by Rob Natelson
The U.S. Constitution authorizes a “convention for proposing amendments” to offer amendments for ratification (or rejection) by the states.
The mechanism has never been used (all amendments have come from Congress), and many people have been curious about how it is supposed to work. But that’s because they are unaware of the long series of interstate “proposing” conventions held during the Founding Era—each charged with suggesting answers to specified problems.
All of these conventions were meetings of state delegations (“committees”) appointed and empowered by their respective states. In addition to the famed 1787 gathering in Philadelphia, interstate conventions met in Providence, Rhode Island (1776-77 and again in 1781); Springfield, Massachusetts (1777); New Haven, Connecticut (1778); Hartford, Connecticut (1779 and 1780); Philadelphia (1780); Boston (1780); and Annapolis, Maryland (1786). It is possible that others met in Charleston in 1777 and/or 1778 and in Fredericksburg, Virginia in 1778. Attendance ranged from three states to twelve.
The protocol of those assemblies can tell us much about the Founders’ expectations for the “convention to propose amendments.” The problem is that, except for the Annapolis and 1787 Philadelphia meetings, records covering them can be hard to find. I’ve learned that even experienced archivists can have trouble locating them.
Nevertheless, by late 2010, I had managed to collect the journals (official minutes) of all of the conventions certainly held except one—the particularly interesting convention at York Town, Pennsylvania.
The York Town gathering, held between March 26 and April 3, 1777 (not to be confused with later meetings in the same town by the Continental Congress), stands out for several reasons. First, it was one of the earlier interstate conventions, and its proceedings could serve as precedents for the others. Second, it was unusual (but not unique) in that it was called by Congress rather than by one or more states. (The Constitutional Convention, for example, was not called by Congress, as widely believed, but by Virginia.) Finally, the states attending represented a big stretch of the country, ranging from Virginia to New York.
Then, just a few days ago, I found the convention’s journal. It bore the relatively uncommon name of “Minutes” rather than “Journal,” and showed up on pages 34 to 45 in a collection of old correspondence to and from the New Jersey executive council. You can find a digital version of the collection here.
Some highlights of the York Town Convention:
* Congress called the convention on February 15, 1777 to deal with problems of price inflation. (The call is in theseventh volume of the Journals of the Continental Congress, pp. 124-25.)
* Eighteen men in six state delegations attended. They had been appointed by authorities in New York, New Jersey, Pennsylvania, Delaware, Maryland, and Virginia.
* The delegations ranged in size from two to five, but (as was true of other interstate conventions) each state had one vote.
* Although some Founding-Era conventions included participants who are now famous, the delegates at York Town were nearly all men whose names are obscure today. Perhaps the best known was Caesar Rodney of Delaware, who signed the Declaration of Independence, served in the Continental Congress, and was President of Delaware for much of the Revolutionary War.
* They met in the York Town home of William White. As was true of other gatherings of its type, the convention selected its own officers. Lewis Burwell of Virginia was elected chairman and Thomas Ennor (not a delegate) served as clerk.
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* The convention established a three-man Ways and Means committee to develop a price-control plan to recommend to their respective states. They later expanded the committee to six. The plan was presented, and an amendment rejected by a vote of one state to four, with the Maryland delegation divided. The plan was ultimately rejected on a 3-3 vote.
Most Founding-Era proposal conventions did, in fact, issue proposals. The York Town convention’s decision not to do so reflects a prerogative of such conventions. In later correspondence, James Madison recognized that a convention for proposing amendments would have the same prerogative.
The York Town convention’s decision not to recommend price controls was wise. As Dr. Benjamin Rush pointed out in the Continental Congress about the same time, price controls have a long record of failure. Rush predicted they would fail again, and they did so in those states, such as Connecticut and Rhode Island, that adopted them. In fact, the Springfield Convention, meeting the following summer, acknowledged the failure and recommended repeal. And price controls have continued to fail, often with unfortunate unintended consequences, ever since.
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.
