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)
A new book, edited by Professor Neil H. Cogan, has just been issued in which well-known constitutional scholars from across the political spectrum explore issues of state interposition, nullification, and secession.
I am among the contributors: I wrote the second chapter, which is entitled James Madison and the Constitution’s Convention for Proposing Amendments.
My chapter explains the background of the convention for proposing amendments, and the evolution of James Madison’s thoughts on the subject. Some have used a carefully isolated quotation to claim that Madison was opposed to the amendments convention concept, but in fact the quotation reflected his opposition only to a 1789 convention call that he deemed too broad and pre-mature. Moreover, Madison grew more friendly to the concept as he progressed in life, and eventually promoted it as a far better alternative than nullification.
My chapter includes extensive citations to Madison’s letters, as well as to a variety of Founding-Era sources.
May state legislative applications limit an Article V convention? Subject, yes; specific language, probably not (Part II of 2)
As noted in my last post, some excellent constitutional scholars believe state applications for a convention for proposing amendments may limit the convention to voting “yes” or “no” on a specifically-worded amendment. A prescribed-wording application, they say, reduces the fear of a “runaway” convention and places the state legislatures in the equal position with Congress that Article V of the Constitution was designed to give them.
I agree with those scholars that state applications may limit the convention to one or more subjects. But I think the risks of trying to limit the convention to an up-or-down vote on a specifically-worded amendment are just too great. The risks are legal, political, and practical.
The Legal Problems.
I believe there is a good chance courts reviewing prescribed-wording applications would invalidate them as not qualifying as proper “applications” at all. Here’s why:
* The text of the Constitution grants the convention, not the applying state legislatures, the power to “propos[e] Amendments.” The Framers could have drafted language permitting the states to propose amendments directly (some modern commentators have suggested such an approach), but they did not. One possible reason is the belief that a convention of all the states is more likely to produce a well-thought-out, widely-acceptable proposal than two-thirds of states, meeting apart before the convention has even opened.
* While it is true that a purpose of Article V is to give state legislatures a role co-equal to Congress as a promoter of amendments, that purpose is served by the make-up of the convention: a gathering of state delegations, chosen and instructed by the state legislatures.
* A long line of court cases holds (almost without dissent) that assemblies empowered by Article V must enjoy a certain amount of deliberative freedom (although this does not mean infinite deliberate freedom). See, e.g., Miller v. Moore, 169 F.3d (8th Cir. 1999); Bramberg v. Jones, 20 Cal. 4th 1045, 978 P.2d 1240 (1999); Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975) (opinion by Justice Stevens). Thus, the courts have voided measures, such as ballot language and referenda, that try to dictate to Article V legislatures or conventions how they are to conduct their business. Although prescribed-wording applications still would allow the “convention for proposing amendments” to vote a measure up or down, the courts might well rule that Article V requires that a proposal convention (as opposed to a ratification convention) be given more deliberative freedom than that. The reasons follow.
* Although some parts of Article V are too clear to require interpretation, see, e.g., United States v. Sprague, 282 U.S. 716 (1931), the precise meanings of other parts are less obvious. In those instances, the courts use the historical and legal background to interpret the meaning of words and phrases in Article V. See, e.g., Opinion of the Justices, 167 A. 176 (Me. 1933) (using historical materials to construe the meaning of a state ratifying convention); Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975) (opinion by Justice Stevens) (using Founding-Era materials to interpret “ratify” and “ratification”); Opinion of the Justices to the Senate, 373 Mass. 877, 366 N.E. 2d 1226 (1977) (using Founding-Era materials to interpret “application”); Berlotti v. Lyons, 182 Cal. 575, 189 P. 282 (1920) (referencing Founding Era and other materials to interpret “Legislatures”). Thus, Founding-Era history and, to a certain extent subsequent history, is of great importance in interpreting Article V.
* The name “convention for proposing amendments” tells us that this is a proposing convention. The Founders would have distinguished it both from a plenipotentiary convention (with very broad powers) and from a ratifying convention (limited to an up-or-down vote). These distinctions were well understood.
* The invariable practice for multi-state (and, before Independence, multi-colony) proposing conventions was for the entity applying for or calling the meeting to provide it with specific problems to work on, but also to grant the commissioners (delegates) the deliberative freedom to do so—something like the modern business or government problem-solving task force. This was true from the late 17th century through the Founding Era.
* The Founding-Era evidence is buttressed by subsequent practice. Nineteenth century proposing conventions, such as the Washington Conference Convention of 1861, worked within the same pattern. As far as I can tell, limiting an interstate proposal convention—in fact, limiting any interstate convention—to an up-or-down vote would be unprecedented.
* Limiting the convention to the role of “Answer the question: Yes or no? Which is it?” is inconsistent with the status of the interstate convention as an assembly of respectable and equal sovereigns. It certainly is inconsistent with the international law usages upon which the American multi-state convention was based. And that is no doubt one reason it would be unprecedented.
* When a court examined the pre-1787 history for understood meanings of “application” and “call,” the court would find that no application or call for a multi-colony or multi-state convention (and there were over 30 such gatherings) ever tried to limit the scope to an up-or-down vote on prescribed language.
* The court also might consider that until the late 20th century, it was unprecedented for an applying state to even try to limit an Article V amendments convention to prescribed wording.
Political and Practical Problems.
* The Framers inserted a convention into the amendment process presumably because the convention setting encourages collective deliberation, compromise, and conciliation among all the states, not merely among those that apply. Deliberation requires the ability to weigh alternatives.
* A proposal deriving from a convention of all states is more likely to be acceptable to the country than one imposed by two-thirds of the states. Two-thirds of the states might even represent less than half the population of the country; this is impossible at an amendments convention and almost impossible among the three-quarters of states necessary to ratify.
* Even if the courts uphold prescribed-wording applications, the language of the amendment is likely to be torn apart by opponents, and any substantial vulnerability will kill the entire enterprise. If the convention is ever called, it would have no power to amend the proposal to meet legitimate objections.
* State lawmakers enjoy being creative, and that means that in the world of real politics, legislative applications always vary. When the applications address a broad subject (such as “congressional term limits” or “federal balanced budget amendment”), this situation is manageable. But when applications must specify the precisely-identical wording, then variations probably can’t be counted together to reach the two-thirds threshold necessary for a convention.
For such reasons, I recommend that applications specify their general subject(s), but not try to limit the convention to voting “aye” or “nay” on indelible language.
In my last post, I described the procedure by which we have recovered the meaning of the Constitution’s “convention for proposing amendments.”
But agreement on the principal facts does not imply complete agreement on the details. A prime example: We know that the state legislatures may limit the agenda of the convention to a single topic. But does that mean a generic topic (such as “federal term limits”) only? Or may the legislatures limit the convention to an up-or-down vote on a specifically-worked amendment?
For a number of reasons, I think the courts would insist that the convention be given drafting discretion—that is, more discretion than allowed in an up-or-down vote on pre-set wording. I’ll discuss my reasons another time.
Some excellent scholars disagree with me. Michael Stern is the former Senior Legal Counsel for the U.S. House of Representatives, and the author of the “Point of Order” blog. He believes that the convention can be limited to considering specific wording. He bases his argument in part on the work of Prof. Michael Rappaport, one of the nation’s leading constitutional scholars. Professor Rappaport’s study of the original meaning of Amendment V concluded that that meaning at least permits the state legislatures to so limit the convention’s agenda.
Listen to Mark Levin’s interview of Rob here. (Go to Aug. 29 podcast, and fast forward to minute 55.)
This past week, conservative icon Phyllis Schlafly contributed a short piece to Townhall.com in which she attacked the movement for an Article V convention. As I wrote in my response, she was relying on claims about the convention that had been superseded by modern research.
You can classify modern Article V writing in three broad waves. (There are many exceptions but the generalization is valid, I think.) The first wave consisted of publications from the 1960s and 1970s, mostly—but not exclusively—by liberal academics who opposed conservative efforts to trigger a convention. Examples include articles by Yale’s Charles Black, William and Mary’s William Swindler, Duke’s Walter Dellinger, and Harvard’s Lawrence Tribe.
Typically, these authors concluded that a Article V “constitutional convention” (as they called it) could not be limited to a single subject. That, as we now know, was a mistake. A related error was their assumption that when the Founders referred to a “general” convention they meant a convention with unlimited subject matter. Actually, a “general convention” meant one in which all the states, or at least states from all regions, participated. It was the opposite of a “partial” or regional convention, and it had nothing to do with the scope of the subject matter.
The mistakes these authors made can be attributed partly to the agenda-driven nature of their writings, and their failure to examine many historical sources. They seldom ventured beyond The Federalist Papers and a few pages from the transcript of the 1787 Constitutional Convention.
Also in the First Wave was a 1973 study sponsored by the American Bar Association. The ABA did conclude that a “constitutional convention” could be limited, but was not a very solid piece of research, perhaps because (if my information is accurate) the principal writers were not professional scholars, but a pair of law students.
The Second Wave began in 1979 with a publication issued by President Carter’s U.S. Office of Legal Counsel and written by attorney John Harmon. For its time, it was a particularly thorough job. Among the other authors in this wave were Grover Rees III and the University of Minnesota’s Michael Stokes Paulsen. The most elaborate publication of this era was by Russell Caplan, whose book, Constitutional Brinksmanship, was released by Oxford University Press in 1988.
Second Wave authors accessed far more material than their predecessors. They paid more attention to the 1787-90 ratification debates. Caplan even made some reference to earlier interstate conventions. Most of them (Paulsen was an exception) correctly concluded that an Article V gathering could be limited.
But Second Wave writers did make some mistakes. They continued to refer to an Article V conclave as a “constitutional convention.” Some of them assumed, as some First Wave writers had, that Congress had broad authority under the Necessary and Proper Clause to regulate the convention and the selection and apportionment of delegates. None investigated the records of other interstate conventions in detail, or fully grasped their significance.
The Third Wave began in the 21st century. Its contributing authors include the University of San Diego’s Michael Rappaport, former House of Representatives Senior Counsel Mike Stern, the Goldwater Institute’s Nick Dranias, and myself. We have been able to place the Article V convention into its larger legal and historical context.
Like most of the Second Wave writers, we understand that an Article V convention can be limited. But we also have learned a lot of other things: the gathering is not a constitutional convention, it was modeled after a long tradition of limited-purpose gatherings, and it is governed by a rich history of practice and case law.
We also know that the Necessary and Proper Clause does not apply to conventions. That clause gives Congress power to make laws to carry into execution certain enumerated powers and “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” But a convention for proposing amendments is not part of the “Government of the United States” nor is it a “Department or Officer thereof.” Supreme Court precedent, as well as the wording of the Constitution, make this clear. For this and other reasons, congressional powers over the process are quite limited.
A few days ago, a friend sent me a 1987 report issued by the U.S. Justice Department. The title is “Limited Constitutional Conventions Under Article V of the United States Constitution.” As the date would suggest, this is a typical Second Wave publication. In addition to labeling an Article V Convention as a “constitutional convention,” it also assumes that a “general” convention is one that is unlimited as to subject matter. It shows no familiarity with any previous interstate conventions other than the 1787 gathering. It makes the erroneous assumption that the latter meeting was called by Congress under the Articles of Confederation. It fails to understand the nature of the convention as a meeting of commissioners from state legislatures. It asserts erroneously that all 19th century state applications were for an unlimited convention. (In fact, several were limited.) And it makes the inaccurate assumption that Congress has power under the Necessary and Proper Clause to prescribe procedures for an amendments convention.
Such documents are of historical interest, but they should no longer be taken as authoritative.