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 trumpet 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.
Suppose you are in a general partnership with Smith. Smith handles day-to-day management, subject to your approval. But recently, he’s been acting somewhat high-handedly.
Without consulting you, Smith is busy negotiating a contract with Macropus International Corp., a company notorious for unscrupulous practices. Smith has made it clear he plans to bind your firm whether you like it or not. You know that under the law of general partnerships, unless you speak up Smith will be able to lock you and your firm into a very bad deal. This is because, as a rule, any partner in a general partnership has authority to bind the other partners and their firm to agreements with third parties.
Even if you raise your concerns to Smith personally and tell him not to sign anything without consulting you first, you still could be bound to Macropus if Smith disregards your admonition. The legal doctrine of “apparent authority” provides that if one person (you) puts another (Smith) in a position that communicates to third parties (such as Macropus) that the second person (Smith) can bind the first (you), the third party (Macropus) is entitled to assume that he can.
In these circumstances, the only way you can protect yourself is to notify Macropus before the contract is signed that Smith does not have authority to enter into it.
That’s why the letter from 47 U.S. Senators to the leaders of Iran was absolutely necessary and appropriate. Indeed, all 100 Senators should have signed it.
Although the law of general partnerships is not applicable directly to international relations, it helps us understand the issues here. Under our Constitution, the President is the “managing partner” in the treaty process: He is charged with negotiating and formally “making” treaties. But the Founders made the carefully considered decision to require approval by two thirds of the Senate. This was a change from the British system, under which the king could make treaties unilaterally, and rendered the Senate a partner in the process. And if money must be appropriated to finance the pact, the entire Congress becomes a partner in the process as well.
Like Smith in negotiating with Macropus, President Obama signaled that he planned to bypass the Senate. From the Iranian point of view, this was not necessarily a problem, since, as Iranian Foreign Minister Mohammad Javad Zarif has pointed out, the U.S. sometimes acquiesces to executive agreements without Senate approval.
To be sure, as a matter of correct interpretation the President’s constitutional authority to bind the U.S. by executive agreement is quite limited, but the Iranians cannot be expected to understand the nuances of American constitutional and judicial history. This is illustrated by Zarif’s further suggestion that an agreement negotiated by Obama alone would represent a U.S. “obligation.” He is mistaken, of course; a country is not obligated by an agreement when the other party knew the putative agent who entered the agreement actually had no authority to do so.
Under the circumstances, Iran could assume that the President could bind the U.S. to an agreement unless the Senate, or at least a large number of Senators, spoke up. Otherwise, Iran could, with some justification, claim a breach of international law if the United States refused to be bound by the deal between Iran and the Obama administration. As a result of the Senators’ letter, however, Iran is on formal notice of the truth.
For many years, opponents of a convention for proposing amendments argued that the law governing such a convention was unknowable because the only precedent for such a gathering was the Constitutional Convention of 1787.
This was always an ignorant claim, since even high schoolers learn that Annapolis, Maryland hosted a “convention of states” the previous year. Russell Caplan’s book, Constitutional Brinksmanship, published nearly three decades ago, documented several other interstate and inter-colonial conventions as well. It was clear that those claiming the “only precedent” was the 1787 gathering had not done their homework.
In 2010 I uncovered more multi-state conventions, and 2013 published an article that listed 32 such gatherings from 1689 through 1787. Twenty-four of these were regional—or, to use the Founding-Era word, “partial”—conventions. The other six were national, or as the Founders would say, “general.” In that article I also analyzed in detail the records of fourteen of these conclaves. All of them employed pretty much the same set of protocols.
In addition, on this website I’ve discussed several conventions of states occurring after the Constitution was adopted: regional conventions at Hartford (1814), Nashville (1850), and Santa Fe (1922), and a general convention in Washington, D.C. (1861). The last of these was convened to draft a constitutional amendment. Yet, believe or not, some people are still asserting that “We have only one Precedent, the Convention in Philadelphia in 1787!”
Now there’s more. I recently obtained the journal for still another convention of states. Some have claimed that the proceedings for that assembly were never recorded, or perhaps had been lost. But I found them within the first volume of the journals of the Congress of the Confederate States of America.
The convention in question was held in 1861 in Montgomery, Alabama. It included only those southern states that failed to attend the convention in Washington, D.C. And while the purpose of the Washington meeting was to head off the Civil War, the purpose of the Montgomery meeting was much less desirable: to write a new Confederate Constitution and to serve as a provisional government until elections were held under that Constitution.
However regrettable its purpose, though, there is no denying that the Montgomery Convention is useful precedent. It demonstrates yet again the consistent understanding throughout our history of the law and rules governing multi-state conventions. While unionist states were applying the standard protocols at their gathering in Washington, seceding states were applying almost exactly the same set of protocols in Montgomery.
Here are some other facts about the Montgomery Convention of 1861:
* It was called by South Carolina and by Alabama—South Carolina sent out the initial invitation and fixed the topic. Alabama fixed the time and place.
* The other states participating were Mississippi, Louisiana, Florida, Georgia, and (belatedly) Texas.
* The calls and acceptances agreed on the two basic missions: (1) write a constitution for the seceding states and (2) serve as a provisional government until elections were held under that constitution.
* The calls and acceptances did differ in minor ways. Possibly the most important was that some stated that the new Confederate constitution should be based on the U.S. Constitution, while others omitted that term. This discrepancy did not prevent the meeting, and seems to have caused no problems.
* The convention began on February 4, 1861, and eventually split its functions to fit its two missions. From February 28 to March 11, it acted as a constitutional convention and wrote a new basic charter. Throughout its entire timespan it served as a provisional government (much as the Second Continental Congress had done for the United States from 1775 to 1781).
* The call suggested (and it was only a suggestion) that the convention proceed by one state/one vote, but that each state delegation consist of as many commissioners as the state had Senators and Representatives in the Federal Congress. The other states generally agreed to this formula.
* The convention did, in fact, proceed under a one state/one vote rule, as has every other interstate convention for which the rule of suffrage is recorded. But the size and composition of each state committee (delegation) remained a prerogative for each state to determine.
* The group elected its own officers and adopted its own rules. Like other all other conventions, it elected its president from among its members: Howell Cobb of Georgia. Like nearly all other conventions, it chose a non-delegate as secretary—Johnson J. Hooper of Alabama.
* The convention stayed within its two missions, as defined by its call.
* Upon completion of those missions, the gathering adjourned sine die (permanently).
This article was first published at the American Thinker website.
Many commentators and politicians have attacked the Supreme Court’s 2010 case of Citizens United v. Federal Election Commission for holding that citizens do not surrender their First Amendment rights when they organize under state corporation law. The Vermont state legislature has even adopted an application for a federal convention to propose a constitutional amendment to “overturn the Citizens United decision.”
Almost no one seems to know that the Citizens United case contained another ruling in addition to the one on corporate issue campaigns. The other ruling should be just as controversial, for it upheld a broad congressional attack on the privacy of those exercising First Amendment rights. Yet the critics have been almost entirely silent about that part of the case.
In the second ruling, the Court sustained, over Justice Thomas’ sole dissent, a federal mandate that political issue committees publicly reveal the names of major donors. The Court did so although disclosure can lead to retaliation and personal harassment of individuals exercising First Amendment rights. In other cases, the Court has voided disclosure requirements that can result in free expression being unconstitutionally “chilled.” But the Court refused to do so in Citizens United.
The NYU Journal of Law and Liberty has just published an article in which I examine the question of whether forced disclosure of contributors to issue campaigns is consistent with the First Amendment, as the Founders understood it.
Here are my principal findings:
* Under the First Amendment, political advertising is best analyzed as a branch of “the freedom . . . of the press” rather than “freedom of speech.”
* During the Founding Era, the terms “liberty of the press” and “freedom of the press” were exact synonyms, with the former somewhat more common.
* Despite some peripheral uncertainties, the founding generation well understood the core meaning of “freedom of the press.” In other words, it was not a vague or indefinable term.
* During the Founding Era, the near-universal custom of those writing on political subjects of all kinds was to write either anonymously or under assumed names. Printers were expected to respect their contributors’ privacy by not revealing their true identity without explicit permission.
* There were important and completely legitimate reasons for author privacy, all of which continue to be valid today. In fact because of intervening changes in defamation law, those reasons may be stronger now than they were during the founding era.
* The historical record contains explicit statements that assert, or inescapably assume, that “freedom of the press” includes the right to conceal one’s identity. I found only one claim that forced disclosure was consistent with freedom of the press, but it referred to voluntary disclosure by a private printer, not government-forced disclosure.
* Under founding-era law, the right to privacy of identity ended in specific cases of “abuse.” When an author appeared to be guilty of one or more specific offenses, a prosecutor or other plaintiff could require the printer to disclose the name. These offenses included, but were not limited to, defamation, sedition, and treason. In the absence of such an offense, the author’s name was private and none of the government’s business.
A 1782 incident demonstrates the prevailing consensus:
An author had placed an article in a Philadelphia newspaper criticizing state government. Hearing that the editor had revealed the name of the critic to the governor (then William Moore), another writer accused the editor of “treachery.”
The editor felt compelled to respond. He explained that, although the governor had asked for the critic’s identity, the governor had asked for it only, “if you are at liberty to mention his name.”
In response to the governor’s request, the editor then asked the author whether the editor had permission to reveal his identity. The author responded, “You are at liberty to give my name to his excellency.” Only then did the editor disclose it.
This story shows how zealously author privacy was guarded during the Founding Era. Everyone assumed that freedom of the press incorporated a presumption of non-disclosure, even if the author had not asked to be kept anonymous. Editors and printers, as well as government officials, were subject to this norm.
Reading the historical record left me with the conviction that the Founders would have found mandatory disclosure of contributors to political advertising an outrageous violation of privacy — and certainly inconsistent with freedom of the press.
Filed under: All Postings, ObamaCare, The Founding, supreme court
Chief Justice John Marshall (in office 1801-1835) is often identified with an expansive “big government” interpretation of the Constitution. Fans of big government cite him as an ally; opponents as an enemy.
This view of Marshall is a caricature. It is true that Marshall was a Federalist—he occupied a place on the political spectrum of his day closer to Alexander Hamilton than to Thomas Jefferson. But to say that he subscribed wholly to Hamilton’s constitutional views would be untrue. It is even more inaccurate to claim him as a justice who would uphold the constitutionality of the modern federal regulatory welfare state. Marshall was far more moderate than that.
The caricature of our greatest Chief Justice was created in his own time by his political opponents. In the modern era it has been nurtured by “progressives” who claim Marshall for their version of the Constitution. Among the latter group are Supreme Court justices who quote his words out of context, book authors who omit critical passages from his opinions, and law professors unfamiliar with other things Marshall wrote and with the law and language of his time.
In 2011, I authored an article correcting the record. I also co-authored another with the Independence Institute’s own Dave Kopel, explaining why Marshall would have held Obamacare to be unconstitutional.
Now Dr. Thomas K. Lindsay of the Texas Public Policy Foundation has joined in. A new contribution by Dr. Lindsay relies mostly on my research, but he introduces it to a new and much larger audience. You can read Dr. Lindsay’s essay here.
Article I, Section 10, Clause 3 (I-10-3) of the Constitution forbids states from imposing any “Duty of Tonnage” without the consent of Congress.
During the Founding Era, tonnage was a levy imposed on the cargo capacity of ships entering or leaving harbors. As the Constitution’s words indicate, it was a species in a larger class of financial exactions known as duties.
If tonnage was imposed to raise money for government, it was (by usage prevalent in America) an indirect tax. If imposed only to, say, pay for harbor upkeep or inspection fees, it was a regulation of commerce but not a tax.
Several states, including Virginia and Massachusetts, imposed tonnage duties during the Confederation Era. They lost that right when the Constitution was adopted. Instead, tonnage was levied by the federal government pursuant to its power under I-8-1 to “lay and collect Taxes, Duties, Imposts and Excises.” Because, however, Congress was forbidden to tax exports (I-9-5), it could lay tonnage on ships engaged in international trade only if those ships were entering (not leaving) an American harbor.
Pursuant also to I-9-6, tonnage duties had to be uniform throughout the United States. Congress could not discriminate among harbors by imposing heavier rates in some places than others.
Filed under: All Postings, The Founding, supreme court
Article I, Section 8, Clause 1 of the Constitution reads as follows:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the Common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.
The Constitution also requires that “direct taxes” be apportioned among states by population. The implication is that excises are not among those levies deemed “direct taxes”—so that excises must be uniform, but need not be apportioned.
At the time the Constitution was written, an excise was universally understood to be an “inland” (domestic) tax on the consumption of commodities, specifically on manufactured goods. To cite only a few of the many corroborating definitions:
* Thomas Sheridan’s 1789 English dictionary defined “excise” as “A tax levied upon commodities.”
* George Nicholas at the Virginia ratifying convention described excises as “a kind of tax on manufactures.”
* In Federalist No. 33, Alexander Hamilton wrote of “recourse . . . to excises, the proper objects of which are particular kinds of manufactures.”
Typically taxed by excises were alcoholic beverages, carriages, silks, and certain other items then considered luxuries, such as coffee, chocolate, and tea.
As an indirect tax, an excise was one kind of levy known generically as a “duty.”
By contrast, taxes on individuals (“capitations”), property, businesses, income, and the ordinary business of life were considered “direct.” The Constitution required them to be apportioned among the states.
In 1937, the Supreme Court decided Charles C. Steward Machine Co. v. Davis, in which the Court ruled that the Social Security tax on employers was an “excise,” and therefore did not have to be apportioned among the states. The Court cited three pre-constitutional tax statutes that were not imposed on commodities but, the Court claimed, were excises. All of the Court’s citations were bogus: None of the statutes were excises. Two were head taxes. The other was a non-excise duty.
The Steward Machine case illustrates the incompetent, and sometimes mendacious, methods the Supreme Court employed during the 1930s and 1940s—the very nadir of its history.*
In fact, the tax on employers was a classic direct tax and should have been apportioned among the states as Congress previously had apportioned other direct taxes.
Note: This column is based on research for my forthcoming article, tentatively entitled, What the Constitution Means by “Duties, Imposts, and Excises”—and Taxes (Direct or Otherwise)
* * * *
* Footnote: Some would argue that the Dred Scott case of 1857, a similarly mendacious decision, represented the Court’s nadir. But that was a single horrid case issued by an otherwise competent bench. At least on constitutional subjects, the Court during the 1930s and 1940s issued one poorly-crafted decision after another.
The article was published in 1992 and is entitled A New Constitutional Convention? Critical Look at Questions Answered, and Not Answered, by Article Five of the United States Constitution. It was authored by John Eidsmoe.
The article contains many of the inaccuracies about the amendments convention process that were common in 1992—such as the claim that the 1787 gathering was called by Congress, that it was called only to amend the Articles of Confederation, that the delegates exceeded their power, and that an Article V convention is a “ConCon.” All of those inaccuracies have been corrected in the ensuing years.
Unfortunately, the article includes other slips that should not have occurred even in 1992. One of these is the unusual assertion that when the Constitutional Convention added the amendment convention procedure, the delegates simply made a hasty mistake!
The article acknowledged that the delegates added the procedure on Sept. 15, 1787 “to guard against an unresponsive congress.” But it stated that “in contrast to the meticulous care the Framers exercised in deliberating on various other provisions of the Constitution, the Concon provision of Article V was added rather hastily, at a time when the delegates were preparing to close their deliberations; and this provision did not receive the careful attention given to most other provisions of the Constitution.”
In fact, however, the amendments convention procedure was not a new idea, but had been under consideration for weeks. It was based on provisions in several state constitutions and the delegates in Philadelphia had been discussing it well before anyone proposed the congressional method!
Thus the Constitution’s first draft, presented by the Committee of Detail on August 6, contemplated a convention of states as the sole mechanism for amendments:
“On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a Convention for that purpose.”
Several delegates supported granting Congress direct power to propose as well, so the wording became:
The Legislature of the United States, whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose amendments to this Constitution . . . .
But this version had the unwitting effect of giving Congress sole power to propose. That went too far, and that is why George Mason successfully recommended re-inserting the convention of states as a proposal mechanism to bypass Congress.
The author speculated that the delegates’ supposed haste was why “there are many unanswered questions about the nature and effect of an Article V convention.” But the actual reason for the supposedly “unanswered questions” is simply because there was no need to go into detail: Americans had previously held many conventions among states and colonies, and were fully familiar with the procedures.
Now, it would be unfair to charge the author with findings about convention history that were made after 1992. However, the author should have known that the amendments convention procedure was vetted and discussed repeatedly during a ratification process that lasted nearly three years. Indeed, the procedure seems to have had an important role in securing public agreement to the Constitution.
For the history of publications about Article V, see Part I of my legal treatise, State Initiation of Constitutional Amendments: A Guide for Lawyers and Legislative Drafters.
* * * *
* Some constitutional scholars give the title “Whac-A-Mole” to convention opponents’ tactics of inventing new arguments after earlier arguments have been discredited. The later arguments are sometimes inconsistent with the former.
Filed under: All Postings, Article V, The Founding, supreme court
Some people have asked for further clarification on why the Constitution’s Necessary and Proper Clause does not grant Congress power to use its convention call to regulate a Convention for Proposing Amendments.
This is a technical area and can be difficult to grasp (or explain, for that matter). You have to understand the nature of the Necessary and Proper Clause, analyze its wording, and put together a variety of judicial rulings.
Accordingly, I’ve expanded my review of the subject. You can find it here.
The Constitution requires the President to “take Care that the Laws be faithfully executed.” This “take Care” language came from 18th century commissions and formal instructions by which higher officials delineated what lower officials were to do. The premier examples were royal instructions to colonial governors, but the Continental and Confederation Congresses used the same language in instructing civil and military officials.
The Constitution’s language is both a grant of enumerated power to the President and a mandatory duty imposed on him.
The Obama administration’s partial refusal to enforce various laws has raised questions of whether the President is violating the Constitution’s command, and thus committing an impeachable offense.
The question can be a difficult one, because everyone recognizes that the President has some discretion in exercise of the executive power. For example, the cost of full enforcement might be far greater than the appropriated funds for enforcement, requiring the President to set priorties. Also, fully enforcing the law against some persons technically in violation can work great injustice.
So is Obama violating his constitutional duty or not? Legal scholar Zachary Price examines this question in a thoughtful, balanced article written for Vanderbilt Law Review.
He concludes that in its partial non-enforcement of marijuana laws, Obama is within the scope of his discretion, although somewhat close to the line. Obama crossed the line, however, in refusing to enforce mandates imposed by the Affordable Care Act (Obamacare) and in granting exemptions from the immigration laws to whole classes of people.
Professor Price finds that the George W. Bush administration also exceeded the scope of its discretion in underenforcing “New Source Review” environmental laws.