Filed under: All Postings, The Founding, supreme court
The “Bundy stand-off” in Oregon at a federal wildlife refuge has triggered (or, rather, re-triggered) questions about the constitutionality of federal land ownership. Westerners in particular question why the federal government should own nearly 30% of the country. In the West, the issue is particularly important. The federal government has title to about half the territory of the eight Rocky Mountain states, the west coast states, and Alaska. The share of ownership in each of those states ranges from about 30% to about 88%. (Exact figures vary according to the mode of calculation.) Westerners who work with the land tend to hold very critical views of how the federal government manages its holdings.
Over a decade ago I became interested in what the Constitution, as the Founders understood it, had to say about federal land ownership. I researched prior writings on the subject. As often happens, I found most of the relevant legal “scholarship” to be of poor quality. Liberal writers baldly claimed that the federal government could own any land it wants to, however it wants to, for any purpose–and that anyone who disagreed was an “extremist.” Conservative writers usually contended that, except for land held by permission of a host state as an “enclave,” the Constitution required the federal government to grant all in-state acreage to the respective state governments. The evidence marshaled for both conclusions was both scanty and weak. The modern Supreme Court has sided with the liberal view. But the Court’s decisions are few and summarily written. They offer almost no useful explanation.
As has happened so often, therefore, I had to begin anew. I studied the Constitution’s text, the records surrounding the Constitution’s adoption, and other materials. From them, I was able to define with a reasonable degree of certainty the scope of the federal government’s power to acquire, retain, manage, and dispose of land. My conclusions were published in Federal Land Retention and the Constitution’s Property Clause: The Original Understanding, 76 U. Colo. L. Rev. 327 (2005). In a nutshell, my findings were:
* Under the Property Clause (Art. IV, Sec. 3, Cl. 2), land titled to the federal government and held outside state boundaries is “Territory.” Federal land held within state boundaries is “other Property.”
* If the host state agrees, the federal government can acquire an “enclave” within the state under the Enclave Clause (I-8-17). This grants governmental jurisdiction to the federal government, but the federal government has to acquire title separately. Washington, D.C. (the most important enclave), for example, is under federal jurisdiction, but much of the land is held by other parties, including individuals.
* The Property Clause gives Congress unconditional power to dispose of property and authority to regulate what is already held. It does not mention a power to acquire.
* Under the Treaty Clause (II-2-2; see also Article VI), the federal government may acquire land outside state boundaries. As long as the area is governed as a territory, the federal government may retain any land it deems best.
* As for acreage (”other Property”) within state boundaries: Under the Necessary and Proper Clause, the federal government may acquire and retain land necessary for carrying out its enumerate powers. This includes parcels for military bases, post offices, buildings to house federal employees undertaking enumerated functions, and the like. It is not necessary to form federal enclaves for these purposes.
* But within state boundaries the Constitution grants no authority to retain acreage for unenumerated purposes, such as land for grazing, mineral development, agriculture, forests, or parks.
* Once a state is created and is thereby no longer a territory, the federal government has a duty to dispose of tracts not used for enumerated purposes.
* In the process of disposal, the federal government must follow the rules of public trust. It would be a breach of fiduciary duty for the feds to simply grant all of its surplus property to state governments. Each tract must be disposed of in accordance with the best interest of the American people. For example, natural wonders and environmentally sensitive areas (such as those now encompassed by the national parks) might be conveyed under strict conditions to state park authorities or (as in Britain) to perpetual environmental trusts. Land useful only for grazing, mining, or agriculture should be sold or homesteaded, with or without restrictions. The restrictions might include environmental protections, public easements, and protection for hunters and anglers.
Most states were admitted to the union pursuant to treaties, agreements of cession, and/or laws passed by Congress. These are called organic laws. They include, but are not limited to, enabling acts and acts of admission. These laws cannot change the Constitution, but they have some interesting ramifications for federal land ownership. That is a topic for another posting.
My article has been cited widely. But it will not surprise you to learn that many reject the conclusions. Liberals are unhappy, because they want to keep much of our territory socialized. Conservative land activists are disappointed because they want the federal government to convey land to the state governments, not dispose of it in other ways. It is significant, however, that no one has even tried to rebut my conclusions or the evidence for them.
The evidence and the details of how I reached my findings are in the article. Since its publication I’ve uncovered additional evidence, and it has generally corroborated my findings.
Credits: This article arose out of conversations with constitutional commentator Gary Porter.
After I wrote my article on the meaning of the constitutional term “natural born,” some people asked me why the English version of that term applied rather than versions prevailing in other countries.
The reason is that when the drafters of the original Constitution and Bill of Rights employed legal phrases, they used them with the meaning given to them by the English legal and political system.
England was the dominant partner in the British partnership of England and Scotland. Most of the colonies that became the first 13 states had been founded by Englishmen, with some involvement by the Scots. By the time of Independence, all 13 colonies had been associated with Great Britain for over a century. Before the troubles that estranged Britain the colonies, they were all part of the same empire. To most Americans, England was not a foreign country. England was “home.”
All the colonies adopted English law and English-style political institutions. The fundamental “constitutional” statutes of England, such as Magna Carta, were law in America. Legislative and judicial procedures were modeled on those of England. Executive powers derived largely from English models—the Crown and, to an even greater extent, the royal colonial governorships. American courts applied English judicial rulings and sometimes ordinary parliamentary enactments.
Nearly all of the Constitution’s framers and leading ratifiers had worked within this English-style political and legal system. Most had served in the colonial and state legislatures. Some, such as Ben Franklin, had worked within the English political system itself.
The majority of the framers and ratifiers were, or had been, practicing lawyers. The older generation of Founder-lawyers had learned their legal doctrine from Edward Coke’s Institutes of the Lawes [sic] of England. The younger generation relied on Blackstone’s Commentaries on the Laws of England. In fact, a fair number of leading Founders and ratifiers, such as John Dickinson, had received their legal training in London’s Inns of Court. Still others, such as James Wilson (a Scottish immigrant), had learned their law from those so trained.
It is sometimes said that the Constitution was written in ordinary language. This is a half-truth. To the extent it was so written, it was composed in the ordinary language of the time. Because the general public was more knowledgeable about law and political institutions than it is today, phrases that to us are obscure would have been widely understood. It is also true, however, that the framers added many legal and political phrases that only lawyers and the politically active would have understood fully. During the ratification debates, advocates of the Constitution took care to explain these phrases to the general public.
This is hardly surprising that the Constitution would contain technical legal terms. It is the “supreme Law of the Land.” It is a legal and political document. It is not a newspaper, a tennis handbook, a cookbook, or Facebook.
Many of the Constitution’s political and legal expressions are terms of art. A term of art is a word or phrase with a specialized meaning that may be different from the ordinary meaning. For example, the word “necessary” in the Necessary and Proper Clause (Article I, Section 8, Clause 18) means “incidental,” which in turn is a term of art signifying, “something subordinate to the main concept and attached to that concept by custom or by reasonable necessity.” In most cases, the meanings of these terms of art had been developed over centuries—through parliamentary usage and, more importantly, the workings of the legal system.
The meaning of some constitutional terms was influenced by the way English jurisprudence divided the law into categories. Consider the Constitution’s phrase “to regulate Commerce.” Many people today think that means “regulate the entire economy.” If that were so, however, there would be no need for the Constitution to list separately other aspects of economic regulation. For example, in addition to granting Congress power to regulate commerce, the Constitution also grants Congress authority to pass bankruptcy laws. One reason is that in Anglo-American jurisprudence, commerce was a separate legal category from bankruptcy. “To regulate Commerce” referred to the branch of law that governed mercantile trade and certain associated activities, such as navigation. “Bankruptcy” was the branch of law that addressed the resolution of debts by people and businesses that couldn’t pay them. These were not only different bodies of law; they were administered primarily by different courts.
Some provisions in the Constitution were responses to well-understood legal rules not explicitly mentioned. The Ninth Amendment is an example. It was designed to overrule for part of the Constitution a specific English legal maxim (Designatio unius est expressio alterius).
A great deal of misunderstanding about the Constitution, particularly during the last century, has arisen from ignorance of our English political and legal heritage. Our education system fosters this ignorance by playing down the dominant sources of our culture in favor of traditions with only peripheral influence. (This is a result of the “diversity” babble that infests our schools and colleges.) My book, The Original Constitution: What It Actually Said and Meant, explains how the English political and legal heritage helped shape the Constitution’s meaning.
The following words and phrases are among the political and legal terms of art appearing in the original Constitution, as amended by the Bill of Rights. Most of these terms are explained in my book, and some in the section of this website called “Constitutional Nuggets.”
* legislative Powers
* direct Taxes
* Executive Authority
* “Vacancies happen”/ “Vacancies that may happen”
* pro tempore
* “oath or affirmation”
* Authority of the United States
* general Welfare
* regulate . . . Commerce
* regulate the value thereof
* Law of Nations
* Letters of Marque and Reprisal
* necessary and proper
* the writ of habeas corpus
* Bill of Attainder
* ex post facto Law
* Law impairing the Obligation of Contracts
* Regulation of Commerce or Revenue
* for the Use of/public use
* executive Power
* natural born
* Advice and Consent
* Recess of the Senate
* high Crimes and Misdemeanors
* public Ministers
* original Jurisdiction
* appellate Jurisdiction
* trial . . . by Jury
* giving them Aid and Comfort
* Attainder of Treason
* Corruption of Blood
* Privileges and Immunities
* Republican Form of Government
* religious Test
* establishment of religion
* the freedom of speech
* the freedom . . . of the press
* probable cause
* Grand Jury
* twice put in jeopardy
* due process of law
* common law
* excessive bail . . . fines
Note: A shorter version of this article originally appeared at The Originalism Blog at the University of San Diego.
Some commentators are dismissing as merely frivolous the claim that Senator Ted Cruz is not a “natural born citizen” as the Constitution uses that term, and therefore ineligible for the presidency.
This dismissive attitude is a serious mistake. Although Senator Cruz’s belief that he is natural born may ultimately be vindicated, the case against him is very respectable.
At the outset, we should note that the requirement that a president be a “natural born citizen” is not an arbitrary rule. The Framers added it to the Constitution because history had taught them some hard lessons about the inadvisability of allowing a foreign-born person to become a country’s chief executive. In other words, the constitutional requirement is there for good reasons, and should be respected.
Senator Cruz was born in Canada of an American mother and a Cuban father. By congressional statute, he was a citizen at birth. His citizenship is not at issue. What is at issue is whether he is “natural born” as the Constitution uses the term.
When the Constitution was written, the default rule of international law was that, although for many purposes a person’s status followed the condition of the mother (according to the maxim partus sequitur ventrem), for citizenship or “allegiance” purposes status followed that of the father. Individual countries altered the default rule, and the Anglo-American statutory and common law altered it more than most. In Anglo-American countries, nearly all children born within a country were granted “natural born” status, even if their parents were both aliens. Although for several years Parliament may have allowed foreign-born children to claim citizenship through their mothers, well before the American revolution it has been firmly established that to be “natural born” such a child had to have a citizen father.
In other words, it was not sufficient, as some recent writings have implied, for the child to have a citizen mother. As I pointed out several years ago in my book, The Original Constitution: What It Actually Said and Meant:
We know exactly what the founders meant by the phrase “natural-born citizen” because they adapted it from the English legal term, “natural born subject,” which in Britain defined who could serve in Parliament or the Privy Council. Essentially, a natural-born citizen was one who met either one of two requirements. First, a person qualified if born within the United States or within American territory, even if the person’s parents were aliens. Alternatively, an individual qualified even if born outside the country if the individual’s father was an American citizen not then engaged in traitorous or felonious activities.
On at least two occasions the Supreme Court has confirmed that in citizenship matters the Constitution should be read to incorporate principles inherited from Great Britain.
In arguing the contrary, recent commentators have made several kinds of mistakes. Some seem to read founding-era sources that refer to the foreign-board children of citizen parents as natural born, not recognizing that the sources mean both parents—or the father alone rather than the mother. Admittedly, the sources can be tricky on this score. By way of illustration, the editor’s headnote to Bacon v. Bacon, an English case decided by the Court of King’s Bench, seems to imply that the mother can pass citizenship. But the body of the case asserts clearly that the relevant status is that of the father.
Some writers have enlisted sources that directly contradict their thesis. For example, two writers cited Blackstone’s Commentaries to support their argument that a mother can convey natural born status to her foreign-born child. Actually, Blackstone affirms that the critical parent for these purposes is the father:
that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.
Professor Michael Ramsey, while correctly concluding that the concept of citizenship was based on British law, ingeniously argues that Congress may change the definition of “natural born,” in part because the English Parliament did so from time to time. This argument is by no means impregnable, however, as Professor Ramsey recognizes. For one thing, Congress, unlike Parliament, is a legislature of limited powers. The Constitution grants Congress power to naturalize citizens, but it does not (expressly, anyway) grant power to alter the meaning of “natural born.” Moreover, allowing Congress to manipulate the definition this way would be fundamentally inconsistent with the constitutional safeguard: It would allow Congress to decree that children born in a favored foreign country or of a favored foreign family were thereby “natural born.” That may seem far-fetched today, but would have seemed less so during the founding era, when nations and at least one American state (Maryland) conferred citizenship privileges on those with whom they wished to curry favor.
The best evidence for granting natural-born status to the foreign-born child of a citizen mother and alien father derives from the Naturalization Act of 1790, adopted in the First Federal Congress. It provided in part:
And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.
Senator Cruz’s father, although a Cuban, previously had lived in the United States.
Although Congress cannot alter the meaning of a constitutional provision, one may contend that this statute sheds light on the meaning of the constitutional meaning of “natural born.” It was adopted by a Congress that included important Founders and it was enacted before all of the 13 original states had ratified the Constitution.
On the other hand, at least four factors weaken its persuasive force:
First, the new federal Congress adopted it nearly a year after the Constitution had been ratified by eleven states. Its terms seem not to have been the subject of discussion during the ratification process.
Second, the statute is ambiguous. It applies to the “children of citizens.” That may mean children with at least one citizen-parent. But it also might mean children with two citizen-parents. As noted above, other founding era sources that, at first glance, might seem to mean the former, actually signify the latter.
Third, when Congress used the term “citizen” it may well have meant only male citizens. Taken alone, it would not seem so. But remember that the then-prevailing assumption was that citizenship status followed the father. Observe how the statute’s proviso focused solely on the father: “[T]he right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”
Fourth, the presence of “natural born” language in a statute dealing with naturalization—and not otherwise with natural born status—seems to demand explanation, and one likely explanation may not be good for Senator Cruz’s case:
During the founding era, certain private rights, such as inheritance and land ownership, could depend on citizenship or natural-born status. Congress may have been seeking, not to explain or define the constitutional requirement, but merely to extend private benefits to persons who might otherwise be excluded. This would explain why the statute provides that the “children . . . shall be considered as natural born”—not that they literally are natural born.
I am an admirer of Senator Cruz, and I wish him well in the court challenges that undoubtedly will arise. But no one should dismiss those challenges as baseless or frivolous.
Note: This is the last in a series of six articles that originally appeared in the Washington Post’s “Volokh Conspiracy,” a leading constitutional law website. Parts I – V appear below this post.
How the Procedures for a Modern Amendments Convention May Unfold
Parts I to V of this series discussed the background and nature of the Constitution’s “Convention for proposing Amendments.” This final installment surveys the most likely scenarios for calling a convention, and possible developments if 34 states apply on any one subject or an overlapping group of subjects.
The subject matter for amendments submitted to a convention will depend on which of several application drives induces Congress to issue the first call. The possibilities are complicated by the fact that some applications are vulnerable legally. For example, convention opponents have argued that applications that are “too old” are invalid or “stale” on that account. This argument was significantly weakened by adoption of the 27th amendment, in which unrepealed ratifications two centuries old were accepted as valid.
More serious is the fact that many extant applications purport to limit the convention to considering only an amendment with prescribed wording. That may render them inherently invalid or inaggregable with more general applications.
The number of unrepealed applications is in the hundreds, although no one subject has attained the threshold of 34. Some are from now-abandoned campaigns, such as those for banning polygamy and repealing the 16th amendment (which dropped the apportionment requirement for the income tax). The application totals are at the website of the Article V Library.
Among the currently active campaigns, the frontrunner is the Balanced Budget Amendment Task Force, which claims applications from 27 states. In 2014, Citzens for Self-Governance began its “Convention of States” project. Relying on grassroots enthusiasm, it has won the endorsement of four state legislatures. All four applications closely track the form recommended by “Convention of States” activists: They would empower the convention to consider fiscal restraints on the federal government, term limits and reductions in federal power.
Also enjoying the endorsement of four states is the Wolf PAC movement, which seeks campaign finance reform. Realistically, Wolf PAC is unlikely to reach the threshold of 34. This is partly because of the conservative political composition of most state legislatures and partly because not all of its applications are fully consistent. In addition, while the general idea of campaign finance reform enjoys strong public support, most specific proposals involve granting more power to Congress. This is a tough sell at a time when the electorate is deeply dissatisfied with Congress.
Other Article V campaigns include those aiming to impose a single subject rule on Congress, a revived push for congressional term limits and the Act 2 Movement, which promotes term limits, fiscal restraints, campaign finance reform and creation of a fourth branch of government to enforce the law against the other three.
Once a campaign claims to have reached the 34-state minimum, Congress will have to determine whether the applications truly “aggregate” with each other. If the campaign is for a balanced-budget amendment, Congress may have to exercise some discretion. Although most balanced-budget applications simply demand a convention to consider the subject, three purport to limit the convention to prescribed language. Congress may have to determine whether to aggregate the two sets. Congressional discretion also may be necessary to decide whether applications that demand an unlimited convention should be included in the total.
How Congress reacts will, of course, be influenced by the then-current political environment. I have stressed to state legislators the need to communicate forcefully both to Congress and the general public the conditions under which Congress must call and the proper limits of a call. State legislative planners have responded well to this advice.
Interstate conventions held earlier in our history included commissioners who had attended prior interstate conventions. Because that sort of experience is lacking today, state legislative planning groups have sprung up to prepare: the State Legislators Article V Caucus, the Assembly of State Legislatures and the Convention of States Caucus. In addition, two trade organizations of state lawmakers, the National Conference of State Legislatures and the American Legislative Exchange Council, have presented programs on convention issues.
Necessarily, there have been some mistakes. Recently the executive committee of the Assembly of State Legislatures recommended to the general membership an impractical system of convention rules mandating super-majorities and weighted voting, and even co-presidents and co-committee chairs from opposite parties. The general membership’s firm rejection of those rules suggests that wisdom is likely to prevail over the long term, and that when a convention does meet it will have the benefit of a viable procedural template.
Earlier this year, I undertook a study of prior convention rules to ascertain their modern applicability. Here are some of my conclusions:
* Most of the rules applied at 18th and 19th century conventions are still viable. In fact, some these rules are echoed in modern legislative practice.
* Any set of convention rules must be supplemented by default rules. For this purpose, I recommended “Mason’s Manual,” by far the most commonly used rule book in American state legislatures. Both the Assembly of State Legislatures and the Convention of States project have adopted this recommendation.
* The principles of one state/one vote and decision-by-simple-majority sometimes have been challenged, but ultimately every convention has retained or returned to them for most purposes.
* Although in theory a bare majority of low-population states could cause the
convention to propose an unpopular amendment, modern political conditions render this highly improbable.
* Ratification is quite a different process from proposal. A proposal’s margin of victory at the convention is probably not a strong predictor of whether or not it is ratified.
* Some traditional rules will have to be modified. For example, rules barring
commissioners from access to written materials will yield to the world of electronic hand-held devices. Traditional rules of secrecy will yield to modern values of transparency.
* In prior conventions, the distances between the state capital and the convention site required most legislatures to rely heavily on their commissioners’ discretion once those commissioners had received their initial instructions. Modern communications will enable commissioning authorities to exercise more influence on their representatives. On balance, this is probably a good development, since it reduces the chance of commissioners exceeding their authority, and it involves a wider group in the negotiating process.
* A modern 50-state convention probably will consist of between 200 and 250
commissioners. Some states may appoint alternates as well. Each state legislature is free to fix the size of its own “committee,” but at my suggestion most planners are contemplating convention rules that limit the number of commissioners on the floor from any state at any one time. This will reduce the incentives for states to flood the assembly, as Tennessee did at the 1850 Nashville convention.
* Some states may boycott, as Rhode Island boycotted the Constitutional Convention. Over the three-plus centuries of American multi-government conventions, none has ever attained 100 percent participation.
Whether or not a modern convention actually proposes an amendment, and whether any such amendment is ratified, the event will provoke new public interest in our constitutional system. It may also revivify awareness of the role of the states in American federalism.
Filed under: All Postings, The Founding, supreme court
Note: This series of six articles originally appeared in the Washington Post’s “Volokh Conspiracy,” a leading constitutional law website. Parts I II, III, and IV appear below this post, and Part VI will be posted in the near future.
How the Convention for Proposing Amendments Became the Subject of Popular Mythology
Throughout the century and a half following adoption of the Constitution, Americans were frequently divided on the advisability of holding an amendments convention, and they were sometimes divided on technical points of Article V law. For the most part, however, leading participants seem to have understood the nature and scope of an amendments convention.
By the mid-20th century, this understanding had been lost. A succession of authors, some otherwise quite distinguished, publicly displayed their unfamiliarity with the subject.
During the 1960s, the Council of State Governments, unhappy with the legislative reapportionment decisions of the Earl Warren Supreme Court, promoted a trio of corrective amendments. More than 30 states adopted applications for one or more of them. During the 1970s, concern about federal spending induced many state legislatures to apply for a convention to consider a balanced-budget amendment.
Many scholars, politicians and activists on the liberal side of the political spectrum opposed all of these amendments. Representative of their responses were articles published in 1963 and 1972 by Yale Law Professor Charles Black, a leading liberal constitutional scholar. In those articles, he excoriated the proposed amendments and a pro-convention congressional bill as a “threatened disaster” and candidly advocated a course of legal obstruction.
Black didn’t find it necessary to do much research before promoting his ideas. He apparently was unaware of the nature of the convention as a gathering of the states. He suggested that Congress disqualify any application limited to a particular subject, even though interstate conventions nearly always had been limited in scope. He argued that a limited amendments convention was unconstitutional because the Founders had referred to amendments conventions as “general” — a term that actually referred to the number of states invited, not to the subject matter.
Black urged Congress to use its purported powers under the Necessary and Proper Clause to control the composition and rules, without, apparently, studying the language of the Necessary and Proper Clause. Beginning in his second article, Black labeled an amendments convention a “constitutional convention,” presumably because the latter term implied that the gathering could roam at will.
Other writers and opinion molders followed Black’s lead. Among them was Sen. Robert F. Kennedy (D. N.Y.), who brought with him others in the Kennedy circle, such as speechwriter Theodore Sorensen and former labor secretary Arthur Goldberg. One Kennedy admirer, Richard Rovere, warned readers of the New Yorker magazine that a convention could “reinstate segregation, and even slavery; throw out all or much of the Bill of Rights . . . eliminate the Fourteenth Amendment’s due process clause and reverse any Supreme Court decision the members didn’t like, including the one-man-one-vote rule; and perhaps for good measure, eliminate the Supreme Court itself.”
These assertions are obviously untenable in light of Article V case law and precedent, but writers on the subject had not looked for much Article V law or precedent. Even friends of the process accepted some of their opponents’
claims. Sen. Sam Ervin (D. N.C.), for example, introduced congressional legislation to curb the supposed threat of a “runaway” convention.
There were a few efforts to learn more about the process, such as an investigation commissioned by the American Bar Association. But they were under-researched, and their conclusions were unreliable. The ABA study, for example, apparently rested heavily on research by two law students.
More thorough researchers eventually began to sort things out. The work began with an opinion written by John Harmon of the U.S. Office of Legal Counsel (1979), followed nearly a decade later with Russell Caplan’s Oxford University Press book, “Constitutional Brinksmanship” (1988). Only since 2010, however, have investigations by this writer and by other scholars effectively recaptured the meaning of, and rules behind, the state application and convention process.
In the interim, notions that an Article V gathering is a “constitutional convention,” that it is inherently uncontrollable or that it could be controlled by Congress had entered popular mythology. Such views are still promoted, both by liberals who oppose restrictions on federal power and by paleo-conservatives who worry that any convention would be hijacked by the political left and would completely rewrite the Constitution.
Note: This series of six articles originally appeared in the Washington Post’s “Volokh Conspiracy,” a leading constitutional law website. Parts I and II appear below this post, and Parts IV-VI will be posted in the near future.
How the States Have Used Article V and How They Have Continued to Meet in Convention
During the century and a half after the Constitution’s ratification, the states repeatedly applied to Congress for an amendments convention. Although they never reached the threshold of two thirds on any particular subject — and therefore never forced Congress to call a convention — they did enjoy some success in forcing constitutional change.
In 1788 and 1789, Virginia and New York filed applications for a convention to consider amendments to the new Constitution. Those applications enabled congressional advocates of a bill of rights to argue that if Congress did not propose a bill, the states might call a proposing convention.
Efforts by some Southern states to force a convention during the nullification controversy (1828-33) never gained much traction. Similarly, a convention of the New England states in Hartford (1814) and one of the Southern states in Nashville (1850) had little effect other than keeping the convention tradition alive. But a coordinated application campaign beginning at the end of the 19th century for an amendment transferring election of U.S. senators from the state legislatures to the people was much more successful. The campaign was only one or two states short when, in 1912, the formerly recalcitrant Senate, faced with the prospect of a federal convention, agreed with the House to propose the 17th amendment.
Early in the 20th century, Western states watered by the Colorado River became alarmed that Congress might impose water use rules on the stream. Accordingly, in 1922 they met in convention (although the gathering was called a “commission”) to negotiate their own settlement. The result of the meetings, most of which were held in Santa Fe, N.M., was the Colorado River Compact.
The 20th century witnessed other interstate meetings that, while not rising to the level of formal conventions, shared certain commonalities with them. In mid-century, an application campaign begun by Montana and some Midwestern states encouraged Congress to propose the 22nd amendment, which limited the president to two terms.
Perhaps the most instructive proceedings during the century and a half after the Constitution’s ratification were those involving the Washington Conference Convention of 1861 — informally known as the Washington Peace Conference. This conclave arose out of concerns that extremists on both sides were pushing the nation toward Civil War. Moderates thought the constitutional amendment process might be used to reconcile North and South. Among them was Sen. John J. Crittenden of Kentucky, who drafted a compromise that would have reassured the South by protecting slavery where it existed and allowing a limited expansion, while reassuring the North by barring “the peculiar institution” from most U.S. territories.
There was, however, no hope of the highly polarized Congress adopting such a proposal. Accordingly, in late 1860 and early 1861, both the outgoing president, James Buchanan, and his successor, Abraham Lincoln, urged the states to apply for an Article V convention. Some states applied, but progress was too slow. In January 1861, therefore, in a last-ditch effort to save the union, the Commonwealth of Virginia called a convention of states for Feb. 4 in Washington to consider an amendment similar to that advanced by Crittenden. The urgency was heightened when on the same date six Southern states also convened in Montgomery, Ala., to finalize plans for a new Confederacy.
The Montgomery convention, soon joined by a seventh state, Texas, followed all the traditional protocols for meetings of that type.
The promoters of the Washington conclave recognized that it would not have Article V powers, but they hoped that if it did reach agreement, the political pressure on Congress would be sufficient to induce it to respond in kind.
The Washington Conference Convention met for three weeks. Its attendance of 21 states represented the overwhelming majority of non-seceding states and marks it as the largest general convention in American history. It elected former president John Tyler of Virginia as its presiding officer, and like the assembly at Montgomery, adhered closely to the traditional protocols. It adopted a set of rules similar to those that had governed the Constitutional Convention.
The Washington Convention had been called on very short notice, and bitter national divisions rendered the sessions very hard-fought.
Nevertheless, by time of adjournment the assembly had recommended an amendment that looked much like the one proposed by Crittenden. That amendment, if adopted, may well have prevented the Civil War; and because it limited the expansion of slavery to territories not well suited for it, the amendment may have placed the “peculiar institution” on track toward extinction.
Congress did not act on the recommendation of the Washington Convention, so that recommendation did not abort the Civil War. When considered as an independent proceeding, however, the convention was a success. Despite almost insuperable difficulties, it did not deadlock or shatter in acrimony, but produced a workable compromise.
Furthermore, the Washington Conference Convention served as a rehearsal for an Article V convention.
Note: This series of six articles originally appeared in the Washington Post’s “Volokh Conspiracy,” a leading constitutional law website. Part I appears below, and Parts III-VI will be posted in the coming weeks.
How Article V was Drafted and Ratified
The commissioners who met in Philadelphia to propose a plan to render the American political system “adequate to the exigencies of the union” decided early in the proceedings to add a mechanism for amendment. Edmund Randolph’s Virginia Plan contemplated such a mechanism. The Virginia Plan did not specify what it would be, other than to provide that the consent of the national legislature should not be required.
The Constitution’s first draft, reported to the convention by the Committee of Detail on August 6, 1787, specified that amendments would be proposed, and presumably ratified, by a convention called by Congress on the application of two thirds of the states. Thus, in the framers’ deliberations, proposal by interstate convention preceded the decision to allow proposal by Congress.
During the ensuing discussion, the convention accepted a motion by Elbridge Gerry that amendments be subject to state ratification and a suggestion by Alexander Hamilton that Congress be allowed to propose. The result was a draft that (1) omitted the convention, (2) allowed Congress to propose sua sponte, and (3) required Congress to draft an amendment demanded by two thirds of the states.
George Mason of Virginia was dissatisfied. He argued that the draft’s language would enable Congress to block any amendment to correct federal abuse. Without dissent the convention altered the language to provide that a convention rather than Congress draft state-initiated amendments.
Article V does not expressly define the composition of an amendments convention. James Madison (whose draft of Article V Mason’s motion altered) initially questioned how it would be constituted. This has led some to suggest that its composition is a mystery or that the Constitution leaves the composition for Congress to determine.
No one who fairly examines the historical record can doubt, however, that the final understanding was that an amendments convention would be constituted as a convention of the states. This is nearly as clear as anything in history ever is. There are several reasons for so concluding.
First, the only model of an interstate convention known to the Founders was the “convention of the states” model.
Second, statements made during the ratification debates — by, among others, Hamilton, Tench Coxe, George Washington and Madison himself — reveal the assumption that the convention was to be a creature of the states.
Third, the initial Article V application, submitted by Virginia in 1788, explicitly identified the gathering as a “convention of the states.”
Fourth, various legislative resolutions and other legislative documents issued during the Founding Era in New York, Pennsylvania and Rhode Island specifically referred to an amendments convention as a convention of the states. A few decades later, the Supreme Court confirmed this designation.
So why did Article V not specify the convention’s composition? Because there was no need to. The framers’ method was not to recite in the Constitution matters that everyone knew. Their method was to focus on issues that might otherwise be in doubt. Everyone knew that an interstate convention was made up of commissioners in delegations (“committees”) from the several states; that the states were equal with respect to suffrage; that state legislatures determined how commissioners were selected and instructed them; that the call could be broad or narrow; and that the convention’s authority was limited to the scope of the call.
Article V did, however, address issues that existing practice had not resolved or could not resolve. They were as follows:
What was an “application,” and what was a “call?” During the Founding Era, either of those terms could designate the formal invitation to meet. Article V determined
that the former referred to a state legislature’s demand for a convention and the latter to the formal invitation.
When would a call issue? Article V required a call when two thirds of the states applied for (demanded) it.
What was the calling agency? During the Founding Era, interstate meetings could be called by Congress, by prior conventions or by individual states. Article V determined that the calling agency for an amendments convention would be Congress.
Could this convention adopt amendments, or would it merely propose? Article V determined that this convention would propose only, and that proposals would be subject to state ratification or rejection.
As Madison recognized in Federalist No. 39, Article V’s final text contained a careful blend of “national” and “federal” features. The proposal process was finely balanced to ensure equality between the national legislature and the states. As Madison observed in Federalist No. 43, Article V “equally enable[d] the general and the State governments to originate the amendment of errors.” One way the balance was achieved was allowing both the national legislature and the states (by convention) to propose amendments. Another was by offsetting supermajority requirements. For example, the states may consider an amendment informally at any time, but they may not initiate official consideration unless two thirds agree. Congress, on the other hand, may consider an amendment by a simple majority, or merely by a member introducing a resolution.
Offsetting this seeming asymmetry is another: A convention of the states may propose by a simple majority, but Congress may do so only with the agreement of two thirds.
Article V’s convention language was discussed during the ratification debates. When the Constitution’s opponents argued that the new federal government might overreach or abuse its powers, its advocates countered that the states could respond by adopting appropriate amendments. New York lawmaker and ratifier Samuel Jones pointed out that:
[It] could not be known to the framers of the constitution, whether there was too much power given by it or too little; they therefore prescribed a mode by which Congress might procure more, if in the operation of the government it was found necessary; and they prescribed for the states a mode of restraining the powers of the government, if upon trial it should be found they had given
Similarly, Tench Coxe reassured his wide readership that
two thirds of the states can always procure a general convention for the purpose of amending the constitution, and that three fourths of them can introduce those amendments into the constitution, although the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them.
Without the reassuring effect of the Article V convention process, ratification might not have occurred.
Note: This is Part I of a six-part series I wrote on Amendment Conventions for the Washington Post’s “Volokh Conspiracy,” a leading constitutional law website. Links have not been reproduced, because all supporting information is on this website and can be found with by word search.
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How Past Conventions Inspired the Constitution’s “Convention for Proposing Amendments”
You may have heard of campaigns to obtain constitutional amendments by persuading state legislatures to apply for what the Constitution calls a “Convention for proposing Amendments.” The movement for a balanced budget amendment is one such campaign, and it is well on the way toward enlisting enough state legislatures to trigger a convention. Several other campaigns are active as well, including the “Convention of States” movement, which seeks to limit the size and scope of the federal government, and the Wolf PAC drive to further regulate campaign funding.
These and other groups seek constitutional amendment as a method of reforming the federal government. All have concluded that since Congress is unlikely to propose any amendment to reform itself, the alternative convention method of proposal must be revived.
My own assessment is that there is a significant chance that an amendments convention will meet within the next few years. I am not alone in so concluding: Many political leaders agree. In fact, several organizations of state lawmakers are actively planning for a convention. Because such a “Convention for proposing Amendments” has never been held, many writers have posed questions about its composition, how its members would be selected, what its procedures would be and how much power it would have. This series of postings answers those questions and several others as well.
There are six installments in the series. This Part I thumbnails the historical background against which the framers drafted Article V. Part II examines the drafting and ratification of Article V’s convention language. Part III surveys its history from the time of the founding to the middle of the 19th and 20th centuries. Part IV summarizes the main holdings of Article V case law. Part V addresses misconceptions about the convention process that have entered popular mythology. Part VI predicts how the process will unfold when the first set of state applications passes the critical threshold.
Article V of the Constitution delineates the amendment process. To become part of the Constitution, an amendment must be ratified by legislatures or by conventions in three fourths of the states — that is, by 38 of 50. Congress chooses whether ratification will be by state conventions, as in the case of the 21st Amendment (repealing Prohibition), or by state legislatures (as in the case of all other amendments). Before being considered for ratification, the amendment first must be proposed. There are only two vehicles for proposing: (1) Congress and (2) a “Convention for proposing Amendments.” To date, all proposed amendments have come from Congress. As noted above, that may change within the next few years.
In traditional AngloAmerican political usage, a “convention” is an assembly, other than a legislature, convened to address short term political problems. The assembly that restored the English monarchy after a failed experiment in republicanism was styled a “convention parliament” (1660). So also was the assembly that invited William of Orange and his wife, Mary Stuart, to assume the throne after the ouster of James II (1688-89).
In America, conventions traditionally fall into one of two categories. The first category consists of those that address issues within particular polities — that is, within individual colonies or states. Their membership generally is elected directly by the people or by subdivisions within the polity, such as towns or counties. Immediately preceding the Revolutionary War, such conventions assumed the governance of the colonies and some of them wrote new state
constitutions. Other specimens within this category are the state conventions that ratified the Constitution and the 21st Amendment as well as modern state constitutional conventions.
The second category of American conventions consists of multi-government gatherings charged with addressing interstate issues. Before the creation of the Second Continental Congress, this kind of meeting was referred to by the word “congress” as well as “convention.” After “congress” became associated with the national legislature, interstate gatherings usually were called committees of states or conventions of states. The founders envisioned the “Convention for proposing Amendments” as one kind of convention of states.
A convention of states is a diplomatic meeting among equal semi-sovereigns. If the states invited are all in one region of the country, the gathering is a partial or regional convention. If states are invited from all regions, it is a general convention. Regional and general conventions traditionally have followed the same protocols, originally based on international practice.
The first American convention met in 1689 to oversee dissolution of James II’s hated “Dominion of New England.”
Multi-government conventions soon became popular for addressing intercolonial problems: Between 1689 and 1776, there were at least 20 of them. Benjamin Franklin represented Pennsylvania at one, and in his capacity as a printer he reproduced the minutes of several.
Before independence, the usual reasons for a multi-colony convention were to coordinate continental defense or to negotiate treaties with Indian tribes. Perhaps the most famous example before the Revolutionary Era was the Albany Congress of 1754, a general convention attended by seven or eight colonies (depending on how one counts) and by the Iroquois nations.
In 1765, the nine-colony convention known as the Stamp Act Congress convened, and in 1774 the 12 colony First Continental Congress met, both to coordinate common responses to British policy.
After independence, resort to the convention device accelerated. At least 11 met between 1776 and 1787. Their agendas included military supply and strategy, price inflation, trade and constitutional reform.
These conclaves included regional gatherings in Providence, R.I. (twice); Hartford, Conn. (twice); New Haven, Conn.; Yorktown, Pa.; and Springfield and Boston, Mass. They also included a general convention in Annapolis and two in Philadelphia. In addition, there were several unsuccessful calls: The Continental Congress called for conventions in Fredericksburg, Va., and Charleston, S.C. Massachusetts called for a meeting of New York and the New England states in Hartford. In 1786, the Chesapeake Bay states agreed to meet, but events outstripped their agenda.
In all, the century before adoption of the Constitution witnessed at least 30 multi-government conventions — an average of better than one every four years. Today some people assume the Constitutional Convention was a unique event. But it had at least 30 predecessors. Many of the Constitution’s framers were veterans of prior interstate gatherings. For Roger Sherman of Connecticut, the Constitutional Convention was his fifth time around.
By 1787, the protocols for interstate conventions had become standardized and generally accepted and understood. The procedure began when Congress, a prior convention, or (most commonly) a state drafted a document referred to as a “call” or “application.” This document specified the time and place of initial meeting and the subject matter. The sponsor directed the call or application to the states it wished to invite. The scope of the call might be, although usually was not, the subject of preliminary negotiation among the states concerned.
The legislature of each invited state determined whether to participate. If it decided to do so, the legislature determined how its representatives (“commissioners”) were to be appointed. Usually, the legislature elected them itself, and they were commissioned according to local state norms. The legislature or its designee also instructed them.
Upon convening, the group elected officers and adopted rules. Although participants occasionally flirted with other suffrage schemes, ultimately every convention seems to have retained the rule of “one state/one vote.” This formula reflected the participating governments’ status as coequal semi-sovereignties.
Today we might call a multi-state convention a “task force” — a group assigned one or more problems and commissioned to find solutions. In convention practice, the problems are identified in the call. During the Founding Era, the call could invite the states to proceed by “pledging their faith,” by which all states agreed to be bound by the convention’s resolutions. More often, the call asked only for recommendations subject to state approval.
The authority of a convention of states (or colonies) always has been limited to the scope of the call. State instructions to commissioners might effectively circumscribe it further. When the 1754 Albany Congress arguably exceeded its call by proposing a continental “Plan of Union,” most colonies rejected the plan without considering its merits. For reasons I have explained elsewhere, the common claim that the 1787 Constitutional Convention exceeded its call is substantially erroneous.
Note: This article was first published in the American Thinker.
The Assembly of State Legislatures (ASL) has adjourned from its latest meeting, still without having produced a set of rules for an Article V amendments convention.
I have been an enthusiastic supporter of ASL. I have to acknowledge, however, that missteps have impeded its progress.
Fortunately, there is a very plush silver lining within the mistakes. For more on that, see below.
The latest missteps involved a set of rules proposed by the ASL executive committee. Some of these missteps involved procedure: Apparently there was insufficient consultation with professional drafters or with members of the ASL standing rules committee.
Not surprisingly, therefore, the product was marred by substantive deficiencies. Some of these were glaringly obvious to everyone except the drafters—specifically, a system of supermajority, weighted voting, and co-officer rules reminiscent of the political theories of John C. Calhoun. These devices directly violated the balance struck by the Constitution in Article V. They also would have rendered the convention unworkable by granting a veto at every stage to a minority unsympathetic with the convention’s goal.
The principal argument for this approach was that for an amendment to have a chance at ratification it had to enjoy supermajority support at the convention. But as I pointed out in two articles covering the subject (here and here), this argument is simply unsupported by actual convention experience.
I also predicted that the supermajority approach would promote extortion from the unsympathetic minority. As it turns out, my prediction was validated even earlier than I expected: During the ASL meeting itself, the supermajority/co-officer/weighted voting requirements encouraged minority lobbyists to demand, as the price of their support, that the convention agenda be expanded beyond the likely scope of its call. They demanded that the convention be designed to produce an amendment that very few states have applied for.
The general ASL membership attempted to address the glaring deficiencies by altering the executive committee draft. But in the pressure of time they largely overlooked something: That draft suffered from many other deficiencies as well.
These were not minor or merely typographical. They were of the type that would have impeded convention operations. A few days before the ASL meeting, another Article V scholar alerted me to the scope of the problem. The two of us, assisted by a third Article V specialist, soon identified at least 19 fundamental defects. They included:
* important omissions, such as failure to define the term “qualified majority,” the measure for electing co-presidents;
* oversights, such the one that rendered convention amendments to its rules unalterable;
* rules that flatly contradicted each other, such as two conflicting ways of electing the parliamentarian (or parliamentarians); and
* provisions that were legally void, such as an attempt to impose these rules as the initial pattern for future conventions.
Now the silver lining: These missteps happened only in planning sessions, not in the convention itself. To explain:
In the century before the Constitution was written, colonies and states met in convention at least 30 times—in other words, every 3-4 years. Not all of these gatherings was successful, but the failures of some laid the foundations for the success of others. The framers wrote Article V in the expectation, therefore, that state officials would be knowledgeable about, and comfortable with, the interstate convention process.
However, in the years since the Constitution was adopted, the states have met in convention only a handful of times. The last general convention was in 1861 and the last regional convention met in 1922. Hence, there is a lot of re-learning to be done.
Because it is so difficult to call an Article V convention, we have re-learn either through close study of the historical and legal record or through planning mistakes.
The ASL’s latest difficulties teach the following lessons:
* Don’t draft in secret or bypass normal processes;
* Don’t include provisions that impede the convention operations or contradict the balance struck by Article V;
* Obtain professional drafting assistance; and
* Remain non-partisan, but don’t try to forge an artificial bipartisanship with people who will oppose the goals of any convention likely in the near future.
On that last point: American history has included several events of significant constitutional reform. Some have been formal (the post-Civil War Amendments, the Progressive Era amendments). One has been informal (the New Deal).
The more important constitutional proposals did not result from compromise between parties with radically different visions. Significant reform came only after controversial proposals were presented for public consideration, and public consideration led to lopsided support.
But the proposals had to come first.
Note: This article originally appeared at The American Thinker.
When lawyers and judges interpret legal documents, they usually try to ascertain the understanding of the parties to the document—or, more precisely, something they call the “intent” behind the document. The Founding Era phrase was “intent of the makers.” The “intent of the makers” is what originalist scholars try to uncover when they interpret the Constitution.
The “intent of the makers” is a technical term referring, in the case of the Constitution, to how the ratifiers (not the framers) understood it—or, if as to a particular clause there is not sufficient evidence of a unified understanding, how informed people would have understood it during the ratification era. Because this is the guide for how Founding Era courts would have interpreted the Constitution, I sometimes call this concept the “original legal force.”
Commentators presenting their views on the Constitution’s original legal force should avoid certain common mistakes. Two obvious ones are (1) not understanding the rules of original legal force and (2) cherry-picking evidence to support pre-determined conclusions. Other errors include:
* Reading the document as a 21st century American rather than an 18th century American;
* Using evidence that is not from the relevant time period—sometimes from a period too long before the Constitution’s adoption, but more commonly from a time after the ratification was over; and
* Gathering insufficient evidence.
Several years ago, I prepared a nine-page essay to help researchers avoid the last of those mistakes. This essay was called A Bibliography for Researching Original Understanding. It is available on this website here. It provides a list of materials originalists can use.
One last point: When citing 17th and 18th English law cases, it has become the custom recently to cite only the location of the case in English Reports (Full Reprint), a modern case collection. This custom has been encouraged by the widely-used citation guide known as the Harvard Bluebook.
Unfortunately, limiting citation to English Reports is not good practice. English Reports obtained its summaries of cases from the books compiled by individuals known as reporters. The quality of their reports vary greatly. A Founding Era lawyer consulting a case report by William Salkeld, for example, would give much more credit to it than to a case report by Joseph Keble. He also would give more credit to Salkeld’s first two volumes than to his third. Citing only to English Reports tells the reader nothing about the reliability of the material being cited. Also, it gives too much weight to case reports the Founders might have disregarded and too little to those they deemed authoritative.
The definitive guide to the relative merits of the English case reporters was written by an American, John William Wallace, whose book is referenced in my bibliographical essay.