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Who Says History is Relevant to Article V? Well, the U.S. Supreme Court, For One!

42 Trevi Fountain RGN In 1988, Oxford University Press published Russell Caplan’s book Constitutional Brinksmanship. It revealed some of the extensive history behind the Convention for Proposing Amendments in Article V of the Constitution.

More recently, we have learned much more about that history. We now know that there were over 30 multi-colony and multi-state conventions before the Constitution was adopted, and that the Convention for Proposing Amendments was based on them. We know what their rules were and how they used the terms that the Framers used in Article V. We also have uncovered a rich history of multi-state conventions and Article V activity after the Constitution was adopted.

Anti-convention alarmists were generally unaware of this history and have been  embarrassed by these findings. Some of them, therefore, are now making the astounding claim that all of this prior practice is simply irrelevant!

But the U.S. Supreme Court says they are wrong. So do many other courts. In fact, for over two centuries now, the judiciary has used historical practice to interpret the words in Article V. The courts know that they must consult the Founders’ experience to understand how they used terms like “legislature,” “application,” “call,” “ratify, and “convention.” When that evidence isn’t decisive, the courts turn to later practice for guidance. This is settled constitutional law.

And as any constitutional lawyer can tell you, in recent years the Supreme Court has become even more attuned to history in answering constitutional questions.

Since the courts may have to resolve future Article V issues, their precedents provide far more insight than the unsupported speculations of alarmists.

Listed below are a few of the cases that have used history to interpret Article V.  A “U.S.” citation means the case was decided by the U.S. Supreme Court. Most of the others are federal court cases; two were issued by state courts.

*    Hollingsworth v. Virginia, 3 U.S. 381 (1798) (following the practice used in proposing the first ten amendments to uphold the 11th).

*    Hawke v. Smith, 253 U.S. 221 (1920) (citing Founding-Era evidence to define what the Framers meant by the Article V word “legislature”)

*    Barlotti v. Lyons, 182 Cal. 575, 189 P. 282 (1920) (also citing Founding-Era evidence to define what the Framers meant by the Article V word “legislature”).

*    Leser v. Garnett, 258 U.S. 130 (1922) (relying on history to affirm the procedure that ratified the 19th amendment).

*    Opinion of the Justices, 132 Me. 491, 167 A. 176, 179 (1933) (consulting history to determine how delegates are chosen to a state ratifying convention).

* Coleman v. Miller, 307 U.S. 433 (1939) (relying on history to conclude that Congress could determine whether a state’s formal ratification of an amendment was effective if the state had, at another time, also formally rejected the amendment).

*    United States v. Gugel, 119 F.Supp. 897 (E.D. Ky. 1954) (citing the history of judicial reliance on the 14th amendment as evidence that it had been validly adopted)

*    Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975) (Justice Stevens) (relying extensively on history to determine whether Illinois had validly ratified a proposed amendment)

*    Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho 1981) (also relying on history in discussing a range of questions)

Rob Natelson