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| documents:answers:states_control-convention [2020/02/18 22:38] – Oliver Wolcott | documents:answers:states_control-convention [2020/04/10 12:14] – Oliver Wolcott |
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| Robert Kelly, J.D. Staff Counsel, Citizens for Self-Governance | Robert Kelly, J.D. Staff Counsel, Citizens for Self-Governance |
| [[http://www.conventionofstates.com/the_states_control|(source)]] | [[http://www.conventionofstates.com/the_states_control|(source)]] |
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| {{tag>Runaway_convention Congress_control Ratification Necessary_and_Proper_Clause Article_1_Section_8_Clause_18 CRS JBS Eagle_Forum Trust}} | {{tag>Runaway_convention Congress_control Ratification Necessary_and_Proper_Clause Article_1_Section_8_Clause_18 CRS JBS Eagle_Forum Trust}} |
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| Stepping solidly outside the realm of plausibility, Mr. Brown then states that a third method of ratification is possible, where the convention unilaterally scraps the three-fourths ratification requirement and imposes some lower threshold of its own invention. His basis for this claim is that the Constitutional Convention of 1787 invented a [[documents:answers:answering_the_john_birch_society_questions_about_article_v_jbsqa#was_the_constitution_illegally_ratified|new method of ratification]] for the Constitution, so an Article V convention today could do the same. | Stepping solidly outside the realm of plausibility, Mr. Brown then states that a third method of ratification is possible, where the convention unilaterally scraps the three-fourths ratification requirement and imposes some lower threshold of its own invention. His basis for this claim is that the Constitutional Convention of 1787 invented a [[documents:answers:answering_the_john_birch_society_questions_about_article_v_jbsqa#was_the_constitution_illegally_ratified|new method of ratification]] for the Constitution, so an Article V convention today could do the same. |
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| Leaving aside the historical inaccuracies behind this argument, ((As constitutional attorney Michael Farris notes, all 13 state legislatures approved the new ratification process for the Constitution, therefore the unanimity requirement of the Articles of Confederation was satisfied. Mr. Farris’s article is available here: \\ [[documents:answers:can_we_trust_the_constitution|(Wiki) Can We Trust the Constituton ]] \\ and here: http://conventionofstates.com/wp-content/uploads/2014/05/Can-We-Trust-the-Constitution-2.01.pdf.(PDF))) it ignores a fundamental difference between the Constitutional Convention and an Article V convention. The Constitutional Convention was not called under the Articles of Confederation. The Articles made no provision for such a convention ((No provision in the Articles of Confederation says anything about a convention. Moreover, the Articles explicitly disclaimed the idea of implied powers. [[historicaldocuments:articlesofconfederation#art_ii|ARTICLES OF CONFEDERATION, art. II]]. As the result, the only possible legal basis for the Constitutional Convention and other conventions of the time was the reserved sovereign authority of the states.)). Rather the Constitutional Convention was called under the reserved sovereign authority of the states. Therefore, it could do anything which the states allowed it to, up to and including choosing a method of ratification for its own proposals. By contrast, an Article V convention is, by definition, called under the authority given in the Constitution. Therefore it is subject to the procedures and forms laid down in the Constitution, like those for ratification. Mr. Brown and other opponents of a convention gloss over this critical distinction, and consequently err in their analysis. | Leaving aside the historical inaccuracies behind this argument, ((As constitutional attorney Michael Farris notes, all 13 state legislatures approved the new ratification process for the Constitution, therefore the unanimity requirement of the Articles of Confederation was satisfied. Mr. Farris’s article is available here: \\ [[documents:answers:can_we_trust_the_constitution|(Wiki) Can We Trust the Constituton ]] \\ and here: http://conventionofstates.com/wp-content/uploads/2014/05/Can-We-Trust-the-Constitution-2.01.pdf.(PDF) )) it ignores a fundamental difference between the Constitutional Convention and an Article V convention. The Constitutional Convention was not called under the Articles of Confederation. The Articles made no provision for such a convention ((No provision in the Articles of Confederation says anything about a convention. Moreover, the Articles explicitly disclaimed the idea of implied powers. [[historicaldocuments:articlesofconfederation#art_ii|ARTICLES OF CONFEDERATION, art. II]]. As the result, the only possible legal basis for the Constitutional Convention and other conventions of the time was the reserved sovereign authority of the states.)). Rather the Constitutional Convention was called under the reserved sovereign authority of the states. Therefore, it could do anything which the states allowed it to, up to and including choosing a method of ratification for its own proposals. By contrast, an Article V convention is, by definition, called under the authority given in the Constitution. Therefore it is subject to the procedures and forms laid down in the Constitution, like those for ratification. Mr. Brown and other opponents of a convention gloss over this critical distinction, and consequently err in their analysis. |
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| Oddly enough, just a few paragraphs later Mr. Brown undercuts his own argument. According to Mr. Brown, conventions not called under Article V “do not set any precedent for an Article V convention.” Of course, if that were true, he could not rely on the Constitutional Convention as valid precedent for ratification. | Oddly enough, just a few paragraphs later Mr. Brown undercuts his own argument. According to Mr. Brown, conventions not called under Article V “do not set any precedent for an Article V convention.” Of course, if that were true, he could not rely on the Constitutional Convention as valid precedent for ratification. |
| Historical research shows that the Founders held at least 32 multi-state conventions in the period leading up to the adoption of the Constitution, 11 of which were held in the decade between the Declaration of Independence and the Constitutional Convention (([[http://www.floridalawreview.com/wp-content/uploads/5-Natelson.pdf#page=6|Natelson, at 620.]] )). Clearly, the Founders were no strangers to conventions. Indeed, the frequency of these pre-constitutional conventions may explain the brevity of Article V ((As Professor Natelson observes, “where the Constitution does provide rules it does so precisely in those few areas where existing practice had permitted variations.” Id. at 682.)). | Historical research shows that the Founders held at least 32 multi-state conventions in the period leading up to the adoption of the Constitution, 11 of which were held in the decade between the Declaration of Independence and the Constitutional Convention (([[http://www.floridalawreview.com/wp-content/uploads/5-Natelson.pdf#page=6|Natelson, at 620.]] )). Clearly, the Founders were no strangers to conventions. Indeed, the frequency of these pre-constitutional conventions may explain the brevity of Article V ((As Professor Natelson observes, “where the Constitution does provide rules it does so precisely in those few areas where existing practice had permitted variations.” Id. at 682.)). |
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| Rules and procedures at these pre-constitutional conventions were surprisingly uniform. The conventions themselves elected their own officers and set their own rules subject always to the instructions issued by their state legislatures **Id. at [[http://www.floridalawreview.com/wp-content/uploads/5-Natelson.pdf#page=72|686–90]].)). Voting at these conventions was uniformly on the basis of one state, one vote ((See generally id.)). The indication of all existing precedent is that the states, not Congress, will exert ultimate authority over any Article V convention. | Rules and procedures at these pre-constitutional conventions were surprisingly uniform. The conventions themselves elected their own officers and set their own rules subject always to the instructions issued by their state legislatures ((Id. at [[http://www.floridalawreview.com/wp-content/uploads/5-Natelson.pdf#page=72|686–90]].)). Voting at these conventions was uniformly on the basis of one state, one vote ((See generally id.)). The indication of all existing precedent is that the states, not Congress, will exert ultimate authority over any Article V convention. |
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| Completely apart from these historical conventions, there is one critical piece of evidence that cements the states’ control over a convention: the intent of the Founders as evidenced by the proceedings of the Constitutional Convention itself. James Madison gives a full account of the proceedings leading to the final draft of Article V in his notes from the Convention. According to these notes, George Mason strenuously objected to a proposal that only gave Congress authority to propose amendments. As Madison records, “Mason thought the plan of amending the Constitution exceptionable and dangerous. As the proposing of amendment is . . . to depend . . . on Congress, no amendments of the proper kind would ever be obtained by the people, if the government should become oppressive as he verily believed it would.” Responding to Mason’s concerns, Gouverneur Morris and Elbridge Gerry “moved to amend the article, so as to require a convention on application of two thirds of the states.” The motion passed unanimously ((2 FARRAND’S RECORDS 629–30.)). | Completely apart from these historical conventions, there is one critical piece of evidence that cements the states’ control over a convention: the intent of the Founders as evidenced by the proceedings of the Constitutional Convention itself. James Madison gives a full account of the proceedings leading to the final draft of Article V in his notes from the Convention. According to these notes, George Mason strenuously objected to a proposal that only gave Congress authority to propose amendments. As Madison records, “Mason thought the plan of amending the Constitution exceptionable and dangerous. As the proposing of amendment is . . . to depend . . . on Congress, no amendments of the proper kind would ever be obtained by the people, if the government should become oppressive as he verily believed it would.” Responding to Mason’s concerns, Gouverneur Morris and Elbridge Gerry “moved to amend the article, so as to require a convention on application of two thirds of the states.” The motion passed unanimously ((2 FARRAND’S RECORDS 629–30.)). |
| In short, every piece of historical evidence we have tells us that the states will control any Article V convention. Against this, Mr. Brown can only set vain imaginings and shoddy analysis. The Founders knew what they were doing when they put an Article V convention in the Constitution. They knew the federal government would become too powerful, and they wanted to give the states and the people a way to preserve their rights. That is what a convention was designed to do, and that is what Article V can do, if state legislators will exercise their constitutional authority. | In short, every piece of historical evidence we have tells us that the states will control any Article V convention. Against this, Mr. Brown can only set vain imaginings and shoddy analysis. The Founders knew what they were doing when they put an Article V convention in the Constitution. They knew the federal government would become too powerful, and they wanted to give the states and the people a way to preserve their rights. That is what a convention was designed to do, and that is what Article V can do, if state legislators will exercise their constitutional authority. |
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| [[https://d3n8a8pro7vhmx.cloudfront.net/conventionofstates/pages/145/attachments/original/1410015958/States-Control-Article-V.pdf?1410015958|Click here to download a PDF of this document.]] | [[https://d3n8a8pro7vhmx.cloudfront.net/conventionofstates/pages/145/attachments/original/1410015958/States-Control-Article-V.pdf?1410015958|Click here to download a PDF of this document.]] \\ |
| | [End notes are at the bottom of the page] |
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| ===== End Notes ===== | ===== End Notes ===== |
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