RReebbuuttttaall ttoo ““AAmmeennddiinngg tthhee CCoonnssttiittuuttiioonn bbyy CCoonnvveennttiioonn:: AA CCoommpplleettee VViieeww ooff tthhee FFoouunnddeerrss’’ PPllaann”” By Bill Walker 1 Table of Contents Introduction .................................................................................................................................... 4 The Natelson Report Assertions ................................................................................................... 10 The Major Fallacy of Professor Natelson ...................................................................................... 17 Examination of Terms and Definitions.......................................................................................... 19 Examination of Best Evidence ....................................................................................................... 25 The History of the Article V Convention Clause at the 1787 Federal Convention ....................... 26 The Amendatory Provision Convention Record: May 29, 1787-June 11, 1787 ............................ 35 Miscellaneous Concerns Related to Amendment: June 29, 1787-July 23, 1787 .......................... 39 The Committee of Detail: July 26, 1787-August 6, 1787 .............................................................. 41 Article XIX: August 30, 1787-September 10, 1787 ....................................................................... 45 Article V, The Final Form: September 12, 1787-September 17, 1787 .......................................... 50 Post Convention Discussion of Article V ....................................................................................... 61 The States Equality Issue .............................................................................................................. 83 The Exclusive Proposal Conundrum .............................................................................................. 92 The Recision Problem ................................................................................................................... 94 The Congressional “Pocket Veto” Problem ................................................................................ 100 Separation of Powers Doctrine Problem .................................................................................... 102 The Misconstrued Ratification Procedure .................................................................................. 106 The Recommendation Misconstruement Problem .................................................................... 106 The Deferral Misconstruement Problem .................................................................................... 108 The Ultra Vires Misconstruement Problem ................................................................................ 111 The False Scenario Problem ........................................................................................................ 113 The Agency Law Bait and Switch Issue ....................................................................................... 115 The Speech and Debate Problem ............................................................................................... 117 Ratification: The Real Solution to Convention Agenda Control.................................................. 120 Summary ..................................................................................................................................... 131 Endnotes ..................................................................................................................................... 133 2 3 Introduction The purpose of this article is to rebut a theory presented by Professor Rob Natelson in his arti- cle entitled, “Amending the Constitution by Convention: A Complete View of the Founders’ Plan” that fiduciary law principles can be applied to the convention process of Article V of the United States Constitution. Through such principles, the theory says, the states can regulate and control the election of convention delegates as well as the convention agenda. Professor Natelson primarily bases his theory on colonial-era quotations, which this article will show, are misinterpreted. Further, the quotes used are not best evidence of the true intent of the framers of the Constitution. After having disposed by evidentiary proof of Professor Natelson’s theory of fiduciary control of the amendment process, this article will present an alternative. A legal, constitutional method whereby the goal of Professor Natelson, limitation of any Article V Convention agenda, via state decisions can be achieved thus accomplishing the goal but by means which are not only consti- tutional, but were, as best evidence will prove, supported by the framers of the Constitution if not outright intended. The issue of who will control an Article V Convention is fundamental to this nation. Professor Natelson urges that a few control the convention. This author favors the people having control. Professor Natelson favors limiting a convention to a single, pre-determined issue as well as out- come. This author realizes much of the “genius” attributed to the Founders at the 1787 convention is actually the fact that the convention had no pre-determined agenda except to repair or other- wise correct the deficits of the existing national government. Consequently, the Founders were free to explore various proposals, ideas and concepts. To reject some, combine some, compro- mise others. Out of all this came our present Constitution. Professor Natelson's theory denies our country this same opportunity. This author adamantly believes such shortsighted political tactics as limiting a convention’s agenda will ill serve this nation. Indeed, this author firmly be- lieves if such a convention convenes as envisioned by Professor Natelson, it will do more harm than good. This author believes that an open convention is the only protection against that which most who oppose a convention say they fear—a runaway convention. A "runaway" convention is a convention with a single state of mind, that is, agreement on all points by all members political- ly unified toward a single goal with no opposition whatsoever impeding its progress. Does not that describe perfectly the single-issue convention? In contrast, an open convention will contain various factions of political points of view. This fac- tious nature will ensure no runaway convention will occur, as all delegates will naturally serve their own interests before bowing in servitude, even to a large majority of other delegates. As a 4 result, there will be opposition and opposition always prevents runaway events, serving as a needed political brake and more importantly, political conscience.1 It may sound counter- 1 The author feels it is not too early in this article to point out an obvious fact often overlooked by critics of an Arti- cle V Convention. That fact is that Congress has the identical constitutional authority as a convention as to propos- ing amendments and unlike a convention is in session on a daily basis. Why are there no charges of a “runaway” Congress when referring to amendment? The answer is politically obvious. Congress is composed of countless rep- resentations of various political factions. Oversimplification labels these factions as liberal or conservative, demo- crat or republican. In fact, the factions are much more complex than this in the world of practical politics. The composition of the factions varies from issue to issue as to support and membership within Congress. The conse- quence of this political reality means that no one faction can garner enough political muscle to control all of Con- gress all of the time. There is nothing to suggest that elections which have created such a politically diverse repre- sentation in Congress would not produce the same result in a convention. Clearly all of these factions in Congress have conflicting political agendas. In some instances the agenda is a single issue; other agendas comprise multiple issues. These agendas may be accomplished by legislative means but some is only possible by amendment—particularly if the faction desires to make their agenda as permanent as our legal system permits. In either event, the expectation therefore is those with a particular political agenda will make all effort to advance that agenda. Thus, if a faction possesses the requisite numbers in Congress to advance their agenda, they will do so. In case of amendment this means the faction controls two thirds membership (67%) or more in both houses of Congress. To advance a complex agenda of a faction numerically superior in control of Congress, the faction would propose numerous amendments reflecting that agenda. If so, the large number of amendment proposals demonstrates a “runaway” Congress. The historic record disproves this supposition. As shown in the table below in 13 sessions of Congress, a single political party has controlled both houses of Congress by two thirds membership or more. However, this fact has produced little in the way of massive or numerous amendment proposals. Cong. Session Dates Cong. Total Seats Majority Party Number of Seats Percentage Amendment Session House Proposed 8th 3/4/1803- House 142 Dem.-Rep.* 103 72.5% 12th 8th 3/3/1805 Senate 34 Dem.-Rep. 25 73.5% 9th 3/4/1805- House 142 Dem.-Rep. 114 80.3% 9th 3/3/1807 Senate 34 Dem.-Rep. 27 79.4% 10th 3/4/1807- House 142 Dem.-Rep. 116 81.7% 10th 3/3/1809- Senate 34 Dem.-Rep. 28 82.4% 12th 3/4/1811- House 143 Dem.-Rep. 107 74.8% 12th 3/3/1813- Senate 36 Dem.-Rep. 30 83.3% 15th 3/4/1817- House 185 Dem.-Rep. 146 78.9% 15th 3/3/1819 Senate 42 Dem.-Rep. 30 71.4% (Footnote Continued Next Page) 5 16th 3/4/1819- House 186 Dem.-Rep. 160 86% 16th 3/3/1821 Senate 46 Dem.-Rep. 37 80.4% 17th 3/4/1821- House 187 Dem.-Rep. 155 82.9% 17th 3/3/1823 Senate 48 Dem.-Rep. 44 91.7% 39th 3/4/1865- House 193 Republican 136 70.5% 13th 39th 3/3/1867 Senate 54 Republican 39 72.2% 40th 3/4/1867- House 226 Republican 173 76.6% 14th 40th 3/3/1869 Senate 68 Republican 57 83.8% 41st 3/4/1869- House 243 Republican 171 70.4% 15th 41st 3/3/1871 Senate 74 Republican 62 83.8% 74th 3/3/1935- House 435 Democrat 322 74% 74th 1/3/1937 Senate 96 Democrat 69 71.9% 75th 1/3/1937- House 435 Democrat 334 76.8% 75th 1/3/1939 Senate 96 Democrat 76 79.2% 89th 1/3/1965- House 435 Democrat 295 67.6% 25th 89th 1/3/1967 Senate 96 Democrat 68 68% *Democrat-Republicans (Ancestral political party of modern Democrat party). In sum, both houses of Congress has been controlled by a single political faction on thirteen different occasions; only five amendments were proposed with no Congress proposing more than a single amendment. Thus, there is no indication that Congress has ever become a “runaway” even when presented a political windfall allowing it to do so. There is nothing to suggest a convention, elected by the same electorate as that of Congress, will be any different. Indeed, the fact the convention will be the first in United States history most likely the means the elec- torate will not support a particular faction such that two thirds control of the convention by that single faction is a possibility. References: The Historical Atlas of Political Parties in the United States Congress, 1789-1989 Kenneth C. Martis, author and editor; Ruth Anderson Rowles, cartographer; Gyula Pauer, production cartographer, Macmillan Publish- ing Co, 1989 pp. 77-79, 81, 84-86, 119, 121, 123, 189, 191, 219.; Congressional Research Service, The Constitution of the United States of America: Analysis and Interpretation, (Senate Document No. 103-6). Johnny H. Killian and George A. Costello, Eds. Washington DC; U.S. Government Printing Office, 1992. Thus, the reason a concern about a “runaway” Congress has never been expressed is that despite the fact that on numerous occasions, a single political party has controlled both houses of Congress by two thirds membership or (Footnote Continued Next Page) 6 intuitive but a “controlled” single-issue convention is “runaway” convention whereas an “un- controlled” multi-issue convention is not. The 1787 Federal Convention was a success because it allowed opposition in all forms, proposals of all descriptions and open, constructive debate. Men were able to speak their minds, share their experiences and present various suggestions as to the problems of the day. This allowed the convention, after nearly two months of discussion, to formulate our Constitution. Without an unfettered convention, free of all pre-conceived con- trols currently promoted by the single-issue advocates, the convention would not have created the Constitution. Indeed, it is certain it would have failed altogether. There is little doubt today our nation faces a troubled state of affairs caused primarily by an in- flated government. By degree, it has managed to assume gigantic proportions of control not only economically but politically as well. Countless citizens from both the political right and left have warned of the dangers of a federal government grown too large and left unchecked such more, that Congress never demonstrated any inclination whatsoever to become a “runaway” Congress. As the table above demonstrates, the number of amendments proposed for ratification by the states is minimal—no more than a single amendment in any session of Congress far below what can be described as a “runaway” pro- posal body. The conclusion is obvious: despite the overwhelming numeric superiority of a particular faction in Con- gress, sufficient opposition existed to prevent massive constitutional amendment proposals as would be expected of a “runaway” Congress. Therefore, in the area of amendment, despite one political party have numeric superiority over others, the facts show the opposition has always retained a voice in any possible amendment either in the proposal stage or during ratification as the failure of some amendment proposals by Congress demonstrates. This political reality, which the Founders were well aware of when drafting the amendment process, simply means the amendment process re- quires consent not only of the majority but the minority as well. As such, Congress has never become a “runaway” amendment Congress because sufficient opposition has always existed to prevent such a catastrophe. The factious nature of Congress will also exist at a convention. It therefore reasonable to postulate that this braking system, together with the built in safeguard of ratification, will prevent any “runway” possibility for an Article V Conven- tion. Thus, the same political truths, which control Congress and prevent it becoming a runaway, will also apply to a convention unless neutralized by artificial political means. Such would be the case if a convention’s agenda were “limited” such that opposition is limited if not eliminated. This is the primary reason the author opposes such limi- tations as he is convinced they will have the opposite effect than intended. Rather than make a convention more “safe” such political limitations and restrictions will serve to make the convention more dangerous and more prone to self-serving political control by special interests. Experience has shown when democracy is allowed to be a democracy it is a good system of government; it fails only when interfered with. 7 that it has wormed its way into every aspect of American life far beyond that intended by the original framers of the Constitution. Elections cannot address the issues of government excess when they are violations of the government system established by the Founders. Elections, by their nature are transitory in nature. Their effects are reversible by a future election. As system failure is the issue, it therefore requires addressing that system, rather than the mere replace- ment of those temporarily assigned by election to administer it. Fortunately, our Constitution provides a means to rectify issues, which span partisan party politics of elections. In effect, this means creates a new public policy binding the government to a direction it heretofore did not follow. Such means are amendments. The procedure for creating such amendments is located in Article V of the United States Constitution.2 Gathering political support among the general population are calls for an Article V Convention. An Article V Convention refers to the heretofore-unused term of Article V whereby a conven- tion called by Congress at the request of two thirds of the states, proposes amendments to the Constitution. To date, Congress has proposed all amendments to the Constitution.3 Supporters of a convention argue that because much of the problem lies in excesses by Congress itself, that body will never propose amendments limiting its own power. This argument dates back to the very beginning of this country.4 By terms of Article V, all amendment proposals, whether by Congress or convention, require ratification by three fourths of the state legislatures or by state ratification conventions depending on which mode of ratification Congress elects. Amend- ments can curb or outright eliminate excesses of the federal government. 2 “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Consti- tution, when ratified by the Legislatures of three fourths of 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 Amend- ment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be de- prived of its equal Suffrage in the Senate.” U.S. Const. art. V. 3 However, as evidence cited later in this article will prove, the reason for Congress being the only method used to propose amendments despite the two methods allowed by Article V is not because the states have not requested a convention call but because Congress has deliberately, willfully and feloniously refused to obey the Constitution and call the convention. Most notably, this same evidence will show that on at least three separate occasions, the states have applied in sufficient numbers on individual amendment subjects to cause a convention call on the mer- its of each set of applications alone. Thus, the major premise of Professor Natelson’s policy report is defeated. De- spite the fact, the states have submitted applications for same subject; Congress has refused to call thus effectively asserting the right to veto these applications even if the states submit them. 4 “In opposition to the probability of subsequent amendments, it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed.” The Federalist No. 85, at 425 (Alexander Hamilton) (Gideon ed.,1818). See also infra, notes 211-225. 8 This interest in an Article V Convention has spurred interest in the academic and legal commu- nities resulting in publication of scholarly works examining various aspects related to an Article V Convention. Because many such academics and legal scholars have failed to take the neces- sary time to specifically study amendatory law,5 many of these “works” contain misinformation or misinterpretations. While they may appear legitimate and reasonable on the surface, a close examination reveals flaws in their reasoning, logic and references. Because the question of an Article V Convention is so vital to our nation’s future, as it may be the last, indeed, the only chance to peacefully resolve the issues facing us today, a reliance on the true intent, the true law and the true meaning of Article V is obligatory. Thus, where legal articles make mistakes to the record, corrections are required. On September 16 2010, the Goldwater Institute6 published a policy report entitled “Amending the Constitution by Convention: A Complete View of the Founders’ Plan” written by Robert G. Natelson, Senior Fellow, Goldwater Institute and Professor of Law at the University of Montana (Ret.).7 The Report8 summarizes its purpose as follows; “This report outlines the findings of an historical investigation into the Founders’ understanding of how the state-application-and- convention process was supposed to operate. The investigation was conducted as objectively as possible. This report does not purport to resolve every issue on the process – only those issues that can be resolved with Founding-era evidence.”9 While the use of Founding-era evidence may be useful in establishing some intent on the part of the Founders, unless all the record is examined, most especially that record which directly affected Article V, that is the actions, words and statements of the Founders during the 1787 convention, then such examination cannot be called “objective” or “complete.” In fact, the Natelson article discusses many founding documents but avoids what must be considered pri- ma fascia evidence or best evidence, the actual actions of the Founders at the convention. The fundamental premise of the Report is through the principles of principal/agent law, in combina- tion with colonial era documents, many answers to questions raised throughout the years, usu- ally by convention opponents, are answered. However many of the “answers” set forth by Pro- 5 This author spent five years studying amendatory law as it relates to an Article V Convention. Amendatory law contains elements of constitutional, civil and criminal law. The author is the first person in United States history to file federal lawsuits Walker v United States, C00-2125C USDC (2000) and Walker v Members of Congress, 06-244 S ct. (filed Aug. 16, 2006) regarding the obligation of Congress to call an Article V Convention. See infra, note 248. 6 500 East Coronado Road, Phoenix, AZ 85004. 7 Among his many accomplishments, Professor Natelson was a featured speaker at the recent Cooley Law School Review Symposium on an Article V Convention held in Lansing, Michigan on September 16, 2010, a date coinciding with the release of the Report by Professor Natelson. 8 The policy report can viewed online at http://www.goldwaterinstitute.org/article/5005. Hereinafter referred to as “Report.” 9 Report, p. 3. 9 fessor Natelson do not stand against the full record of that era nor do they stand constitutional tests set forth by Supreme Court rulings, including language written in the original Constitution and hence, writings from the Founders. The Natelson Report Assertions The Report “lists summarizes what the Founding-era record tells us of the state- application-and-convention process10 of Article V.”11 Where there is no error in either state- ment or supporting material, this rebuttal will proceed no further. Footnotes or text later in this article address incorrect summations. The Report advanced the following summaries: • During the Founding era, a “convention” did not necessarily – or even usually – refer to a plenary constitutional convention. Limited-purpose conventions were quite common, and several state constitutions employed them in their amendment procedures. • During the 1787 federal convention, the Framers considered, but rejected, drafts that contemplated amendments by what people of their time called a “plenary” or “plenipoten- tiary” convention. The Framers substituted instead a provision for a limited-scope assembly they called a “Convention for Proposing Amendments.” An Article V Convention is one of three limited-scope conventions the Constitution authorizes for specific purposes.12 13 10 Professor Natelson creates a unique term in an attempt to persuade the reader to his point of view by placing hyphens connecting state application and convention process. While there is some merit to the notion based on the fact a convention cannot be held unless the states elect to apply for a convention call, the use of hyphens are ill advised especially given the professor is attempting to prove the convention is a “slave” to the states under principal/agent law. 11 Report, pp. 25-26. 12 While the professor is correct as to the three conventions contained in the Constitution, i.e., a ratification con- vention (Article V), a convention for proposing amendments (Article V) and conventions of nine States (Article VII) he is incorrect that all three are “authorized” by the Constitution. The professor ignores the fact Article V conven- tions can only exist after state ratification of the original Constitution. These conventions exclusively deal with amendments possibly added to the Constitution after ratification. They are subject therefore to the Constitution first becoming law of the land. Thus, that document authorizes these two conventions subject to the document itself taking effect. The third convention “conventions of nine States” was merely a recommendation by the 1787 Convention allowed under the Articles of Confederation as the entire process of “alteration” was ill-defined. There nothing in the Articles or in the congressional resolution creating the convention said the convention could not make such a recommendation. Under the terms of the law of the land then in effect, the Articles of Confederation, the states were not obligated to obey this constitutional requirement even though history shows all states eventu- ally did. As the un-ratified Constitution was not law of the land, it had no force of law. Therefore, as the action of Rhode Island shows, which first held a referendum on March 24, 1788 that rejected the proposed Constitution; the (Footnote Continued Next Page) 10