Amending the Constitution by Convention: a More Complete View of the Founders’ 10 Natelson, Founders’ Plan, Supra Note 1

AMENDING THE CONSTITUTION BY CONVENTION : PR ac TI ca L GUID A N C E FOR CITIZENS A ND POLI C YM A KERS by Robert G. Natelson* IP-6-2012 May 2012 727 East 16th Avenue • Denver, Colorado 80203 www.IndependenceInstitute.org • 303-279-6536 • 303-279-4176 fax AMEND I NG THE CONST I TUT I ON BY CONVENT I ON : PR ac TI ca L GUID A N C E FOR CITIZENS A ND POLI C YM A KERS INTRODUCT I ON 1 subject, and partly from misinformation campaigns Article V of the United States Constitution allows waged by opponents of change. either Congress or what the Constitution labels a “Convention for proposing Amendments” to This is the third in a series of three Issue Papers formally propose constitutional amendments providing objective, accurate information about for ratification. A convention for proposing the state application and convention process. The amendments also has been called an Article V first Paper, entitled Amending the Constitution convention,2 an amendments convention, or a by Convention: A More Complete View of the convention of the states. The common practice of Founders’ Plan, undertook the most thorough referring to it as a “constitutional convention” or examination to date of relevant Founding-Era “con-con,” is inaccurate and improper.3 sources and explained how the Founders intended the process to work. Among its many conclusions When two thirds of the state legislatures apply was that a convention for proposing amendments to Congress for a convention for proposing was to be a limited-purpose assembly composed amendments, the Constitution requires Congress of delegates acting as agents of the The Constitution, to call one. This Issue Paper refers to the procedure state legislatures. The Constitution, as understood as the state application and convention process. as understood by the Founders, by the Founders, The Framers inserted it, and the Ratifiers approved permits state legislatures to apply for permits state leg- it, primarily to enable the people, a convention unlimited as to subject islatures to apply When two thirds through their state legislatures, to matter, but it also permits the state for a convention of the state leg- amend the Constitution without legislatures to define the topic unlimited as islatures apply the consent of Congress. They the convention is to address. The to subject mat- to Congress for contemplated that it would be used Founders believed the latter would ter, but it also a convention if the people concluded the federal be the more common practice. permits the state for proposing government had too much power or if legislatures to amendments, it should exceed or abuse its powers.4 The first Issue Paper further define the topic the Constitution concluded that under the Founders’ the convention is requires Congress In some ways, the state application design, state applications cannot to address. to call one. and convention process is a federal limit the convention to specific analogue of state constitutional amendment language. Rather, the procedures allowing voter initiatives. Both serve as convention is a deliberative body that drafts and ways of bypassing the legislature if lawmakers fail to proposes (or opts not to propose) amendments. adopt needed reforms. However, as explained in this third Paper, delegates are subject to instructions from their home states Although the state application and convention while the convention is in session. process has not been carried to completion, throughout American history there have been many Finally, the first Issue Paper concluded that under efforts to obtain an amendments convention.5 the Founders’ plan, convention proposals within the Some failed only because Congress responded scope of the prescribed subject are eligible for state by proposing the sought-for amendments. Other ratification or rejection; those outside that scope are efforts enjoyed insufficient popular support. recommendations for future action only, not subject In recent years, a principal deterrent has been to ratification. uncertainty about the governing law and how the process is supposed to work. The uncertainty arises The second Issue Paper in the series was Amending partly from a lack of reliable scholarship on the the Constitution by Convention: Lessons for Today 1 from the Constitution’s First Century. It surveyed returned to other assertions of uncertainty. This actual practice from the time of the Founding Issue Paper recommends ways to anticipate, through adoption of the Seventeenth Amendment and avoid, some of those objections; it also in 1913. During this time, there were dozens of recommends ways to respond to others. state applications, accompanied by revealing public discussion and relevant Supreme Court cases. The 2. The reader should rely on this document only second Issue Paper showed that from 1789 through for general background. It is not a substitute 1913, prevailing practice and understanding for legal advice. Those seeking legislative remained consistent with the Founders’ views. Most applications for a convention for proposing policymakers continued to think of a convention amendments should consult competent legal for proposing amendments as a “convention of counsel qualified to practice within their own the states.” Most applications contemplated a state, and ask counsel to respond only after convention limited to one or more issues, but reading all three Issue Papers. none tried to restrict the convention to particular amendment language. Most applications identified THE ART I CLE V CONVENT I ON IN subjects that Congress had failed to address CONTEXT effectively. Some applications sought conventions Some people believe that the only The Constitution, that would propose amendments to clarify precedent for a convention for as understood constitutional meaning, resolve constitutional crises, proposing amendments is the 1787 by the Founders, or both. gathering in Philadelphia that wrote permits state leg- the Constitution. From that, they islatures to apply This third Issue Paper offers guidance and characterize an Article V convention for a convention recommendations for those seeking to implement as a “constitutional convention.” The unlimited as the state application and convention process. The truth is quite different. to subject mat- guidance and recommendations are based on ter, but it also the findings of the two earlier Papers, additional At the time of the Founding, a permits the state Founding-Era evidence unearthed since the first “convention” was any assembly, legislatures to Paper was published, and on authoritative court other than the legislature, designed define the topic cases issued at all stages of our history. to serve a governmental function.6 the convention is Although convention practice began to address. Two caveats for the reader: in Great Britain during the 17th century, Americans put it to very wide 1. Recent history shows that as promoters of the use. During the 18th century there were dozens of process approach success, supporters of the conventions. status quo will campaign furiously to abort it. In the past, powerful opposition has come Some conventions were held purely within a single from key figures in Congress, in colony or state. They represented the towns, the judiciary, in the media, and in 7 In the past, pow- counties, or people of the colony or state. Others academia. Opponents have advanced erful opposition were meetings of colonial or state governments. legal objections designed to induce has come from They consisted of “commissioners” (delegates) Congress to disregard applications key figures in sent by the respective state legislatures to consult and to persuade the courts to Congress, in the on problems prescribed by the commissions that invalidate them. The claim that judiciary, in the empowered them. Each state delegation formed a a convention would be inherently media, and in unit, often called a “committee,” and the gathering uncontrollable usually has been the academia. as a whole sometimes was referred to a convention most prominent weapon in their of “the states”8 or a convention of “committees.”9 arsenal. More recently, however, Each delegation represented its state and was as the claim of uncontrollability have become subject to instructions from the state legislature or increasingly untenable, some opponents have 2 the legislature’s designate. The powers and duties [i.e., deliberate] with the Commissioners or of the delegates toward the state legislatures were Committees of the several English Colonies in regulated by well-accepted principles laid down by America, on proper measures for advancing the the law of agency.10 best good of the Colonies.”18 The 1787 Philadelphia gathering (contrary to common belief) was nearly Within the limits of pre-set subject matter and plenipotentiary: It enjoyed very broad power to subsequent instruction, conventions enjoyed suggest a new form of government, and was not, as considerable deliberative freedom: they were, after so often claimed, a “runaway” convention.19 all, convened to act as problem- Within the limits solvers. They elected their own Most interstate conventions, however, were far more of pre-set subject officers and adopted their own rules. limited—that is, they were targeted at particular matter and sub- In general, interstate conventions problems. The delegates deliberated on the subject sequent instruc- were modeled on those attended by or subjects they were empowered to consider, tion, conventions international diplomats.11 perhaps issued recommendations,

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