During the founding era, the
1700’s, the colonial states had formal and informal legislatures. For
the most part, the legislatures addressed issues within the state.
However, oftentimes it was necessary for the states to discuss with the
other states common issues.
To have these discussions, the
states convened limited purpose national “conventions” to which the
legislatures appointed and sent delegates to discuss a common issue.
Several of these conventions were
held. Some of these included the following.
In 1776 a convention was held in
Providence, Rhode Island for the specific purpose of addressing “price
stabilization.”
In 1777 two conventions were held,
one in Springfield, Massachusetts to discuss “currency and wartime
profiteering” and another in York, Pennsylvania to confront price
stabilization a second time.
More conventions followed.
Limited purpose conventions were held in 1778 in New Haven, Connecticut for
“economic regulation,” in 1780 in Harford for “confederation taxing power,”
and in Philadelphia for price stabilization.
To all of these conventions the
legislatures chose and sent delegates to discuss a specific problem and to
return to the legislature with recommendations offered by the convention.
The legislatures would either act upon the recommendation, or not.
During the founding period,
limited purpose national conventions convened by the state legislatures were
commonplace.
In 1786 a convention was convened
in Annapolis for the limited purpose of addressing “interstate commerce.” At
this convention, the delegates came to the conclusion the Articles of
Confederation were dysfunctional and needed either significant revision or
replacement.
Not having the authority to
discuss major changes to the Articles, only to discuss interstate commerce,
this convention recommended to the legislatures that another convention be
held to address the Articles of Confederation in their entirety.
The delegates at the Annapolis
Convention urged the legislatures to convene a plenary convention “to take
into consideration the situation of the United States, to devise such
further provisions as shall appear to them necessary to render the
constitution of the Federal Government adequate to the exigencies of the
Union.”
In other words, “do what you have
to do” to create a working government.
Within a few months seven of the
13 states authorized the appointment of delegates to such a convention.
None of the states limited their delegates to “amending the Articles of
Confederation.”
After seven states had called for
a national convention, the Confederation Congress issued a call for a
convention “for the sole and express purpose of revising the Articles of
Confederation.”
Politicians of the 1700's were not
much different than those of today. When a politician sees a group of
people heading in a particular direction, they usually race to get to the
front of the line to suggest they are leading the group.
The convention call by the
Confederation Congress was largely ignored by
the states, as the Articles of Confederation included no provision for
Confederation Congress to convene any type of convention. At the time,
the authority to convene a national convention rested with the state
legislatures as had been the tradition since the Declaration of
Independence.
During the ensuing weeks, six more
state legislatures passed resolutions to convene a plenary convention with
only two, Massachusetts and New York, placing restrictions upon its
delegates regarding replacement of the Articles of Confederation.
Rhode Island did not participate in the convention.
Delegates from the 12 states met
in Philadelphia on May 25th, 1787. From the very beginning they began
writing a new constitution, as that was the charge from ten of the 12
legislatures. They completed their task three and one-half months
later on September 17th, 1987.
Delegates from all twelve states
signed the new Constitution. At that point, nothing changed. All
the convention did was to recommend to the states that the states change the
form of its national government, from a “confederation to a republic.” All
13 states subsequently ratified the Constitution.
During the writing of our present
day Constitution there was considerable debate regarding the role of the
national government. All delegates at the convention feared the
national government could grow to consume the power of not only the states,
but also the freedom of the people. The also knew they, as
individuals, were not infallible or all-knowing, that they had created, in
their words, “an imperfect document written by imperfect men.”
They knew the Constitution would
have to be amended in the future. And so, they included an entire
Article, not a subsection or a dangling paragraph, but an entire Article on
how to amend the Constitution. Article V provides any amendments must
be ratified by 3/4ths of the states.
However, prior to being ratified,
an amendment must first be proposed. The Founding Fathers granted
equal power and opportunity to Federal government and to state governments
to propose amendments.
Congress may propose an amendment
by a 2/3rd vote of both Houses.
States may propose amendments by
calling a convention for proposing amendments. Upon receipt of the
same application from 34 states, Congress is compelled to convene a
convention in accordance with limits of the application.
So there is the word “convention”…
which gives some individuals pause and concern.
Many have been told such an
assembly can get out of control and ruin our nation.
The founding fathers gave careful
thought as to whether another plenary, general "Constitutional Convention"
should be held. In the writings of Madison, Hamilton, and many others,
they summarily rejected the idea and purposely did not include a provision
in Article V for such a convention.
Instead, they willingly included
the type of convention which had become commonplace during the founding era
- a convention with a limited purpose, called by the states, with delegates
appointed by the states, tasked only with the authority stated by the states
in the actual call for the convention.
The only authority Congress has
relative to a convention for proposing amendments is to set a time and place
for the first session. It is compelled by the Constitution to do so.
It has no authority to create rules for the convention including delegate
selection.
This is a convention of the
states, controlled by the legislatures. One of the important legal
reasons Congress has no authority over this convention is the purpose of the
convention. The Constitution provides "equal" authority and
opportunity to the states to propose amendments. If Congress
intervenes in the convention, controlling what the states want to do,
"equality" is no longer present.
The ability for the state
legislatures to propose amendments by a convention was specifically included
in the Constitution for the purpose of controlling the growth and expansion
of the national government.
Alexander Hamilton, in Federalist
85 referring to an amendments convention, wrote:
"We may safely rely on the
disposition of the state legislatures to erect barriers against the
encroachments of the national authority."
Attorneys know when they have to
discover the meaning of a law; we need to revert to the time the law was
passed, to look upon it in its historical context. The historical
record is clear as to the intent of the founding fathers and as to how
national conventions were limited to specific topics.
As a result of the significant expansion of the national
government and federal court rulings which require an amendment to cure, it is now time for the states to call
for an Article V Convention. These are extraordinary times,
requiring extraordinary measures.
The following are the steps we will take
to add the amendments to the Constitution.
Step 1.
The
legislatures of 34 states vote to pass the same resolution calling for a limited
Article V Amendments Convention.
Step
2.
Congress, pursuant to
Article V, dutifully calls the Convention.
Step 3. As was the
tradition at the time of the founding, the legislatures determine how the
delegates will be chosen. A legislature can appoint, and recall, the
delegates if it desires.
Step 4.
The Convention votes to recommend all, some, or
none of the Freedom Amendments.
(Delegates cannot change the Constitution.)
Step 5. Thirty-eight states, by an act of the legislature or
by state
convention, vote to ratify any proposed amendments.
