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| documents:answers:liberal-articlev-disinfo [2016/05/19 13:28] – [The Liberal Establishment's Disinformation Campaign Against Article-V] Oliver Wolcott | documents:answers:liberal-articlev-disinfo [2020/02/18 20:11] – Oliver Wolcott |
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| by Robert G. Natelson <sup>[[#i|(1)]]</sup> | by Robert G. Natelson ((Robert G. Natelson, the Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver, was a law professor for 25 years at three different universities. He has written extensively on the Constitution for both the scholarly and popular markets, and since 2013 has been cited increasingly at the U.S. Supreme Court, both by parties and by justices. He is the nation's most published active scholar on the amendment process, and heads the Institute's Article V Information Center. For a biography and bibliography, see http://constitution.i2i.org/about.)) |
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| =====THE ARGUMENTS AGAINST A CONVENTION AND THEIR SOURCE===== | =====THE ARGUMENTS AGAINST A CONVENTION AND THEIR SOURCE===== |
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| Opponents present an array of stock arguments against using the Constitution's convention procedure. One such argument—the claim that "amendments won't work"—has been so resoundingly contradicted by history that it has little credibility.<sup>[[#ii|2]]</sup> The others can be distilled into the following propositions: | Opponents present an array of stock arguments against using the Constitution's convention procedure. One such argument—the claim that "amendments won't work"—has been so resoundingly contradicted by history that it has little credibility.((The Lamp of Experience: Constitutional Amendments Work, [[http://constitution.i2i.org/2014/03/09/thelamp-of-experience-constitutionalamendments-work/|http://constitution.i2i.org/2014/03/09/thelamp-of-experience-constitutionalamendments-work/]] )) The others can be distilled into the following propositions: |
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| *Little is known about how the process is supposed to operate; | *Little is known about how the process is supposed to operate; |
| *a convention for proposing amendments would be an uncontrollable "constitutional convention;" | *a convention for proposing amendments would be an uncontrollable "constitutional convention;" |
| *a convention for proposing amendments could be controlled or manipulated by Congress under the Constitution's Necessary and Proper Clause;<sup>[[#iii|(3)]]</sup> and | *a convention for proposing amendments could be controlled or manipulated by Congress under the Constitution's Necessary and Proper Clause;(([[historicaldocuments:constitution#section_8|U.S. Const., art. I, § 8, cl. 18]].)) and |
| *a convention for proposing amendments could unilaterally impose radical constitutional changes on America. | *a convention for proposing amendments could unilaterally impose radical constitutional changes on America. |
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| These arguments are largely inconsistent with established constitutional law and with historical precedent,<sup>[[#iv|4]]</sup> and (as the reader can see) some are inconsistent with each other. | These arguments are largely inconsistent with established constitutional law and with historical precedent,((For a survey of the law of Article V, see Robert G. Natelson, A Treatise on the Law of Amendment Conventions: State Initiation of Constitutional Amendments: A Guide for Lawyers and Legislative Drafters (2014).)) and (as the reader can see) some are inconsistent with each other. |
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| This paper shows that these arguments did not originate with the conservative groups that rely on them. Rather, they were produced as part of a disinformation campaign run by America's liberal establishment. Members of that establishment injected these arguments into public discourse to cripple an important constitutional check on the federal government. | This paper shows that these arguments did not originate with the conservative groups that rely on them. Rather, they were produced as part of a disinformation campaign run by America's liberal establishment. Members of that establishment injected these arguments into public discourse to cripple an important constitutional check on the federal government. |
| The American Founders envisioned citizens and states using constitutional amendments to prevent federal overreach and abuse. They ratified the Bill of Rights in 1791 precisely for this reason. By the same token, in 1795 they ratified the 11th amendment to reverse an overreaching Supreme Court decision. The Founders also recognized that federal officials might resist amendments to curb their own power. The convention procedure was designed as a way to bypass those officials. Tench Coxe, a leading advocate for the Constitution, explained the effect: | The American Founders envisioned citizens and states using constitutional amendments to prevent federal overreach and abuse. They ratified the Bill of Rights in 1791 precisely for this reason. By the same token, in 1795 they ratified the 11th amendment to reverse an overreaching Supreme Court decision. The Founders also recognized that federal officials might resist amendments to curb their own power. The convention procedure was designed as a way to bypass those officials. Tench Coxe, a leading advocate for the Constitution, explained the effect: |
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| It is provided, in the clearest words, that Congress shall be obliged to call a convention on the application of' two thirds of the legislatures; and all amendments proposed by such convention, are to be valid when approved by the conventions or legislatures of three fourths of the states. It must therefore be evident to every candid man, 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.<sup>[[#v|5]]</sup> | It is provided, in the clearest words, that Congress shall be obliged to call a convention on the application of' two thirds of the legislatures; and all amendments proposed by such convention, are to be valid when approved by the conventions or legislatures of three fourths of the states. It must therefore be evident to every candid man, 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.(("A Friend of Society and Liberty," Pa. Gazette, Jul. 23, 1788, reprinted in 18 Documentary History of the Ratification of the Constitution of the United States, 277, 283. Coxe's writings were at least as influential with the general public as The Federalist Papers. He was a member of Congress and Pennsylvania's delegate to the Annapolis convention, and the first Assistant Secretary of the Treasury. By a "general convention," Coxe meant a national rather than a regional gathering.)) |
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| In adopting the convention mechanism, the Founders well understood what they were doing. Conventions among the states (and before independence, among the colonies) had been a fixture of American life for a century.<sup>[[#vi|6]]</sup> The Founding-Era record renders it quite clear that a "convention for proposing amendments" was to be a meeting of representatives from the state legislatures, and that the procedure and protocols would be the same as in prior gatherings.<sup>[[#vii|7]]</sup> | In adopting the convention mechanism, the Founders well understood what they were doing. Conventions among the states (and before independence, among the colonies) had been a fixture of American life for a century.((Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution's "Convention for Proposing Amendments," 65 Fla. L. Rev. 615 (2013).)) The Founding-Era record renders it quite clear that a "convention for proposing amendments" was to be a meeting of representatives from the state legislatures, and that the procedure and protocols would be the same as in prior gatherings.((Id.)) |
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| In the two centuries after the Founding, the judiciary, including the U.S. Supreme Court, decided over three dozen cases interpreting Article V, and in doing so generally followed historical practice. Thus, by the middle years of the 20th century, the composition and protocols of a convention for proposing amendments should have been clear to anyone who seriously examined the historical and legal record. | In the two centuries after the Founding, the judiciary, including the U.S. Supreme Court, decided over three dozen cases interpreting Article V, and in doing so generally followed historical practice. Thus, by the middle years of the 20th century, the composition and protocols of a convention for proposing amendments should have been clear to anyone who seriously examined the historical and legal record. |
| =====TWENTIETH CENTURY EFFORTS TO ADDRESS FEDERAL OVERREACH ===== | =====TWENTIETH CENTURY EFFORTS TO ADDRESS FEDERAL OVERREACH ===== |
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| As the size, power, and dysfunction of the federal government grew, many Americans turned to the Founders' solution: the convention process.<sup>[[#viii|8]]</sup> | As the size, power, and dysfunction of the federal government grew, many Americans turned to the Founders' solution: the convention process.((Liberals occasionally crusaded for amendments as well, but by and large their clout in Congress, the bureaucracy, and the courts was sufficient for their purposes.)) |
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| The first 20th century effort for a convention to address federal overreach began in 1939, with a drive to repeal the 16th Amendment.<sup>[[#ix|9]]</sup> By 1950, that drive had garnered the approval of 18 states. Another drive induced Congress to propose the 22nd Amendment, mandating a two-term limit for the President. | The first 20th century effort for a convention to address federal overreach began in 1939, with a drive to repeal the 16th Amendment.((Philip L. Martin, The Application Clause of Article Five, 85 Pol. Sci. Q. 615, 623 (1970). The Sixteenth Amendment did not, as some say, authorize the federal income tax; it merely dropped the requirement that federal income tax revenues be apportioned among the states by population.)) By 1950, that drive had garnered the approval of 18 states. Another drive induced Congress to propose the 22nd Amendment, mandating a two-term limit for the President. |
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| Early in the 1960s, the Council of State Governments suggested three amendments: one to streamline Article V, one to reverse Supreme Court decisions forcing state legislatures to reapportion, and one to check the Supreme Court by adding a state-based tribunal to review that Court's decisions. In the late 1960s, there was another, nearly-successful, push for a convention to address the Court's reapportionment cases. In 1979, the first effort for a balanced budget amendment began. Throughout the next two decades there were drives to overrule the Supreme Court's abortion ruling in Roe v. Wade, to impose term limits on members of Congress, and to enact other reforms. Some of these movements enjoyed wide popular support. The convention procedure was endorsed by President Eisenhower, by President Reagan, and (before he became a Supreme Court Justice) by Antonin Scalia.<sup>[[#x|10]]</sup> | Early in the 1960s, the Council of State Governments suggested three amendments: one to streamline Article V, one to reverse Supreme Court decisions forcing state legislatures to reapportion, and one to check the Supreme Court by adding a state-based tribunal to review that Court's decisions. In the late 1960s, there was another, nearly-successful, push for a convention to address the Court's reapportionment cases. In 1979, the first effort for a balanced budget amendment began. Throughout the next two decades there were drives to overrule the Supreme Court's abortion ruling in Roe v. Wade, to impose term limits on members of Congress, and to enact other reforms. Some of these movements enjoyed wide popular support. The convention procedure was endorsed by President Eisenhower, by President Reagan, and (before he became a Supreme Court Justice) by Antonin Scalia.((Russell L. Caplan, Constitutional Brinksmanship (Oxford Univ. Press 1988) [hereinafter "Caplan"], 74 (Eisenhower), 85 (Reagan), 71 (Scalia). There are reports that Scalia changed his position after ascending to the Court.)) |
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| During the 1950s, '60s and '70s, establishment liberals were pleased with the growth of the federal government and the activist Supreme Court. They wanted no corrective amendments. Rather, they felt threatened by conservative and moderate efforts to use the convention process. Liberals developed, therefore, a campaign to effectively disable it. | During the 1950s, '60s and '70s, establishment liberals were pleased with the growth of the federal government and the activist Supreme Court. They wanted no corrective amendments. Rather, they felt threatened by conservative and moderate efforts to use the convention process. Liberals developed, therefore, a campaign to effectively disable it. |
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| Their project was highly successful. It not only gained traction among liberals, but it pitted conservatives against conservatives by persuading many of them to abandon one of the Constitution's most important checks on federal overreaching. The campaign resulted in the defeat of every effort to propose amendments to reform or restrain the federal government. Its psychological and political force continued unabated for decades.<sup>[[#xi|11]]</sup> | Their project was highly successful. It not only gained traction among liberals, but it pitted conservatives against conservatives by persuading many of them to abandon one of the Constitution's most important checks on federal overreaching. The campaign resulted in the defeat of every effort to propose amendments to reform or restrain the federal government. Its psychological and political force continued unabated for decades.((The disinformation has lost credibility in the last few years, as explained below. In 1992, reformers did success in obtaining ratification of the 27th amendment, limiting congressional pay raises, but that amendment had been proposed in 1789 as part of the Bill of Rights.)) |
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| The story begins in 1951. Faced with a conservative drive to repeal the 16th Amendment, liberal U.S. Rep. Wright Patman (D.-Tex.) attacked it as "fascist" and "reactionary." He added the unsupported assertion that a convention for proposing amendments could not be limited—that it could "rewrite the whole Constitution."<sup>[[#xii|12]]</sup> The obvious goal behind that statement was to scare people into thinking that the convention, instead of focusing on a single amendment, might effectively stage a coup d'état. | The story begins in 1951. Faced with a conservative drive to repeal the 16th Amendment, liberal U.S. Rep. Wright Patman (D.-Tex.) attacked it as "fascist" and "reactionary." He added the unsupported assertion that a convention for proposing amendments could not be limited—that it could "rewrite the whole Constitution."((Caplan, p.69.)) The obvious goal behind that statement was to scare people into thinking that the convention, instead of focusing on a single amendment, might effectively stage a coup d'état. |
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| A more coordinated campaign against Article V began in 1963, with an article in the Yale Law Journal. It was authored by a law professor named Charles Black, also of Yale, a zealous defender of liberal causes and of the activism of the Supreme Court, then led by Chief Justice Earl Warren. The occasion for Black's article was the amendment proposal of the Council of State Governments. | A more coordinated campaign against Article V began in 1963, with an article in the Yale Law Journal. It was authored by a law professor named Charles Black, also of Yale, a zealous defender of liberal causes and of the activism of the Supreme Court, then led by Chief Justice Earl Warren. The occasion for Black's article was the amendment proposal of the Council of State Governments. |
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| Despite Black's position as a professor at one of the nation's premier law schools—and despite the nature of the journal that published it—Black's article was polemical rather than scholarly. You can deduce its tenor from the title: The Proposed Amendment of Article V: A Threatened Disaster.<sup>[[#xiii|13]]</sup> | Despite Black's position as a professor at one of the nation's premier law schools—and despite the nature of the journal that published it—Black's article was polemical rather than scholarly. You can deduce its tenor from the title: The Proposed Amendment of Article V: A Threatened Disaster.((Charles L. Black, Jr., The Proposed Amendment of Article V: A Threatened Disaster, 72 Yale L.J. 957 (1963). Black engaged in similar histrionics in the title of another article: Proposed Constitutional Amendments: They Would Return Us to a Confederacy, 49 A.B.A J. 637 (1963).)) |
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| On its face, Black's article was responding to the Council of State Government's proposals. In fact, his propositions extended much further. Black objected to the whole idea of the states being allowed to overrule Congress or the Supreme Court. So he offered a wide-ranging plan of constitutional obstruction. In a nutshell, his position was as follows: | On its face, Black's article was responding to the Council of State Government's proposals. In fact, his propositions extended much further. Black objected to the whole idea of the states being allowed to overrule Congress or the Supreme Court. So he offered a wide-ranging plan of constitutional obstruction. In a nutshell, his position was as follows: |
| *that the President should veto any congressional resolution calling a convention if the measure did not meet Black's standards. | *that the President should veto any congressional resolution calling a convention if the measure did not meet Black's standards. |
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| It is clear to anyone familiar with the law and history of Article V that Black did virtually no research on the subject before putting pen to paper. Not only did he make no reference to the extensive American history of interstate conventions, but he recited little of the case law interpreting Article V. He also failed to read carefully the Necessary and Proper Clause, which actually grants Congress no power over Article V conventions.<sup>[[#xiv|14]]</sup> | It is clear to anyone familiar with the law and history of Article V that Black did virtually no research on the subject before putting pen to paper. Not only did he make no reference to the extensive American history of interstate conventions, but he recited little of the case law interpreting Article V. He also failed to read carefully the Necessary and Proper Clause, which actually grants Congress no power over Article V conventions.((By its terms, the Necessary and Proper Clause applies to the 17 preceding powers in Article I, Section 8 and to powers granted to the government of the United States and to "Officers" and "Departments." A convention fits none of those categories. See The Constitution's Grants to Persons and Entities Outside the Federal Government, [[http://constitution.i2i.org/2014/12/18/theconstitutions-grants-to-persons-andentities-outside-the-u-s-government/|http://constitution.i2i.org/2014/12/18/theconstitutions-grants-to-persons-andentities-outside-the-u-s-government/]] and No, the Necessary and Proper Clause Does NOT Empower Congress to Control an Amendments Convention, [[http://constitution.i2i.org/2014/08/23/no-the-necessary-and-proper-clause-doesnot-empower-congress-to-control-anamendments-convention/|http://constitution.i2i.org/2014/08/23/no-the-necessary-and-proper-clause-doesnot-empower-congress-to-control-anamendments-convention/]] .)) |
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| Later the same year, William F. Swindler, a law professor at the College of William and Mary, published an article in the Georgetown Law Journal.<sup>[[#xv|15]]</sup> Like Black's contribution, it was largely polemical and short on history and case law. | Later the same year, William F. Swindler, a law professor at the College of William and Mary, published an article in the Georgetown Law Journal.((William F. Swindler, The Current Challenge to Federalism: The Confederating Proposals, 52 Geo. L. J. 1 (1963) )) Like Black's contribution, it was largely polemical and short on history and case law. |
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| Swindler claimed that the Council of State Government's proposed amendments were "alarmingly regressive" and would destroy the Constitution as we know it: "For it is clear," he wrote, "that the effect of one or all of the proposals. . . would be to extinguish the very essence of federalism which distinguishes the Constitution from the Articles of Confederation." Like Black, Swindler argued that Congress could and should control the convention and impose obstacles to the convention serving its constitutional purpose. Indeed, Swindler went even further, maintaining that because "only a federal agency (Congress, as provided by the Constitution) is competent to propose" amendments, the convention procedure should be disregarded as "no longer of any effect." | Swindler claimed that the Council of State Government's proposed amendments were "alarmingly regressive" and would destroy the Constitution as we know it: "For it is clear," he wrote, "that the effect of one or all of the proposals. . . would be to extinguish the very essence of federalism which distinguishes the Constitution from the Articles of Confederation." Like Black, Swindler argued that Congress could and should control the convention and impose obstacles to the convention serving its constitutional purpose. Indeed, Swindler went even further, maintaining that because "only a federal agency (Congress, as provided by the Constitution) is competent to propose" amendments, the convention procedure should be disregarded as "no longer of any effect." |
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| The placement of the Black and Swindler diatribes in two of the nation's top law journals can be explained only by the authors' institutional affiliations<sup>[[#xvi|16]]</sup> and/or by the agenda harbored by the journals' editors. That placement enabled them to reach a wide audience among the legal establishment. | The placement of the Black and Swindler diatribes in two of the nation's top law journals can be explained only by the authors' institutional affiliations((The overwhelming majority of law reviews are student-edited. Because students are often unable to judge the quality of articles submitted to them, the relative prestige of the author's academic institution is influential in the decision of whether to accept a submission. This is an open secret among law professors and supported by empirical research. Jonathan Gingerich, A Call for Blind Review: Student Edited Law Reviews and Bias, 59 J. Legal Educ. 269 (2009).)) and/or by the agenda harbored by the journals' editors. That placement enabled them to reach a wide audience among the legal establishment. |
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| Somewhat later, Chief Justice Warren, whose judicial activism was one of the targets of the Council of State Governments, mimicked Black and Swindler by with the absurd declaration that its amendment drive "could soon destroy the foundations of the Constitution."<sup>[[#xvii|17]]</sup> | Somewhat later, Chief Justice Warren, whose judicial activism was one of the targets of the Council of State Governments, mimicked Black and Swindler by with the absurd declaration that its amendment drive "could soon destroy the foundations of the Constitution."((Caplan, p. 74.)) |
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| When Senator Everett Dirksen (R.- Ill.) joined the fight for an amendment partially reversing the Warren Court's reapportionment cases, his liberal colleagues pushed back hard. Senators Joseph Tydings (D.-Md) and Robert Kennedy (D.-NY) followed Black's lead and advanced various "reasons" why Congress should disregard state legislative resolutions it did not care for.<sup>[[#xviii|18]]</sup> Senator William Proxmire (D.-Wis.) and the liberal New York Republican, Senator Jacob Javits pressed the claim that a convention would be uncontrollable.<sup>[[#xix|19]]</sup> | When Senator Everett Dirksen (R.- Ill.) joined the fight for an amendment partially reversing the Warren Court's reapportionment cases, his liberal colleagues pushed back hard. Senators Joseph Tydings (D.-Md) and Robert Kennedy (D.-NY) followed Black's lead and advanced various "reasons" why Congress should disregard state legislative resolutions it did not care for. ((Caplan, pp. 75-76)) Senator William Proxmire (D.-Wis.) and the liberal New York Republican, Senator Jacob Javits pressed the claim that a convention would be uncontrollable.((Caplan, p. 76. Javits was liberal not just for a Republican, but (like some of his GOP colleagues at the time) liberal in an absolute sense. His voting record was regularly marked as above 80% by the left-of-center Americans for Democratic Action. |
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| Kennedy's resistance was supplemented by other opinion leaders associated with the Kennedy clan. In 1967, Kennedy speech writer Theodore Sorensen wrote a Saturday Review article in which he repeated Black's "minority will control the process" argument. In congressional testimony the same year, Sorensen speculated that an Article V convention might "amend the Bill of Rights . . . limit free speech . . . reopen the wars between church and state . . . limit the Supreme Court's jurisdiction or the President's veto power or the congressional warmaking authority."<sup>[[#xx|20]]</sup> | Kennedy's resistance was supplemented by other opinion leaders associated with the Kennedy clan. In 1967, Kennedy speech writer Theodore Sorensen wrote a Saturday Review article in which he repeated Black's "minority will control the process" argument. In congressional testimony the same year, Sorensen speculated that an Article V convention might "amend the Bill of Rights . . . limit free speech . . . reopen the wars between church and state . . . limit the Supreme Court's jurisdiction or the President's veto power or the congressional warmaking authority." ((Caplan, p. 147. See below for other comments by associates and allies of the Kennedy clan.)) |
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| In 1968, University of Michigan law professor Paul G. Kauper contributed a piece to Michigan Law Review that likewise displayed almost complete disregard of Article V law and history.<sup>[[#xxi|21]]</sup> Kauper admitted that Congress could not refuse to call a convention if 34 states applied for one. But he asserted that "Congress has broad power to fashion the ground rules for the calling of the convention and to prescribe basic procedures to be followed." Kauper also stated that "The national legislature is obviously the most appropriate body for exercising a supervisory authority. . ."—a conclusion in direct conflict with the convention's fundamental purpose as a device to bypass Congress. Kauper added that Congress could mandate that delegates be elected one from each congressional district, revealing his disregard of the Supreme Court opinion and other sources<sup>[[#xxii|22]]</sup> that specifically identified the gathering as a "convention of the states" rather than a popular assembly. | In 1968, University of Michigan law professor Paul G. Kauper contributed a piece to Michigan Law Review that likewise displayed almost complete disregard of Article V law and history.<sup>[[#xxi|21]]</sup> Kauper admitted that Congress could not refuse to call a convention if 34 states applied for one. But he asserted that "Congress has broad power to fashion the ground rules for the calling of the convention and to prescribe basic procedures to be followed." Kauper also stated that "The national legislature is obviously the most appropriate body for exercising a supervisory authority. . ."—a conclusion in direct conflict with the convention's fundamental purpose as a device to bypass Congress. Kauper added that Congress could mandate that delegates be elected one from each congressional district, revealing his disregard of the Supreme Court opinion and other sources<sup>[[#xxii|22]]</sup> that specifically identified the gathering as a "convention of the states" rather than a popular assembly. |
