Filed under: All Postings, Article V, The Founding, supreme court
This article was first published on CNS News.
A newly published speech by one of our Framers offers important clues to the constitutional role of the states, of the right to keep and bear arms, and of the amendment process.
Charles Carroll of Carrollton represented Maryland at the Constitutional Convention. After the convention was over, he advocated the Constitution’s ratification.
Recently-isssued Maryland volumes of the Documentary History of the Ratification of the Constitution of the United States include a number of important documents, productions by Carroll among them. As I explained in a recent post:
One of the two new Maryland volumes contains a draft speech by Charles Carroll of Carrollton to be delivered in 1788. Although the speech was not delivered, it is evidence of the educated understanding of the time—especially because Carroll had served as a delegate to the Constitutional Convention, and therefore helped write the document. The Carroll speech specifically affirmed that wills and property conveyances were within the jurisdiction only of state courts, not federal courts (vol. 12, p. 844).
The new Maryland volumes also reproduce another undelivered speech. This one may have had public impact, because it was published well before all the states had ratified. Although it was anonymous, it was almost certainly the finished version of Carroll’s address.
As I also explained, the oration reinforced other founding-era representations about the limits of federal power:
This speech emphasized that Congress would be powerless to regulate inheritances, alter the laws of wills, or establish a national church. (Vol. 12, p. 881). It went on to say that each state will have exclusive control over “the whole regulations of property, the regulations of the penal law, the promotion of useful arts [i.e., technology], the internal government of its own people.”
I did not mention in that post, however, that Carroll further elucidated the roles of different parts of the system in protecting freedom:
The three distinct powers of the federal Govt. Are skillfully combined so as to balance each other . . . Sir, this is not all; the federal Govt. Is not only well balanced by the judicious distribution of the powers, which compose it, but the several State-governments will always keep it within its own & proper sphere of action: thus while it restrains the State-Governments with their orbits, it is by them retained within its own. . . The executive & judicial of the State goverts. Will keep a fixed & stedfast eye on those departments of the federal Govt., whose duty it will be not to overlook any encroachments on their respective Jurisdictions.
In addition, Carroll touched on the importance of the right to keep and bear arms:
The vast extent of our territory, the exertions fo thirteen governments, the diffusion of knowledge spirit of liberty amongst the citizens . . . all of whom know the use of fire-arms, would soon prove the folly and madness of the undertaking [of a hostile federal army]. In such a case, the president and congress might, in vain, call upon the militia. In such a case the force of the militia would be exerted against the base traitors to their country.
Carroll further emphasized the utility of the method of proposing amendments by a convention of states, and the independence of the convention from federal control:
When we shall have made a fair trial [of the Constitution], and found the whole, or any part of it, pernicious; the very same authority, which made, can, at any time undo, or improve it. If ever, after the adoption, a convention shall be proposed to amend it, in the way, pointed out by itself, I have the most perfect confidence, that the appointment will take place, and that neither the president, nor the congress, nor any other department will dare to oppose it . . . The very attempt to restrain, would operate most powerfully to promote it.
Finally, the speech contained a passage (too long to be reproduced here) that focused on the division between the federal and state judiciaries and the limited nature of the federal judicial power.
Although Chief Justice Roberts’ Dissent in the Arizona Legislature Case Cited My Research, I Actually Agree With the Majority!
Filed under: All Postings, Article V, TABOR, The Founding, supreme court
In my last post, I discussed the effect on Colorado’s Taxpayer’s Bill of Rights (TABOR) of the Supreme Court’s ruling in Arizona State Legislature v. Arizona Independent Redistricting Comm’n. In this post, I explain why the Arizona case was decided correctly.
Some people may be surprised that I think the holding was correct. I’m politically conservative and the case was brought by a Republican state legislature. The decision was 5-4, with the more liberal justices on the winning side and the more conservative justices dissenting. In his own dissent, Chief Justice Roberts was kind enough to cite one of my own works (although on a point only distantly related to the result). And conservative complaints about the case have been strenuous.
But in this column I try to tell it as it is, and in this instance I think the liberal justices clearly had it right.
The basic issue was the meaning of “Legislature” in the clause of the Constitution that provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . . ” (Article I, Section 4, Clause 4; abbreviated I-4-1) That provision is sometimes called the Election Clause. A better name for it is the Times, Places and Manner Clause. We’ll use the latter term here.
Now, it is well established—based on case law and on the Constitution’s original legal force—that part of prescribing the “Places. . . of Elections for . . . Representatives” is drawing the congressional districts within a state.
For many years, the Arizona state legislature drew Arizona congressional districts, and many people claimed those districts often were gerrymandered. The state’s voters, therefore, opted to transfer the job to an independent redistricting commission, a decision made by voters in several other states as well.
Arizona state lawmakers sued, claiming that the term “Legislature” in the Constitution always means the specific representative assembly of a state. They claimed, in other words, that the people had acted unconstitutionally, and that they could not move congressional district-drawing from the state legislature to a commission.
The Arizona Independent Redistricting Commission responded by arguing that sometimes the Constitution uses the word “Legislature” to mean the general legislative power of the state. In this case, the commission argued, the people, through the initiative and referendum process, had acted as the “Legislature.” Just as the people could deputize one assembly to do the job, the people could deputize another (the commission).
The Supreme Court held that in this case the term “Legislature” meant the general legislative power of the state: Arizona voters, as the supreme state legislative power, had acted constitutionally.
The Court had case precedent on its side. Earlier cases had ruled that, although in some parts of the Constitution (e.g., Article V), the term “Legislature” means only the representative assembly, in the Times, Places and Manner Clause it meant the general legislative power, however the people of a state wish to exercise it.
Of course, the Supreme Court’s precedents do not always reflect the true, original meaning of the Constitution. In this instance, though, they do. Here’s why:
* Although there is a presumption that the same word in different parts of the Constitution means the same thing, there are important exceptions. For example, in my book, The Original Constitution, I show how the word “property” in Article IV means “real estate” while same word in the Fifth Amendment means both real estate and personal property.
* Similarly, the Constitution uses the term “Congress” in a dual sense. Sometimes it means only a specific assembly. (Examples include I-1; I-4-2; and Article V.) But on other occasions the Constitution employs the word “Congress” to mean the general legislative power. (See, for instance, I-8 and III-3-2). When “Congress” acts as a specific assembly rather than as the legislature per se, it acts by an ad hoc resolution, not by a law, and without any need for presidential signature. When Congress acts as the federal legislature, it enacts laws, which generally have to be signed by the President.
The fact that the Constitution employs this double usage for the federal legislature implies the same double usage for state legislatures.
* Founding era legislative practice also supports this view. The Constitution provides that presidential electors for each state are appointed “in such Manner as the Legislature thereof may direct.” When the legislature of South Carolina, for instance, first provided for selection of presidential electors, it did not do so by an ad hoc resolution. It did so by formal legislation.
* in fact, Founding Era election rules universally were established by acts of ordinary legislation, not by ad hoc resolution. The Times, Places and Manner Clause was written against a long background of formal election legislation, both in America and in Britain.
* How the people choose to allocate the legislative power of the state is entirely up to them, as James Madison and other Founders recognized. Indeed, at the time the Constitution was adopted, several states provided for slices of the legislative power to be exercised by entities other than legislature—by the governor, by executive councils, and by the people themselves.
Finally, here’s a political point: As this case illustrates, in Arizona and some other states, pro-freedom citizens sometimes attack the initiative and referendum process and demand curbs on it. This is a mistake.
It is politically foolish (you don’t please the voters by attacking them), but it is also wrong as a matter of principle.
In our country, the people are the rightful source of all political power. A “republic,” as the Constitution uses the term, is a government based on the people’s will. Instead of attacking the people’s right to decide, our time is best spent persuading them to make the best decisions possible.
The drives for one or more convention of states to reform the dysfunctional federal government are proceeding apace, and Georgia lawyer David Guldenschuh is providing a newsletter with regular updates.
His summaries contain information on the progress of every major application campaign—balanced budget, “convention of states,” campaign finance, and more.
The latest version is here. A footnote explains how you can be added to the recipient list.
I’ve already mentioned another of Mr. Guldenschuh’s contributions to the Article V movement in this column—his calculation that even if an Article V convention were to adopt a population-based voting rule, it wouldn’t result in much practical political difference than if the convention stuck to the traditional state-based voting rule.
Filed under: All Postings, Article V, The Founding, supreme court
In a recent post, I pointed out that, despite superficial appearances, the Constitution’s Necessary and Proper Clause—clarifying that Congress has authority to make laws “necessary and proper” to carrying out its other enumerated powers—actually grants Congress no power.
The Necessary and Proper Clause is representative of one of four related kinds of provisions found in 18th century grants of authority. Some of these provisions granted powers, but others merely clarified how their documents were to be interpreted. The Necessary and Proper Clause was one of the latter kind. For that reason it is what lawyers call a “rule of construction”—that is, a guideline for interpretation.
During the debates over the Constitution, advocates of the document repeatedly outlined to the ratifying public the purely explanatory role of the Necessary and Proper Clause. James Wilson, for example, probably the second-most influential framer after James Madison and the most influential Pennyslvania ratifier, made this point at his state’s ratifying convention. He stated that the Clause did not “in any degree, go beyond the Particular enumeration . . . . It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution.” His ally at the convention, Thomas McKean, echoed this position.
At the North Carolina ratifying convention, another spokesman for the Constitution stated the same thing this way:
This clause specifies that they shall make laws to carry into execution all the powers vested by this Constitution; consequently, they can make no laws to execute any other power. This clause gives no new power, but declares that those already given are to be executed by proper laws.
Even John Marshall, the Chief Justice often accused of taking an overly-expensive view of the Clause, concurred with this reading.
In a recent posting, an anonymous blogger with perhaps more enthusiasm than knowledge argued that this was incorrect. Among that person’s claims were that the Federalist Papers showed that the Clause was an affirmative grant rather than a rule of construction.
No one who reads the Federalist carefully could come to such a conclusion. Madison’s Federalist No. 33 is absolutely clear that the Necessary and Proper Clause grants no power, but is purely explanatory:
[I]t may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if [the Necessary and Proper and Supremacy] clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers. . . . The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.
Similarly in Federalist No. 44 Madison explained what would have happened if the Clause had been omitted.
Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.
In 2012, Chief Justice John Roberts agreed:
[T]he Clause is “merely a declaration, for the removal of all uncertainty,that the means of carrying into execution those [powers] otherwise granted are included in the grant.”
All the Founding-Era quotations for this posting are found in my article on the origins of the Necessary and Proper Clause, which is available here. Those who wish more detail can consult the book I co-authored on the Clause with three other scholars. The publisher forbids me to post that work free of charge. I receive no royalties from it, but the publisher needs to recover costs of production.
Two bills introduced in the U.S. House of Representatives show that whatever they may say on the campaign trail, many Republicans in Congress don’t have much more respect for federalism, states’ rights, or local control than Democrats do.
These two bills also demonstrate, if further demonstration be needed, that Congress has broken almost all constitutional restraint, and that a convention of states is the only real hope left, short of massive civil disobedience, of repairing the situation.
The first bill is H.R. 36, which passed the House on May 13 with nearly unanimous GOP support. It would outlaw most abortions of fetuses more than five weeks old.
I’m pro-life, so I think curtailing abortion would be a good thing. But the Constitution specifically limits Congress to certain enumerated powers, and regulating abortion is not one of them. H.R. 36 offers no clue as to what its constitutional basis is supposed to be. It’s basically a criminal law of the kind the Constitution clearly leaves to the exclusive jurisdiction of the states.
When I worked for pro-life groups, one of our key arguments was that the Supreme Court’s abortion decision in Roe v. Wade violated the Constitution because it improperly federalized an issue that is constitutionally a state responsibility. Even many pro-choice Americans agree with that principle.
But the unprincipled GOP House majority just threw that argument into the trash bin. Republican members of Congress can no longer credibly use it.
The other bill is H.R. 2300, a massive (242 page) measure to re-jigger the health care system yet again. Although the bill has some good parts (e.g., repealing Obamacare), it also imposes mandates on state courts considering health care claims.
The Constitution grants no power to Congress to impose rules on state courts about how they resolve health care cases, other than the power to enforce the 14th amendment rule that those courts respect due process and equal protection of the law. In fact, during the debates over whether to ratify the Constitution, the document’s proponents sold it to the public in part by affirming that subjects such as tort law, most criminal law, civil justice among citizens of the same state, and health care all would remain immune from congressional meddling.
Yet H.R. 2300 would empower unelected bureaucrats in the Department of Health and Human Services to override state law in an area the Constitution clearly reserves to the states. H.R. 2300 recites no constitutional basis for this provision.
Widespread support for H.R. 36 and H.R. 2300 from House Republicans—generally elected on promises to respect our system of federalism—provides yet more evidence that Congress will never cure Congress. It’s up to the states, acting through the amendment process of Article V, to do the job.
Filed under: All Postings, Article V, The Founding, supreme court
More evidence has turned up that the late Chief Justice Warren Burger was defending his Court’s decision in Roe v. Wade when he wrote three letters opposing the Article V convention process.
Burger’s letters frequently are cited as authority by opponents of a “convention of states.” However, in an earlier posting I noted that the letters show little knowledge of the subject, and that Burger apparently had never heard an Article V case or published anything on the topic. I explained that the likely source of Berger’s views was his friend William Swindler, a liberal law professor who passionately attacked the convention process because he feared the states might use it to propose one or more conservative amendments.
It now it turns out that Burger had further reason to oppose a convention of states. In 1973, he was one of seven justices who signed onto Roe v Wade, which legalized abortion-on-demand nationwide and upended long-standing laws in all 50 states.
There was widespread public outrage against the decision. Even many pro-choice citizens believed that abortion should be a state rather than a federal issue, and legal scholars (including many who agreed with the result) decried the reasoning of the case as sloppy. As a result, people began to cast around for a remedy.
Many fixed on the constitutional amendment process as such a remedy. Both the 11th and 14th amendments had been passed wholly or partly to reverse overreaching Supreme Court decisions, and in 1971, it had happened again, with the 26th amendment’s reversal of the Court’s confused decision in Oregon v. Mitchell (1970).
Not surprisingly, therefore, in 1974 the Indiana legislature passed an Article V application for a convention to propose an amendment to overrule Roe. Missouri joined the following year, and Louisiana in 1976. The campaign picked up steam, and by the time Burger wrote the first of his three letters, 19 of the necessary 34 states had adopted applications to overrule Roe in various ways. So you can understand why the Chief Justice was nervous.
But here’s the ultimate irony: During the 1990s, the leadership of a few deeply conservative groups launched a campaign to rescind all Article V applications. They exhorted their grassroots members to lobby state legislatures, and in some cases they did win rescission.
You have to wonder, though: Did the leadership of those groups ever tell their members that by campaigning to rescind applications, they were campaigning to preserve Roe v. Wade? Or that they were thereby destroying any real hope of Roe being overturned?
What would their members have said if they’d known?
FOR IMMEDIATE RELEASE
April 16, 2015
Contact: Rob Natelson, 303-279-6536, ext. 114 or Rob@i2i.org
New “Article V Information Center” Helps Federal Reform Efforts
DENVER — The burgeoning “convention of states” movement wants to save the republic, and the Independence Institute is pitching in to help.
The Institute’s new “Article V Information Center” website provides journalists, state lawmakers and other citizens with up-to-date, accurate and unbiased information on a little-known part of the U.S. Constitution that could be triggered in the next year or two.
Article V of the Constitution empowers state legislatures to force reforms on the federal government. If 34 state legislatures demand a particular kind of constitutional amendment, the result is a meeting of state legislatures that the Constitution calls a “convention for proposing amendments.” The gathering can then propose reforms, which become part of the Constitution if 38 states agree.
A convention for proposing amendments is a limited-purpose gathering, and NOT a constitutional convention, with which it is sometimes confused.
Advocates of an amendment forcing Congress to balance the federal budget are only a few states away from the necessary 34. They have added three states to their tally this year.
Also picking up steam are amendments imposing term limits on federal officials, campaign finance reform, and cuts in the federal bureaucracy.
“Relatively few people realize it yet, but we could be on the cusp of a major change for the better,” says Rob Natelson, the long-time constitutional law professor who heads the Article V Information Center. Natelson’s publications on the amendment process sparked the “convention of states” movement.
“When I first started investigating, there was widespread ignorance about how the amendment process worked and what its possibilities are,” he added. Journalists and state lawmakers are still being fed misinformation by people who appear to know more than they do. That’s why we started the Article V Information Center.”
Natelson hopes the Article V Information Center will clear up the confusion. “We don’t endorse particular amendments; we just help the process,” he said. “Similar conventions have a very long track record, and we know how they work,” he says. “Our goal is to provide people with the facts.”
Visit the Article V Info Center here.
Learn more about the Center from Rob Natelson and Ken Clark:
To see more Freedom Minutes, go to our IITV YouTube channel.
Are you a journalist or other citizen who needs a quick overview of the Constitution’s Article V “Convention for Proposing Amendments?” Get our issue paper, “Curing Federal Dysfunction by Constitutional Amendment: A Primer.”
It’s a vital resource for anyone who wants a quick and accurate overview of the process.
It explains what a Convention for Proposing Amendments is—and is not. (It is not, for example, a “constitutional convention.”)
The issue paper also explains why the procedure is in the Constitution, and how it works. And it corrects misconceptions prevailing even among scholars who have not researched the topic themselves.
Filed under: All Postings, Article V, The Founding, supreme court
Some conservative groups have become known for uncompromising opposition to the Constitution’s convention method of proposing constitutional amendments.
They may think they are protecting the republic. But it turns out that they are mostly carrying water for the liberal establishment.
New research shows that nearly all the arguments of convention opponents merely repeat disinformation first propagated by the liberal establishment in the mid-20th century. The goal of this disinformation campaign was to disable an important check on federal overreach.
The Founders created the convention method of proposing amendments to enable the people, acting through their state legislatures, to offer corrective changes if the federal government ever became unresponsive, abusive or dysfunctional. When two thirds of the legislatures pass resolutions demanding it, Congress must convene a task force known as a “convention of the states“—or, in the language of the Constitution, a “Convention for proposing Amendments.” If that task force does propose amendments, they become law only if ratified by three fourths of the states.
As the federal government grew larger and more abusive during the 20th century, conservatives and moderates repeatedly suggested constitutional amendments as a partial cure. They included proposals to reverse certain Supreme Court decisions, such as Roe v. Wade; to otherwise restrict judicial activism; and to impose term limits and require a balanced federal budget.
To blunt the these amendment drives, leading figures in the liberal establishment organized a disinformation campaign against the convention process. Participants in the campaign included liberal Senators such as Joseph Tydings (D.-Md.) and Robert F. Kennedy (D.-NY); several sitting and former Supreme Court justices; members of the Kennedy circle, such as Theodore Sorensen and Arthur Goldberg; and liberal academics perched at prestigious universities, such as a Harvard and Yale.
The apparent goal was to disable the convention process as a constitutional check on the power of the federal government.
In speeches and articles, the participants promoted several key talking points. Most of these talking points were contradicted by law or historical precedent. Some of them even contradicted each other.
But truth was not the goal. The goal was political. The principal talking points were:
• Little is known about how the process is supposed to operate;
• A convention for proposing amendments would be an uncontrollable “constitutional convention;”
• A convention for proposing amendments could be controlled or manipulated by Congress under the Constitution’s Necessary and Proper Clause; and
• A convention for proposing amendments could unilaterally impose radical constitutional changes on America.
If these claims sound familiar— well, they are. Some conservative organizations swallowed them, hook, line, and sinker and continue to tout them today, apparently unaware of how they were fabricated and why.
The 20th century liberal disinformation campaign was strikingly successful. It derailed all drives to curb the Supreme Court’s liberal activism. It blocked efforts to control federal debt or restrain federal spending. It left an increasingly dysfunctional Congress with an absolute monopoly of the amendment process. And it pitted—and continues to pit—conservatives against conservatives.
This article originally appeared in the American Thinker.
Opponents of the Constitution’s Article V convention method of proposing amendments tout three letters written in the 1980s by former Chief Justice Warren Burger. In those letters, Burger took a very hard line against any convention of states that might bypass Congress and propose corrective constitutional amendments.
I’ve previously explained one reason Burger may have been so adamant: Although appointed to the court by President Nixon as a “strict constructionist,” Burger proved to be a fairly activist judge. He famously voted for Roe v. Wade, the abortion decision that up-ended laws in all 50 states.
Thus, when Burger wrote his anti-Article V letters, he was protecting Roe v. Wade and his Court. At the time, there was a great deal of talk about using Article V to overrule Roe and other ventures into judicial activism.
But now I’ve learned more.
It seems that Burger was a friend (that’s his word) of a man named William F. Swindler.
Swindler was a law professor at the College of William and Mary, which is located in Williamsburg, Virginia. Burger appointed Swindler to two official Supreme Court committees. Upon Swindler’s retirement, Burger wrote a glowing testimonial. Upon Swindler’s death, Burger eulogized him as “an analyst of history and a historian of the first rank.”
Swindler was a strong liberal, and he fiercely opposed the convention process of Article V—particularly when conservative amendments were proposed. During the 20th century, many academics wrote attacking Article V, but Swindler’s assault was the most over-the-top I’ve seen.
When Swindler wrote, the Council of State Governments was promoting a convention to consider three amendments—one to streamline the amendment process itself, one to reverse a Supreme Court legislative reapportionment decision, and the third to establish an additional layer of judicial review in a very narrow class of cases. Swindler was apoplectic, and assailed those amendments and the convention idea in unbridled language. He essentially urged resistance to a convention by all means necessary.
Part of Swindler’s plan of resistance was that federal officials should act as if the state-application-and-convention process were not part of the Constitution. Asserting that “only a federal agency (Congress, as provided by the Constitution) is competent to propose” amendments, he claimed that the convention procedure should be disregarded as “no longer of any effect.”
Thus, Swindler suggested that if the requisite number of state applications was reached, Congress should simply ignore its duty to call a convention.
Alternatively, Swindler wrote, Congress could gerrymander the convention and/or prescribe rules that would render its operation impossible. For example, he suggested that Congress mandate a rule that convention delegates were not permitted to propose any amendment unless they did so unanimously. He also argued that the courts should determine which states had permission to participate in the process and which states did not.
Was the author of these lawless propositions the source of Burger’s vehement dislike of the convention procedure? He very likely was. Remember that William Swindler was Burger’s friend. Their relationship was professional, but it was also personal: Burger wrote of his “warm personal relationship with Bill” and his “visits and walks with him at Williamsburg.” Furthermore, I can find no evidence that Burger ever did any research on Article V himself: He seems never to have heard an Article V case or published anything on the subject.
It is at least probable, therefore, that the source for Burger’s anti-Article V views was a ideologically-driven liberal willing to gut the Constitution to achieve his policy goals.
Not much of a testimonial.