But even after spending $258 million, they couldn’t get one sign right.
An exhibit there has the worthy purpose of educating the public about the rule of law. The sign in question features what it calls “the four pillars of the rule of law:” divided powers, guarantees of individual rights, due process of law, and equal application of the law.
There are several defects in the sign. For example, instead of the repetitive quotes about “due process of law,” it would have been better to explain the term. To the Founders, “due process of law” meant that when government officials proceed against a citizen, they have to follow pre-existing procedures; they are not allowed to make up the rules as they go along.
But the biggest defect is a SCREAMING omission in the sign’s explanation of divided powers: “The powers and responsibilities of the United States government are divided among the legislative, executive, judicial branches.”
Whoa! What about federalism—reserving most governmental authority to the states? Better to have said, “Power is divided between the states and the federal government, and both state and federal powers are split among legislative, executive, and judicial branches.”
Veteran Denver Post (and former Rocky Mountain News) columnist Vincent Carroll writes here about the overweaning ambition of those who support the anti-TABOR lawsuit. That lawsuit claims that because Colorado’s Taxpayer Bill of Rights (TABOR) imposes fiscal limits on the power of the state legislature—that is, restricts lawmakers’ power to tax, spend, and borrow— it violates the U.S. Constitution’s guarantee to each state of a “republican form of government.”
Mr. Carroll thereby indirectly supports a point made earlier in this blog, and supported by an II study: Because almost every state restricts the legislature’s financial powers in some way, the theory of the anti-TABOR lawsuit would threaten clauses in the constitutions of almost every state.
Mr. Carroll doesn’t say so, but if you were to take the batty anti-TABOR theory seriously, the U.S. Constitution isn’t “republican,” either, because it also limits the fiscal powers of the legislature. Specifically, the Constitution requires that Congress apportion most direct taxes, that it pass only uniform indirect taxes, and that Congress impose taxes only for “general Welfare” purposes. The Constitution also bans Congress from taxing exports.
So by the reasoning of the anti-TABOR folks, the Constitution itself did not set up a “republican form of government!”
Kudos to Vincent Carroll for a fine analysis.
Litigation over President Obama’s “recess appointments” to the National Labor Relations Board is going to the Supreme Court. A similar battle is being waged among lawyers about whether the President’s appointments to that Board, and to the Consumer Financial Protection Bureau, are constitutional.
At stake is the legal validity of hundreds of administrative decisions and regulations.
There are two constitutional issues involved. President Obama, like earlier Presidents, maintains that when the Constitution allows him to appoint officials without Senate approval so as to fill vacancies during “the Recess,” the latter term includes breaks within a session of the Senate, not just formal breaks between sessions. In addition, he claims (like many others before him) that for the vacancy to “happen,” as that word is used in the Constitution, it is enough that the vacancy continue into a recess. It doesn’t have to be created then.
I investigated Founding-Era legislative records to see if the President was correct. Over the years, most U.S. Attorneys General and judges have sided with his positions and most commentators have argued the contrary. But neither side has cited much in the way of true Founding-Era evidence. I looked at records, mostly legislative records, of the time, and found that the President is wrong on both issues, while the majority of commentators are correct.
You can find a draft of my paper here.
Carting uninformed, transient voters to the polls to vote for the political boss-man is a time-dishonored practice of demagogues everywhere. It has been proposed for Colorado, but it has no place here.
Some historical perspective: America has a long tradition of democratic governance. By the time our American Constitution was adopted, nearly all states had broadened their electorates greatly from colonial days. Property requirements were loosened. Several states allowed women to vote (formally in New Jersey, informally elsewhere). Free African-Americans cast ballots in at least five states.
This was all to the good. But the Founders also understood that democracy is not the same as ochlocracy (mob rule). They understood that, for democratic governance to work, the electorate must (1) be reasonably well informed, and (2) stand to lose personally as well as gain from the choices they make. One of the Founders’ solutions—an imperfect one, to be sure—was to retain some modest property requirements. Several states also provided exemptions for people meeting other qualifications, such as gainful employment.
Note that the Founders did not consider suffrage a “right” in the sense that, say, freedom of speech or self-defense was a right.They classified it as a “privilege”—that is, a grant from society, although a very, very important one.
One result of the difference was that while any law-abiding citizen could exercise a right, getting a chance to vote was something to be earned.
I wouldn’t want to go back to property requirements for general elections. But it does seem like a pretty minimal “qualification” to ask someone to pay enough attention to be able to register a few weeks before a pending election. In my view, it would be fair to require voters to register for a general election by Labor Day, when the formal general election campaign traditionally begins. However, the Supreme Court has effectively limited the maximum to 30 days. That hardly seems enough time to become educated on local issues. And we certainly do not need more “low information” voters.
I lived in Missoula, Montana for 24 years, a college town that hosts many people (and I don’t just mean students) who are essentially transients whose true homes are elsewhere, but who come to Missoula to hang out for a while. Local political activists encourage them to vote there. Again and again, I watched as they made decisions for the city that long-term residents would have to live with, and pay for, decades after the transients were long gone. In 2008, I watched as one of the national campaigns took advance of election-day registration to herd into the local courthouse people so incompetent they couldn’t get it together enough to fill out a simple form without it being stuffed in their hands on Election Day.
This is not good government. And it is heartbreakingly unfair—especially to the retirees and others on fixed incomes who have to pay, year after year, for mistakes made by voters who have long left for greener pastures.
Election Day registration is a move in the wrong direction at a time when we should be re-instilling the Founders’ view of voting as a privilege and obligation tied to responsible, knowledgeable citizenship.
Under the Constitution as originally understood, jurisdiction over domestic relations outside federal enclaves and federal territories was reserved to the states.
State laws dealing with domestic relations are, however, subject to the mandates of the Fourteenth Amendment. That provision requires states to honor “due process of law” and to grant all citizens “equal protection of the laws.” (The Supreme Court has added that the Fifth Amendment imposes a similar equal protection standard on the federal government; a more credible reading of the Constitution would derive some federal equal protection obligations from the “proper” component of the Necessary and Proper Clause.)
Modern Supreme Court Due Process cases recognize a constitutional right to make free sexual and co-habitation choices, both heterosexual and homosexual. People also have the right to obtain religious sanction for unions not recognized by state civil marriage laws. But there is no general federal constitutional right to the government benefits bestowed by state civil marriage laws; indeed, the states are not required to adopt civil marriage laws at all. Some commentators argue we would be better off if they didn’t, and formal recognition of marriage were left to the private sector.
It is important to understand what civil marriage laws are. They are enactments authorizing the grant of special state benefits for certain kinds of unions. In other words, they give to people in qualifying relationships what the Framers called “privileges and immunities”—an 18th century legal phrase that refers to benefits bestowed by government on some people to the exclusion of others. American governments traditionally have conceded the “privileges and immunities” of civil marriage only to a social union complying with certain exacting requirements. With some variations, state laws traditionally require that the union be (1) of a man and a woman, (2) who undergo certain procedures in advance, (3) obtain a valid license, (4) have consented, (5) are above a certain age, (6) are not married to any one else, (7) are not too closely related to each other, and (8) meet certain other requirements of ceremony and/or cohabitation. States traditionally have excluded from special benefits all other groupings—including, but not limited to, same-sex marriages, polygamous marriages, polyandric marriages, other plural clusters, designated intra-family unions (e.g., brother/sister and uncle/niece), and unions that are unlicensed or that otherwise fail to meet the states’ rules.
Now we come to the big question: Does a state’s decision to grant benefits to just one sort of union violate the equal protection doctrine? A grant of special privileges to one group while excluding others does violate that doctrine unless the state can point to legitimate public reasons for its decision. How strong the reasons have to be depends on the kind of case. For better or worse, the Supreme Court is very tolerant of government discrimination among economic classes. In social-issue cases, on the other hand, the Court sets more exacting standards.
It is clear that for constitutional purposes civil marriage laws that include one man/one woman unions do meet those exacting standards. This is because of the overwhelming evidence of social benefit deriving from such unions. This evidence arises both from formal empirical studies and from practical experience gathered, quite literally, over millennia.
What about extending the “privileges and immunities” of civil marriage to other groupings? That’s a much tougher case to make because, with the arguable exception of polygamous marriage, the supporting evidence is so much weaker. Particularly in the case of same-sex marriage, the evidence of social benefit is spotty and highly politicized. Under Supreme Court Equal Protection jurisprudence, it is not strong enough to require states to recognize such unions.
Thus, under existing Supreme Court Equal Protection doctrine, the real issue is not whether the evidence is sufficient to compel states to recognize same-sex marriage. The real issue is whether that evidence is sufficient to justify states granting to same-sex couples “privileges and immunities” that most other groupings—such as polygamous and polyandrous unions—do not receive.
My own view, for what it is worth, is that such questions are best left to the individual states to resolve. That doesn’t address the special problems arising under the federal Defense of Marriage Act, but it’s a good general principle.
My recent address in Grand Junction on the Colorado gun control laws has received widespread notice. This is particularly so of the part pointing out that the same arguments used by the legislative majority for gun control could be used to restrict other constitutional rights, such as free speech and sexual choice.
I’ve reproduced the entire text below:
Rob Natelson Address to Pro Second Amendment Committee
March 23, 2013
My talk tonight will address three different, but related, topics.
First, I’ll speak about the right to keep and bear arms as that right is enshrined in both the United States and Colorado Constitutions. I will be speaking about what those rights actually mean as the constitution-writers understood them, not as the courts have distorted them. I’ll discuss why those rights are there, what their scope is, and what it means to infringe them.
Second, I’m going to speak about the politicians in the Colorado legislature who voted for bills designed to control and harass Colorado gun owners. I’ll say something about the convoluted thinking of those politicians, and what I think really motivates them.
Finally, I will suggest a way citizens can respond to what those politicians have done.
* * * *
The Second Amendment of the United States Constitution states that:
“A well-regulated militia being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
What does this amendment really mean?
In recent years, people offering answers to that question have often focused on the militia part of the Second Amendment: “A well-regulated militia being necessary for the security of a free state. . .”
But in my view, that’s the wrong place to begin. The militia phrase is what lawyers call a “preamble”—a non-binding explanation of intent. It is not the effective, or operative, part of the amendment. In other words, it is only a guide to interpretation, not the actual law. The actual law is “the right of the people to keep and bear arms shall not be infringed.”
Notice two things about the phrase I just read. First, it refers to “THE right of the people to keep and bear arms.” Like “the freedom of speech” and “the freedom of the press” in the First Amendment. The Founders were referring to a right already existing before the Constitution was ever adopted. In the Founders’ view, it was a natural right, given by God and not to be impaired by government. On the contrary, it was a right that government must guarantee.
Another thing this phrase—THE right to keep and bear arms—implies is that the Founders knew the scope of the right. In other words, they understood what it did and didn’t include. We can understand what it did and didn’t include by examining the history of the Founding. It has always bothered me that so many judges and constitutional writers merely speculate about what First and Second Amendment rights mean, rather than going to the historical records and finding out.
I’ll say more in a moment about what is and isn’t encompassed by the Second Amendment.
So—this phrase refers to “THE right to keep and bear arms.” It also says that this right “shall not be infringed.” What does that mean? On this subject, also, there’s no need to speculate. Because 18th century dictionaries tell us exactly what “infringe” meant.
In this context, the word “infringe” meant to reduce or impair in any way. In other words, government shall not reduce or impair in any way “THE right to keep and bear arms.” Today, political demagogues talk about imposing “common-sense” or “reasonable” restrictions on the right to keep and bear arms. But the Constitution, properly understood, is clear that there are NO permissible restrictions on the right, however much the politicians may think they are “common sense” or “reasonable.”
On the other hand, the Founding-Era record also tells us that not every use of every weapon is part of the right that cannot be infringed. So let’s look now at what the right does and doesn’t include.
History makes it clear that the Second Amendment is designed to serve four principal purposes.
First, it guarantees the states militia power of their own to balance the military power of the federal government;
Second, it promotes the God-given right of personal self defense;
Third, it enables the citizenry to repel foreign invasion; and
Fourth, it enables the citizenry to overthrow domestic tyrants and intimidate or discipline those who otherwise would be tyrants.
The first purpose—providing a state military balance to federal power—is more important in assessing federal gun control laws than in assessing state gun control laws. Since I’m focusing on the Colorado laws this evening, I’ll discuss here the other three principles. We begin with the right of self-defense.
In order to enable people to defend themselves, the right to keep and bear arms has to include weapons sufficient for that purpose. Which weapons are sufficient for the purpose of self-defense will vary according to changes in technology and in society.
Advocates of gun control tend to be the same sort of people who argue in favor of the idea of a “living Constitution.” Of course, usually when people argue for a “living Constitution,” what they really want is a dead Constitution. Specifically, they want to eliminate almost every constitutional limit on the power of federal politicians and allow those politicians to control almost everything except abortion, which they want the politicians to subsidize.
Yet some of the people who think the Constitution should be manipulated to meet allegedly new conditions take a very different tack when applying the Second Amendment. To them, the Second Amendment, if it protects individual rights at all, should be limited to militia duty with muskets and flintlocks.
But if the Second Amendment is based partly on a right to personal self-defense—and it is—then this narrow view is wrong. The Second Amendment cannot be limited to muskets and flintlocks any more than the power of Congress to regulate interstate commerce can be limited to trade in sailing ships and horse-drawn wagons. Even an old-fashioned constitutionalist like myself believes that Congress can use the Commerce Power to regulate railroads and air travel, although those forms of travel did not exist when the Constitution was ratified. Otherwise, the Commerce Power would mean nothing. For the same reason, the right to keep and bear arms must include the free use of modern technology appropriate for self-defense.
It is true that when the Second Amendment was ratified, a standard capacity 30 round magazine would not be necessary for personal self-defense. But now, when when mass murderers and terrorists have modern weapons, citizens need standard capacity magazines for self defense. They also need handguns and a range of other weapons. That is one reason the Second Amendment protects their use today.
In addition to self-defense, the Second Amendment was adopted to enable citizens to defend against tyrants foreign and domestic. At this point it becomes helpful to turn to the Second Amendment’s preamble: The Amendment seeks a “well regulated militia.” In 18th century language, “a well regulated militia” meant a “well-trained militia.”
The “militia” that the Second Amendment says should be well trained consists of all able bodied men. Article XVII, Section 1 of the Colorado Constitution expresses this well: It says, “The militia of the state shall consist of all able-bodied male residents of the state between the ages of eighteen and forty-five years; except, such persons as may be exempted by the laws of the United States, or of the state.” That was pretty much the American Founders’ view of the matter. Read Madison’s language in Number 46 of The Federalist Papers, and you’ll see what I mean. It is pretty much the understanding of our fathers and grandfathers when gun use and safety was commonly taught in public school.
So according to the Second Amendment, we want all men of military age well trained in the use of weapons. And why is this? Because, as the preamble tells us, this is “necessary for the security of a free state.” By “a free state,” the Constitution means “a free country.”
So all men of military age should be well-trained in weapons so that America survives as a free country.
Well, what weapons? Obviously, the muskets and single-shot rifles in use when the Second Amendment was adopted are no longer sufficient to do the job. Today the Second Amendment protects a range of weapons appropriate for citizen militias resisting foreign invaders and tyrannical politicians.
Now at this point someone favoring gun control always comes up with the line, “Well, does that mean that citizens have the right to hoard naval artillery and atomic bombs?” And the answer is “No, the Second Amendment doesn’t encompass naval artillery or atomic bombs any more than the First Amendment includes falsely shouting ‘fire’ in a crowded theater.” The language and purposes of the Second Amendment, as well as its history, tell us what it excludes as well as what it includes. Naval artillery and atomic bombs are not customary for personal self-defense and they never have been militia weapons used for repelling foreign invaders and domestic tyrants. In fact, the Second Amendment itself refers to the right to bear arms—that is, to carry arms—referring to weapons that normally are carried by a human being.
Let’s focus for a minute on another purpose of the Second Amendment: protecting against domestic tyrants. We tend not to discuss this purpose much, but it might possibly have some relevance to the authoritarian types who currently dominate the Colorado legislature.
Politicians in America right now tend to fall into either of two groups. There are those who generally favor freedom but also strongly support law enforcement. And there are those who are skeptical toward law enforcement but nevertheless seek to expand the power of government in many areas of life, and particularly in economic affairs. It’s not intuitively obvious which group should be for gun control. You might think that those who favor economic freedom might be for gun control as a way of backing law enforcement. Or you might think those who favor more economic regulation might be against gun control because they are skeptical about law enforcement and might not want to give the police a monopoly over weapons.
But we all know what the situation is in real life: In real life, the biggest advocates of gun control are precisely those who want to lord it over the rest of us in nearly every other aspect of life.
Why is this? Well, reflect on the fact that the modern era of gun control began with the federal Gun Control Act of 1968. This law—if an unconstitutional act can be called a “law”—was passed in the wake of some ghastly political assassinations. I don’t think this is a coincidence. It’s reasonable to assume that those who wish to fasten more and more fetters on the productive people of American society might consider that one day they might go too far, and face physical and armed opposition.
Indeed, just the fact that many citizens are armed may have a moderating influence on authoritarian politicians.
The author of the first draft of the Second Amendment was James Madison. Madison’s favorite book of political theory was Aristotle’s Politics. Several times in that work Aristotle makes the point that all citizens should have weapons, and that only those with weapons should be citizens. Otherwise, he wrote, those that are disarmed are the slaves of those who are armed.
The point was made another way by Jean Louis DeLolme, a Swiss jurist. DeLolme wrote a book on the English constitution that we know Madison read, and that was a source for other American Founders as well. In speaking of the need for an armed citizenry, DeLolme wrote:
The Power of the People is not when they strike, but when they keep in awe. It is when they can overthrow every thing, that they never need to move; and Manlius [a Roman consul] included all in four words, when he said to the People of Rome, Ostendite bellum, pacem habebitis. [Look toward war, and you shall have peace].
The widespread ownership of firearms, therefore, helps to preserve freedom, usually without the need for armed violence. When politicians limit or harass gun ownership, the threat is far wider than the threat to guns alone. By reducing the number of citizens who are armed, gun control emboldens the authoritarian politicians to control everything else we do, thereby imperiling freedom generally.
And this brings us specifically to the majority that now controls the state legislature.
Certainly, their political views are pretty skewed. Consider one example.
The same politicians who voted for gun control were by and large the politicians who voted for civil unions. If you have read that bill, you know it goes far beyond civil unions: It is really a same-sex marriage bill that is labeled a civil union measure in an effort to evade the marriage rules of the Colorado Constitution.
Now, one basis for the civil unions bill is the U.S. Supreme Court’s holdings that the right to engage in sex outside of marriage, both heterosexual and homosexual, is a federal constitutional right. The Founders would have been astonished at this for a number of reasons. But that is what the modern Supreme Court says.
Now, ask yourself: What would be the reaction of the Colorado legislature’s majority to a proposal requiring a background check before anyone could exercise the constitutional right of non-marital sex? What would be the reaction to a bill saying that the eager couple had to pay the fee for that background check? What would be the reaction of Speaker Ferrandino or Senate President Morse to a bill stating that the eager couple was limited to “15 rounds,” so to speak?
No doubt those legislative leaders would explode in outrage. How can you limit a constitutional right that way?” they’d sputter.
“Well,” we might respond. “You’re doing just that with an enumerated constitutional right—the Second Amendment.”
When they stopped sputtering, they might argue that, well, “Guns are different. Fifteen thousand Americans die from gun violence each year.”
“Are they?” We might say. “In fact, 17,000 Americans die from AIDS each year, primarily as a result of non-marital sex—and that figure doesn’t even count other sexually-transmitted diseases. So if you can impose background checks and the like on our right to keep and bear arms, then we can impose similar restrictions on your right to bare other parts of your body.”
The same sort of argument that applies to the unenumerated right of non-marital sex and the enumerated right to keep and bear arms also applies to the enumerated rights of freedom of speech and freedom of the press. As a child of the 1960s and 70s, I remember how free use of the First Amendment allowed protesters to pressure the federal government into some fatal mistakes in Southeast Asia—mistakes that, as widely predicted, led inevitably to a bloodbath in which 2 million people died. You see, free speech can be very dangerous.
But this is emphatically NOT an argument for government restrictions on free speech—nor is an argument for government restrictions on non-marital sex. As the courts properly hold, the state and federal constitutions protect even rights with potentially-dangerous consequences. For example, the courts hold that the government generally may NOT impose prior restraints on a person seeking to exercise First Amendment rights.
Yet the worthies who run the Colorado legislature think nothing of imposing burdensome prior restraints on the entirely innocent enjoyment of Second Amendment rights.
I think we can explain the difference partly because authoritarians understand, at some level, that disarmed citizens are easier to push around than armed citizens.
At last, we come to the question: What we do now?
It is obvious that every politician who supported these gun control bills must be opposed for re-election. It also goes without saying that these bills must be challenged in court. And I’m proud to say that my own organization, the Independence Institute, will be taking the lead in doing just that. And in a few cases recall efforts against selected politicians may be a good idea. But we need a wider public response as well, and to explain what it is I’d like to tell you of an event from my own life.
In 1985, I left Colorado for job reasons and a shortly thereafter found myself working as a law professor in Montana.
Now, Montana has a public image—and a self-image—as a place of rugged individualism. And this image is accurate in a few areas of life, such as gun rights. But when I moved there I was surprised to learn that in many other areas, this was not true. In political affairs particularly, Montana traditionally has suffered from an ailment that used to be called “prairie socialism.” This was reflected in the fact that Montana had, proportionately, one of the largest governments and some of the highest taxes in the United States.
It has been demonstrated repeatedly that big government and high taxes are bad for an economy. It is not surprising, therefore, that Montana was quite poor. Around that time, the average Montana salary fell to the lowest of any state—below even Mississippi—and state government was in constant budgetary distress. The usual way of dealing with the distress was to raise taxes, which of course then hurt the economy more, leading to further deficits.
In 1993 the state legislature and governor decided to respond to yet another purported deficit in the usual way—by raising taxes. And this time they really went whole hog. They raised payroll taxes, gasoline taxes, excise taxes, resort taxes—all by huge amounts. They also promoted a massive new sales tax. The people would get to vote on the sales tax, but the politicians stacked the deck by passing a law saying that if the people did not vote for the sales tax then state income taxes would automatically shoot up instead.
In other words, the politicians in Montana were guilty of the same sort of overreach the politicians in Colorado are presently guilty of.
Now, the Montana Constitution contains a provision that allows the people to circulate a petition to force a public vote on almost any bill the legislature passes. If enough people sign the petition, the bill is suspended, and if they people vote it down, it never goes into effect. A few other citizens and I formed an organization called Montanans for Better Government, of which I became chairman. We informed citizens of the many ways in which the size of government could be cut and we spoke of the many advantages of doing so. We pointed out that some of the state’s own numbers showed the claimed deficit was being exaggerated to frighten people. We campaigned against the proposed sales tax and announced that if voters rejected it we’d circulate a referendum petition to put the income tax hike on the ballot so the people could vote that down, too.
The political establishment, the media, and most of my fellow law professors were absolutely furious. I don’t have time tonight to tell you the story of everything they did, or tried to do, to me and my family. But our efforts were overwhelmingly successful. We were able to defeat the new sales tax by a margin of 3-1. Then we got a record number of signers for our petition to suspend the income tax hike and send it to vote. We used only volunteer petition circulators, by the way—not paid ones. We stopped the income tax hike and when the people got a chance to vote on it they turned it down by 3-1.
And shortly after our petition stopped the income tax hike, the state government number-crunchers admitted that the fiscal crisis had been exaggerated and the government really didn’t need the extra money after all.
These events happened exactly 20 years ago. Our campaign defeated two tax increases, but it also had a much greater effect: It sent a message to Montana politicians that they still have not forgotten: They have not passed a major tax increase since then—in fact, they’ve cut taxes—and the state is much more prosperous as a result.
In Colorado, our state constitution also includes a provision that allows the people to halt and review bills in a referendum. The problem here, though, is that the Colorado constitution adds that the referendum doesn’t apply to laws that are “necessary for the immediate preservation of the public peace, health, or safety.”
So to cancel the people’s referendum right, the Colorado legislature now tacks onto almost every bill a statement that the bill is “necessary for the immediate preservation of the public peace, health, or safety.” This isn’t necessarily the last word, but it means that if you try to send a law to referendum you will have to go to court. That’s something Coloradans need to change.
But we do have another option: a voter initiative. Through an initiative, we can amend the state constitution to protect citizens against attacks on the Second Amendment. Such an initiative could be fairly simple: It could add a short clarifying paragraph to Article II, Section 13, the state constitution’s right to bear arms. That paragraph could explain that the Colorado right includes freedom to buy, sell, and own standard-sized magazines . . .and freedom to purchase, sell, and own weapons without government harassment.
Right now, at least one committee has been formed to place such an initiative on the ballot next year. The committee I’m involved with is called Citizens for a Safe Colorado. If you are interested in helping, I have a sheet where you can sign up.
Tonight I’ve discussed the meaning of the constitutional right to keep and bear arms, the attack on that right by a majority in the state legislature, and ways in which I believe we can respond effectively.
I’ve observed that what is at stake here is more than the right to keep and bear arms, but also an important safeguard against grasping politicians. But let me submit that the stakes are even wider than that: At risk is the overall well being of Colorado citizens, and future citizens.
In 2009, economists at George Mason University in Virginia surveyed the states to see how each ranked on various measures of personal and economic freedom. Their study concluded that Colorado was the second freest state in the United States. Colorado trailed only New Hampshire in the respect given to the liberty of its citizens.
There is no question that this level of freedom is an important reason why talented and diligent people are attracted to Colorado. They come for freedom itself, and for the healthy economy and social climate that freedom fosters.
The authoritarians in the current state legislature are, obviously, threatening that freedom—and by doing so they threaten the economic and personal well-being of Coloradans and the future of Colorado children. Resisting and reversing what those politicians have done is not just about protecting the right to keep and bear arms. It is an obligation to our fellow citizens. It is a moral imperative toward future generations.
I have no doubt we will rise to the challenge.
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.
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).