Convention of States - A Handbook for Legislators and Citizens

As long as we are referencing scholarship on the subject, I’d like to post this link to the American Legislative Council’s Article V - Handbook for Legislators:

http://www.alec.org/publications/article-v-handbook/

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The day after the last election, I posted the following thread and later on contacted Levin, through his website, to ask about the topic:

http://www.freerepublic.com/focus/f-news/2956489/posts

As can be seen, the naysayers showed up on this thread, as well. A few additional points:
(1) I am not sure that the Founders would have included this provision in the constitution if the process can be simply “hijacked”
(2) my understanding is that, thus far, on occasions when the states make noises about having a convention, Congress (not wanting to look like the fools they are, wanting to jump on the bandwagon and not appearing to lose power over the amendment process) has acted on whatever the amendments are
(3) if any “conservative” out there thinks that we are living under a constitutional republic any more then he/she is just nuts. Conservatives have lost this argument over the last 75 years or so; for every step conservatism has made over this time, the left has made two or more in the opposite direction. The current trend is absolutely not in our favor. What is the solution? A continued slide to the left and complete loss of liberty (with a constitution that is meaningless as it currently seems to be) or do we attempt to fix it?

If this is a Constitutional Convention by another name, it is a dangerous undertaking, far too easy to hijack, and could lead to fundamental changes of the wrong type.

How many States have to approve whatever "fundamental change" this type of Convention recommends? Doesn't the Constitution require 75% support of the States? Doesn't that effectively mean that 26% hold a veto power over anything "dangerous"?

Yes, 13 States have effective veto over everything, dangerous or not.

The worriers ought to worry about the present course of our nation, not our work to reset that course.

When it comes to the issue of a runaway convention, or more to the point, a convention which might be taken over by a coalition of red states delegates to propose and in turn ratify amendments to the Constitution which would be repugnant to conservatives it is important to have the humility to say, we simply do not know.

We all can read the language and we all can take our view of the language but the one thing we must guard against is a conceit that we can divine how this largely uncharted process will play out when it involves power-hungry entities, like so many nations in the Security Council, struggling for power and even for survival. This is not a matter of reading the Constitution and concluding the way is clear, it is not. Remember our original constitutional convention was done by our founding fathers whom many would agree represented a unique occasion in history for the gathering together of statesman of the highest order. I don't think we can rely on delegates to be of the same quality today.

We do not even know all the questions, we certainly don't know the answers, we do not know who will decide the questions. We do not even know if it will be solved as a legal question, a political question, or some combination of the two. We do not know that would be solved by the Congress of the United States, the Supreme Court, the convention itself, the states in expressing and limiting the scope of their applications for convention, or the states in purporting to bind their delegates. We do not know if the Congress purports to control a convention by legislation containing its "call" as authorized by the Constitution and thereby attempts to extend its authority over the convention, whether that would prevail. And if that method is not accepted we do not know what would happen if Congress simply failed to fulfill its mandatory duty to choose a method for ratification.

Suppose Congress says that the convention shall vote by individual delegates and that the individual delegates shall be elected and apportioned upon the population of every state. Let us then assume that some states comply and other states do not. Let us assume that some states who do not comply send one delegate to represent the whole state. Let us assume when the delegates arrive at the convention, they vote to set the procedure of the convention and declare that each delegate is a free agent not bound by any restrictions placed upon him by his state. Let us further assume that all of these parties at every step of this process have gone to court and asked the Supreme Court and inferior courts to intervene. Let us assume that some courts have done so and some have not, let us further assume that the courts have ruled one way on one issue and another way on the next.

Under this factual pattern anyone who tells you that he knows how this is going to play out is claiming second sight. These hypotheticals are just a fraction of the permutations and combinations which might occur under An Article V process. I would reject the bland assurances of anyone on the subject as being the product of a defective humility quotient.

No one can say that the convention might not runaway. I don't believe it will, I think the language of the Constitution is clear enough where it does speak but I am very concerned about the one man one vote threat. And I am really concerned about the same problems arising in the state conventions, if that method is chosen by Congress, to ratify or reject the proposed amendments. Does one man-one vote apply there? Do the votes of the delegates get registered according to their states or thrown into a general pool? If the latter, combined with a similar procedure in the convention to propose amendments, yes indeed, there could be a disastrous result.

I think it unlikely and one should weigh the probability of the harm. We must also judge the harm, in my view a highly probable certainty of harm, if we do nothing and we passively witness the Republic meander down the road toward the cliff. I think this rather remote risk of a runaway convention is certainly worth taking.

For the record, here is a portion of the ABA report which speaks of apportionment, one must remember that we don't know who will decide these issues, nor do we know how things will play out in a highly charged political atmosphere in which the stakes are infinite:

Apportionment of Delegates

Although there are no direct precedents in point, there is authority and substantial reason for concluding, as we do, that the one-person, one-vote rule is applicable to a national constitutional convention. In Hadley v. Junior College District, the Supreme Court held that the rule applied in the selection of people who carry on governmental functions. While a recent decision, affirmed without opinion by the Supreme Court, held that elections for the judiciary are exempt from the rule, the lower court stated that “judges do not represent people.” Convention delegates, however, would represent people as well as perform a fundamental governmental function. As a West Virginia Supreme Court observed with respect to a state constitutional convention: “[E]ven though a constitutional convention may not precisely fit into one of the three branches of government, it is such an essential incident of government that every citizen should be entitled to equal representation therein.” Other decisions involving conventions differ as to whether the apportionment of a state constitutional convention must meet constitutional standards.

Of course, the state reapportionment decisions are grounded in the equal protection clause of the Fourteenth Amendment, and the congressional decision in Wesberry v. Sanders was founded on Article I, Section 2. Federal legislation providing for a national constitutional convention would be subject to neither of these clauses but rather to the Fifth Amendment. Yet the concept of equal protection is obviously related to due process and has been so reflected in decisions under the Fifth Amendment.

Assuming compliance with the one-person, one-vote rule is necessary, as we believe it is, what standards would apply? While the early cases spoke in terms of strict population equality, recent cases have accepted deviations from this standard. In Mahan v. Howell, the Supreme Court accepted deviations of up to 16.4% because the state apportionment plan was deliberately drawn to conform to existing political subdivisions which, the Court felt, formed a more natural basis for districting so as to represent the interests of the people involved. In Abate v. Mundt, the Court upheld a plan for a county board of supervisors which produced a total deviation of 11.9%. It did so on the basis of the long history of dual personnel in county and town government and the lack of built-in bias tending to favor a particular political interest or geographic area.

Elaborating its views on one person, one vote, the Committee believes that a system of voting by states at a convention, while patterned after the original Constitutional Convention, would be unconstitutional as well as undemocratic and archaic. While it was appropriate before the adoption of the Constitution, at a time when the states were essentially independent, there can be no justification for such a system today. Aside from the contingent election feature of our electoral college system, which has received nearly universal condemnation as being anachronistic, we are not aware of any precedent which would support such a system today. A system of voting by states would make it possible for states representing one-sixth of the population to propose a constitutional amendment. Plainly, there should be a broad representation and popular participation at any convention.

While the representation provisions of S. 1272 allowing each state as many delegates as it has Senators and Representatives in Congress are preferable to a system of voting by states, it is seriously questionable whether that structure would be found constitutional because of the great voting weight it would give to people of one state over the people of another. It can be argued that a representation system in a convention which parallels the structure in Congress does not violate due process, since Congress is the only other body authorized by the Constitution to propose constitutional amendments. On the other hand, representation in the Congress and the electoral college are explicit parts of the Constitution, arrived at as a result of compromises at the Constitutional Convention of 1787. It does not necessarily follow that apportionment plans based on such models are therefore constitutional. On the contrary, the reapportionment decisions make clear that state plans which deviate from the principle of equal representation for equal numbers are unconstitutional. As the Supreme Court stated in Kirkpatrick v. Preisler:

“Equal representation for equal numbers of people is a principle designed to prevent debasement of voting power and diminution of access to elected representatives. Toleration of even small deviations detracts from these purposes.”

In our view, a system allotting to each state a number of delegates equal to its representation in the House of Representatives should be an acceptable compliance with one-person, one-vote standards. We reach this conclusion recognizing that there would be population deviations of up to 50% arising from the fact that each state would be entitled to a delegate regardless of population. It would be possible to make the populations substantially equal by redistricting the entire country regardless of state boundaries or by giving Alaska one vote and having every other state elect at large a multiple of 300,000 representing its population or redistrict each state on the new population unit. None of these methods, however, seems feasible or realistic. The time and expense involved in the creation and utilization of entirely new district lines for one election, especially since state election machinery is readily available, is one factor to be weighed. Another is the difficulty of creating districts crossing state lines which would adequately represent constituents from both states. There is also the natural interest of the voter in remaining within his state. Furthermore, the dual nature of our political system strongly supports the position that state boundaries be respected. Abate v. Mundt, although distinguishable regarding apportionment of a local legislative body, suggests an analogy on a federal level. The rationale of the Court in upholding the legislative districts within counties drawn to preserve the integrity of the towns, with the minimum deviation possible, could be applicable to apportionment of a convention. The functional interdependence and the coordination of the federal and state governments and the fundamental nature of the dual system in our government parallel the relationship between the county and towns in Abate. Appropriate respect for the integrity of the states would seem to justify an exception to strict equality which would assure each state at least one delegate. Thus, a system based on the allocation of Representatives in Congress would afford maximum representation within that structure.

You two fine FReepers are doing an exemplary job of guiding this thread and bringing those two reports (ALEC and ABA) to the attention of our conservative community. You're also doing a fine job at dispelling the nonsense that an Amendments Convention can simply throw out the Constitution of 1787 and start over.

As John pointed out on an earlier thread, it's important to get people away from the term "Constitutional Convention". While it is technically correct, its connotation causes unnecessary fear in the reader.

"Article V Convention" is fine for those who know what Article V is, but I'm occasionally dismayed at the lack of constitutional knowledge on this board.

The term "Convention of the States" is nebulous, although I like referring to the process as "the States Assembled in Convention".

I like Judge Andrew Napolitano's term "Amendments Convention" because it is succinct.

Nomenclature is critical to educate people as to just what an Amendments Convention is and is not.

Great job, guys!

Let's say Levin's proposed amendments that deal with scotus are part of the states’ application to congress.

They include judicial term limits, congressional and state power to overturn court decisions, and rejection of Wickard v. Filburn commerce clause nonsense.

Uh, wouldn't it appear unseemly at best for scotus to interfere with a process that never included them in the first place and also restricts their powers? Shouldn't scotus recuse itself?

If we reach the point where the first Article V amendment convention in our history is stymied by the very same congressional and judicial asshats who have promoted the tyranny such a convention was designed to correct . . .

Thanks for posting the extract from the ABA Report.

While I do not want to elaborate on the background and context of the ABA Report at this time, I will point out that the report, which by and large represents reasonable legal scholarship, in the section discussing apportionment of delegates, without warning devolves into legal advocacy regarding extending “one man one vote” into an area where it had never had application.

One can detect this in the first paragraph of the section where the ABA authors offer this: “... the Supreme Court, held that elections for the judiciary are exempt from the rule, the lower court stated that ‘judges do not represent people.’ Convention delegates, however, would represent people as well as perform a fundamental governmental function.”

This is error. Convention delegates will NOT represent “people”; they will represent their States. To some, this may seem like a distinction without a difference, but the distinction is in fact very real and indeed profound.

The question goes to the heart of the issue. Are the States sovereign or are they not? If the States are sovereign, and I contend that they are despite de-facto creeping emasculation at the hands of the Federal Government, then the States are perfectly free to choose their delegates in any manner that they see fit, and at the Convention, all voting will be by each State with a unitary vote.

If the States are now merely administrative subdivisions of the federal Leviathan, then I suppose one could reach the conclusions advocated by the ABA. But that would be a profound departure from our founding principles, and one I think than has not been adopted except in the minds of the worst statists.

OK.

Let’s look next at the Constitutional provisions governing a Convention for Proposing Amendments:

What role does Congress have? Congress performs a ministerial function by calling the Convention, setting a date and a venue, when the criteria for doing so have been met. Congress must also determine the modality for the ratification process, i.e. whether it will be done by State Legislatures or by State ratifying conventions. That is the extent of Congress’ involvement.

What role does the President have? None.

What role does the Federal Court system have: None, they utterly lack jurisdiction, just as they lack jurisdiction to interfere with the functions of Congress. But just watch; they will dip their oar into the water if they deem it in their interest.

What role do State Governors have? None. But you can expect gubernatorial arm twisting behind the scene. IOW, normal politics.

What role do the State legislatures have? They are the main players. They are responsible for applying to Congress to call the Convention. They are responsible with complete discretionary powers to assemble and appoint their delegations, and they have the power to instruct and direct their delegations.

I do not believe that there is any serious question regarding these aspects of the process.

When 2/3 of the States have made application to Congress for a Convention on a single subject, Congress must act. Note that the Constitution makes provision for these applications to be made by States, not by the people of the States. There is no “one man one vote” consideration.

And once an Amendment has been proposed, it must in order to be adopted, be ratified by 3/4 of the States - not by 3/4 of the people of the States. Once again, there is no issue of “one man one vote” to be applied.

The action in each case is to be taken by each State, acting as a unity - a sovereign unity. It being undeniably the case that process is bookended by the States acting as sovereigns, what is the logical process that strips the States of that sovereignty during deliberation and voting at the Convention the sovereign States have called? There is none.

If any question remains as to the agenda driven nature of the ABA’s position on this issue, those questions ought to be dispelled by this paragraph:

“Elaborating its views on one person, one vote, the Committee believes that a system of voting by states at a convention, while patterned after the original Constitutional Convention, would be unconstitutional as well as undemocratic and archaic. While it was appropriate before the adoption of the Constitution, at a time when the states were essentially independent, there can be no justification for such a system today. Aside from the contingent election feature of our electoral college system, which has received nearly universal condemnation as being anachronistic, we are not aware of any precedent which would support such a system today. A system of voting by states would make it possible for states representing one-sixth of the population to propose a constitutional amendment. Plainly, there should be a broad representation and popular participation at any convention.”

This is opinion unsupported by a single precedent. Not one.

And look at the egregious assumptions on which the opinion rests:

Condemnation of the Electoral College as “anachronistic” and the astounding statement that “we are unaware of any precedent which would support such a system today.” Have they forgotten the Constitution?

Condemnation of a system of voting by states at a convention as unconstitutional as well as undemocratic and archaic. Yes, just like State Sovereignty is archaic. They might add that it is inconvenient to the Federal Leviathan as well.

Explicit rejection and dismissal of State Sovereignty: “While it was appropriate before the adoption of the Constitution, at a time when the states were essentially independent, there can be no justification for such a system today.”

Just wow.

And lest there be confusion on the issue, the position espoused by the ABA report remains an extreme position that ought to be seen for what it is: legal advocacy masquerading as legal scholarship.

As a counter balance to your post, I’d like to refer to a sidebar summary on page 16 of the American Legislative Exchange Council Article V Handbook for State lawmakers:

“In summary please note:

- All states and “committees” to the convention in accordance with state law.
- The convention elects its own officers and sets its own rules.
- Initial suffrage is one state/one vote with decisions made by a majority of states, but the convention may change both rules.
- The convention must follow the rules of the Constitution, including those of Article V. convention cannot change the ratification procedure.
- The delegates must remain within the charge as set by the applications and (derivatively) by the congressional call.
- Within the charge and during the convention, each committee is subject to instruction from its home state legislature or the legislature’s designee and is subject to recall as well.
- Within the charge, the delegates may propose one or more amendments, or may propose none at all.
-Once the decision is made, the convention must adjourn.

Finally, let me add the conclusion of the American Legislative Exchange Council Article V Handbook for State lawmakers:

“The state application and convention process was not inserted into the Constitution merely to increase the length of the document. It was an important component - perhaps the most important component - in the federal balance between states and the central government. It was, in Madison’s terms, the ultimate constitutional way for curbing an abusive or out of control federal government. In more modern terms, it is the analogue to the initiative process at the state level: just as the initiative enables the people to make reforms the state legislature refuses to undertake, the state application and convention process enables the state legislatures to effectuate reforms Congress refuses to propose.

If we could address one or more the the leading Founders today, we might tell them what has happened to American federalism - that the states are increasingly mere administrative subdivisions for the convenience of Washington, D.C. After we related the situation, those Founders doubtless would ask, “Well, have you ever called a convention of the states under Article V?” And when we admitted we never had, they might well respond, “In short, you refused the very tools we gave you to avoid this situation. The sad state of American federalism is clearly your own fault.”

Thus, the responsibility for reclaiming constitutional government is very much ours.

In my view the federal court system has no more business in the convention than they would in the proceedings of Congress. They simply have no jurisdiction; nevertheless I don’t think that will impede them from stepping in if they think it in their interest - especially at the District Court level.

Should that happen, I think the states and the convention ought to do the appropriate thing and ignore them. Proceed with the convention and propose the amendments for ratification.

In point of fact, I think that the Supreme Court would be loathe to support taking jurisdiction here; interfering with the common act of the several sovereign States would be the supreme act of judicial tyranny.

John, I happen to agree with your basic points. But I also have to interject that the politics of this will take precedence over constitutional theory. Let me state how I think this will play out.

Let’s stipulate that two-thirds of the states request either a general convention or use the same wording about amendments relating to trimming federal power. Let’s stipulate that Congress will not use the excuse that some state petitions have commas here and some have commas there, thus they are not for the same subject. Let’s dismiss all that as being unrealistic and impolitic on the part of professional politicians.

When Congress was blind-sided by the ratification of the 27th Amendment in 1992 some 203 years after Congress sent it to the states, the initial reaction was fury, followed by cunning. Congressional leadership wrote a letter to the Archivist of the United States alleging that the older ratifications were stale, either because of age or because Congress had since 1918 added seven year windows to the ratification process. They wanted do-overs from the earlier states who ratified. The Archivist wrote a reply to Congress quoting every Supreme Court decision relevant to the amendatory process pointing out that Congress didn’t have a legal leg to stand on. Because 1992 was a presidential election year with a strong anti-incumbent bias, Congress decided that discretion was the better part of valor, swallowed hard, and accepted the 27th Amendment into the Constitution.

The first instinctive reaction to an Amendments Convention would be to block it. If there is one thing that drives Congress mad, it’s the possibility that it will lose power.

The events of 1912 are instructive. In that year, the necessary two-thirds threshold was reached over the issue of the direct election of senators. Up until that moment, the House had passed some version of the 17th Amendment by the necessary majority, but the Senate had always blocked it. The possibility of an Amendments Convention on this topic galvanized the Senate into action. The Senate’s fear was that a convention would come up with an amendment that required the election of the entire Senate all at once under the new paradigm. What the Senate did was come up with wording that permitted the change to go into effect in stages starting with the election of 1914, thus requiring no new election for the entire Senate.

How did Congress avoid calling a convention, even when the two-thirds threshold had been reached? Some petitions for a convention stated that their conditions would be met if Congress passed such an amendment to the states on its own. Once Congress acted, those petitions were considered discharged, and Congress no longer counted them for the calling of a convention. Had those petitions been worded otherwise, Congress would have been caught in a ticklish situation.

The states would need to close that loophole up front, or Congress will write its own toothless amendments and pass them on to the states, arguing that the conditions for a convention were no longer satisfied and refusing to call one.

The next reaction would be to see if outright stonewalling would work.

In 1967, thanks to the hard work of Sen. Everett Dirksen of Illinois, we were almost at the two-thirds threshold for a convention to repeal the Supreme Court’s Reynolds decision. Dirksen introduced a bill to regulate the conduct of a convention. All hell broke loose on the floor of the Senate because Congress had been blind-sided by the states.

The two senators from Maryland (Tydings and Brewster) argued that the petitions to overturn Reynolds had come from legislatures that were mal-apportioned by the standards of Reynolds, and thus Congress could safely ignore those petitions. (Both senators later went to prison.) The junior senator from Illinois (Chuck Percy) argued that an Amendments Convention would place the Constitution in the hands of the worst and most extreme elements in American politics, by which he meant conservatives. He thus argued that Congress could ignore petitions for a convention, and nobody could do anything about it because Congress was a sovereign body and the courts could not order it about.

But that was before the Powell decision. Remember Adam Clayton Powell? He was the sleezeball congressman from Harlem whom the House refused to seat. Powell sued in federal court arguing that he had fulfilled all the necessary requirements to be elected to the House. If the House chose to expel him by a two-thirds majority, that was fine, but the House had to seat him first.

Various congressional barons made statements that the Supreme Court should not get involved because redress for Powell would mean the Court ordering the House about as though it were no longer a sovereign body. The Court eventually decided in favor of Powell, and the House did not impeach the justices who voted for Powell. For the first time, the Supreme Court had ordered the House about as a lackey. After Powell, Chuck Percy was wrong. In the end, Powell was defeated in a later primary by Charlie Rangel, who still holds the seat today, but the precedent was set.

The calculus here is whether the Supreme Court under Roberts would be as activist as it was under Earl Warren and Warren Burger.

If Congress refused to do its duty, could the Supreme Court intervene? Under the Powell precedent, yes. Would it? That’s hard to say. Some of Levin’s amendments strike at the heart of the Supreme Court’s emergence as the most powerful branch of government, and it might not want a convention either.

Could the Supreme Court call a convention on its own authority if Congress defied the states? I doubt it. Earl Warren isn’t Chief Justice.

Could Congress dodge the issue by calling a convention 20 years in the future? Legally, yes, but that would defy the states as surely as if Congress had refused to call one at all.

Could Congress refuse to appropriate money for a convention? Yes, and that would throw the financing into the hands of the states.

If Congress defies the states, the Supreme Court may suggest that it is a political question, and it is up to the people to remove recalcitrant members of Congress via the electoral process.

But let’s stipulate that the previous issues are irrelevant, Congress honors the Constitution, sets the time and place for a convention, and appropriates money for it. What is the next thing Congress would try?

That ABA Report will be retrieved from 535 dusty file cabinets in a warehouse somewhere, and different bills will be introduced to regulate the selection of delegates and the conduct of the convention.

Note that between 1967 and 1991, Everett Dirksen, Sam Ervin of North Carolina and Orrin Hatch of Utah introduced bills to regulate a convention. Dirksen was motivated by the possibility of a convention to repeal Reynolds, and Ervin and Hatch were motivated by the possibility of a convention to write a balanced budget amendment. The lack of urgency prevented those bill from being enacted. The prospect of a convention will motivate Congress to grab whatever power it thinks it can get away with. Eventually, the House and Senate will agree on a bill despite the arguments of Rand Paul, Mike Lee, Ted Cruz and others that Congress has no place in the process.

The state governments will raise holy hell. Many state attorneys general will go into federal court to argue that Congress overstepped his bounds. Eventually, it will reach the Supreme Court, and we'll get one of those definitive decisions. I don't know which way the Court will go, considering that there are already two precedents (Dillon, Coleman) allowing Congress wide latitude in regulating the amendatory process. Either the rules in the ALEC Document will be followed, or the rules in the ABA Report, or something in between. I don’t know which will win out.

Publius,

You make many excellent and cogent points.

Certainly, this won’t be a walk in the park. You can be sure that each branch of the federal government will instinctively react for survival. Although the range of action they have at their disposal is limited, they are likely to use everything available to them with as much cunning and guile as they can muster.

As for the involvement of the judiciary, I think I need to clarify my own position in light of what you have had to say.

I have argued that the courts lack jurisdiction, but what I may not have made clear enough is that I am speaking of jurisdiction over the internal processes of the convention. I agree that there is a role to play for the courts in adjudicating improper action or the lack of it by Congress for example. Should Congress attempt to interfere with the internal functioning of the convention via legislation, a court challenge by the States is probably inevitable. Dilatory tactics by Congress might also require such a court challenge by the States to force proper action. In this arena, the courts have a role to play, but it is one they must fulfill with honor and meticulous care for precedent and the Constitution.

Ultimately the power all rests with the States, but they must assert that power, and do so with clarity, focus and tenaciousness in the face of what will certainly be fierce resistance by the statists.

No one knows what would happen if an Article 5 convention was actually convened. Even Mark Levin, who proposed this admits that. When asked about the risks his answer WASN’T that the convention couldn’t be hijacked, he argued that he doubted that the left could “ out organize” conservatives, and that it would only take 13 states to reject any of the changes. Do you for 1 second believe the courts would not be involved?
I’m not willing to gamble what remains of the Constitution on this .

To each his own. I for one want a Constitution that is respected and honored as the basis for our Constitutional Republic.

If you think that is going to happen if we stay on the trajectory we are presently on, and have been on for a full century, you and I will simply have to disagree.