A Safeguard Against Federal Abuse

by Rob Natelson

In 1830, when South Carolina politicians were arguing for “nullification” of a federal tariff they viewed as unconstitutional, the elderly James Madison penned a public response.

Madison denied that nullification—in the sense of merely declaring federal law to be inoperative—was a valid or workable doctrine. He acknowledged that the nullifiers were relying on his 1798 Virginia resolution for support, but he denied that the Virginia resolution had sanctioned nullification. He also acknowledged that when the Virginia resolution and its Kentucky counterpart were submitted to the other states, none of those states supported nullification, and a majority adopted declarations repudiating the doctrine. (See http://www.constitution.org/rf/vr_04.htm.)

Madison then suggested an alternative state-based remedy: “an amendment of the Constn. according to a process applicable by the States.” Madison was referring to the state-application-and-convention method of amendment, which he personally had helped draft.

Article V of the Constitution provides that all amendments must be ratified by three fourths of the states. Before amendments are ratified, however, they must be formally proposed, either by (1) two thirds of both houses of Congress or (2) a limited-purpose convention that Congress is required to call when demanded by two thirds of state legislatures. The Constitution calls this limited-purpose convention a “Convention to Propose Amendments.” It also can be called an Article V Convention or an Amendments Convention.

The Founders designed the state-application-and-convention method of proposal as a check on federal overreaching, much as the citizen initiative process checks the legislature in many states.

Perhaps contrary to the Founders’ expectations, there has never been a Convention to Propose Amendments. There have been several reasons for this, but since about the year 1960 a primary reason has been fear that such an assembly would be a “constitutional convention” or “con-con” that could prove a “runaway” that takes over the government. (How the convention could do this without control of the armed forces is never explained.)

How justifiable is that fear?

When preparing my book, The Original Constitution, I examined the Founding-Era evidence on how the state-application-and-convention process was designed to work. Subsequently, I reviewed nineteenth and early twentieth-century practices and pronouncements, which largely confirmed the Founding-Era evidence. I compared them with writings, videos, and other media produced by those commenting on the state-application-and-convention process. My initial paper on the subject will be published on September 17 by the Goldwater Institute.

During this research, I found that certain key claims about process are simply not true—even when made by people who should know better. For example:

* A Convention to Propose Amendments is not a “constitutional convention” or “con-con.” It is a limited-purpose assembly targeted at a specific task. Such meetings were exceedingly common during the Founding Era. They dealt with issues such as trade, currency, and state constitutional amendments. In fact, the Constitution actually authorizes three kinds of limited-purpose conventions, of which a Convention to Propose Amendments is only one.

* The Founders created the state-application-and-convention process primarily as a way to rectify federal abuses of power. The Founders recognized that clarifying and corrective amendments might become necessary even when the proper reading of the document seemed clear. The Ninth, Tenth, and Eleventh Amendments all are examples of clarifying and corrective amendments.

* Some have claimed that the procedure governing the state-application-and-convention process is unknown or unknowable. Actually, the Founding-Era evidence, confirmed by the pronouncements and practices over the ensuing 150 years, offers a great deal of guidance. For example, the Constitution permits states applying for a convention to limit its scope to particular subject matter. (Nearly all the Founders addressing the issue expected the states to so limit it.) If a convention suggested a measure outside its call, it would have no legal effect. It would be a suggestion for the future only, and not eligible for state ratification.

* Similarly, the evidence shows that (1) the convention is an agent of the state legislatures, but (2) the convention, not the states, actually drafts the amendments; (3) the states select their own delegates in whatever manner they choose consistent with the Fourteenth Amendment; (4) the convention sets its own rules, including its own voting rules, with an initial rule of “one-state-one-vote;” and (5) the convention may not alter the mode of ratification or do anything else other than propose amendments for state consideration.

I also learned the background behind the assertion that a Convention to Propose Amendments is a “con-con” that could result in a “runaway.” The charge apparently originated among convention opponents in the nineteenth century, who rested their case on the (substantially false) belief that the 1787 constitutional convention had been a “runaway.” Their argument did not gain much traction at the time, but in the 1960s a group of left-wing law professors and judges promoted the charge to frighten people away from trying to reverse activist Supreme Court decisions.

Among those making this argument, most actually had done little or no published research on the subject. The product of those who had published was quite unsatisfactory, suffering from much political bias and little solid evidence: quotations ripped out of context, ignorance of eighteenth-century law, language, and practice; and mutual citation to each other’s writings.

As just noted, most of the 1960s popularizers of the “runaway” theory were solidly left-of-center. Their goal was to derail efforts to adopt conservative constitutional amendments. By a delicious irony of history, however, some on the right have adopted their arguments, often citing people those groups would oppose strongly in any other context.

Along the same lines: I recently saw a video asserting that the “unlimited convention” scenario is accepted by the overwhelming majority of legal scholars. But if this was ever true, it has not been true for over a quarter of a century. Most recent studies of the subject agree that an Article V convention is limited by the scope of its call.

In sum: The Article V amendment process is feasible, sensible, and a lot more safe than continuing down the road we are currently traveling. The Founders gave it to us as a safeguard against federal abuse. The current situation is precisely the kind of crisis for which it was designed.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.