Part 4: The Commissioners, the Convention, & Ratification
In Part 1 of this series (here) we explained why the Constitution must be amended to bring the federal government back towards the Framers’ plan of government, back towards the limited and enumerated powers the Framers intended. In Part 2 (here) we examined alternatives to amendment that have been proposed as a means of reining in government and why these alternatives, while important, are not currently underway as part of a coherent plan or project; neither do they address the root problem. In Part 3 (here) we discussed the convention application process and Congress’ “call.” In this next installment, we will take up where we left off in the process.Every day they are in session, Congress sits as a “convention for proposing amendments,” i.e., Congress can propose an amendment, pass it through a vote of both chambers, and send it out for ratification whenever a majority in Congress is so inclined. Any action that may be taken by a Convention for proposing amendments may be taken at any time by Congress. As we describe the following steps of the convention process we will repeatedly compare them to the current capability of Congress, our “daily amendments convention.”
Upon receipt of Congress’ call for the convention, those states interested in attending, which will likely be all fifty, will select their commissioners (keeping in mind that Rhode Island decided to not attend the 1787 convention). Unlike Presidential electors, who cannot be employees of the federal government, there are no qualifications or restrictions pertaining to who can represent their state at an Article V convention. In 1787, about 75% of the delegates had served or were then serving in the Confederation Congress, but there were also merchants, manufacturers, shippers, bankers, physicians, a minister, and farmers—a wide range of life experiences. Given that the convention would likely take place while Congress is in session, sitting Congressmen are unlikely to be appointed by their states. But Congress could conceivably call the convention during a Congressional recess period to entice the states into appointing at least some of their Congressmen.
How many commissioners will be allowed to attend from each state? It is likely that space limitations at the chosen venue will require an upper limit be placed on attendance and that each state be allowed to send an equal share of this total. In 1787, there was no limit, but all knew well the few buildings in Philadelphia capable of holding large groups. The twelve states which attended appointed a total of 70 commissioners, although fifteen men were ultimately unable to attend or declined the appointment. New Hampshire only sent two while host state Pennsylvania sent eight; the average being 4.6 commissioners per state. In today’s convention, there will be no advantage to a large delegation; following historical precedent, voting will almost assuredly be set at one vote per state, which actually serves to make smaller delegations more efficient and effective.
Opponents of a convention insist that Congress will somehow impose both proportional representation and proportional voting and that this will give liberal states an advantage. Ignoring for the moment the perfect environment this presents for our opponents’ favorite state response—nullification—we must ask: So what? If the state legislatures are allowed to appoint commissioners equal in number to their delegation in the House of Representatives, and if the party in control of the state legislature chooses only commissioners affiliated with their own party, we place the count at 269 Republicans and 157 Democrats, with 9 commissioner seats up for grabs in states with split party legislatures. Even if we are off by a whopping 55 or 13% of the seats, Republicans will still be in the majority. This is even better than the current party balance in the House (240-193, with 2 vacancies). It is possible some states will choose to allow their citizens to help select who will represent the state, in which case the partisan balance of commissioners from that state will likely reflect the partisan balance of the state’s electorate.
Opponents of an Article V convention point out that it is unlikely that those attending such a convention will understand the principles held dear by the men of 1787. We remind our opponents that Congress sits each day as an amendments convention, with equal affinity to our founding principles, so the risk in an Article V convention of amendments which do not reflect founding era principles is no different than if Congress were to forward an amendment tomorrow.
Speaking of Congressmen, how are they selected today? Do our citizens have any more choice in their selection? Congressmen are initially selected by party leaders in each state with input from the national committee. Unless they intend to self-fund their campaign, they best obtain the endorsement of their party. Sometimes they are challenged in primaries, more often not. The primary winner is then presented to the people of that state as the best candidate to represent their interests. The people are thus given whatever alternatives the two major parties think best. In the end, while we the people do select who represents us in Congress, far too often the choice is between “the lesser of two evils.” And these people can propose amendments tomorrow—think about that.
Today’s wholesale abandonment of founding principles is certainly a matter of concern and must be addressed, perhaps by having convention delegates first attend a Constitution course; but true corrective action will be generational in scope, and it need not and should not prevent us from proceeding to repair the damage done to the Constitution; damage which continues, each day, to wreak havoc with our constitutional order.
Regardless of how they are selected, directly by the legislature or through a state-wide vote of the people, the Commissioners represent their state, and the state legislature will instruct them as to the limits of their authority. These instructions, or commissions, represent an important safety feature of an Article V convention.
But first, consider the empowerment of congressmen: Congressmen are empowered to propose constitutional amendments any day Congress is in session. And they do, according to ConstitutionFacts.com, at an average of more than eighty amendment proposals per session. Congressional leadership establishes rules for handling such proposals. They are first sent to a committee for study. If a proposed amendment succeeds in getting through committee and to a floor vote, in either chamber, it must repeat that process in the other chamber before being sent to the several states for ratification.Can commissioners’ actions be limited by their commissions? Certainly. Commissioners will likely be required to take a solemn oath as they accept their commissions. Oath or not, there is a moral imperative to obey a commission. Further, to “cement the deal,” some states have considered legislation which would subject commissioners to felony prosecution should they deviate from their instructions. That may be extreme, but it demonstrates that states will expect their delegates to follow their instructions. Congress, the “sitting amendments convention,” while they arguably have exceeded their “commission” on numerous occasions, have yet to propose a new Constitution. Yet, somehow, our opponents argue, an Article V convention is sure to do so?
A favorite argument of those opposed to a convention is that the delegates of 1787 ignored their commissions and drafted an entirely new plan of government instead of only “revising” the Articles of Confederation as Congress had instructed. We should remember that delegates represent their state in such a convention, not Congress, and it is the instructions they receive from their state which bind them, not a “recommendation” from Congress. A careful study of the commissions each state drafted in 1787 reveals that the “Grand Convention” delegates were empowered to “render the Foederal Constitution adequate to the exigencies (i.e., the needs) of the Union.” Even Congress included this phrase after first mentioning revision of the Articles. Of the seven states which had appointed and instructed their delegates prior to Congress forwarding its recommendation in February 1787, exactly none of them mentioned revising the Articles; all followed Virginia’s lead in empowering their delegates to “render the Foederal Constitution adequate … .”
Webster’s 1828 Dictionary defines “render” as:
To make or cause to be, by some influence upon a thing, or by some change; as, to render a person more safe or more unsafe; to render him solicitous or cautious; to render a fortress more secure or impregnable; to render a ferocious animal more mild and tractable.
In other words, the delegates were commanded, and empowered, to cause the “Foederal Constitution” to be “adequate to the exigencies of Government, and the preservation of the Union” (to choose Congress’ phrasing). This is the most likely understanding of the term “render.” But “render” is also defined in Webster’s as:
To translate, as from one language into another; as, to render Latin into English. We say, to render a word, a sentence a book, or an author into a different language. (emphasis added)
Translating the Articles of Confederation, which had so many “vices” that Madison could (and did) write a whole essay on the topic, from a plan of government on its way to demonstrating that it was unable to preserve the Union into one able to preserve the Union, required an entirely new governmental structure, nothing less would accomplish this goal.
Some of the states which issued their commissions after receiving Congress’ recommendation did indeed include the word “revise” in their documents. It is these delegates, and these alone, who should be subjected to additional scrutiny, and they were upon returning to their states after the convention. But they were exonerated from any wrong-doing. Why? Because (taking New York as an example) the states included all of Congress’ wording, both the “revision” purpose as well as the “render” purpose.
So, it should be clear that the commissions are key to limiting the actions of the commissioners in any new convention; and that the wording of those commissions should be chosen with care. If thirty-four states have submitted applications for a convention limited to the three purposes discussed in the previous essay, we can expect that those states will similarly narrow the authority of their commissioners to discussing and voting only on amendments which fit the criteria of their application.
Some have pointed to the states who may attend without having themselves applied or which applied for a convention using entirely different or less restrictive language. The delegates of those states will not be so encumbered. What of it? It seems to us that thirty-four delegations provide the necessary majority, a super majority no less, to not only ensure that the rules adopted by the convention fit their purpose, but that any proposed amendment which does not fit the tri-fold criteria in their state’s applications is not brought to a vote, or, if it somehow is, that it is defeated.
Some have pointed out that how a person votes on a measure, whether for or against, must always remain an act of conscience; it cannot be constrained or forced by language in a commission. Correct. But what issues a commissioner is allowed to consider or vote upon certainly can be limited by properly worded commissions. Virginia has twice demonstrated that limited conventions will produce the limited amendments they were authorized to propose.
What happens if delegates disregard or “shred” their instructions upon arrival at the convention? What happens when congressmen disregard their authority? If the voters take note, they are “unelected” at the next opportunity. They can also be formally censured or expelled from Congress for violating House or Senate rules. As a body, Congress has never exceeded its authority by drafting a new Constitution, as some fear a convention will do, even though they’ve had ample opportunity to do so. Nor have they tried to add new amendments to the Constitution without submitting them to proper ratification.
Who sets the rules for a convention? Congress is a sitting amendments convention, who sets Congress’ rules? Congress is empowered to set its own rules (see Article 1 Section 5) and such rules have not led to changes in our structure or form of government. It is equally important to note that no outside body sets Congress’ rules for them. Similarly, the convention will set its own rules; as an outside body, Congress will not be permitted to establish the rules of a convention (remember nullification?). Historical precedent and propriety allow us to draw no other conclusion.
Will the convention proceedings be public or private? Just as the Founding Fathers deliberated over this question, so will an Article V Convention. The 1787 Convention chose privacy to ensure delegates felt free to speak their mind without the next day’s newspaper reporting their opinion on a sensitive matter. Today, there will be considerable pressure on a new convention to keep the proceedings public. In our day of instant communication, people will simply want to know. Will public proceedings stifle creativity? Almost certainly. Will private proceedings provoke public outrage? Almost certainly.
Congress undertakes its business with both public and private sessions and the nation seems not to have suffered from either: no new Constitution has emerged from a private Congressional session.
Voting in the convention? As we noted, the historical precedent is one-state-one-vote, but proportional representation and voting should not alarm us. Voting in the House of Representatives today is proportional. Yet if there is ever the need for the House to conduct a contingent presidential election, voting will be one-state-one-vote. While partisan issues often encourage partisan, block voting, in an Article V convention the goal is to reduce the power and jurisdiction of the federal government, something both Blue and Red states should have an interest in. We are not much concerned with how voting will be conducted; thirty-four states will determine, and safeguard, the outcome.
Speaking of the outcome, is it likely many, or even any amendments will ensue from the first Article V convention we have ever had in our nation’s history? We are a deeply divided country, we must admit, with both major parties each having “pet projects.” Even to reach the thirty-four state threshold for a convention call, two “Blue’ states must join their thirty-two “Red” brethren. Will that even happen? Who knows? We believe it will. But even then, partisan rancor may prevent a consensus from developing. Yet will a fruitless convention be a complete waste of time? Absolutely not! The constitutional education resulting from such an event is incalculable. Hundreds of thousands of Americans will know more about their Constitution, how it has been changed over the years, and what must be done to restore the Constitution’s original “chains,” simply because such a convention has occurred.
Is it any more likely that necessary amendments will ensue from Congress? Of all the thousands of amendment ideas proposed in Congress over the years, only 33 reached the States for ratification. And even then, ratification was not assured, as only 27 (82%) were actually ratified. Sufficient agreement may not emerge from a first convention. That is the beauty of our Republic. Making changes in a constitutional way is difficult, as it should be. Unfortunately, it is significantly easier to make changes outside the constitutional process, through usurpation or judicial decree. That is why the 3000-page “Constitution Annotated” today establishes the powers of government, rather than the original Constitution.
When the convention agrees upon proposed amendments, what next? Once again, when Congress agrees upon proposed amendments, what next? As we see from the history of the current amendments proposed by Congress, they are then forwarded to the several states for deliberation by either the legislatures or in special conventions. Twenty-six amendments were ratified in the former fashion, while one has been ratified by conventions (the 21st). Article V provides Congress the authority to propose which mode of ratification will be used. State law then determines how constitutional amendments are processed once received by the state. But history provides us with a warning here as well. The 14th and 16th Amendments were arguably not properly ratified. Changes were made to the wording or punctuation of the Amendment; state law procedures were sometimes not followed. Is an amendment returned to Congress with a claim of ratification but containing significant changes, a proper ratification? In the case of the 14th and 16th Amendments, irregularities were simply ignored by Congress.
Is there a time limit for ratification? Nothing in the Constitution requires a time limit be placed on ratification, nor does anything prevent it. The issue was adjudicated in Dillon v. Gloss, 256 U.S. 368 (1921) and the court determined time limits to be proper. Eighteen years later, in Coleman v. Miller, 307 U.S. 433 (1939) the court declared the issue of “timeliness” to be a political one, that if Congress chooses not to set a time limit for ratification, the amendment remains open to ratification until Congress declares otherwise. Original Article Two was ratified 201 years late, becoming Amendment 27 thanks to the efforts of a young college student, Gregory Watson. Original Article One was similarly published without time limit, as were four others, so the consensus today is that these could still be ratified. But many modern amendments, the Eighteenth being the first, were published with a time limit, so we should expect new amendments to also have such a limit on ratification.
The beauty of the Article V Convention process is that while it provides the same authority that Congress enjoys to propose amendments, it does so in a way that limits the role of Congress in that process. That was the intention of the Framers. They agreed “that provision ought to be made for the amendment of the Articles of Union, whensoever it shall seem necessary; and that the assent of the National Legislature ought not to be required thereto.” And how else would they accomplish this but through the principle authority in the Union at that time—the States. Since a republican system operates by representative authority, this takes the form of delegates operating with the authority of commissions provided by their respective state legislatures. This is the way state powers operated until Amendment XVII. Just as the 1787 delegates followed their commissions to “render the Foederal Constitution adequate to the exigencies of the Union,” those selected for this “Convention for proposing Amendments” will do the same with their more restrictive commissions—proposing Amendments within the restricted subject areas of limiting federal overreach, addressing spending, and setting term limits. The ratification process that follows the convention will be suspenseful but routine, having been accomplished thirty three times in the history of our Republic.
While much of what will happen in an Article V convention cannot be known with complete certainty, based on the precedent set by numerous conventions conducted during the founding period and later, and based on the clear goal of such a convention, we can predict its operation with reasonable fidelity. Proposed rules for such a convention have already been drafted, discussed and even used successfully in a 2016 simulation of such a convention. An Article V convention can and will be controlled by the properly instructed commissioners from the 34 states which prompted Congress to call the convention. The convention is similar in many respects to the Congress, which sits as a continual amendments convention and which has been responsible for the 27 amendments we currently have. The Equal Rights Amendment demonstrates that the states are capable of exercising sufficient foresight to prevent potentially dangerous amendment proposals from being ratified.
Having discussed all the various facets of an Article V Convention for proposing Amendments, it is now time to meet the Article V Convention opposition head on. In Part 5 of our series we will address the arguments of the nay-sayers and demonstrate why they are wrong to suggest, in effect, that we ignore this vital part of our Constitution.
Editor’s Note. An Article V Convention has strong proponents and opponents locally and across America, including within conservative circles. Smart, well-intentioned people disagree on such a convention. The Fairfax Free Citizen welcomes both pro and con articles and comments about it. An open and insightful exchange of ideas about a possible Article V Convention will help inform readers and may contribute to building a consensus on this controversial subject.