cos handbook 3.0

8/11/2019 COS Handbook 3.0

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Conventionof States

A Handbook for

Legislators and CitizensThird Edition

ConventionOfStates.com

SelfGovern.com


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Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Washington, D.C., Is Out of Control and Will Not Relinquish Power. . . . . . . . . . . . . . 4

The Founders Gave Us a Solution: A Convention of States. . . . . . . . . . . . . . . . . . . . . . 6

How Our Proposal Differs from Other Article V Plans . . . . . . . . . . . . . . . . . . . . . . . . . 8

Our Political Plan to Call a Convention of States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Why a Convention of States Is the Safest Alternative to Preserve Our Liberty. . . . . . 10We Know How a Convention of States Would Operate . . . . . . . . . . . . . . . . . . . . . . . . 11

Action Steps for Legislators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Action Steps for Citizens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Leadership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Model Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Can We Trust the Constitution? Answering theRunaway Convention Myth by Michael Farris . . . . . . . . . . . . . . . . . . . . . . . . . 17

Excerpts from Founding-Era Conventions and the Meaning of theConstitutions Convention for Proposing Amendments

by Professor Robert G. Natelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Table of ContentsThe Case for a Convention of States

A PROJECT OF CITIZENS FOR SELF-GOVERNANCE

A Solution As BIG As The Problem!


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The public widely believes our nation is headed in the wrong direction. They believe that future prospects are troubling, not only for this generation but for generations to come.

The public is correct.

What is not widely known is that the Constitution itself provides a real, effective solution. Mark Levins bestselling book, The Liberty Amendments , has opened the eyes of millions of Americansto the possibility of stopping the federal abuses of power through a Convention of States. Althoughwe began the COS Project independently, our plan is a near-perfect match with Levins ideas.

The plan we propose does not commit us to any particular amendments. That will be up to thestates when they convene. But it does commit us to a particular subjectproposed amendmentsmust be designed to limit the power of the federal government.

Introduction


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4. Federal Takeover of theDecision Making ProcessThe Founders believed the structures of a limited government would provide thegreatest protection of liberty. Therewere to be checks and balances at thefederal level. And everything not specif-

ically granted to Congress for legisla-tive control was to be left to the statesand the people.

Collusion among decision makers inWashington, D.C., has overrun thesechecks and balances. The federal judi-ciary supports Congress and the WhiteHouse in their ever-escalating attack upon the jurisdiction of the fifty states.This is more than an attack on the inde-

pendence of the states. This robs the people of their most fundamental lib-ertythe right of self-governance.

We need to realize that the structure of decision making matters. Who decideswhat the law shall be is even moreimportant than what is decided. The

protection of liberty requires a strictadherence to the principle that power islimited and delegated.

Washington, D.C., does not believethis principle, as evidenced by anunbroken practice of expanding the

bo un dari es of fede ra l power. In a

remarkably frank admission, theSupreme Court rebuffed a constitutionalchallenge to the federal spending power

by acknowledging its approval of pro-grams that violate the original meaningof the Constitution:

This framework has been sufficiently flexible over the past two centuries toallow for enormous changes in thenature of government. The Federal

Government undertakes activitiestoday that would have been unimag-inable to the Framers in two senses;

first, because the Framers would not have conceived that any government would conduct such activities; and

second, because the Framers would not have believed that the Federal

Government, rather than the States,would assume such responsibilities.Yet the powers conferred upon the

Federal Government by the Constitu-tion were phrased in language broad enough to allow for the expansion of the Federal Governments role.

New York v. United States , 505 U.S.144, 157 (1992).

This is not a partisan issue. Washington,D.C., will never voluntarily relinquishmeaningful powerno matter who iselected. The only rational conclusion isthis: unless some political force outsideof Washington, D.C., intervenes, thefederal government will continue to

bankrupt this nation, embezzle the legit-

imate authority of the states, anddestroy the liberty of the people. Rather than securing the blessings of liberty for future generations, Washington, D.C., ison a path that will enslave our childrenand grandchildren to the debts ofthe past.

This is not a partisan issue.

Washington, D.C., will never

voluntarily relinquish

meaningful power no

matter who is elected.

We need to realize that the

structure of decision-making matters. Who decides what

the law shall be is even

more important than what

is decided.


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Most people dont know that there aretwo methods to propose amendments tothe Constitution.

1. Two-thirds of each house ofCongress agrees to propose a partic-ular amendment; or

2. Two-thirds of the state legislatures pass appl ications for an amend-ments convention.

The Founders knew the federal govern-ment might one day become drunk with

power. The most important check to this power is Article V. Article V gives statesthe authority to hold a convention for the purpose of proposing amendmentsto the Constitution.

By calling a convention of states, wecan stop the federal spen ding anddebt spree, the power grabs of the fed-eral courts, and other misuses offederal power. The current situation is

precisely what the Founders feared, andthey gave us a solution we have a dutyto use.

After the states propose, debate, and

vote upon the proposed amendments,they will be sent to the 50 state legisla-tures for ratification. Congress must choose one of two modes of ratifica-tion. They can either submit theamendments to state conventionselected for that purpose or to the statelegislatures. Three-quarters of the states

must agree for any of the proposedamendments to be ratified.

Congress has no authority to stopsuch a process. The Founders made sureof that.

We are approaching a crossroads. One path leads to the escalating power of anirresponsible centralized government,ultimately resulting in the financial ruinof generations of Americans. The other

path leads to the restoration of libertyand an American renaissance.

Which will you choose?

The Founders Gave Us a Solution:A Convention of States

6

C o n v e n t i o n o f S t a t e s H a n d b o o k

By calling a convention of states, we can stop the federalspending and debt spree, the power grabs of the federal courts,and other misuses of federal power.


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The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendmentsto this Constitution, or, on the Application of the

Legislatures of two thirds of the several States, shall call a Convention for proposing Amend-ments, which, in either case, shall be valid to all

Intents and Purposes, as part of this Constitution,when ratified by the Legislatures of three fourthsof the several States, or by Conventions in three

fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourthClauses in the Ninth Section of the first Article;and that no State, without its Consent, shall bedeprived of its equal Suffrage in the Senate.

Article V, U.S. Constitution

A story from the Convention of 1787:

On September 15, as the Convention

was reviewing the revisions made by the

Committee of Style, George Mason

expressed opposition to the provisions

limiting the power to propose amendments

to Congress. According to the Convention

records, Mason thought that no amend-

ments of the proper kind would ever be

obtained by the people, if the Government

should become oppressive, as he verily

believed would be the case. In response,

Gouverneur Morris and Elbridge Gerry

made a motion to amend the article toreintroduce language requiring that a

convention be called when two - thirds of

the States applied for an amendment.

30 Harvard Journal of Law andPublic Policy 1005, 1007 (2007).


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The GrassrootsThe leadership of the COS Project

believes the success of a Convention of States depends directly on Americancitizens. Our plan is not only simple, itis realistic :

We will build a viable political opera-tion that is active in at least 40 states.

These 40 states have approximately4,000 state house districts. Our goal isto have a viable political operation inat least 3,000 of these districts.

We will have 3,000 district captainswho will organize at least 100 peoplein each district to contact theirstate legislators to support a conven-tion of states, and turn out at least25 people per district at legislativehearings.

Legislators must know that our grass-roots team will have their backs if theysupport a Convention of States. A wide-

spread grassroots organization has beenmissing from the Article V movement.

CSGs President, Mark Meckler, wasthe co-founder of the Tea PartyPatriots the largest tea party group inthe country. Michael Farris is thefounder of the Home School LegalDefense Association. As such, he bringswith him over 30 years of grassrootsleadership and activism in all 50 states.Eric OKeefe was the lead organizer for the term limits movement that resultedin 23 states passing ballot initiatives tothat effect. We not only have experi-enced staff for this project, but we arealso networking with like-minded coali-tion members across America.

The strategic advantage of a fresh starton the application process is that we will

be building current grassroots opera-tions in all of the states neededto ratify any proposed amendments, andhave them all addressed at one conven-tion. If one of the existing proposals(such as the balanced budget applica-tions) achieved 34 valid applications,

CSG certainly would support it as well.

Unfortunately, the balanced budget planrelies on applications that were enactedten, twenty, and thirty years ago.The grassroots organizations thatachieved those victories are long gone.Starting fresh insures that we have cur-rent political operations in all the statesnecessary to actually ratify any

proposed amendments.

Starting fresh also allows us to avoidany legal difficulties that may arise dur-ing the aggregation process. Applica-tions must deal with the same issue in

order for them to be counted towards thenecessary 34 states (or, in order for themto be aggregated). Many of the bal-anced budget applications, for example,are sufficiently different that they may

be subject to legal challenge when thetime comes to determine which statesare included in the count. It is unlikelyall balanced budget applications cur-rently pending will be successfullyaggregated. We will be proceeding with

a unified application using the sameoperative language in all states.

Thus, there is both a legal advantage(clear aggregation) and a politicaladvantage (current grassroots network-ing) to a fresh start on the application

process . Moreover, we will have agreater ability to protect our liberty byaddressing the full scope of the prob-lems in Washington, D.C., through a

Convention of States.This unique strategy combined withstrong grassroots support will provide aclear path to victory.

Only one question remains. Will youhelp?

Our Political Plan to Calla Convention of States

The success of a Conventionof States

dependsdirectly onthe Americancitizens.


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The most common objection to an Arti-cle V convention envisions a doomsday

scenario where delegates disregard the purpose of the convention, rewrite theConstitution, and change the entireAmerican system of government. Thishas been called the runaway conven-tion scenario, and it is based on fear and misinformation.

Here are the facts:

1. There is a clear, strong single-subject precedent that would almost

certainly be declared binding inthe event of a court challenge.There have been over 400 applica-tions from state legislatures for anArticle V convention in the historyof the Republic. No such conventionhas ever been called because therehas never been an application fromtwo-thirds of the states on a singlesubject. In addition to this, there is ahuge amount of historical precedent

that limits interstate conventions toa particular subject. See Professor Robert G. Natelsons handbook here: ww.alec.org/publications/article-v-handbook/. Also see hisessay on page 19.

2. Ratification of any proposedamendment requires the approvalof 38 states. It only takes 13 statesto vote no to defeat any proposedamendment. The chances of 38 statelegislatures approving a rogueamendment are effectively zero.

3. Improper changes to the processcan be legally challenged by statelegislators. Federal courts have heldthat Congress acted unconstitution-

ally when it changed the rules of the process in midstream. See, Idaho v.

Freeman , 529 F. Supp. 1107 (D.Idaho 1981). CSGs Senior Fellowfor Constitutional Studies, MichaelFarris, was lead counsel for severalWashington state legislators in thatlitigation.

4. There is absolutely no historicalprecedent for a runaway conven-tion. Many opponents of a Conven-tion of States make the historicallyfalse allegation that our Constitutionwas adopted as the result of an ille-gal runaway convention. This argu-ment was invented by the enemies of the Constitution and is unsupported

by historical fact. The truth is that thenew process for adopting the Consti-tution was unanimously approved

by both the Congress and a ll 13states as required by the Articles of Confederation. (See Can We Trustthe Constitution? by Michael Farrison page 17).

Thus, there are multiple lines of defense against any amendment thatdeparts from the original subject:(1) A majority of states at the Conven-tion would almost certainly vote such a

proposal to be out of order; (2) If suchan amendment was proposed, a proper legal challenge would certainly be filedand have a great chance of success;

(3) It is highly probable that at least 13states would defeat any such proposedamendment during the ratification

process; (4) It is a historical fallacy toargue that we have an established

precedent of Conventions changing therules illegally.

American citizens must evaluate the rel-ative safety of two choices. Should weallow our runaway federal governmentto continue to abuse the Constitutionand the rights of the people, with thevague hope that someday Washington,D.C., will see the light and relinquish

power? Or should we call a Conventionof States, trusting that one of the manylines of defense will stop any misuse of

power?

At the end of the day, we must trusteither Congress or the states. Recenthistory makes that an easy choice.Washington, D.C., is clearly the greatestdanger to our liberty.

We believe the choice is clear. A Con-vention of States is the safest path to

preserve self-government and liberty.

Why a Convention of States Is the SafestAlternative to Preserve Our Liberty

10


At the end of the day,

we must trust either

Congress or the States.

Recent history makes

that an easy choice.

Washington, D.C., is

clearly the greatest

danger to our liberty.


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There are some who claim we knownothing about how a Convention of States would function. They say that no

precedent exists for such a convention,

and it should be avoided due to all theunknowns. The historical record showsus that these assertions are plainly false.History tells us how a Convention of States would operate. Interstate conven-tions were common during the Found-ing Era, and the rules and proceduresfor such conventions were widelyaccepted. (For more on this historical

precedent see Professor Natelsons arti-cle on page 19.) According to Professor

Robert Natelson, leading expert on theArticle V process, we know that:

The convention for proposingamendments was consciously mod-eled on multi-state conventions heldduring the century leading up to the

Constitutional Convention, whenstates or colonies met together onaverage every 40 months. There arewell-established rules from these

conventions that would govern anyconvention today.

A Convention of States is a meeting of sovereign governments, and eachstate has one vote. Each state commis-sioner is empowered and instructed

by his or her state legislature.

A convention call cannot determinehow many delegates each state sendsor how they are chosen. That is a mat-ter for each state legislature to decide.

As was true of earlier interstate gath-erings, the convention for proposingamendments is called to propose solu-tions to discrete, pre-assigned prob-lems. There have been at least 36multi-state conventions in American

history. Not a single one exceeded its prescribed mandatenot even theConstitutional Convention, despiteanti-historical claims to the contrary.

The state legislatures applications fixthe subject matter for a convention for

proposing amendments. When two-thirds of the states apply on a givensubject, Congress must call the con-vention. However, congressional

power is limited to setting the initialtime and place of meeting.

The language in Article V does notspecify any procedural rules because

the Founders knew them so well. Itwould have seemed unnecessary tospecify exactly how an interstate con-vention would operate. These rules arewell-established and would be upheld

by the courts today.

We Know How a Convention of StatesWould Operate

The convention for

proposing amendments is

called to propose solutions

to discrete, pre-assigned

problems. When two-

thirds of the states apply on

a given subject, Congress

must call the convention.


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To call a Convention of States, 34 statelegislatures must pass applications onthe same subject matter. Governors playno official role in this process. A simplemajority rule applies unless the statelegislature has adopted prior rulesrequiring a different number.

Aggregation is the most importantissue for legislators to consider. Will

one states application be countedtoward the required 34-state majority,or will it be considered distinct fromthose of other states? The great varietyof applications for a proposed balanced

budget amendment demonstrates the problem. Most legal scholars believethat a handful of the existing applica-tions will be considered sufficiently dis-tinct to deny aggregation status in a

final count. The best plan is for statelegislatures to adopt applications withoperative language that is identical or asclose to identical as possible. CSGsmodel application is contained in theAppendix on page 16. This modelapplication was drafted in consultationwith a wide range of constitutionalscholars, legislators, and citizenactivists.

Action Steps for Legislators

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The best plan is forstate legislatures toadopt applications with operativelanguage that isidentical or asclose to identicalas possible.


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Mark Meckler

Citizens for Self-Governance,President

B.A. in English Literature, San Diego

State UniversityJ.D., with honors, University of thePacific McGeorge School of Law

Mark Meckler is the founder and President of Citizens for Self-Governance, an organization created to support grassrootsactivism in taking power from Washington, D.C., and return-ing it to its rightful owners, the citizens of the states. Meckler is widely regarded as one of the most effective and well-net-worked grassroots organizers in the nation and is regularlycalled on for political commentary in all forms of media.

Meckler is the co-founder and former National Coordinator for the Tea Party Patriots, the largest tea party organization inthe nation. He left the organization in February 2009 andfounded CSG to work more broadly on expanding the self-governance movement beyond the partisan divide.

As the President of CSG, Meckler makes sure that all projects,including Convention of States, are fully and appropriatelyfunded, staffed and managed, with a focus on strict steward-ship of donor dollars for maximum leverage and effect.Meckler is also personally involved in all media and public

relations efforts.Meckler and his wife Patty live in Northern California withtheir teenage children, where they share a love of outdoor recreation and equestrian activities.

Eric OKeefe

Citizens for Self-Governance,Board of Directors

Eric OKeefe has a 25-year history as

an active strategist, board member,and donor with organizations workingto advance individual liberty, promotecitizen engagement and restore con-

stitutional governance. OKeefe helped found U.S. Term Lim-its in 1991 and, and in recent years, co-founded the Campaignfor Primary Accountability, the Health Care Compact Alliance,and Citizens for Self-Governance. OKeefe is also a founding

board member of the Center for Competitive Politics and Cit-izens in Charge Foundation.

OKeefes book on the corruption of Congress, Who RulesAmerica, won praise from the late freedom advocateMilton Friedman.

OKeefe also serves on the board of directors of the WisconsinClub for Growth, which has been active defendingGov. Walkers agenda during legislative campaigns, recallcampaigns, and legislative races.

When he is not engaged in political activities, OKeefe is a private investor based in rural Wisconsin, where he and hiswife raised three children.

Michael Farris

Citizens for Self-Governance,Senior Fellow for ConstitutionalStudies, Head of Convention of States Project

B.A. in Political Science, magnacum laude , Western WashingtonUniversity

J.D., with honors, Gonzaga University School of Law

LL.M., with merit, in Public International Law, Universityof London

Michael Farris is the Chancellor of Patrick Henry College andChairman of the Home School Legal Defense Association. Hewas the founding president of each organization.

Farris is a constitutional appellate litigator who has served aslead counsel in the United States Supreme Court, 8 federalcircuit courts, and the appellate courts of 13 states.

He has been a leader on Capitol Hill for over 30 yearsand is widely known for his leadership on homeschooling, reli-gious freedom, and the preservation of American sovereignty.

A prolific author, Farris has been recognized with a number of awards including the Salvatori Prize for American Citizenship

by the Her itage Foundat ion and as one of the Top 100Faces in Education for the 20 th Century by Education Week magazine.

Farris and his wife Vickie have 10 children and 17 grandchildren.

Leadership of the Convention of States Project

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Model Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Can We Trust the Constitution? Answering the

Runaway Convention Myth by Michael Farris . . . . . . . . . . . . . . . . . . . . . . . . . 17

Excerpts from Founding-Era Conventions and the Meaning of theConstitutions Convention for Proposing Amendments

by Professor Robert G. Natelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Appendix

We want you to have allof the information you need to get involved.

Please see the materials weve gathered for you to be the mostinformed person in your community.

Itll take hard work, but its time to spreadthe word!


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Whereas , the Founders of our Constitution empowered State Legislators to be guardians of liberty against futureabuses of power by the federal government, and

Whereas , the federal government has created a crushing national debt through improper and imprudent spending,and

Whereas , the federal government has invaded the legitimate roles of the states through the manipulative processof federal mandates, most of which are unfunded to a great extent, and

Whereas , the federal government has ceased to live under a proper interpretation of the Constitution of the

United States, and

Whereas , it is the solemn duty of the States to protect the liberty of our peopleparticularly for the generationsto cometo propose Amendments to the Constitution of the United States through a Convention of the Statesunder Article V to place clear restraints on these and related abuses of power,

Be it therefore resolved by the legislature of the State of _______________:

Section 1. The legislature of the State of _________ hereby applies to Congress, under the provisions of ArticleV of the Constitution of the United States, for the calling of a convention of the states limited to proposing

amendments to the Constitution of the United States that impose fiscal restraints on the federal government,limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.

Section 2. The secretary of state is hereby directed to transmit copies of this application to the President andSecretary of the United States Senate and to the Speaker and Clerk of the United States House of Representatives,and copies to the members of the said Senate and House of Representatives from this State; also to transmitcopies hereof to the presiding officers of each of the legislative houses in the several States, requesting their cooperation.

Section 3. This application constitutes a continuing application in accordance with Article V of the Constitutionof the United States until the legislatures of at least two-thirds of the several states have made applications onthe same subject.

www.ConventionofStates.com Model Application for States

Application for a Convention of the StatesUnder Article V of the U.S. Constitution

16


The Convention of Statesis a project of


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Some people contend that our Consti-tution was illegally adopted as theresult of a runaway convention.They make two claims:

1. The convention delegates wereinstructed to merely amend theArticles of Confederation, but theywrote a whole new document.

2. The ratif ication process wasimproperly changed from 13 statelegislatures to 9 state ratificationconventions.

The Delegates ObeyedTheir Instructions fromthe StatesThe claim that the delegates disobeyedtheir instructions is based on the ideathat Congress called the ConstitutionalConvention. Proponents of this viewassert that Congress limited the dele-gates to amending the Articles of Con-federation. A review of legislativehistory clearly reveals the error of thisclaim. The Annapolis Convention, notCongress, provided the political impetusfor calling the Constitutional Conven-tion. The delegates from the 5 states par-

ticipating at Annapolis concluded that a broader convention was needed toaddress the nations concerns. Theynamed the time and date (Philadelphia;second Monday in May).

The Annapolis delegates said they weregoing to work to procure the concur-rence of the other States in the appoint-ment of Commissioners. The goal of the upcoming convention was to render the constitution of the Federal Govern-ment adequate for the exigencies of theUnion.

What role was Congress to play in call-ing the Convention? None. TheAnnapolis delegates sent copies of their resolution to Congress solely frommotives of respect.

What authority did the Articles of Con-federation give to Congress to call sucha Convention? None. The power of Congress under the Articles was strictlylimited, and there was no theory of implied powers. The states possessedresidual sovereignty which included the

power to call this convention.

Seven state legislatures agreed to senddelegates to the Constitutional Conven-

tion prior to the time that Congressacted to endorse it . The states told their delegates that the purpose of the Con-vention was the one stated in theAnnapolis Convention resolution: torender the constitution of the FederalGovernment adequate for the exigenciesof the Union.

Congress voted to endorse this Conven-tion on February 21, 1787. It did not pur-

port to call the Convention or giveinstructions to the delegates. It merely

proclaimed that in the opinion ofCongress, it is expedient for the Con-vention to be held in Philadelphia on thedate informally set by the AnnapolisConvention and formally approved by 7state legislatures.

Ultimately, 12 states appointed dele-gates. Ten of these states followed the

phrasing of the Annapolis Conventionwith only minor variations in wording(render the Federal Constitutionadequate). Two states, New York andMassachusetts, followed the formulastated by Congress (solely amend theArticles as well as render the FederalConstitution adequate).

Can We Trust the Constitution?Answering The Runaway Convention MythMichael Farris, JD, LLMChancellor, Patrick Henry CollegeSenior Fellow for Constitutional Studies, Citizens for Self-Governance

Continued to page 18

We cant walk boldly into ourfuture, without rstunderstanding

our history.


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Can We Trust The Constitution? Answering The Runaway Convention MythContinued from page 17

18


History tells the story.

The Constitution was legally

adopted.Now, lets move on to getting our nation back to thegreatness the Foundersoriginally envisioned.

Every student of history should knowthat the instructions for delegates camefrom the states. In Federalist 40 , JamesMadison answered the question of whogave the binding instructions to the del-egates. He said: The powers of theconvention ought, in strictness, to bedetermined by an inspection of the com-missions given to the members by their respective constituents [i.e. the states].He then spends the balance of Federalist 40 proving that the delegates from all 12states properly followed the directionsthey were given by each of their states.According to Madison, the February

21st resolution from Congress wasmerely a recommendatory act.

The States, not Congress, called theConstitutional Convention. They toldtheir delegates to render the FederalConstitution adequate for the exigenciesof the Union. And that is exactly whatthey did.

The Ratification ProcessWas Properly ChangedThe Articles of Confederation requiredany amendments to be approved byCongress and ratified by all 13 state leg-

islatures. Moreover, the Annapolis Con-vention and a clear majority of the statesinsisted that any amendments comingfrom the Constitutional Conventionwould have to be approved in this samemannerby Congress and all 13 statelegislatures.

The reason for this rule can be found inthe principles of international law. At thetime, the states were sovereigns. TheArticles of Confederation were, inessence, a treaty between 13 sovereignnations. Normally, the only way changesin a treaty can be ratified is by theapproval of all parties to the treaty.

However, a treaty can provide for some-thing less than unanimous approval if allthe parties agree to a new approval

process before it goes into effect. This isexactly what the Founders did.

When the Convention sent its draft of the Constitution to Congress, it also rec-ommended a new ratification process.Congress approved both the Constitu-tion itself and the new process.

Along with changing the number of required states from 13 to 9, the new rat-ification process required that state con-ventions ratify the Constitution rather

than state legislatures. This was done inaccord with the preamble of the Consti-tutionthe Supreme Law of the Landwould be ratified in the name of We thePeople rather than We the States.

But before this change in ratificationcould be valid, all 13 state legislatureswould also have to consent to the newmethod. All 13 state legislatures did justthis by calling conventions of the peopleto vote on the merits of the Constitution.

Twelve states held popular elections tovote for delegates. Rhode Island madeevery voter a delegate and held a seriesof town meetings to vote on the Consti-

tution. Thus, every state legislature con-sented to the new ratification processthereby validating the Constitutionsrequirements for ratification.

Those who claim to be constitutionalistswhile contending that the Constitutionwas illegally adopted are underminingthemselves. It is like saying GeorgeWashington was a great American hero,

but he was also a British spy. I standwith the integrity of our Founders who

properly drafted and properly ratifiedthe Constitution.


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Overview Of Prior

American ExperienceWith Conventions []

A. Conventions Beforethe Constitution

The Founders understood a politicalconvention to be an assembly, other than a legislature, designed to undertake

prescribed governmental functions. Theconvention was a familiar and approveddevice: several generations of English-

men and Americans had resorted to

them. In 1660 a convention Parlia-ment had recalled the Stuart line, in the

person of Charles II, to the throne of England. A 1689 convention Parliamenthad adopted the English Bill of Rights,declared the throne vacant, and invitedWilliam and Mary to fill it. Also in1689, Americans resorted to at leastfour conventions in three differentcolonies as mechanisms to replaceunpopular colonial governments, and in1719 they held yet another.

During the run-up to Independence,conventions within particular coloniesissued protests, operated as legislatureswhen the de jure legislature had beendissolved, and removed British officialsand governed in their absence. After Independence, conventions wrote sev-eral state constitutions.

Those state constitutions also resortedto conventions as elements of their amendment procedures. The Pennsyl-vania Constitution of 1776 and the

Founding-Era Conventions andthe Meaning of the Constitutions

Convention For Proposing AmendmentsProfessor Robert G. Natelson

The Independence Institute; Montana Policy Institute

April 22, 201265 Fla. L. Rev. 615 (2013)

[The following is an excerpt from Professor Robert G. Natelsons Florida Law Review article titled below. For brevity allcitations have been removed. It can be downloaded in full at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2044296.

These excerpts are reprinted here with the permission of the Florida Law Review and Professor Robert G. Natelson.]


The Founders understood apolitical convention to be an assembly, other thana legislature, designed

to undertake prescribedgovernmental functions.

What does that meanfor a modern Conventionof States?


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Vermont Constitution of 1786 bothauthorized amendments conventionslimited as to subjects by a council of censors. The Massachusetts Constitu-

tion of 1780 provided for amendment by convention. The Georgia Constitu-tion of 1777 required the legislature tocall a convention to draft constitutionalamendments whose gist had been pre-scribed by a majority of counties.

Conventions within individual coloniesor states represented the people, towns,or counties. Another sort of conven-tion was a gathering of three or more

American governments under protocolsmodeled on international diplomatic practice . These mult i-governmentconventions were comprised of delega-tions from each participating govern-ment, including, on some occasions,Indian tribes. Before Independence,such gatherings often were called con-gresses, because congress was anestablished term for a gathering of sov-ereignties. After Independence, they

were more often called conventions, presumably to avoid confusion with theContinental and Confederation Con-gresses. But both before and after Inde-

pendence the terms could be employedinterchangeably.

Multi-government congresses or con-ventions were particularly common inthe Northeast, perhaps because govern-ments in that region had a history of working together. In 1643 the four colonies of Massachusetts, PlymouthColony, Connecticut, and New Havenformed the United Colonies of NewEngland. Essentially a joint standingcommittee of colonial legislatures, thisassociation was not always active, butendured at least formally until 1684. In1695, the Crown created the Dominionof New England, a unified governmentimposed on New England, New York,

and New Jersey. The Dominion provedunpopular, and in 1689 colonial con-ventions swept it away; nevertheless,northeastern governments continued to

confer together. Many of these meetingswere conclaves of colonial governors,usually conferring on issues of defenseagainst French Canada and herallied Indian tribes, rather than conven-tions of diplomatic delegations. Anexample from outside the Northeastwas the meeting of five governorsheld at Alexandria, Virginia in 1755.Many others, however, were full-dressconventions among commissioners

appointed from three or more colonies.These meetings were usually, butnot always, held under the sanction of royal authorities.

To be specific: Three colonies met atBoston in 1689 to discuss defenseissues. The following year, the acting

New York lieutenant governor called,without royal sanction, a defense con-vention of most of the continental

colonies to meet in New York City. Themeeting was held on May 1, 1690, with New York, Massachusetts Bay, Con-necticut, and Plymouth colonies inattendance. A similar gatheringoccurred in 1693 in New York, this timeunder Crown auspices. Other defenseconventions were held in New York City in 1704, Boston in 1711, Albany in1744 and 1745, and New York City in1747. The New England colonies held

yet another in 1757.In addition to defense conventions,there were conventions serving asdiplomatic meetings among coloniesand sovereign Indian tribes, particularlythe Iroquois. There were at least tensuch conclaves between 1677 and 1768involving three or more colonies. Thoseten included gatherings in 1677, 1689,1694, and 1722 at Albany, New York;

in 1744 at Lancaster, Pennsylvania; in1745, 1746, 1751, and 1754 at Albany;and in 1768 at Fort Stanwix (Rome),

New York.

The assembly at Lancaster became oneof the more noted. Participants includedPennsylvania, Maryland, Virginia, andseveral Indian tribes. The proceedingslasted from June 22 to July 4, 1744, and

produced the Treaty of Lancaster. Evenmore important, however, was theseven-colony Albany Congress of 1754,whose proceedings are d iscussed inPart IV.A.

The most famous inter-colonial conven-tions were the Stamp Act Congress of 1765 and the First Continental Con-gress of 1774, discussed in Parts IV.Band IV.C. As for the Second ContinentalCongress (1775-81), participants mightinitially have thought of it as a conven-tion, but it is not so classified here

because it really served as a continuinglegislature.

After the colonies had declared them-selves independent states, they contin-ued to gather in conventions. All of these meetings were called to addressspecific issues of common concern.

Northeastern states convened twice inProvidence, Rhode Islandin Decem-

ber, 1776 and January, 1777, and againin 1781. Other conventions of north-eastern states met in Springfield, Mas-sachusetts (1777); New Haven,

Connecticut (1778); Hartford, Con-necticut (1779 and 1780); and Boston,Massachusetts (1780). Conventions thatincluded states outside the Northeastincluded those at York Town, Pennsyl-vania (1777), Philadelphia, Pennsylva-nia (1780 and, of course, 1787),and Annapolis, Maryland (1786). Therealso were abortive calls for multi-state conventions in Fredericksburg,

Founding-Era Conventions and the Meaning of the ConstitutionsConvention For Proposing Amendments Continued from page 19


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Virginia, Charleston, South Carolina,and elsewhere.

Thus, the Constitutional Conventionof 1787far from being the uniqueevent it is often assumed to be was but one in a long line ofsimilar gatherings.

Conclusion: WhatPrior ConventionsTell Us About TheConvention ForProposing AmendmentsAs noted above, Founding-Era customsassist us in understanding the attributesand procedures inherent in a conven-tion for proposing amendments, and

the powers and prerogatives of theactors in the process. This Conclusiondraws on the historical material col-lected above, together with the brief constitutional text, to outline thoseattributes and procedures.

The previous record of American con-ventions made it clear that a conventionfor proposing amendments was to be,like its immediate predecessors, an

inter-governmental diplomatic gather-inga convention of the states or

convention of committees. It was to be a forum in which state delegationscould meet on the basis of sovereignequality. Its purpose is to put the statesin convention assembled on equalfooting with Congress in proposingamendments.

Founding-Era practice informs us thatArticle V applications and calls may ask for either a plenipotentiary conventionor one limited to pre-defined subjects.Most American multi-government gath-erings had been limited to one or moresubjects, and the ratification-era recordshows affirmatively that the Foundersexpected that most conventions for pro-

posing amendments would be similarlylimited. Founding-Era practice informsus also that commissioners at anamendments convention were to oper-ate under agency law and remain withinthe limits of their commissions. Neither the record of Founding Era conventionsnor the ratification debates offer signif-icant support for the modern claim thata convention cannot be limited.

The only Founding Era efforts to insertin a convention call prescriptions other

than time, place, and subject-matter were abortive. When Massachusetts

presumed to set the voting rules whilecalling a third Hartford convention, twoof the four states invited refused to par-ticipate. In the few instances in whichconvention calls suggested how sover-eign governments should select their commissioners, some of those govern-

ments disregarded the suggestions, buttheir commissioners were seated any-way. This record therefore suggests thata convention call, as the Constitutionuses the term, may not include legally-

binding terms other than time, place,and subject. However, the occasionalFounding-Era practice of making callsand applications conditional and of r e sc ind ing them sug ges t s tha tArticle V applications and calls also

may be made conditional or rescinded.In accordance with Founding-Era prac-tice, states are free to honor or rejectcalls, as they choose.

Universal pre-constitutional practicetells us that states may select, commis-sion, instruct, and pay their delegates asthey wish, and may alter their instruc-tions and recall them. Although thestates may define the subject andinstruct their commissioners to vote ina certain way, the convention as a whole

History and theconstitutional textinform us that a

convention for proposing amendments is, likeits direct predecessors,a multi-governmentproposing convention.



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makes its own rules, elects its ownofficers, establishes and staffs its owncommittees, and sets its own timeof adjournment.

All Founding-Era conventions weredeliberative bodies. This was true to acertain extent even of conventionswhose formal power was limited to anup-or-down vote. When Rhode Islandlawmakers submitted the Constitutionto a statewide referendum in townmeetings rather than to a ratifying con-vention, a principal criticism was thatthe referendum lacked the deliberative

qualities of the convention. Critics con-tended that a ratifying convention,unlike a referendum, provided a centralforum for a full hearing and debate andexchange of information among peoplefrom different locales. They further contended that the convention offered away to supplement the affirmative or negative vote with non-binding recom-mendations for amendments.

Before and during the Founding Era,American multi-government conven-tions enjoyed even more deliberativefreedom than ratifying conventions as, indeed, befits the dignity of a diplo-matic gathering of sovereignties. Nomulti-government convention was lim-ited to an up-or-down vote. Each wasassigned discrete problems to work on,

but within that sphere each enjoyedfreedom to deliberate, advise, consult,confer, recommend, and propose.Multi-government conventions alsocould refuse to propose. Essentially,they served as task forces where dele-gates from different states could shareinformation, debate, compare notes, andtry to hammer out creative solutions tothe problems posed to them.

History and the constitutional textinform us that a convention for propos-

ing amendments is, like its direct pred-ecessors, a multi-government proposingconvention. This suggests that anamendments convention is deliberative

in much the same way its predecessorswere. This suggests further that when alegislature attempts in its application tocompel the convention to merely voteup-or-down on prescribed language, itis not utilizing the application power ina valid way.

Prevailing convention practice duringthe Founding Era permitted a few pro-cedural variations, and it is precisely in

these areas that the text of Article V pre-scribes procedure. Specifically:

During the Founding Era, multi-stateconventions could be authorizedmerely to propose solutions for stateapproval, or, less commonly, toresolve issues; in the latter case eachstate pledged its faith to complywith the outcome. Article V clarifiesthat an amendments convention onlymay propose. At the ConstitutionalConvention, the Framers rejected

pro ffered lang ua ge to crea te anamendments convention that couldresolve.

During the Founding Era, a proposingconvention could be plenipotentiaryor limited. Article V clarifies that nei-ther the states nor Congress may call

plenipotentiary conventions under Article V, because that Article author-

izes only amendments to this Consti-tution, and, further, it proscribescertain amendments.

During the Founding Era, an appli-cation for a multi-government con-vention could refer either to (1) arequest from a state to Congress tocall, or (2) the call itself. Article Vclarifies that an application has onlythe former meaning.

During the Founding Era a callcould come from one or more states,from Congress, or from another con-vention. Article V prescribes that

the call for an amendments conven-tion comes only from Congress,

but is mandatory when two thirds of the states have submitted similar applications.

During the Founding Era, one propos-ing convention (that of 1787) hadattempted to specify how the stateswere to review its recommendations.Article V clarifies that an amend-

ments convention does not have this power.

Thus do text and history fit together toguide us in the use of Article V.

Founding-Era Conventions and the Meaning of the ConstitutionsConvention For Proposing Amendments Continued from page 21


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