Following is an address I gave in Orlando Florida on April 26, 2013 on the need to use the Constitution’s Convention-Amendment Process to rein in Congress:
My initial background was in the private sector, but I served many years in academia. I spent much of that time teaching constitutional law and constitutional history to aspiring lawyers. Four years ago, when I was still on a law school faculty, I was looking for a new topic to write on, and turned my attention to the Constitution’s amendment process. I have to admit to you that back then I didn’t know any more about Article V than most constitutional law professors do—which is to say, not much. For some reason, Article V is not typically taught in law school curricula. I also found that there hadn’t been much scholarly writing on the subject. And as often happens in constitutional law, most of the writing that had been published really wasn’t very good. By that I mean it was incompletely researched, or it was driven by the author’s personal agenda—and usually both.
When I left academia and came to the Independence Institute full time, a person who served as a mentor was one of those elderly, gracious ladies whose wisdom extends to just about everything and everyone. She used to say that our biggest problem usually isn’t what we don’t know. Our biggest problem, she said, is all the things we know, but that just aren’t so.
When I started my research on Article V, I knew a lot about the subject that just wasn’t so. For example, I thought that a convention for proposing amendments is a “constitutional convention.” I thought that it was uncontrollable. I was wrong.
My research opened my eyes to a part of the Constitution and to a part of American history that was entirely new to me. As it turned out, it was entirely new to a lot of other people who read my work, including other constitutional scholars, some of whom are now building on my research and learning even more new things. Later, I’ll mention some what we’ve learned. But first let’s look at what really brings us together this evening.
America is in trouble. Perhaps the biggest peacetime trouble she has been in since our country was founded. And for perhaps the very first time since the Civil War, the very idea of America—the fundamental concept of America—is in trouble.
The fundamental concept behind America of course, is that all people are endowed by nature and by nature’s God with rights to life, liberty, and the pursuit of happiness, and that to secure those rights, governments are instituted among men, deriving their just powers from the consent of the governed. Adherence to that simple idea freed Americans to propel this country to a level never before seen.
America’s truly explosive rise occurred during our first 150 years—the period beginning with our Founding and continuing until the time when the federal government’s mistakes helped cause, and prolong, the Great Depression of the 1930s. We began that period as a ramshackle country on the outer edges of civilization. We ended it as the greatest nation in the world. This was the time when motorized transportation and instant communication were invented and perfected, mostly in America. It was when we learned to harness electricity. It was when we developed modern medicine, and a hundred thousand devices to make life easier. It was also when we freed the slaves and brought about the emancipation of women.
Our progress since the Great Depression has been considerable, but much of that progress represents momentum from our first 150 years. If you doubt this, think of the extent to which modern Internet and computer technology rests on a single 19th century accomplishment: the taming of electricity.
Why was America so successful? Because between the time from the Founding and the Great Depression most Americans enjoyed a degree of economic liberty that is almost unimaginable today. As historian Samuel Eliot Morison has observed, in most facets of life, government—especially the federal government—was almost invisible. Government peacetime spending averaged around 5% of the economy, compared with 40% now.
Americans enjoyed far more freedom from government taxes, regulation, and control. They enjoyed almost unrestrained freedom to innovate, earn a living, run a business, hire workers, take a job, join or not join a union, keep their own pay, form contracts on their own terms, keep and bear arms, open schools, build charities, and worship and speak as they pleased. They could do all these things without worrying about what the government might do to them—like my friend in Libby, Montana who was almost driven out of business by the EPA, which for political reasons persecuted him for years over a small drain that wasn’t even polluting anything. Or like me, when I had employees and received almost simultaneously from the unemployment insurance authorities a letter demanding that I immediately pay up a $30 deficiency, and another letter telling me I’d overpaid by $30.
America became great during a period when people simply didn’t have to deal with this sort of aggravation and expense. If you needed to start climbing the economic ladder, you could go to any local business and get a job with just a handshake. No intrusive paperwork. No social security numbers. No payroll withholding. Just a few state or local regulations to protect life and health. If the boss liked your work, he could keep you on without worrying about whether you were the 50th employee who would trigger the Obamacare health insurance mandates or just the 49th employee, who would not. You didn’t need health insurance anyway, because despite the limited technology and the fact that doctors still made house calls, medical care was far less expensive then. And if you had a catastrophic illness, there was a vast web of local relief agencies, mutual benefit societies, family networks, and private charities to help you out. If your boss couldn’t keep you on, well, you could freely move to another job that might be better.
Or you could go into business for yourself, without the government imposing insurmountable fees and barriers to your doing so. You could buy and own land without suffering the kind of official harassment now inflicted on so many landowners. You could keep almost everything you earned for the support and enjoyment of yourself and your family. Maybe become rich. Those times were empowering, exhilarating, exciting beyond belief.
And unlike today, young Americans could actually get jobs. They didn’t have to live in their parents’ basements leeching off daddy’s savings. They could earn their own way . . . start saving money in sound, uninflated, gold coin. . . raise their own families on their own resources. . . and build their own careers.
The politically-correct text books tell you that America’s success was the result of natural resources, ethnic diversity, government programs, and the oppression of minorities. This is largely balderdash. It is true that some minorities were much less free than the majority. It is also true that we have great natural resources and ethnic diversity. But those were not the fundamental reasons for America’s success. Because those things were true of many other countries as well—countries like Russia, Brazil, China, and India that, unlike America, remained backward and poor. What made the critical difference for America was freedom under law.
Freedom under law became compromised, though, when the federal government used the excuse of the Great Depression to break down constitutional limitations and greatly expand its reach. By 1960, just a few decades after the Depression ended, government was absorbing 25% of what had once been a free economy. Today, as I mentioned, it is absorbing nearly 45%.
A government founded to protect liberty has become an instrument for destroying liberty. A government founded to enable all to pursue happiness has become an instrument of envy, theft, and greed. To a great extent our economy has changed from one driven by people aspiring to greatness to one dominated by the scramble for political favors.
Most of us here this evening are among those who understand the problem. For the past few decades, we have tried to cure it. We have sponsored programs of civic education. We have worked to elect good people to office. We have attempted to reclaim the Tenth Amendment. Sometimes we have gone to court. And we have had a few real successes.
But the few successes should not obscure one glaring truth: Over the long haul, we continue to lose the fundamental concept of America. Twenty years ago when Bill Clinton was President the situation was worse than it had been 20 years before that. Today it is so much worse than when Bill Clinton was President that conservatives have begun to think of Hillary Clinton, of all people, as a more reasonable alternative to President Obama.
In my view, we are losing because we have tied ourselves to a handful of losing tactics. We have become comfortable fighting losing battles.
But if our goal is not merely to feel comfortable—if our goal is to win back for ourselves and our children that which has been slipping away—then we have to stop limiting ourselves to the things that don’t work, and start doing things that will work.
Let me give you a sobering historical example that may cast some light on what is in store for us if we do not adopt a new approach. More than 2000 years before our Constitution was written, another people located on what was then the outer edge of civilization established a free republic. They were only a small town in those days, but they were destined to become the greatest people in the world. Our own Founders looked to them for inspiration. Their system was based on principles of stoic virtue, respect for tradition, political accountability, military valor, and—to an extent unusual in the ancient world—human freedom. The Roman Republic lasted for 500 years, and its record still stands as the longest-lived major republic in the history of the planet.
Roman civilization eventually expanded throughout the Mediterranean World. Colonies of Roman citizens were established from Asia to Spain.
Roman leaders faced the challenge of making this extended state work while preserving the essence of the Roman constitution. One way they might have done so would have been to replace their system of lawmaking by the urban mob with an assembly of representatives from citizens throughout the Roman world. But they did not make those changes. And slowly, over a period of nearly a century, their constitution deteriorated. Great statesmen like Marcus Cicero were aware of what was happening. But they failed to arrest the decline.
They failed to arrest the decline because they tried to do so mostly by hitting the reset button until it wore out. In other words, they repeated over and over the same tactics that had failed before. Rome could have survived as a free government if its statesmen had shown more vision. But they did not.
When a system is wearing out, time is always limited. And so it happened that, for the Roman Republic, time to make the necessary changes did eventually run out. When elected Roman leaders failed to make the decisions necessary to preserve liberty, the decision was taken away from them. It was taken away by Julius Caesar and by his grand-nephew Augustus, who appropriated the state to their own purposes. For Romans, free government was gone forever.
But nothing was inevitable about this. Rome could have preserved its free constitution by making the changes necessary to keep it healthy while there was still time.
We Americans must not repeat their mistake. We must make the changes necessary to preserve freedom while there still is time.
Fortunately, we have the tools right at hand. They are our inheritance as Americans. Our Founders bequeathed them to us. They are lying right here, in Article V of our own Constitution. They are still fresh and new, and ready to use.
Article V is the Constitution’s provision for amendment. Today we think of constitutional amendment mostly as a way of responding to new conditions. The Founders recognized that purpose, but they also saw amendment as a way to prevent and correct government abuses.
Because the Framers recognized that the federal government might abuse its power, in their early drafts of the Constitution all amendments would come solely from a convention of the states. It was only when Alexander Hamilton pointed out that Congress might have good amendment ideas as well, that the Framers decided to give Congress, as well as the states, power to propose amendments. But to prevent an abusive Congress from obstructing needed changes, the states also retained their authority to propose. Their vehicle for doing so was what the Constitution calls a “convention for proposing amendments.”
So what is this “convention for proposing amendments?” That was one of those things I thought I knew four years ago, but what I knew wasn’t so.
The answer to the question comes from a great tradition of American interstate conventions, and from the experiences during the 224 years since the Founding.
When the delegates to the Constitutional Convention met in Philadelphia in 1787, it was only the latest in a very long series of diplomatic meetings among the different colonies and states. These meetings were called conventions. In the century before the Constitution was written, colonies and states met in convention on average of once every 40 months. They addressed subjects like Indian relations, foreign relations, common defense, currency inflation, and interstate trade. They met in Albany, New York in 1754. . . in New York City in 1765 . . . in Philadelphia in 1774, 1780, and 1787 . . . in York Town, Pennsylvania in 1777 . . . in Hartford, Connecticut in 1779 and 1780 . . .in Providence, Rhode Island in 1777 and 1781 . . . in Boston, Massachusetts in 1780. . .and in Annapolis, Maryland in 1786. And that list represents less than half of the conventions held.
After the Constitution was adopted, there were fewer interstate conventions, since the U.S. Senate served as a place where states could meet. Yet the American convention tradition continued. For example, there was an interstate gathering in Nashville, Tennessee in 1850 and a convention of 26 states in Washington, D.C., in 1861.
Each of these conventions was given a specific task or tasks to perform. Each had to remain within its prescribed limits, and not stray into other areas. This was true also of the 1787 Constitutional Convention. I mention this because there is an old myth that the Constitutional Convention was called only to amend the Articles of Confederation, but that it ignored its prescribed limits. But this old myth is just that—a myth—another thing I once thought I knew, but didn’t. . . .
Besides this great convention tradition, our understanding of Article V is informed by 224 years of experience and by important decisions from the United States Supreme Court and other arms of the judiciary. Here is one example: You may have heard the claim that a convention is sovereign and, despite limits on its authority it can do anything it likes. But we already have court cases showing us that that is not true. In fact, actions outside a convention’s legal instructions are void.
In the same way, some people persist in claiming that the convention for proposing amendments is “constitutional convention.” By using that phrase, they display a lack of knowledge about the American tradition of gatherings among the states. In our history, we have had at least 31 conventions among the colonies and states, and only one has been a constitutional convention. Thirty have not been, and a convention for proposing amendments is not one, either.
In his recent decision for the U.S. Supreme Court rejecting the Medicaid mandates in Obamacare, Chief Justice Roberts famously said, “The states are separate and independent sovereigns. Sometimes they have to act like it.” Article V gives them a chance to act like it.
When a state legislature thinks an amendment might be a good idea, it sends a resolution to Congress, and if two thirds of the legislatures send resolutions for the same kind of amendment, then under the Constitution, Congress must call an interstate convention on that topic.
This interstate convention is essentially a diplomatic task force among representatives of the state legislatures acting as sovereign entities. At the designated time, each legislature sends a delegation (it’s called a “committee”) of delegates (they’re called “commissioners”) to the designated place. These committees of commissioners decide whether to propose amendments, and, if so, they draft the language. The convention adopts its own rules, and elects its own officers. Because sovereignties are inherently equal, each state committee has one vote. And as its name suggests, a “convention for proposing amendments” has power only to propose, not to ratify. Any proposal becomes part of the Constitution only if 38 states ratify it.
Now I’d like to remind you of a point I made earlier: The Founders added the convention for proposing amendments to the Constitution precisely to correct the federal government if it ever became dysfunctional. They predicted that if Congress got out of line, Congress probably would not propose amendments to correct itself. And their prediction was on target. Because in the 224 years since Congress proposed the Bill of Rights, it has never—with the minor exception of repealing Prohibition—has never proposed an amendment that reduces its own power. It has passed several amendments increasing its own power, but not reducing it.
Now—imagine that James Madison and John Dickinson were here in this room today. Suppose we told them that the federal government had far exceeded its constitutional authority. That Congress had become an auction-house for special interests. That Congress had run up a huge debt because 45 times in the last 50 years it had refused to even balance its own budget. That federal politicians had created a dependent class of citizens whom the politicians could manipulate for their own purposes. In other words, suppose we admitted to James Madison and John Dickinson that the federal government had re-created the very situation the British government tried to foist on the colonies in the 1770s, and that their generation had fought the American Revolution to prevent.
When we told them all this, no doubt James and John would ask us a very natural question. They’d ask if we had tried to correct the problem through the state-driven process in Article V. And when we sheepishly admitted that, no, we had not—that we had been deterred by ignorance and by the hysteria of alarmists and cranks—then what would these Founders say?
They would tell us that the whole mess was our own darn fault.
And they would be right.
It has been our own fault. But because we have been at fault, it does not mean we must stay at fault. The time to correct the situation is now!
If we want to save America. . . if we want to save the fundamental concept of America—then I suggest we act on five principles. Those principles are Vision, Unity, Determination, Legality, and Organization. Together, they add up to Victory!
First: Vision. We must have a clear idea of the kind of America we want to have. One where individual rights are respected. An America where people understand the difference between rights, to which you are entitled, and government largess, to which you are not. An America of limited government, personal responsibility, and self-reliance—an America prosperous and free.
Unity. Many of us have different ideas about how to use the Article V tools our Founders bequeathed to us. That discussion is normal and very healthy. We also must remember, however, that we are all on the same side.
Later this year, a committee of activists of which I am a member will be inviting state lawmakers from throughout the country to an informal “conference on proposing amendments” to be held far away from Washington, D.C., in the entrepreneurial and growing city of Denver, Colorado. The purpose of this conference is to develop common approaches we can all live with. Let your state lawmakers know about it, so they can start planning now. Unity.
Determination. Like the Founders, we must be willing to commit our lives, fortunes, and sacred honor. Many in this room have already done so.
You see, it requires determination to accomplish any real political change. The world recently lost a very great woman who showed what determination can do. It will take determination to overcome those well-intentioned but misguided souls who fear the cure our Founders gave us more than they fear our descent into national destruction. But once we get past them, we’ll need even more determination to overcome the power-brokers in national politics, the media, and academia.
Those people control much of the high ground in American power politics. But just as the late Margaret Hilda Thatcher overcame similar forces in Britain, largely by the force of sheer determination, so also will we overcome them in America.
Legality. If we keep our activities strictly legal, this will not prevent us from being vilified in the media by the most unfair sort of slander. The history of the Tea Party proves that. But if we keep our activities strictly legal, it will help us prevent failure and achieve victory.
Those with vested interests in the status quo have plenty of money for lawsuits. If we do not follow legal procedures, those lawsuits will undo all our hard work. The experience of the Term Limits movement is instructive in this regard. In the 1980s and 1990s, advocates for term limits tried to use Article V, but they violated the Article V rules as the courts had applied them. Their opponents sued, and the term-limits supporters lost in the courtroom many of the battles they had won in the political process.
Make no mistake: Once this campaign starts to succeed, we will be sued. So don’t give the opposition any reasonable way they can win their lawsuits.
Vision, Unity, Determination, Legality—and finally, Organization. To win, we need grass roots support and financial help in every state. In other words, we need your help—your help, the help of your state lawmakers, and of financial contributors, and of your friends and neighbors. The campaign to save America will succeed only if it is a mass movement, in which all understand that our future and the hopes of our children and grandchildren are at stake.
Like the Romans who tried to save their republic, but did too many ineffectual things for too long, until they lost their freedom entirely, we do not have unlimited time. Eventually, of course, our country will go bankrupt. But there is another deadline, too. If we do not apply Article V correctly and for good ends, then we will see it used by others incorrectly, and for bad ends. Many people of influence in academia and politics, are beginning to speak of their own version of Article V—one where they really do have a new “constitutional convention”—which they use to grow government further, and further curtail our liberties. To prevent being pre-empted by those people, we must move, and do so now.
Fortunately, the moment is promising. The American people understand the debt problem and they properly blame Congress. Most state legislatures are controlled by majorities who also understand the problem. Encourage those lawmakers to apply for a convention to address our national fiscal crisis. Contribute to groups working to restrain federal deficits through Article V. Set up websites. Talk to your friends—both your Facebook friends and your real friends—and support state legislators who understand the problem.
This is more than a fiscal issue, more than an issue of current politics. It is a long-term issue with moral and historical overtones. It is the question of whether the fundamental concept of America can endure. It is also a question of how those who come after us will live, and how those of us alive today will fare in the history books they write.
May they say of our generation that we labored rightly in a just cause, and in so doing we rose to greatness.
Filed under: All Postings, Article V Convention, The Founding
In prior postings such as the one here, I have explained why it is wrong to claim that the commissioners (delegates) to the 1787 Constitutional Convention exceeded their power in recommending that the Articles of Confederation be replaced by a new instrument.
Another aspect of the same charge is that the Framers exceed their power by providing that the Constitution could come into effect upon ratification by only 9 states instead of the 13 the Articles required.
One quick answer is that ultimately the Constitution was ratified by all 13. The 13th state (Rhode Island) ratified on May 29, 1790, less than three years after the document was composed.
But there is a more formal, and perhaps better answer. Here’s the background:
The Declaration of Independence explicitly presented Americans to the world as “one people”—not as 13 different peoples. It is true that this “one people” initially operated through 13 separate governments. But this is by no means unusual in world history: Within the loose league mis-labeled the Holy Roman Empire, the German people were governed by a multitude of states. From 1945 until unification in 1990, the German people were divided into two entirely separate countries. From the fall of the Western Roman Empire until 1870, the Italian people were divided into a multitude of different countries. The Korean people are divided into separate sovereignties today, as are the Irish.
Under the dominant political theory of the Founding Era, public officials were agents of the people. At the time of Independence, different segments of the American people had granted governmental power to disconnected sets of agents (officials of the several states). In 1781, those separate sets of agents agreed via the Articles of Confederation to formally empower the Confederation Congress.
Thus, the Articles essentially comprised a treaty among independent states. Of course the signatories to a treaty always may agree among themselves to repeal or re-write the instrument.
But under principles of agency prevailing both at the Founding and today, those who hire agents are called “principals.” In this case, the principals were the American people. Legally, a principal may revoke and alter his agent’s authority at any time, and entrust all or part of that authority to others.
Put another way, the American people could decide to revisit the treaty obligations their agents had contracted on their behalf. The commissioners at the 1787 convention suggested that the people do just that—by taking some of the power heretofore exercised by state officials and the Confederation Congress and entrusting it to new federal officials. This was why James Madison said on the Convention floor that “he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.”
The ratification procedure was crafted in such a way that if the Constitution were ratified, that ratification had a good chance of representing the will of a majority of the American people—or at least of the American electorate. This was done in two ways: (1) Ratification or rejection would come not from state politicians, but from conventions directly elected by the voters for the sole purpose of considering the Constitution. (2) The Constitution would not go into effect unless conventions in 9 states agreed.
Why nine? Some have pointed out that 9 represented a 2/3 vote of states, and that it was an accepted number under the Articles for certain important decisions.
But I think there was a more central reason: As the Constitution’s proposed allocation of the new House of Representatives showed, the Framers believed that any combination of 9 states would comprise a majority of American citizens. Even if the 5 most populous states all refused to ratify, the remaining 9 still would represent a majority of the electorate.
But what if 9 small states all ratified by very narrow margins, and 5 big states rejected the Constitution by huge margins? Wouldn’t that result in ratification by a minority?
This was theoretically possible. But the Framers knew the odds for ratification in Pennsylvania (the second most populous state) were very high. So the chances of a “9 smallest states vs. 5 biggest states” line-up was negligible. If only 9 ratified, at least one large state—Pennsylvania—would be among them.
In addition, the Framers knew as a practical matter that even if 9 states, including Pennsylvania, ratified, it still wouldn’t be enough. The union needed New York (then ranking 4th or 5th in population) and it desperately needed Virginia (1st). Without one or the other—and probably without both—the Constitution could not be implemented. And if 9 states ratified but New York did not (New York’s Governor opposed ratification), the New York City region might well secede from the state and join anyway.
So the Framers had good reason to believe that if the Constitution did come into effect, this would occur by the will of a majority of America’s “one people.”
The result would be creation of a government in a manner almost unprecedented in world history: Ratified by a majority of the people themselves.
Many of those who pontificate on the subject are largely unaware of this jurisprudence. Some have never investigated it. Some think the courts refuse to interpret Article V or that they leave such matters to Congress. Some writers have no legal training, and mis-interpret the cases they do find.
As a result, they often debate questions that the courts have long resolved or promote scenarios (such as the “runaway” scenario) that the law has long foreclosed.
It’s not like this case law is unavailable. It is all available from standard legal sources. In addition, several published works have discussed this material, including an Oxford University Press book by Russell L. Caplan and an article I published in Tennessee Law Review.
Here are some of the key issues the courts have addressed, either in binding judgments or as what lawyers call “persuasive authority.” This listing of cases is only partial.
* Article V grants enumerated powers to named assemblies—that is, to Congress, state legislatures, conventions for proposing amendments, and state conventions. When an assembly acts under Article V, that assembly executes a “federal function” different from whatever other responsibilities it may have. Hawke v. Smith, 253 U.S. 221 (1920); Leser v. Garnett, 258 U.S. 130 (1922); State ex rel. Donnelly v. Myers, 127 Ohio St. 104, 186 N.E. 918 (1933); Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (Justice Stevens).
* Article V gives authority to named assemblies, without participation by the executive. Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798).
* Where the language of Article V is clear, it must be enforced as written. United States v. Sprague, 282 U.S. 716 (1931).
* But that does not mean, as some have claimed, that judges may never go beyond reading the words and guessing what they signify. Rather, a court may consider the history underlying Article V. Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (Justice Stevens). It may also consider what is implied as well as what is expressed. Dillon v. Gloss, 256 U.S. 368 (1921). In other words, courts apply the same rules of interpretation to Article V as elsewhere.
* Just as other enumerated powers in the Constitution bring with them certain incidental authority, so also do the powers enumerated in Article V. State ex rel. Donnelly v. Myers, 127 Ohio St. 104, 186 N.E. 918 (1933). This point and the one previous are important in determining the scope of such Article V words as “call,” “convention,” and “application.”
* The two thirds vote required in Congress for proposing amendments is two thirds of a quorum present and voting, not of the entire membership. State of Rhode Island v. Palmer, 253 U.S. 320 (1920).
* A convention for proposing amendments is, like all of its predecessors, a “convention of the states.” Smith v. Union Bank, 30 U.S. 518, 528 (1831). The national government is not concerned with how Article V conventions or state legislatures are constituted. United States v. Thibault, 47 F.2d 169 (2d Cir. 1931).
* No legislature or convention has power to alter the ratification procedure. That is fixed by Article V. Hawke v. Smith, 253 U.S. 221 (1920); United States v. Sprague, 282 U.S. 716 (1931). Some “runaway” alarmists have suggested that a convention for proposing amendments could decree ratification by national referendum, but the Supreme Court has ruled this out. Dodge v. Woolsey, 59 U.S. 331 (1855). Neither can a state mutate its own ratifying procedure into a referendum. State of Rhode Island v. Palmer, 253 U.S. 320 (1920).
* And Congress may not try to manipulate the ratification procedure otherwise than by choosing one of two specified “modes of ratification.” Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981), judgment vacated as moot by Carmen v. Idaho, 459 U.S. 809 (1982); compare United States v. Sprague, 282 U.S. 716 (1931).
* A convention meeting under Article V may be limited to its purpose. In Re Opinion of the Justices, 204 N.C. 306, 172 S.E. 474 (1933).
* But an outside body may not dictate an Article V assembly’s rules and procedures. Leser v. Garnett, 258 U.S. 130 (1922); Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (Justice Stevens).
* Nor may the assembly be compelled to resolve the issue presented to it in a particular way. State ex rel. Harper v. Waltermire, 691 P.2d 826 (1984); AFL-CIO v. Eu, 686 P.2d 609 (Cal. 1984); Miller v. Moore, 169 F.3d 1119 (8th Cir. 1999); Gralike v. Cook, 191 F.3d 911, 924-25 (8th Cir. 1999), affirmed on other grounds sub nom. Cook v. Gralike, 531 U.S. 510 (2001); Barker v. Hazetine, 3 F. Supp. 2d 1088, 1094 (D.S.D. 1998); League of Women Voters of Maine v. Gwadosky, 966 F. Supp. 52 (D. Me. 1997); Donovan v. Priest, 931 S.W.2d 119 (Ark. 1996).
* Article V functions are complete when a convention or legislature has acted. There is no need for other officials to proclaim the action. United States ex rel. Widenmann v. Colby, 265 F. 398 (D.C. Cir. 1920), affirmed 257 U.S. 619 (1921).
As these cases illustrate, the courts are very much in the business of protecting Article V procedures, and have done so for more than two centuries.
The event was the Washington Conference Convention or Washington Peace Conference. It was called by the Virginia legislature in January of 1861 in an effort to avert the Civil War. The idea was that the convention would draft and propose one or more constitutional amendments that, if ratified, would weaken extremists in both the North and the South, and thereby save the Union.
This gathering differed from an Article V convention primarily in that it made its proposal to Congress rather than to the states. In most other respects, it was a blueprint for how an Article V convention would conduct itself.
When the convention met in Washington D.C. on February 4, 1861, seven of the eleven states eventually in the Confederacy already had seceded. Of the 26 then remaining in the Union, 21 sent committees (delegations). The conference lasted until February 27, when it proposed a 7-section constitutional amendment.
The assembly followed to the letter the convention rules that had been established during the 18th century—the same rules relied on by the Constitution’s Framers when they provided for a Convention for Proposing Amendments. Specifically:
* The call for the convention set the place, time, and topic, but did not try to dictate other matters, such as selection of commissioners (delegates) or convention rules.
* At the convention, voting was by state. One vote was, apparently inadvertently, taken per capita, but that was quickly corrected.
* The committee from each state was selected in the manner that state’s legislature directed. Most committees were elected by the legislature itself. In some states the legislature delegated the selection to the governor, with or without state senate approval. In a few states, the legislature was not in session, and the governor made the pick.
* The convention adopted its own rules and selected its own officers. Former President John Tyler served as president.
* The convention stayed on topic. One commissioner made a motion that was arguably off topic (changing the President’s term of office), but that was voted down without debate.
* The amendment proposed would have protected slavery where it existed, but by confining it territorially probably would have doomed it to eventual extinction.
This convention’s efforts eventually failed, but the failure was that of Congress, not of the convention. The convention did its job—proposing a workable compromise—but Congress failed to propose it formally for ratification. And while some states had applied for an Article V convention, their applications were too few, too late.
As a result, the Union was torn apart and over 600,000 Americans died—the biggest American death toll in any war in our history.
You can find the convention journal at Google Books. There has been only one modern book devoted to the subject, Professor Robert Gray Gunderson’s Old Gentlemen’s Convention: The Washington Peace Conference of 1861 (Univ. of Wisconsin Press, 1961).
Filed under: All Postings, Article V Convention, The Founding
NOTE: A PDF form of this lengthy essay is available here.
Many lawmakers and activists, and most of the public, now favor a constitutional amendment to impose financial restraint on Congress. Because experience shows that Congress is unlikely to propose such an amendment itself, there is growing interest in the Constitution’s procedure enabling the states to propose an amendment. The Constitution calls the states’ mechanism for doing so a convention for proposing amendments.
A convention for proposing amendments has never been held. While there are a number of reasons for this, a primary reason over the last 50 years has been the “runaway” scenario, first widely popularized in the 1960s and 1970s by liberal politicians, judges, and activists eager to block suggested amendments that would have overruled some liberal Supreme Court decisions. In one of the ironies of history, a handful of deeply conservative groups subsequently decided to promote the scenario to block the process from being used for any purpose.
The essence of the “runaway” scenario is that a convention for proposing amendments would be a “constitutional convention” in which the delegates could disregard prescribed limits on their authority, and push America further along the road to perdition. The scenario seems to have misled enough people to effectively disable a core mechanism in our Constitution’s system of checks and balances.
I am a constitutional historian—a former constitutional law professor with training in history and classics—who focuses on explicating the meaning of parts of the Constitution. Before undertaking a research project, I typically scan the existing scholarly literature to determine what has been written on a particular subject, and how thorough that writing is. I began to investigate Article V questions in 2009 when I found that the relevant commentary was relatively sparse and mostly of poor quality. My legal and historical research not only corrected much of what had been written, but also forced me to change my mind about several key issues (such as the controllability of a convention). This research has resulted in a half-dozen major articles and free standing studies (including a three-parter), and a fair number of writings for the general public. See http://constitution.i2i.org/articles-books-on-the-constitution-by-rob-natelson/; http://constitution.i2i.org/category/article-v-convention/.
Although I have addressed the “runaway” scenario briefly in a few of these studies, several people have asked me to respond in more detail. I am doing so only reluctantly: Like most scholars, I prefer to pursue my own inquiries rather than respond in detail to uninformed claims. Moreover, I’ve learned that answering “runaway” assertions is a fool’s game—rather like shooting wooden ducks in a carnival shooting gallery: Once you knock down a series of objections, a new bunch always pops up, as two-dimensional as the last.
Be assured that once this essay is published, I do not plan to waste my time shooting new rows of carnival ducks. But perhaps these comments will convince enough people to ignore the alarmists when they raise their next set of objections.
To be candid, many of the “runaway” writings are so confused and frantic that they are not worth answering. One of the better articles—and apparently a source for others—was composed by Chuck Michaelis, a businessman and amateur historian. (See http://www.principledpolicy.com/policy-statements/position-on-an-article-v-federal-constitutional-amendment-convention/). To be sure, the Michaelis article, like all the others, contains enough inaccuracies and misunderstandings to cause a professional to shake his head. But it does set a higher tone than many of its genre, so I have decided to frame this essay as a response to the Michaelis piece.
In order to strengthen his case, however, I have re-organized Mr. Michaelis’ argument so that each step leads more logically to the next. The results are as follows:
* A convention for proposing amendments is a constitutional convention akin to the 1787 Philadelphia gathering, which, according to Mr. Michaelis, was America’s “first constitutional convention.” He does not say it explicitly, but clearly assumes that 1787 assembly was the only federal constitutional convention ever convened.
* Mr. Michaelis finds gaps in the language of Article V that, he says, ultimately leave delegate selection and allocation in the hands of Congress, the body Article V charges with the duty of “calling” the convention. Article V, he says, thereby lodges critical power over the process in the same institution that has been abusing its authority.
* An American convention is an inherently uncontrollable body: conventions are instruments of the people’s sovereign will, and the gaps in Article V leave the convention for proposing amendments unbridled.
* A convention likely will disregard limits set in the state applications. Not only do conventions enjoy sovereign power, but the “first Constitutional Convention” proved a runaway, despite “strongly worded” congressional language to control it.
* The convention could obtain the changes it desires by altering the ratification process, as the “first Constitutional Convention” did.
* Such uncertainties render the process a “risky gamble.”
* The existing Constitution is sufficient to deal with the current federal crisis if we elect conscientious people, repeal the 17th amendment, and reclaim the 10th amendment.
The last point—which Mr. Michaelis actually makes early in this article—is more of a policy call than a matter of constitutional interpretation. But it is easily disposed of: We’ve been doing things his way for the last 50 years, and the situation has only gotten worse. Conscientious people have been elected, but they operate in a spending environment that renders it impossible for any but a handful to both be constitutionally-scrupulous and survive in office. There is no realistic chance of the 17th amendment being repealed. Even if there were, we would have to use the state application and convention process to force the Senate to act—which is how the amendment was passed in the first place. (Anyway, the research on the 17th amendment’s actual effects on federalism has been ambiguous.) As for the 10th amendment, states have been attempting for decades now to reclaim it, but without consistent success.
So the real question is whether state application and convention process is such a “risky gamble” that we should abandon it and thereby resign ourselves to leaving the constitutional system unbalanced and on the short road to bankruptcy.
But is the process a “risky gamble?” Like some other writers, Mr. Michaelis uses an out-of-context quote from a constitutional scholar to support his view that the process is risky. In this case, the language he quotes is my own acknowledgment that “abuses of the Article V amendment process are possible.” But that is no more than an acknowledgment that everything in politics is possible in at least a small degree. It is not an acknowledgment that the process is risky. For reasons explained below, the risks posed by the “runaway” scenario are actually quite small.
To know how the process will work, you must understand the meaning of the language in Article V as the courts and other actors are likely to interpret it. This, in turn, requires knowledge of (1) the historical, legal, and linguistic background behind the language, (2) two centuries of post-Founding usage and analysis, (3) governing principles of constitutional, international, and agency law, (4) a long line of Article V court decisions extending from 1798 into the 21st century, and (5) certain modern political realities.
Runaway alarmists display almost none of this knowledge. Even Mr. Michaelis, the most erudite among them, seems to have little of it. For example, although he cites the first part of my three-part Goldwater Institute study, he seems unfamiliar with the rest of my work or with the writings of scholars such as Russell Caplan, Ann Stuart Diamond, and Professor Michael Rappaport. Self-restriction to the first part of a single study may be why he claims I base my conclusions solely on original “intent.” But he must not have read even that first part carefully, or he would know that, strictly speaking, I do not base even originalist constitutional conclusions on original “intent.” And in fact my overall conclusions rest on all of the five factors set forth above, including post-Founding practice, standard legal rules, court decisions, and political realities.
Now, Mr. Michaelis’ next bit of confusion lies in classifying a “convention for proposing amendments” as a “constitutional convention.”
As Professor Diamond has pointed out, the difference between the two is evident. A constitutional convention is charged with drafting, proposing, and sometimes adopting, a new basic charter. A convention for proposing amendments is charged with drafting and proposing one or more amendments to that charter. James Madison added that in our system the first is “plenipotentiary,” while the second operates subject to the “forms of the constitution.” This was well understood by the Founders and by subsequent generations: No one labeled a convention for proposing amendments a “constitutional convention” until long after the Founding.
Yet Mr. Michaelis is not the first to confuse the two: The tendency to conflate them began late in the 19th century. No doubt it arose from ignorance, but it has been fostered by opponents of the process ever since. It serves them well.
Mr. Michaelis might respond that it is fair to refer to any gathering that addresses changes in constitutional rules as a “constitutional convention.”
The problem with this answer is that it renders the term far too broad. If we apply the term that way, the 1787 gathering was not, as he says, our “first constitutional convention.” One must also count the 1754 Albany Congress, which proposed a plan of colonial union; the First Continental Congress, which institutionalized interstate cooperation; the 1780 Hartford Convention, which formally recommended amending the Articles of Confederation; the 1786 Annapolis Convention, which also was called to recommend amendments; and perhaps the Second Continental Congress, which drafted and proposed the Articles.
Moreover, by that definition, we have had many constitutional conventions since: the many state conventions that ratified the Constitution or one of its amendments, and the 1861 Washington Conference Convention, an assembly of 21 states that proposed a complicated constitutional amendment to avert the Civil War.
Of course it stretches the term to call any of these gatherings “constitutional conventions”—for the same reason it stretches the term to apply it to a convention for proposing amendments.
Our next issue consists of those gaps in the language of Article V that Mr. Michaelis claims he has found.
If you know the Founding Era record, you know the gaps mostly don’t exist. This is because the Framers employed the key terms in Article V in universally accepted ways. Everyone knew that a general convention would be a meeting of the states. Everyone knew that a “call” did not include authority to dictate the apportionment or selection of commissioners (delegates). Everyone knew—and the ratification record amply confirms—that the applying states would control the subject matter and that each state legislature would control its commissioners. There was no need to restate the obvious.
But are the Founding Era convention customs and understandings part of Article V? Yes, they are.
This is where Mr. Michaelis would find legal knowledge helpful: The Supreme Court has held repeatedly that Article V consists of grants of enumerated powers to named assemblies (legislatures and conventions). As some very modern Supreme Court opinions make clear, Founding Era customs and understandings largely define the scope of the Constitution’s words and its grants. And while the courts have not always applied the Founders’ understandings to other parts of the Constitution, they have been generally reliable in doing so in Article V cases.
So why does the language of Article V seem sparse? Because rather than re-state the obvious, the Framers focused on resolving uncertainties not resolved by existing convention practice. The words “application” and “call” sometimes were used interchangeably, so Article V distinguished them. In the Founding Era, moreover, a “call” could come from a state, Congress, or a prior convention—so Article V stipulated who did the calling. In Founding Era practice, a convention might be merely a proposing body or a deciding one. The Framers settled on the former. Article V also specified the ratification procedure and placed certain amendments off limits.
By the way, Founding Era convention protocols did not go away after the Constitution was ratified. They remain much the same even today. The last multi-state convention, the Washington Conference Convention of 1861, proved their viability among large bodies and in times of extreme stress. Similar protocols governed the state conventions that ratified the 21st amendment in the 1930s.
Next we come to the “any convention can do anything” claim. The general idea is that, as the direct representative of the people, no convention can be controlled by any outside force because each convention is sovereign.
You can marshal a few writers in support of that opinion, and in the middle of the American Revolution a few state conventions acted that way. But this view runs contrary to both prevailing practice and established law. When the Constitution was adopted nearly all interstate conventions had been limited by topic, and in the intervening years also this has been true of nearly all conventions.
Moreover, the “any convention can do anything” view directly contradicts established constitutional law. That law holds that when they act under Article V, all assemblies—both legislatures and conventions—derive all their authority exclusively from the Constitution. Their power is limited accordingly. To take one example: A state convention commissioned to consider only a particular amendment can be limited to that purpose. In Re Opinions of the Justices, 204 N.C. 306, 172 S.E. 474 (1933); see also the relevant bibliography at http://constitution.i2i.org/about/ for citations to cases.)
Some alarmists counter with a speculative essay written by Yale professor Akhil Amar when he was fresh out of law school. (The essay was written long ago and without the benefit of modern Article V scholarship.) In it, the youthful Amar argued that the people can, by convention, change the political system extra-constitutionally. Now, to anyone familiar with the Declaration of Independence, this is an unsurprising thesis. Amar also suggested that some parts of the Constitution recognize this “popular sovereignty” power. But—and this is the important point—Amar explicitly distinguished the whole idea from Article V.
We now turn to Mr. Michaelis’ assertion that the 1787 convention was called by Congress for the limited purpose of amending the Articles of Confederation, but instead “ran away” by drafting a new document. I address this common misconception briefly in the first part of my Goldwater study, for which Mr. Michaelis accuses me of “equivocation” and “a long and complex argument regarding the meanings of words.”
But the facts are neither equivocal nor complex. They are as follows:
* The Constitutional Convention was not called by Congress. It was called by Virginia and, secondarily, by New Jersey in response to the recommendation of the Annapolis Convention. (During the Founding Era, most multi-state conventions were called by individual states.)
* The Articles of Confederation were, unlike the Constitution, essentially a treaty among sovereign states. The role of the Confederation Congress was much like the role of the UN among sovereign nations today. Signatories of treaties always have the power to reconsider the terms of their connections, even if their coordinating agent (such as the UN or the Confederation Congress) objects.
* Ten of the 12 states participating in the Constitutional Convention authorized their delegates (“commissioners”) to consider changes in the “federal constitution” without limiting them to amending the Articles of Confederation. The unanimous authority of 18th century dictionaries (including the first American edition of Perry’s) tells us that “constitution” in this context meant the entire political system, not merely the Articles as such.
* This was well understood in Congress. That’s why after seven states already had signed up to join in the convention, two states where anti-federalist sentiment was powerful—New York and Massachusetts—asked Congress to recommend that the convention be limited to amending the Articles. But the congressional resolution was certainly not “strongly worded,” as Mr. Michaelis claims. It was about as weak-tea as possible: watered down from a “recommendation” to the mere statement that “in the opinion of Congress it is expedient” that the convention be so limited. This is understandable, because Congress, as a mere agent of the participating parties, had no power to limit their decision, and it was presumptuous to try.
* In Philadelphia, only seven commissioners from two states lacked power to propose a new form of government. Of the seven, only three signed the Constitution, one in an individual capacity (Hamilton). Perhaps Nathaniel Gorham and Rufus King “ran away,” but no one else did.
Mr. Michaelis seems to argue—he is not quite clear on this point—that because 16 commissioners failed to sign the Constitution, all 16 recognized that proposing the document was beyond their power. This is simply untrue. Elbridge Gerry and two New York delegates did refuse to subscribe for lack of authority. But most of the 16 non-signers failed to subscribe for very different reasons: Edmund Randolph wanted to maintain political flexibility (a good choice in retrospect). George Wythe went home early to tend a dying wife. Luther Martin, George Mason, and John Mercer all opposed the terms of the document. Alexander Martin favored the Constitution, but left (probably for health reasons) before the convention ended. And so forth.
As for the convention’s decision to “change” the ratifying process: It is true that the 1787 gathering adopted a process different from that in the Articles, but the 1787 convention was not called under, or empowered by, the Articles. By contrast, a convention for proposing amendments would be held under the “forms of the Constitution” and therefore would be bound by the very clear ratification procedures specified by the Constitution.
Suppose, however, that it were true that the 1787 convention “ran away?” Would this prove that a future convention would do so?
There were many multi-state conventions during the 18th and 19th centuries. Why consider as evidence only one? The Providence Conventions of 1776-77 and 1781 did not run away. The 1777 Springfield and York Town Conventions did not run away. Neither the New Haven Price Convention of 1778 nor the Hartford Conventions of 1779 and 1780 ran away. The 1780 Philadelphia Price Convention and Boston Convention did not run away. And, more recently, the 1861 Washington Conference Convention did not run away. Why is the 1787 convention “evidence” while nearly 20 others are not?
The answer is that for all their vaunted constitutional knowledge, “runaway” theorists are ignorant of all or most of those other conventions. Or, if any of them do know about them, they’re not talking.
Now, let’s get back to reality: As a practical matter, there are redundant protections against a runaway convention for proposing amendments:
* Political factors: the damage that disregard of clear limits can do to a commissioner’s reputation;
* Popular opinion;
* State applications defining the scope;
* The limit on the scope of the call;
* The potential for lawsuits to enforce the foregoing;
* State instruction of commissioners;
* State power to recall commissioners;
* The need to garner a majority of state committees (delegations) at the convention;
* Congress’s ability (and duty) to refuse to choose a mode of ratification for an ultra vires proposal;
* The requirement that proposals be ratified by 38 states;
* The potential for more judicial challenge, at every stage of the process.
You can argue against the efficacy of any one or two of these if you like. But combined together, they reduce the risks almost to the vanishing point. Consider, by contrast, the unrestrained reality of the runaway Congress.
One last observation: The Founders adopted the state application and convention procedure as an integral portion of the Constitution’s checks and balances. It is a way of preserving the state/federal balance, and its disuse has had predictable results.
In part this disuse may stem less from a desire to defend the Constitution as from dissatisfaction with the Constitution: Mr. Michaelis, for example, writes of a “flaw in the language of Article V” and that “[t]he language that needs to be there is simply missing.” Others in his same camp have suggested that Article V be ignored in perpetuity or that it be skipped in favor of extra-constitutional remedies such as nullification.
If their view is that parts of the Constitution are radically defective, then they should be careful what they ask for: Because if state legislatures do not step forward soon to establish their “ownership” of the state application and convention procedure, others—people hostile to the Founders’ design—certainly will. They are preparing to do so as I write.
The Founders inserted this procedure for the state legislatures to use, and to use particularly in times of federal overreaching. If James Madison and John Dickinson were to come among us today, and we were to tell them of our current predicament, what would they say?
No doubt, they would ask if we had resorted to the state-driven process in Article V to correct the problem. And when we admitted that we had not—that we had allowed ourselves to be gulled by alarmists and quacks—what would these Founders say then?
They would tell us that the whole mess was our own fault.
And they would be right.
Filed under: All Postings, Article V Convention, The Founding
The following states have applications outstanding for a federal convention to propose a balanced budget amendment: Alabama, Alaska, Arkansas, Colorado, Delaware, Florida, Indiana, Iowa, Kansas, Maryland, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, Pennsylvania, and Texas.
That’s 19 of the 34 states required. In addition, Illinois has an 1861 application outstanding that says essentially that Illinois hereby joins with the application of any state that chooses to make one. Arguably, that pushes it to 20.
However, Florida’s recent (2011) application may be too specific in its terms to be counted along with (“aggregated with”) with those of other states. The applications of Delaware, Maryland, and Mississippi may be invalid for mandating specific language to the convention. That leaves 16 (or 15 if the Illinois application isn’t counted).
As the count nears 34, we no doubt will see lawsuits from groups that want to keep spending no matter what the debt is. They will raise a number of other objections, including claims that some of the existing applications, even though never repealed, are too old. In my professional judgment, those objections are unlikely to prevail.
On the other side, some have argued that the resolutions in some legislatures that rescind applications are void because an application may never be rescinded—and that therefore the count already is above 34. That argument also is unlikely to prevail.
So the most likely numbers are 15 and 16.
In addition, two states (Louisiana and North Dakota) have approved the National Debt Relief Amendment. That proposal is really a form of balanced budget amendment, in that it would require approval by a majority of state legislatures to raise the national debt—that is, to run a deficit. Some balanced budget applications, perhaps most, are broad enough to accommodate the National Debt Relief Amendment approach.
I assess whether an application is valid by considering the most likely judicial response to the relevant history and case law. In other words, I’m using my professional training to predict how judges are likely to rule. I’m not applying my own desires.
Readers interested in seeing my criteria should consult my articles on the amendment process, particularly:
Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments” ___ Fla. L. Rev. ___ (2013) (forthcoming)
Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693 ( 2011)
Amending the Constitution by Convention: Practical Guidance for Citizens and Policymakers (Independence Institute, 2012) (updated and amended version of an earlier paper published by the Goldwater Institute)
Amending The Constitution by Convention: Lessons for Today from the Constitution’s First Century (Independence Institute, 2011) (updated and amended version of an earlier paper published by the Goldwater Institute)
Amending the Constitution by Convention: A More Complete View of the Founders’ Plan (Independence Institute, 2010) (updated and amended version of an earlier paper published by the Goldwater Institute).
New Flyer Explains How the States Can Use the Constitutional Amendment Process to Curb the Feds (Article V)
Filed under: All Postings, Article V Convention, The Founding
by Rob Natelson
The Founders built various checks and balances into the Constitution. One of the most important was the power of state legislatures to propose constitutional amendments to curb an abusive federal government. The Founders placed the procedure in the Constitution’s Article V.
The Founders would be astonished—and chagrined—to learn the process has never been used. If we complained to them about the federal government’s overreaching and fiscal incontinence, they’d probably respond, “But you’ve never used the process we gave you to deal with just this sort of situation. So it’s really your own fault.”
I’ve just written a new, two-page flyer designed to introduce citizens to the procedure. You can find it here.
Coming soon: An update on the where the states are in getting an amendment to deal with the federal fiscal crisis.
Filed under: All Postings, Article V Convention, The Founding
We’ll leave to another time the suspicion-inducing question of why so much attention is focused on the most extreme remedy for federal overreaching when the Framers’ own perfectly constitutional remedy remains neglected (the state application and convention process of Article V). In this post, let’s address only whether the Constitution—as understood by the people who adopted it—actually authorizes secession. More information on this topic appears in my book, The Original Constitution.
The text of the document does not address the issue directly. But from all appearances it seems to contemplate a perpetual union. The drafters’ views on the subject were well captured by John Dickinson, writing during the federal convention: “We are not forming plans for a day month year or age, but for eternity.”
Moreover, the Constitution is not written in the form of an interstate compact. Its structure is based on the standard form of a royal charter by which the sovereign granted power to others. In the case of the Constitution, the sovereign is “We the People,” recited in the same place that the king’s name would have been located before Independence. Recall that the Declaration of Independence already had defined Americans as “one people.”
Opponents of the Constitution fully understood the significance of this structure, and it was one reason for their opposition. For example, at the Virginia ratifying convention anti-federalist Patrick Henry reacted in anger: “Who authorized [the Framers] to speak the language of, We, the people, instead of, We, the states?”
What were the views of other Founders? A popular book on the Constitution by an academic author claims that the advocates of the Constitution insisted during the ratification debates that the states were individual parties to a federal compact. The book also claims that three states—Virginia, Maryland, and Rhode Island—reserved in their actions of ratification their right to secede from the union.
But those assertions are simply false. Here’s why:
* During the lead-up to ratification, the Federalists (the Constitution’s advocates) generally spoke or wrote of the document as a power grant directly from the people. Thus, James Madison asserted in Federalist No. 46: “The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes.” In other words, the federal government is the agent of the people, not of the states.
* Opponents of the Constitution acknowledged this. William Grayson, a leading anti-federalist speaking at the Virginia ratifying convention, summarized the pro-Constitution position as holding that the Constitution “was a compact between the people themselves”—not among the states.
* The claim that Virginia, Maryland, or Rhode Island reserved in their ratification instruments a right of secession is also false. Maryland said nothing on the subject. And although states’ rights feeling was particularly strong in Virginia and Rhode Island, neither of those states asserted a right of secession either.
* On the contrary, the Virginia ratification instrument acknowledged expressly that “the powers granted under the Constitution” were “derived from the people of the United States.” And the Rhode Island instrument stated that “That all power is naturally vested in, and consequently derived from, the people.”
* Both Virginia and Rhode Island acknowledged the general right of revolution against an oppressive government, but both asserted that right for the people, not for the states. A proposed statement of the general right of revolution was rejected by the Maryland convention. You can read the ratification acts of Maryland, Virginia, and Rhode Island yourself by clicking on the state names in this sentence.
Why is there such confusion on the issue? One reason is that some in the Founding Generation did speak of the proposed Constitution as if it were an interstate compact. But this is best understood as a slip of the tongue or of the pen, since the Founders were used to thinking of the central government in terms of the Articles of Confederation, which was such a compact. (Note, however, that even the Articles were by their terms “perpetual;” there was no reserved right of secession.)
Additional confusion arises because many the Founders used the word “compact” to describe the Constitution. However, during the Founding Era, the term “compact” in this context usually referred to a general social compact among the people themselves. (On the use of the word, see Donald S. Lutz, The Origins of American Constitutionalism, pp. 16-22). When the Founders referred to the Constitution as a compact, they generally meant the word in this sense. An example is the William Grayson quote above.
Finally, as I have pointed out before, many common myths about the Founding actually were invented or gained force decades after the Constitution was adopted, and were promulgated by those who stood to gain from them. The supposed right of secession is one example.
None of this excuses the outrageous disregard of constitutional limits shown in recent years by the federal government. Nor should it discourage people from opposing federal overreaching.
But the first step to enforcing the Constitution is to understand what it does—and does not—mean.
Filed under: All Postings, Article V Convention, ObamaCare, The Founding
The November 6 election outcome has many friends of the Constitution dispirited. As so often before, they hoped that by defeating federal candidates contemptuous of constitutional limits and replacing them with others, they could help restore our Constitution.
Obviously, that decades-long strategy has failed—spectacularly.
They also have long hoped that by appointing the right people to the U.S. Supreme Court, they could win case decisions restoring constitutional limits. But after 40 years, that campaign has produced only indifferent results. Actually, worse than indifferent: When, through the 2010 Obamacare law, federal politicians overreached further than they ever had before—by imposing a mandate ordering almost everyone in the country to buy a commercial product—the Court didn’t even hold the much-weakened line. Rather, the Court upheld the mandate.
The fundamental fallacy behind the federally-centered strategy lies in assuming federal politicians and federal judges will somehow restore limits on federal power. That is implausible as an abstract proposition. And practical experience over many decades also shows that strategy to be a failure.
There are several reasons for the failure of the federal election strategy. First, for this approach to work, you have to elect a majority—actually a super-majority (at least 60 in the Senate)—of constitutionalists to Congress. You also have to elect a person of similar views to the presidency. And you have to do this so they are all in office at the same time.
Second, constitutionalists face inherent handicaps running for federal office: Most are by nature non-political, and therefore don’t make good or persistent politicians. Their views prevent them from promising farmers more subsidies, seniors more health care, or students more loans. And those views also discourage campaign contributions.
Third, even when constitutionalists do achieve federal office, a critical proportion of them forget or weaken their commitments amid the enticements of Washington, D.C. and the fleshpots of power.
The Founders foresaw this sort of thing. That’s why they inserted in the Constitution’s Article V language allowing the states to respond to federal abuse by amending the document. At the behest of 2/3 of the states, all convene together to propose constitutional amendments, which 3/4 may ratify.
This provision was designed explicitly to enable the states to bypass federal politicians.
Incredibly, however, the convention method of proposing amendments has never been used. This largely explains why our governmental system is so unbalanced today.
Year after year, well-meaning people have rejected the convention approach in the vain hope that federal elections are the answer. In the light of Tuesday’s results, they need to re-assess. This reassessment is now more urgent than ever, because even more than the Constitution is at stake. So also is our national solvency.
Filed under: All Postings, Article V Convention, The Founding
In an earlier post, I reported that the Constitutional Convention of 1787 was far from unique: that during the lifetime of Benjamin Franklin (1706-1790) nearly 20 inter-colonial and interstate conventions met. Some were attended by as few as three colonies or states; others by as many as 12.
These multi-governmental conventions were held in Philadelphia (three); Annapolis (one);York Town, Pennsylvania (one); Providence, Rhode Island (two); Boston (one); Hartford (two); Albany, New York (at least four); Rome, New York (one); New Haven (one); Lancaster, Pennsylvania (one); and Springfield, Massachusetts (one). All were diplomatic meetings consisting of “committees” (delegations) of “commissioners” (delegates), with each colony or state having one vote. All were called to focus on designated problems, such as Indian relations, relations with the British, wartime supply, trade, or the currency.
In addition to the gatherings that occurred, there were others that were called but never met. For example, in 1777 the Continental Congress asked Georgia and the Carolinas to meet at Charleston to discuss wartime inflation, but those states never did so. In 1783, Massachusetts called for a meeting with Connecticut, Rhode Island, New Hampshire, and New York to discuss tax issues, but it never was held. There are other examples.
I recently added to my list the abortive “Navigation Convention.” In 1785, Virginia and Maryland concluded successful negotiations over rights to the Potomac River. Perhaps inspired by the result, late the same year Pennsylvania proposed that Maryland and Delaware join with it in a convention to discuss (1) improvements in the Susquehanna River (there was talk of a permanent national capital on the Susquehanna) and (2) a canal linking the Delaware and Chesapeake Bays.
During the first half of 1786, all three states selected delegates and, apparently, carried out some informal negotiations. But the idea of a formal meeting was outrun by events, as first the Annapolis Convention and then the Constitutional Convention were called to address much wider ranges of issues.
Like most of the other 18th century multi-governmental meetings, the Navigation Convention is little known among constitutional writers today. In fact, the Navigation Convention may be the least known of the lot, for it was overshadowed by the nearly-contemporaneous call of the Annapolis Convention.
The confusion extends even to true professionals (which most constitutional writers really are not). A Delaware archivist has informed me that his state’s records on the subject had been misfiled with those pertaining to the gathering at Annapolis. Apparently, whoever filed the documents had been unaware that the Navigation Convention was not the same meeting as the much more famous Annapolis Convention.