Did George Washington tell a lie about state control over Article V amendments?

In this commentary, Nick Dranias from the Goldwater Institute looks at the current debate over who would actually control an Article V convention to amend the Constitution, and why the Founders wanted states to control the process.

georgewashingtonA growing movement is swelling behind various initiatives in the states to trigger a convention for proposing amendments under Article V. Well over a dozen state legislatures are currently considering or have even already passed the necessary Article V resolutions just this session alone. And yet, this drive for constitutional reform from the states has been met with resistance from the extreme Left to the extreme Right, who claim that an Article V convention is populated by delegates selected by Congress or an uncontrollable, autonomous body that is somehow intrinsically empowered to completely rewrite our Constitution.

But the idea that the States can’t control the Article V convention process is entirely anachronistic. There is no evidence that anyone during the Founding era or immediately thereafter—whether Federalist or Anti-Federalist—thought that the Article V convention process was not meant to be controlled by the States.

In fact, the Chairman of the Philadelphia Convention and Father of our Nation, George Washington, took a very clear stand on this issue during the ratification debates. On April 25, 1788, in a letter to John Armstrong, Washington wrote “it should be remembered that a constitutional door is open for such amendments as shall be thought necessary by nine States.”1

Because an Article V convention would be triggered by the applications of two-thirds of the State legislatures, and nine States represented that trigger point in 1788, there is no question that Washington believed the States could specify in their applications an agenda for desired amendments.

Indeed, as this quote illustrates, all of the available Founding-era and near-Founding-era evidence shows that it was the public understanding of the Framers and the Ratifiers that the states would target the Article V convention process to desired amendments. In other words, the convention mode of proposing amendments was meant to facilitate and streamline, not frustrate, the proposal of specific amendments desired by the States given the limitations of 18th Century technology.

For example, the actual rationale expressed for the insertion of the convention mode of proposing amendments in Article V stands against any claim that the convention was meant to serve as a freewheeling or congressionally-populated body, standing between the States and their desired amendments.

As reported in in the Report of Proceedings from the Philadelphia Convention on September 15, 1787, George Mason objected to the original language of Article V as proposed by James Madison, which would have required Congress to propose amendments on application of two-thirds of the legislatures of the several States.2

To the modern eye, this original formulation would seem to be a more direct route for the States to obtain desired amendments. Nevertheless, George Mason feared Congress retained too much control over this amendment process. To address Mason’s objection and better guarantee that the States could obtain the proposal of desired amendments, the congressional proposal of amendments on application of two-thirds of the State legislatures was replaced with the convention mode of proposing amendments.

However ironic that rationale may look to modern eyes, it makes perfect sense in light of the technological limitations of the 18th Century. After all, at the time, communications would take days, weeks or months to travel from state capitol to state capitol, traveling by horse, rather than by telegraph, telephone or email. Ensuring that the States all convened at a central location through their own representatives to propose desired amendments was simply a practical necessity to ensure unity and control over what was proposed. Indeed, Mason’s preferred formulation of Article V not only ensured state control over the formulation of proposed amendments, it actually streamlined the amendment process. After all, the states would have had to first organize an informal convention to reach consensus on their desired amendments before delivering conforming applications to Congress. Because an informal convention was a practical predicate to States making use of Madison’s proposed amendment process, Mason’s preferred formulation of Article V, which instead allows a formal convention to directly propose amendments, actually sidestepped the additional implicit hurdle imposed by Madison’s original formulation of requiring the States to apply to Congress to propose amendments.

State control over the agenda of an Article V convention is also confirmed by a close analysis of what was entailed by Congress duty to call the convention upon the “application” of two-thirds of the State Legislatures. At the time of the framing of the Constitution, the word “application” was a legal term of art that described a written means of petitioning for specific relief. The historical record of “applications” to the Continental Congress confirms that this meaning extended to legislative bodies as well, with applications being addressed to Congress by various states with very specific requests on a regular basis.3

This historical meaning and usage of “application” naturally supports the conclusion that state legislatures had the power to apply for an Article V convention with a specified amendment agenda. Moreover, given Congress’ mandatory (“peremptory” according to Federalist No. 85) obligation to call a convention for proposing amendments in response to the requisite number of applications, it is equally natural to construe the call as automatically granting—rather than denying—those applications, and thereby necessarily conforming the convention agenda to the amendment agenda sought in those applications.

The foregoing understanding that the Article V convention was meant to be directed by the States was further confirmed during the ratification debates. On January 23, 1788, for example, Federalist No. 43 was published with James Madison’s attributed observation that Article V “equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”4

Similarly, on June 6, 1788, George Nicholas reiterated the same points at the Virginia ratification convention, observing that state legislatures may apply for an Article V convention confined to a “few points;” and that “it is natural to conclude that those States who will apply for calling the Convention, will concur in the ratification of the proposed amendments.”5

In publications both preceding and following the Virginia ratification convention, this public understanding of Article V was further confirmed by the last of the Federalist Papers, Federalist No. 85, in which Alexander Hamilton concluded, “We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority” by using their amendment power under Article V.6

These representations about how the states would organize and target the Article V convention process did not occur in a vacuum. They reflected the custom and practice of more than a dozen interstate and inter-colonial conventions that were organized prior to the ratification of the U.S. Constitution.7

Simply put, it was usual and customary for states to set the agenda for any such convention and to instruct their delegates specifically on what to advance and address at the convention. Delegates were regarded as “servants” of the states that sent them. Naturally, the Founders repeatedly represented to the public that an Article V convention would operate in the same way.

Far from being an intrinsically free-wheeling deliberative body or a puppet of Congress, the Article V convention was meant to be an instrumentality of the states—a “convention of the states.” As an Article V convention is a “convention of the states,” it follows that states are not somehow preempted or otherwise disabled in exercising their reserved sovereign power under the Tenth Amendment to determine who will represent them at the convention, how they will represent them, how they will run the convention, what they will propose, and how the states will respond to those proposals.

In fact, for decades after the Constitution’s ratification, it was an uncontroversial proposition that the states could organize the Article V convention process to consider desired amendment proposals. For example, on February 7, 1799, James Madison’s Report on the Virginia Resolutions observed that the states could organize an Article V convention for the “object” of declaring the Alien and Sedition Acts unconstitutional.8

Specifically, after highlighting that “Legislatures of the States have a right also to originate amendments to the Constitution, by a concurrence of two-thirds of the whole number, in applications to Congress for the purpose,” Madison wrote that the states could not only ask their senators to propose an “explanatory amendment” clarifying that the Alien and Sedition Acts were unconstitutional, but also that two-thirds of the Legislatures of the states “might, by an application to Congress, have obtained a Convention for the same object.”

Still, it must be acknowledged that aggressive litigants might deploy modern legal precedent to challenge the claim that states control the Article V convention process. The fractured ruling in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 802 (1995), for example, held that the states retain no Tenth Amendment authority over federal representatives because the Tenth Amendment “could only ‘reserve’ that which existed before.” If the delegates to an Article V convention were somehow deemed “federal representatives,” or if the Article V Convention were itself deemed entirely a construct of the Constitution, rather than a codification of interstate convention custom and practice, then this ruling could be utilized by clever attorneys to deny that the states retained power under the Tenth Amendment to target an Article V convention to considering the proposal of a specific amendment.

Likewise, if the state-controlled Article V application process were somehow analogized to the congressionally-controlled ratification referral process under Article V, a number of court decisions would allow opponents of the Compact to deny that Tenth Amendment principles support the proposition that the States retained the power to target and control the Article V convention.9

Even with respect to claims of state control over the Article V process that are premised entirely on construing Article V in light of historical custom and practice, rather than Tenth Amendment principles, similar trouble could arise from Cook v. Gralike, 531 U.S. 510, 520-21 (2001), in which the Supreme Court observed that evidence presented in that case of the role that “instructions played in the Second Continental Congress” and “the Constitutional Convention” fell “short of demonstrating that the people or the States had a right to give legally binding, i.e. nonadvisory instructions to their representatives.”

Additionally, post-New Deal precedent could be utilized to support the claim that Congress has a role to play in organizing and regulating the convention, which may include the designation of delegates, the convention agenda, and convention logistics, based on Congress’s power to call the convention and an expansive interpretation of the implied power authorized by the Necessary and Proper Clause.

Finally, particularly aggressive litigants might try to expand the one-man/one-vote doctrine of Reynolds v. Sims, 377 U.S. 533 (1964), to prevent states from receiving equal votes regardless of population at an Article V convention.

This is not to say that the foregoing legal arguments should or would prevail. Gralike’s observation is pure dicta about the persuasiveness of evidence advanced in a particular case, which has been superseded by the latest research into the field.10

Likewise, U.S. Term Limits is distinguishable because, unlike the process of electing congressional candidates, an Article V convention was not meant to be a mere construct of the federal constitution—it was meant to codify in substantial part the states’ pre-constitutional custom and practice of utilizing interstate conventions to propose legal reforms. This observation is underscored by the Constitution’s explicit reservation of power to the States over the Article V application process, and Congress’ mandatory obligation to call the convention in response to two-thirds of the states applying for one. Unlike in a federal election, there is no discretionary, much less regulatory role for Congress to play in the organization of an Article V convention under the Constitution’s plain text.

Similarly, the various cases rejecting Tenth Amendment principles in the context of the ratification referral process are not controlling because, unlike the application and convention process of Article V, the ratification referral process of Article V is indeed entirely a construct of the federal constitution.

Under the most recent Supreme Court precedent, the principle of state sovereignty, together with the “letter and spirit” of the Constitution, should limit the reach of whatever implied power Congress may claim under the Necessary and Proper Clause in connection with its call authority.11 This is because it would violate the superfluity canon of construction to construe Article V as impliedly delegating to Congress essentially the same degree of control over the proposal of amendments via the state-initiated convention process as Congress enjoys through its own direct amendment proposal power.

Finally, it would be erroneous to apply the one-man/one-vote doctrine of Reynolds to an Article V convention because, like the Senate and the Electoral College, an Article V convention was meant to represent the states in their sovereign capacity as a result of founding-era compromises that were essential to establishing the federal government. In the context of states voting as states within a body that is meant to represent the states as states, the guarantee of equal protection does not require enforcement of one-man/one-vote doctrine; rather, equal protection is fully consistent with each state having equal sovereignty and therefore equal votes, as in the Senate, or any other voting arrangement upon which the states voluntarily agree as equal sovereigns, such as the arrangement found in the Electoral College.12

In short, nothing in modern precedent requires courts to disregard the clear Founding-era evidence that the states were meant to direct and control the Article V convention to propose amendments they desire. George Washington not only did not tell a lie, but it is nearly certain that courts will enforce his promise to posterity that Article V empowers the States to obtain the amendments they desire.

Footnotes

1 The Writings of George Washington, collected and edited by Worthington Chauncey Ford, Vol. XI (1785-1790), p. 249 (New York and London: G. P. Putnam’s Sons, 1890), available at http://files.libertyfund.org/files/2415/Washington_1450-11_Bk.pdf

2 The Records of the Federal Convention of 1787, ed. Max Farrand, pp. 629-30 (New Haven: Yale University Press, 1911). Vol. 2, available at http://files.libertyfund.org/files/1786/0544-02_Bk.pdf

3 See, e.g., Journals of the Continental Congress, Proceedings, vol. VI, at 189 (June 1780) (application from New Hampshire); id. at 331 (October 1780) (application from New York), available at https://play.google.com/store/books/details?id=QmgFAAAAQAAJ&rdid=book-QmgFAAAAQAAJ&rdot=1

4 Federalist No. 43 in The Federalist (The Gideon Edition), Edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001), available at http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=788&chapter=108643&layout=html&Itemid=27

5 Jonathan Elliot, The Debates in the Several State Conventions of the Adoption of the Federal Constitution, vol. 3, pp. 102 (Virginia) (1827), available at http://files.libertyfund.org/files/1907/1314.03_Bk.pdf

6 Federalist No. 85 in The Federalist (The Gideon Edition), Edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001), available at http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=788&chapter=108727&layout=html&Itemid=27

7 See, inter alia, Robert Natelson, Amending the Constitution by Convention: A Complete View of the Founders’ Plan, Goldwater Institute Policy Report No. 241 (Sept. 16, 2010) (referencing Albany Congress (1754), 1st Continental Congress (1774), Providence Convention (1776-77), Yorktown Convention (1777), Springfield Convention (1777), New Haven Convention (1778), Hartford Convention (1779), Philadelphia Convention (1780), Boston Convention (1780), Hartford Convention (1780), Providence Convention (1781), Annapolis Convention (1786), Philadelphia Convention (1787)).

8 The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, Vol. 6, pp. 403-04 (ed. Gaillard Hunt, New York: G.P. Putnam’s Sons, 1900), available at http://files.libertyfund.org/files/1941/1356.06_Bk.pdf

9 See, e.g., United States v. Sprague, 282 U.S. 716, 733 (1931); United States v. Thibault, 47 F.2d 169 (2d Cir. 1931); Opinion of the Justices to the Senate, 366 N.E.2d 1226 (Mass. 1977); Dyer, 390 F. Supp. at 1307.

10 See, e.g., Robert Natelson, Amending the Constitution by Convention: A Complete View of the Founders’ Plan, Goldwater Institute Policy Report No. 241 (Sept. 16, 2010); Robert Natelson, Learning from Experience: How the States Used Article V Applications in America’s First Century, Goldwater Institute Policy Brief No. 10-06 (Nov. 4, 2010).

11 See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2601-03 (2012).

12 Even if an Article V convention were somehow distinguished from the Senate and Electoral College, it is simply not a body with general legislative or governing authority, much less police or taxing powers. An Article V convention only makes proposals and its authority for making proposals is very specialized and limited. It would be more like a special district organized for a specific purpose that does not involve general legislative or police or taxing powers, which the Supreme Court has repeatedly exempted from one-man/one-vote doctrine. See Salyer Land Company v. Tulare Lake Basin Water Storage District, 410 U.S. 719 (1973); Ball v. James, 451 U.S. 355 (1983).

Nick Dranias is Director of Policy Development and Constitutional Government at the Goldwater Institute. Dranias led the Institute’s successful challenge to Arizona’s system of government campaign financing to the U.S. Supreme Court. Dranias also serves on the board of Compact for America, Inc., which is urging the states to advance a Balanced Budget Amendment using an interstate compact.

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