress can write rules for the convention, in fact the convention controls its own rules. A simple majority of states present and voting have power to impose, or remove, a two thirds requirement. The issue here is not the power of the convention to require two thirds, but the advisability.

Q. Have earlier conventions altered the “majority of states decide” rule?

A. Many conventions have permitted a bare plurality to make committee assignments, but on substance they have stuck to the “majority of states decides” principle. My previous post lists four efforts to alter that principle, but all of them failed.

Q. The Constitution mentions a two thirds vote (of Congress to propose) and a three-fourths vote (of the states to ratify). Why shouldn’t the convention also be subject to a supermajority?

A. Except in specific cases where the Constitution provides for a supermajority, the constitutional rule for assembly decision-making is a simple majority of a quorum present and voting. This is based on the Founders’ understanding of parliamentary practice and court decisions such as Rhode Island v. Palmer and Dyer v. Blair.

The Constitution requires an amendment to clear many different hurdles. It balances that by requiring (unless there is a local rule to the contrary) only a majority to clear most of those hurdles. Thus: All stages of congressional proceedings except the final proposal vote require only a simple majority. If two thirds of the states apply for a convention, then Congress calls it by a simple majority. Congress chooses the “Mode of Ratification” by a simple majority. State legislatures voting on applications do so by a simple majority. State legislatures and conventions ratify or reject amendments by a simple majority. An interstate convention can propose by a simple majority. Clogging the process further with supermajority requirements in addition to those already specified would upset the constitutional balance.

Q. Are there other constitutional reasons for not subjecting the interstate convention to the two thirds rule?

A. Yes. The Founders told us that for proposing amendments, the Congress and the states were supposed to be in a roughly equal position. The Constitution requires Congress to muster two thirds on the final vote, but it does not require two thirds for Congress to consider the issue. On the other hand, the Constitution does not mandate that the states muster two thirds on the final vote, but it does require two thirds of them to agree before they are allowed to consider the issue in a proposing convention (the application process).

If we impose a two-thirds requirement on the states to at both stages—consideration and final vote—then that leaves them in an inferior position compared to Congress. This also undercuts the constitutional design.

Q. Isn’t it unlikely that a proposed amendment with only majority support will be ratified by three quarters of the states?

A. No one knows in advance. The proposal and ratification processes have very different dynamics. Proposal is centralized in a single body, occurs in a relatively short period of time, and tends to reflect public opinion at that time. Ratification is decentralized over many assemblies and the process takes a much longer time. It also requires long-term public agreement. You simply cannot use the same standard to predict the results of two such very different procedures.

For example, Congress repeatedly rejected the 17th amendment (direct election of Senators), but once it was proposed the states ratified it very quickly. On the other side, Congress proposed the Equal Rights Amendment by stunning majorities, but over time public opinion turned against it and the states rejected it.

Prior interstate conventions preparing proposals for the states have operated on a “majority decides” procedure. Sometimes the states have accepted their proposals, and sometimes not.

Intervening elections also influence ratification. A proposed amendment can become a campaign issue (as the 14th amendment did), and the ensuing elections can serve as an informal referendum on the subject.

Q. We don’t want a failed convention. If, say, only 29 states vote for a proposed amendment and it is not ratified, won’t that be seen as a failure?

A. You are right—we don’t want a failed convention. But as explained above, you cannot predict ratification by the vote at the proposal stage.

And if failure is a possibility, remember that some “failures” become historical successes while others earn only contempt.

Which would be a better precedent: (1) A convention that proposes an amendment that ultimately fails to win approval by 38 states, or (2) a convention that chokes on its own rules, deadlocks, and doesn’t propose anything at all?

I’d be much prouder to be part of the first kind of convention.

History offers some illustrations: The 1861 Washington Convention proposed an amendment that was never ratified, but its proceedings were dignified and they provided us with a “beginning-to-end” pattern for future use. On the other hand, the 1780 Philadelphia “Price Convention” deadlocked with no resolution. Its members haplessly adjourned to a future time, and when that time came, no one bothered to come.

In retrospect, the Washington Convention was a respectable effort and a useful precedent. The Philadelphia Price Convention invites contempt.

Contempt will be the fate, too, of a modern convention that accomplishes nothing because it has choked on its own rules.

Trying to Alter the Traditional Amendments Convention Voting Rule Is a Mistake

October 27, 2015 by Rob Natelson · 1 Comment
Filed under: All Postings, Article V, The Founding 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: This article first appeared in The American Thinker.

Advocates of a federal balanced budget amendment are closing in on the 34 states necessary to require Congress to call a convention for proposing amendments. Other groups, such as the Convention of States project, are working assiduously toward the same goal. If they succeed, it will a constitutional milestone, and a tribute to the dedication of millions of Americans who recognize that the federal government is sorely in need of reform.

Because a convention seems increasingly likely, some state lawmakers have been engaged in advance planning, which is very wise.

Less well considered are suggestions to modify traditional voting rules with an unprecedented system that would make it very difficult for the convention to actually propose any amendments.

Since the late 17th century, American states (and before them, colonies) have met in convention at least 36 times. Meetings of this type are essentially negotiating sessions among sovereigns, and therefore among equals. At those meetings, the voting rule for approving proposals has been a simple majority of states present and voting.

Some convention planners have suggested rejecting this tradition in favor of a rule by which no amendment could be proposed unless a super-majority of states (perhaps two thirds) approve it, or unless the approving states are entitled to a certain number of presidential electors. However, altering the traditional voting rule would be impractical and politically unnecessary, and could be politically disastrous.

Why changing the rule is impractical. The history of prior conventions shows such a change to be impractical. Because there is no widely-acceptable alternative to decision by a majority of states, prior efforts to adopt a different formula have always failed.

Here’s an early example: In the 1754 Albany convention, there was apparently talk about giving some colonies more voting clout than others. The official journal shows the convention rejected the idea “to avoid all disputes about the precedency of the Colonies.” The commissioners recognized that departing from the traditional system would bog them down in endless debate.

Another example: In 1783, Massachusetts called for a regional convention where decisions would be made by “a majority of delegates” rather than a majority of states. The attempt came to naught when two of the five states refused to participate.

Still another: In 1850, the Nashville Convention was the scene of competing motions by more populous states for weighted voting. After a day wasted in fruitless debate, the convention returned to the traditional rule of decision by a majority of states.

Yet another: In 1922, a seven-state convention met in several locations (but mostly in Santa Fe, New Mexico) to hammer out an interstate compact. The convention experimented with unanimous voting. The reason behind this was that any compact would have to be approved by all states anyway. In practice, however, the system worked poorly, and eventually broke down. The convention returned to decision making by a majority of states.

All of those gatherings were much smaller than a modern convention for proposing amendments. If negotiating a rule change among a handful of states proved impractical, it almost certainly would prove impractical in a 50-state convention. Moreover, even if the assembly approved such a change, states that applied for the convention on the assumption that traditional protocols would be honored, likely would walk out.

Why changing the rule is politically unnecessary. Altering the traditional rule is sometimes is justified this way: “Because a bare majority of thinly populated states could propose an amendment opposed by a majority of the U.S. population, we need a super-majority to assure this doesn’t happen.”


Suppose a bare majority of states, all with low populations, voted to propose an unpopular amendment. So what? The proposal would be merely a proposal. There is no harm in letting a popular minority offer proposals; after all, a minority in Congress may co-sponsor a bill. But just as it takes a majority of each house of Congress to actually pass a bill, it requires three fourths of the states to ratify an amendment. Put another way, if only only 13 (out of 99) legislative chambers say “no,” the proposal is dead. And that will be the fate of any proposal that lacks broad popular support.

Nor, in the real world, will an unpopular measure even be proposed. As the representatives of their respective state legislatures, most commissioners will be seasoned politicians unlikely to waste their time and political reputations promoting obvious losers.

Also, in the real world, the chance of a convention majority consisting only of small states is virtually nil. The current political configuration of America is such that any majority will consist of both large and small states. Sparsely-populated red state Wyoming will vote with big red states like Texas and Florida, not with little blue states like Vermont. Vermont will vote with big blues like New York and California.

So any majority will include a hefty number of large-population states. You can learn more about the fruitlessness of manipulating suffrage rules from an analysis by Article V expert David Guldenschuh.

Why changing the rule could be politically disastrous. If a convention is called, the principal reason will be the dedication of innumerable state lawmakers and grass-roots activists. Almost without exception, these citizens have acted in the belief that the convention will follow traditional protocols. If insiders try to change those protocols after the fact, the convention’s popular support will vanish in an instant.

I spent many years in politics, and I learned the hard way that it pays to learn from experience. Of course, convention rules have to be modified to meet modern technological conditions, but in the essentials planners must respect the lessons of the past.

The traditional voting system has worked for 300 years. It can work for us as well.

Still More Evidence That An Amendments Convention is a “Convention of States”

October 15, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding, supreme court 

2009 RGN

The term “convention of states” (or “convention of the states”) dates at least from the year 1780. By 1788 it was being applied specifically to a convention for proposing amendments under the new Constitution.

Throughout the 19th century, the phrase “convention of states” was probably the most common way to denominate an Article V convention—even more common than the formal name, “convention for proposing amendments.” In 1831, the U.S. Supreme Court itself referred to an amendments convention as a convention of the states. As far as I can find, before the 20th century no one confused it with a constitutional convention.

An earlier post listed official founding-era legislative documents and resolutions that specifically designated an amendments convention as a “convention of states.” The post you are reading, on the other hand, provides evidence from the debates over the Constitution’s ratification. Unlike the official documents, this material does not use the specific phrase “convention of states,” but it does show that participants in the ratification debates acknowledged that the convention would be state-controlled.

The ratification-debate quotations arose in the following context: The Constitution’s opponents argued that if the document proved defective in practice, it would be very difficult to amend. They therefore argued that a new convention should be called to rewrite or replace the document before the necessary nine states had ratified it.

On the other hand, the Constitution’s supporters asserted that it was better to ratify the document first, and then use Article V to remedy any shortcomings. The proponents contended that if amendments become necessary and Congress refused to propose them, then a convention could do so. Comments by both sides reflect the universal assumption that the proposing convention would be an agent of the state legislatures. They also reflect a universal assumption that the states could, through their applications, designate and limit the subject of the amendments.

At the time, there were 13 states. So nine states were necessary to ratify the Constitution, nine states were needed to force an amendments convention after ratification, and ten were required to ratify proposed amendments.

Here are some relevant comments:

* The anti-Constitution writer who signed his name “A Farmer” was probably John Mercer of Maryland, who had represented his state at the Constitutional Convention. In dismissing the amendments convention idea, he wrote, “I despair of proper state amendments.” (Italics added.) Instead he recommended a new convention before the Constitution was ratified. (12 Documentary History of the Ratification of the Constitution, p. 538).

* Samuel Chase (later to serve on the U.S. Supreme Court) agreed. He pointed out that “it is now [i.e., before the Constitution was ratified] in the power of five states to obtain amendments—afterwards there must be nine.” Id. at 640.

* Samuel Jones, a New York supporter of the Constitution, was a state lawmaker who served as a delegate to his state’s ratifying convention. He stated:

The reason why there are two modes of obtaining amendments prescribed by the constitution I suppose to be this—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. (Italics added.) 23 id., pp. 2523-24

* Tench Coxe was among the most widely-read Federalist essayist. He took head-on the argument of the Constitution’s opponents that, once ratified, the document would be impossible to amend:

It has been asserted, that the new constitution, when ratified, would be fixed and permanent, and that no alterations or amendments, should those proposed appear on consideration ever so salutary, could afterwards be obtained. A candid consideration of the constitution will show this to be a groundless remark. It is provided, in the clearest words, that Congress shall be obliged to call a convention on the application of two thirds of the legislatures; and all amendments proposed by such convention, are to be valid when approved by the conventions or legislatures of three fourths of the states. It must therefore be evident to every candid man, 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. Congress therefore cannot hold any power, which three fourths of the states shall not approve, on experience. (Italics in original.) 18 id., pp. 283-84.

* James Madison, who had been primarily responsible for the wording of Article V, stated the same thing more mildly. He noted that the Constitution “equally enables the General, and the State Governments, to originate the amendment of errors, as they may be pointed out by the experience on one side or on the other.” The Federalist No. 43.

Since Congress could propose amendments itself, Madison’s statement would have been inaccurate unless the states were able to propose by controlling the proposing convention.

* George Washington also understood that applying states would control the convention, since in April, 1788, he wrote to John Armstrong that “a constitutional door is open for such amendments as shall be thought necessary by nine States.” (Letter dated Apr. 25, 1788.)

* Alexander Hamilton showed the same understanding:

But every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. . . . And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.” Federalist No. 85.

Thus, those who addressed the issue during the ratification debates fully understood the state-based nature of the convention for proposing amendments—i.e., that such a gathering, like all of its predecessors, would be a “convention of states.” Their comments confirm past practice, the formal resolutions and other documents from contemporaneous state legislatures, and the U.S. Supreme Court. I have found no comments from the founding era that contradict this view.

How A Famous English Convention Clarifies the Role of a Convention of States

September 26, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding, supreme court 
Atop St. Paul's Cathedral, London

Atop St. Paul's Cathedral, London

Note: This article first appeared on the American Thinker website.

In the Anglo-American constitutional tradition, a “convention” can mean a contract, but the word is more often applied to an assembly, other than a legislature, convened to address ad hoc political problems. The “Convention for proposing Amendments” authorized by Article V of the Constitution is designed to be that kind of assembly.

The first political conventions were held in England in 1660 and 1688-89. These gatherings looked something like parliaments, but they were entitled “conventions” because only the Crown could call a parliament, and they were not called by the Crown. Moreover, they were convened to address specific constitutional issues, not to legislate.

The 1660 convention led to the restoration of the Stuart line of kings after the failed English experiment with republicanism under Oliver and Richard Cromwell. The 1688-89 convention dealt with the political crisis arising when the second James Stuart (i.e., James II) was forced to flee the kingdom by popular outrage over his arbitrary and unconstitutional misrule and by the invading army of William of Orange.

The American Founders were much influenced by the English convention experience, which they grouped with the gathering of the barons that forced King John to agree to Magna Carta (1215). Between 1689 and 1787, Americans themselves frequently used the convention device, either to address problems within particular polities (conventions of the people) or to address issues of regional or continental importance (conventions of colonies or states).

Particularly important to the American Founders were the proceedings of the 1688-89 convention because it led to parliamentary supremacy over the Crown and adoption of the English Bill of Rights—or, as that document was entitled after adoption, the “Declaration of Right.” Both our own Declaration of Independence and our Bill of Rights owe a great deal to the English Declaration of Right.

After James II’s flight had left the throne vacant, the two houses of the previous parliament instructed William of Orange to call a “Convention of the Estates of the Realm.” The estates of the realm were the lords and the commons, and they met separately. Each elected its own officers and decided on its own procedures. In essence, each estate had one vote, and the concurrence of each was necessary for the convention to approve any measure.

Thomas Babington Macaulay, the great 19th century English literary figure, described in Chapter 10 of his History of England the general philosophy under which the 1688-89 convention operated:

The business of an extraordinary convention of the Estates of the Realm was not to do the ordinary work of Parliaments . . . but to put right the great machine of government. . . .

On these grounds the Commons wisely determined to postpone all reforms till the ancient constitution of the kingdom should have been restored in all its parts, and forthwith to fill the throne without imposing on William and Mary any other obligation than that of governing according to the existing laws of England. In order that the questions which had been in dispute between the Stuarts and the nation might never again be stirred, it was determined that the instrument by which the Prince and Princess of Orange were called to the throne, and by which the order of succession was settled, should set forth, in the most distinct and solemn manner, the fundamental principles of the constitution. This instrument [was] known by the name of the Declaration of Right . . .

After describing the contents of the Declaration, Macaulay added:

But, though a new constitution was not needed, it was plain that changes were required. The misgovernment of the Stuarts, and the troubles which that misgovernment had produced, sufficiently proved that there was somewhere a defect in our polity; and that defect it was the duty of the Convention to discover and to supply.


Thus the Convention had two great duties to perform. The first was to clear the fundamental laws of the realm from ambiguity. The second was to eradicate from the minds, both of the governors and of the governed, the false and pernicious notion that the royal prerogative was something more sublime and holy than those fundamental laws. The former object was attained by the solemn recital and claim with which the Declaration of Right commences; the latter by the resolution which pronounced the throne vacant, and invited William and Mary to fill it.

Today, the role of the Convention for Proposing Amendments should be seen, and usually is seen, in much the same light: not to alter the fundamentals of the Constitution, but to

* clarify the Constitution’s true meaning by sweeping away false interpretations that have accrued over the years and

* adopt changes that require the federal government to comply with the vision of the Founders in modern conditions.

The first goal can be met by amendments overruling rogue Supreme Court decisions, just as amendments previously have been used for that purpose. The second can be met by, for example, requiring a balanced budget, more firmly limiting federal authority, and reorganizing the judiciary so that it more fairly applies the constitutional system of checks and balances.

More discussion of the law of Article V Conventions, appears in my legal treatise on the subject.

Term Limits for the Supreme Court?

August 23, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding, supreme court 
Rob at Ullswater, England (2012)

Rob at Ullswater, England (2012)

This article first appeared in the American Thinker.

Term limits are among the reforms being proposed by advocates of curbing federal government abuses through the Constitution’s Article V amendment process.

The idea of congressional term limits has been around for some time. But more recent discussion centers on term limits for the judiciary, especially for the Supreme Court.

In fact, one application for an amendments convention now making the rounds—the Convention of States Application sponsored by Citizens for Self-Governance—is broad enough to include judicial term limits. Although a fairly new offering, it already has been approved by the legislatures of four of the necessary 34 states.

Part of what is driving the talk of judicial term limits is the Supreme Court’s continued failure to honor important parts of the U.S. Constitution. Admittedly, the Court does a pretty good job interpreting some parts of the document. The Intellectual Property Clause is one example. Moreover, the current Court is certainly more conscientious in constitutional cases than the rogue justices who dominated the bench throughout much of the 20th century, and who re-wrote critical portions of the Constitution to suit themselves.

Nevertheless, the present justices are to blame for failing to correct the constitutional fictions of their 20th century predecessors—and for sometimes writing fiction of their own.

Another factor justifying term limits has little to do with specific case outcomes. This is the enormous increase in life expectancy since the Constitution was written. Extended life expectancy is generally a good thing. But when it is coupled with lifetime appointments, the effect is to skew the balance of powers the Founders created.

When the Constitution was ratified, a newly-appointed justice might expect to serve less than 12 years. In fact, the average tenure of the first ten justices was about 8-1/2 years. By contrast, the average tenure of the latest ten to retire was 21-1/2 years. An article by Adrienne LaFrance provides additional statistics.

The Constitution’s checks and balances were crafted with 18th century life expectancies in mind. Although the Founders understood that the Supreme Court would void laws it found unconstitutional, the Founders also expected much more turnover than we now have. When judicial tenure is shorter, the President can nominate, and Senate can approve, more replacements. During the Founding Era, if the Court issued an irresponsible or clearly wrong opinion, citizens could take comfort from the fact that a majority of the Court would be replaced in a few years. That is no longer the case.

The strongest argument in favor of lifetime appointment is that it protects judicial independence. Proposals for short terms with possibilities for reappointment or retention, such as that advanced recently by Sen. Ted Cruz (R.-Tex.) are defective because they do not protect judicial independence.

But we can increase turnover and preserve independence through a constitutional amendment instituting a single long term (e.g., 12 to 20 years) without possibility of reappointment. Such an amendment would have other advantages, too:

First, it would end the presidential game of appointing young and relatively inexperienced justices in the hope that they will continue to influence the Court decades after the appointing President is gone. Of course, in the real world, younger justices often do not have an adequate track record, and may be more readily corrupted by influences in the nation’s capital. If a nominee could serve only, say, 12 years, a President might feel freer to nominate a person in his 60s rather than one in his 40s or early 50s.

Additionally, a younger nominee would have to consider a future career as a private citizen, living under the decisions he made as a justice.

Finally, more rotation on the Court would re-boot the system toward the balance set by the Founders, rendering mistaken decisions more amenable to ultimate correction by the people themselves, acting through the political process.

Proposed Rules for An Article V Convention!

August 14, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V 

2009 RGN

If 34 state legislatures forced Congress to call a convention for proposing amendments, what would the rules look like?

The Convention of States movement (CoS) wanted an answer to this question. So its president asked me to take the lead in drafting sample rules. Then CoS would present them to state legislators for comment. This process might also provide the convention itself with a starting-point for preparing its own rules.

We presented the results at a conference last month in San Diego, California. The conference was sponsored by the American Legislative Exchange Council, one of the nation’s largest associations of state lawmakers.

The sample rules are available here. BEFORE READING THEM, PLEASE OBSERVE THE FOLLOWING:

* Important explanations appear in the footnotes.

* The final decision on convention rules is up to the convention itself. However, state legislators can recommend particular rules or instruct their commissioners (delegates) to vote only for particular rules. In calling the convention, Congress may recommend rules but may not prescribe them.

* These proposals were not invented out of thin air by me or by anyone else. For the most part, they are similar to rules actually adopted by previous conventions of states—notably the 1861 Washington Conference Convention, but also the 1787 Constitutional Convention and others.

* There have been updates to take into account modern conditions. Those updates are explained in the footnotes.

* Most of these rules can be adapted to any amendments convention, but the last two are designed especially for a convention called under the three-part application sponsored by the Convention of States movement. The three parts are (1) fiscal restraints on the federal government, (2) limits on the power and jurisdiction of the federal government, and (3) federal term limits. Those would be only subjects allowed, and the rules provide that other subjects are out of order. (Claims that the convention could consider other subjects are misinformed.)

CoS soon will offer a website that will allow public comment.

“Runaway Convention” Nonsense—One More Time

August 12, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding 

041410 Rob Natelson-2

Seldom has a claim so weak been so often advanced than the claim that a convention for proposing amendments would be a “constitutional convention” that could “run away”—that is, disregard its limits and propose amendments outside its sphere of authority.

I have little patience with this sort of alarmism, partly because it is so patently based on ignorance of history and constitutional law and partly because it first widely publicized as part of a deliberate disinformation campaign to disable one of our Constitution’s key checks and balances.

Nevertheless, early in 2013 I took the time to pen a lengthy rebuttal to the runaway scenario, examining the question from almost every possible angle. I did, however, leave one thing out: Modern communications technology makes a “runaway” essentially impossible.

I have, therefore, added the following to my 2013 essay:

There is another aspect of this the “runaway” theorists overlook: modern communications. Even if the 1787 convention had run away, modern communications render the analogy an ill-fitting one. As Walter Phelps Hall and Robert Greenhalgh Albion pointed out in their History of England over 60 years ago, before modern communications diplomats were unable to consult home authorities quickly and sometimes had to make decisions that presented those authorities with a fait accompli. But today’s communications enable the authorities to control their diplomats to the point that the latter can be turned into “nothing but damned errand boys at the end of a wire.” At any convention for proposing amendments, the state commissioning authorities will be in constant contact with their commissioners.

A Convention of States in “Gone With the Wind”

August 9, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V 
Rob at James Madison's home in Virginia

Rob at James Madison's home in Virginia

Margaret Mitchell, the author of the hugely popular novel Gone With the Wind, was a newspaper reporter and the child of a family steeped in history. Her father, a prominent Georgia attorney, was one of the leading lights in the state historical society.

That her book has a plethora of references to historical events occurring during the 1860s is therefore not surprising.

In early 1861, after some of the Southern states had seceded, Virginia sought to head off further secession and civil war by calling a general (national) convention of the states. The goal was to propose a constitutional amendment that both sides would find acceptable.

All but a few states sent commissioners to the Convention, which met from February 4 through February 27. More information about the convention appears here.

On page five of Gone With the Wind, Scarlett O’Hara refers to it:

“You know there isn’t going to be any war,” said Scarlett, bored. “It’s all just talk. Why, Ashley Wilkes and his father told Pa just last week that our commissioners in Washington would come to—to—an—amicable agreement with Mr. Lincoln about the Confederacy.”

Scarlett was intelligent, but she was a spoiled young girl who had avoided studying her history or her Latin, and she was not much interested in current events, except insofar as they affected the availability of adoring “beaux.” On a number of occasions, Mrs. Mitchell demonstrates Scarlett’s ignorance, and this may be one of those occasions. At the time Scarlett was supposedly speaking, the Washington Convention already had adjourned. Moreover, her own state of Georgia seceded during the month before the convention and therefore had not sent “commissioners” to Washington.

Whither the Article V Convention Movement? David Guldenschuh Reports

August 2, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V 
David Guldenschuh

David Guldenschuh

The movement for a “convention for proposing amendments” won some stunning successes in the 2014 state legislative sessions. There was more progress during the 2015 sessions—several applications were passed and none was repealed—but the rate of progress slowed.

So where are we now? Georgia lawyer and Article V expert David Guldenschuh has issued a detailed status report on the movement. Particularly engaging are his profiles of some its leading legislative opponents.

Article v advocates also will be interested in tactics he recommends for the immediate future.

A copy of the report is available here.

As is true of any outside material, this report contains opinions that are not necessarily my own, or those of the Independence Institute or the Article V Information Center. But Guldenschuh has done a great deal of work on the subject, and his Article V analyses are always worth reading.

Next Page »