Table of Contents
The following article is the fifth edition of a 6-part series by Prof. Robert Natelson addressing conventions for proposing constitutional amendments. Prof. Natelson retired a few years ago from the University of Montana School of Law and is now senior fellow in constitutional jurisprudence at the Independence Institute; his work has been cited in five Supreme Court cases since 2013.
[ Part 1 - Part 2 - Part 3 - Part 4 - Part 5 - Part 6 ]
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 aninvestigation 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.
The following article is the fourth edition of a 6-part series by Prof. Robert Natelson addressing conventions for proposing constitutional amendments. Prof. Natelson retired a few years ago from the University of Montana School of Law and is now senior fellow in constitutional jurisprudence at the Independence Institute; his work has been cited in five Supreme Court cases since 2013.
[ Part 1 - Part 2 - Part 3 - Part 4 - Part 5 - Part 6 ]
Although there has not been a convention for proposing amendments, there has been a considerable amount of other amendment activity. Disputes arising from this activity have produced a series of reported court decisions interpreting Article V.
Within this nook of constitutional law, the courts have followed certain rules and principles with remarkable consistency. Thus, even though no judicial decision has arisen out of an actual amendments convention, the case law offers useful guidance as to the nature of such a convention and its protocols. This post draws on my treatise, “State Initiation of Constitutional Amendments: A Guide for Lawyers and Legislative Drafters,” in summarizing this case law.
Perhaps the most important lesson from the accumulated cases is that when interpreting the language of Article V, the courts follow historical practices and understandings. The words of Article V are to be construed as the Founders understood them. Moreover, procedures employed in adopting earlier amendments are followed for later amendments.
The courts construe Article V as a list of enumerated powers. Article V confers these powers on named assemblies, both pre-existing and ad hoc. They include Congress, the state legislatures, proposal conventions and ratifying conventions. No assembly has any power over the amendment process except that granted, expressly or impliedly, by the Constitution. The 10th Amendment's recognition of reserved state powers is inapplicable to Article V.
Article V bestows its authority on named assemblies per se, not on any government or branch of government. Thus, the Supreme Court has held that Article V grants power to propose amendments to the assembly called “Congress,” not to the federal government or the national legislature as such. Similarly, Article V grants power to apply and ratify to state legislatures as independent assemblies, not to state governments or to the state legislative authorities. Article V further bestows power on ad hoc bodies (conventions) that are not departments of any government. When an assembly wields authority derived from Article V, it is said to exercise a “federal function.”
There are analogues elsewhere in the Constitution. Article II confers a federal function to the Electoral College, an entity the Supreme Court has held is not a branch of government. The Guarantee Clause of Article IV devolves federal functions on state legislatures and governors. Article I similarly devolves federal functions on state legislatures and officials, sometimes as governmental entities and sometimes not.
Each entity empowered by Article V is, of course, subject to the express limitations in the Constitution. For example, a federal amendments convention is limited to “proposing” and may not change the ratification rules or ratify its own proposals. Judicial respect for historical practice provides other guidance. For example, conventions of states always have been subject to the limits imposed by their calls and by legislative authority, so it follows that a convention may not propose amendments outside the scope of the state applications and congressional call.
Within its prescribed scope, each assembly is free to exercise the discretion an assembly of that kind historically has enjoyed. Hence, the courts hold that it is improper for a voter initiative to attempt to force a member of Congress to propose a particular amendment or a state legislature to apply or to ratify. Similarly, it would be improper for an applying state legislature to try to turn a proposing convention into a ratifying convention by limiting it to an up-or-down vote on predetermined wording. (This last conclusion is controversial in some quarters, but I believe it is unavoidable.)
Because legislatures operating under Article V act only as resolving assemblies and not as lawmakers per se, executive participation (signing or vetoing) is not appropriate.
As noted in Part I, the Supreme Court has recognized (in accordance with nearly unanimous Founding-Era authority) that a convention for proposing amendments is a “convention of the states.” As also explained in Part I, “convention of the states” is a term with clear and longstanding content. Several rules follow:
- A convention for proposing amendments is a diplomatic meeting among “committees” of state “commissioners” on the basis of semi-sovereign equality, with an initial one state/one vote suffrage rule.
- Each state committee is selected and commissioned as its state legislature determines — probably by legislative resolution rather than by pre-existing state law. State legislatures usually reserve the right to select their own commissioners, but they may delegate it to the governor or to the electorate, or they may adopt a nomination-and-confirmation approach.
- Each state committee, no matter how selected, is subject to legislative instruction. Although the state legislature may not, in its applying capacity, attempt to micromanage the convention, in its supervisory capacity it may instruct its own committee. The difference can be justified in this way: The convention should arrive at its conclusions through negotiation. To lay down immutable conditions on the call is to forestall negotiations. However, instructions issued after the call are alterable. In practice, they assure that negotiations include the authorities back home and that the state legislatures enjoy a co-equal position with Congress in the proposal procedure.
- The scope of the congressional call is limited to the traditional incidents of calls for interstate conventions. It may set the initial time and location and specify the applied-for subject matter; but may not dictate selection procedures, or convention rules or other matters to the states or to the convention.
- The Necessary and Proper Clause does not empower Congress to regulate the convention. There are several reasons for so concluding: (1) Allowing Congress to do so would be inconsistent with the Constitution's goal of providing a way to bypass Congress; (2) the Necessary and Proper Clause is but a statement of incidental powers, which in a call for an interstate convention are limited to time, place and subject; and (3) the Necessary and Proper Clause, by its terms, applies only to “foregoing Powers” and those vested either in the U.S. “Government” and in “any Department or Officer thereof” — a description that does not pertain to assemblies acting under Article V.
- The convention drafts its own rules and elects its own officers.
Once an application campaign appears to have met the two-thirds threshold, Congress will have to determine whether the applications actually “aggregate” to 34. In the event of a dispute, the judiciary may be called upon to review the congressional decision.
Posted by Convention of States Project on December 14, 2015 (source)
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.
Posted by Convention of States Project on December 11, 2015 (source)
In the second installment of his six-part series, Prof. Rob Natelson explains how the Founders struck upon the Convention of States option in Article V.
[ Part 1 - Part 2 - Part 3 - Part 4 - Part 5 - Part 6 ]
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 suggestthat 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 too much.
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.
Posted by Convention of States Project on December 09, 2015 (source)
The following article was written by Prof. Rob Natelson, one of the nation's leading Article V scholars. It's the first in a six-part series that will explain everything you need to know about the Article V process. Prof. Natelson begins the first installment by reviewing the current movements to call a Convention of States, after which he concludes…
[ Part 1 - Part 2 - Part 3 - Part 4 - Part 5 - Part 6 ]
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 beproposed. 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 Anglo-American 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 inter-colonial 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 co-equal 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.