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 ..................................................................................................... 6 The Major Fallacy of Professor Natelson ........................................................................................ 8 Examination of Terms and Definitions............................................................................................ 9 Examination of Best Evidence ....................................................................................................... 12 The History of the Article V Convention Clause at the 1787 Federal Convention ....................... 12 The Amendatory Provision Convention Record: May 29, 1787-June 11, 1787 ............................ 15 Miscellaneous Concerns Related to Amendment: June 29, 1787-July 23, 1787 .......................... 16 The Committee of Detail: July 26, 1787-August 6, 1787 .............................................................. 17 Article XIX: August 30, 1787-September 10, 1787 ....................................................................... 20 Article V, The Final Form: September 12, 1787-September 17, 1787 .......................................... 23 Post Convention Discussion of Article V ....................................................................................... 26 The States Equality Issue .............................................................................................................. 36 The Exclusive Proposal Conundrum .............................................................................................. 39 The Recision Problem ................................................................................................................... 40 The Congressional “Pocket Veto” Problem .................................................................................. 42 Separation of Powers Doctrine Problem ...................................................................................... 42 The Misconstrued Ratification Procedure .................................................................................... 44 The Recommendation Misconstruement Problem ...................................................................... 44 The Deferral Misconstruement Problem ...................................................................................... 45 The Ultra Vires Misconstruement Problem .................................................................................. 46 The False Scenario Problem .......................................................................................................... 47 The Agency Law Bait and Switch Issue ......................................................................................... 48 The Speech and Debate Problem ................................................................................................. 50 Ratification: The Real Solution to Convention Agenda Control.................................................... 52 Summary ....................................................................................................................................... 58 Endnotes ....................................................................................................................................... 60 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- 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 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. 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 5 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- 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 6 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 • It is erroneous to label a convention for proposing amendments a “constitutional convention” or to conclude that it has any power beyond proposing amendments to the states for ratification. Any amendments it does propose are of no effect unless ratified by three- fourths of the states. • A state legislature’s “Application” is its address to Congress requesting a convention. The state governor has no required role in this process.14 • The almost universal Founding-era assumption was that legislatures applying for a convention to propose amendments usually would guide the convention by specifying particu- lar subject areas for amendment.15 • The convention to propose amendments is an agent of the state legislatures. As such, it must remain with [sic] the scope of its call. If the convention opts to suggest amend- ments outside its call, those suggestions are not legal proposals but merely recommendations for later action under some future procedure.16 • Although the Constitution generally provides for Congress to act as the agent of the people rather than of the states, for the state-application-and-convention procedure, the Founders retained the Articles of Confederation model. In other words, during that procedure, the state legislatures are the principals, and Congress and the convention to propose amend- ments are their agents.17 • As the agent of the state legislatures, Congress must call a convention for proposing amendments if two-thirds of the states apply for one, must treat all states equally during the process, and must obey any common restrictions imposed by the states in their applications. The states, not Congress, are to determine how delegates are selected.18 • The President has no constitutional role in the state-application-and-convention process.19 • The convention establishes its own rules, including its voting rules. The initial default rule is “one state, one vote.”20 • Because the Constitution grants the convention, not the states, power to “propose amendments,” the states cannot require the convention to adopt a particular amendment or dictate its language. The convention is required to stay within any state-specified subject mat- ter, but the actual drafting is the convention’s prerogative.21 • The Constitution imposes a limit on the power the state legislatures have over Con- gress in this process: Congress, not the states, selects among the two modes of ratification. As the agent of the state legislatures, however, Congress should not designate a ratification pro- cedure for convention resolutions outside the convention’s call. Such recommendations are merely recommendations for some future consideration; they are not legal proposals.22 7 The Major Fallacy of Professor Natelson Before beginning a very long and detailed examination of Professor Natelson’s Report it should be noted there is a major fallacy with the entire work—specifically the premise on which all of Natelson’s assumptions regarding a convention rest. Robert Natelson, who is regarded as an expert in colonial history, ignores the most obvious fact of all—the actions he cites as justifi- cation for his theory—the actions of the colonies during the colonial period were done by Eng- lish colonies, not American states. There is no question but that all colonies founded by the British in the colonial age re- gardless of by whatever type of charter all shared one common trait—the charters were grant- ed by and under the sovereign authority of whatever king of England happened to be on the throne at the time of the assignment. In some instances, the charters that created the colonies were for business purposes, others were owned outright by the crown. Nevertheless all British colonies functioned under the authority of the king. The king, as was expressed by numerous British legal authorities was the law of England as well as the British Empire. Hence, as the col- onies operated under the authority of the king they also operated under the authority of British law. As discussed later in this paper, the primary distinction between British sovereignty and American sovereignty is the former believed sovereignty resided with the king, the latter held sovereignty resided with the people. Thus there is a fundamental division between American and British law. The two laws share many characteristics but one fact is indisputable—what is legal under British law (particularly during the colonial age when the king of England wielded far more direct authority and power than present day) and what is legal under American law are not always the same. The same principle holds true for actions of the colonies allowed by Brit- ish law (or sovereign consent by the king). What the king permitted his colonies to do prior to those colonies becoming states (and thus becoming subject to American law) and what those states are permitted to do under American law have no bearing on each other whatsoever. It is true in many cases the actions of the colonies and states are identical. Obvious ex- amples are the right of the colony/state to regulate commerce, punish criminal acts, record public record and so forth. However in the area of conventions, there are distinct differences between English law and American law which will be discussed in more detail presently. The fact that colonies could take certain actions regarding conventions and what American law (i.e. the Constitution) allows are distinctly different. Hence the authority of the states today is far different than what the colonies enjoyed. In some instances, the authority of the states is greater than the colonies, in some instances, it is less. But the primary fact remains—Professor Natelson ignores this fundamental fact in his theory, that what authority was granted a colony under British law to regulate a convention is different than what is granted a state under Amer- ican law. 8 The fallacy of ignoring that two separate legal systems are involved but, in the view of Professor Natelson, treated as the same despite obvious historic record to the contrary, means Professor Natelson’s entire premise falls to the ground. The professor insists on comparing ap- ples and oranges, that is to say grants of authority given by a British king (nullified after Ameri- can independence achieved in 1783) and subsequent American law. Thus the professor’s prima- ry assertion of fiduciary law controlling a convention may be true in British law as the colonies were granted such authority by the king. But the professor ignores the fact that under Ameri- can law no such premise exists in the Constitution and therefore his assertion is invalid because the supporting law he asserts no longer exists in this country and therefore neither can his premise. Examination of Terms and Definitions Professor Natelson begins his Report by defining certain terms on which he then bases the en- tire premise of his paper.23 The professor defines “fiduciary” as “...a person acting on behalf of, or for the benefit of, another, such as an agent, guardian, trustee, or corporate officer.” He then continues, “The rules governing fiduciaries in the 18th century were strict, and much like those existing today. [FN] A document creating the fiduciary relationship could, and still may, modify those rules somewhat.”24 The professor adds in a footnote [FN] “The author [Professor Natelson] has written extensively on this subject, and his conclusions have not been contested by other scholars.”25 One reason Professor Natelson may not have been “contested” by other scholars is that he appears to stand alone in his theory that fiduciary law can be applied to the amendment process of Article V of the Constitution in that he is the first one to propose such a leap.26 While there are extensive published works on fiduciary law, none of these sources ap- pear to support the notion of extending fiduciary law from its traditional role of what can be described as contract law or employment law to include such authority in constitutional amendatory law. An immediate point is required. Professor Natelson repeatedly refers to “fiduciary law” rather than fiduciary principles (for example) in his Report. Obviously, he intends therefore, by use of the word “law” that the matter be set at that standard. A law is binding. A resolution or petition is not.27 It is therefore logical, from the point of view of Professor Natelson that he would select the word “law” describing his theory, as one of the principles of fiduciary law is that instructions from the principal must be binding upon the agent. Logically, therefore the principal, in this case, the states, must operate in such a manner as to be able to issue binding instructions to the agent in this case, the convention in regards to convention agenda. In specific of states the only means whereby the state can issue binding instructions is by issuance of a law. His prem- ise can be summed briefly: the states have the authority to issue a set of instructions in their applications to Congress to limit the discussions and actions of a convention that results by those applications being acted upon by Congress. 9 However, an application is not law; it is a petition.28 In order for the state to assert instructional control of the convention as required under fiduciary law requires the state operate at the level of law meaning the state must issue a law, not a petition. This law is of course must be based on the state’s authority which is derived, not from the federal Constitution, but the state’s own constitution as this is where legislative authority to make law resides. The problem lays in the fact the Tenth Amendment as well as the Supremacy Clause forbids state constitutions from having any authority over the federal Constitution.29 Moreover, the Supreme Court has directly addressed the legal authority of states operating to amend the Constitution and determined states operate under the authority of the federal Constitution, not their own Constitutions.30 Thus, the states do not possess the authority of law making granted by their state constitutions when they involve themselves in the amendment process of the federal Constitution. Without such law-making authority, the states lack a basic principle of fiduciary law—the ability to make their instructions binding. An application, as stated, is not a law. Therefore, any instructions contained within an application (including those attempting to limit a convention to a specific amendment issue) are not fiduciary as they operate without binding authority of law as the states lack any means to impose such restriction. An examination of other definitions of the terms employed by Professor Natelson shows the professor omitted key definitions of words central to the understanding of fiduciary law. With- out supporting citation, for example, Professor Natelson states, “The branch of fiduciary law most relevant to the state-application-and-convention process is the law of agency. Three rules applying to agents, both then and now, are particularly important for our purposes: [1] The wording of the instrument by which the principal (employer) empowers the agent, read in light of its purposes, defines the scope of the agent’s authority. [2] An agent is required to remain within the scope of this authority. If he undertakes unauthorized action, he is subject to legal sanctions. The unauthorized action generally considered invalid. [3] If under the same instru- ment an agent serves more than one person (as when a manager serves a business owned by three partners), the agent is required to treat them all equally and fairly ---- or, in the language of the law, “impartially.”31 To ensure accuracy, an examination of the definitions of words related to fiduciary law is man- datory in this discussion. “Fiduciary” comes from the word “fiducia.” Webster’s defines “fidu- cia” as “a contract used under Roman and civil law (as in the emancipation of children, in con- nection with testamentary gifts, and in pledges) and constituting essentially a contract of sale to a person usually mancipation coupled with an agreement that the purchaser should sell the property back upon the fulfillment of certain conditions.”32 The term “mancipation” is defined by the same dictionary as “the act of enslaving; involuntary servitude: slavery”33 “Contract” is defined as “an agreement between two or more persons or parties to do or not to do something; especially an agreement that is legally enforceable.”34 The definition of “Agreement” is “an arrangement (as between two or more parties) as to a course of action; a contract duly executed and legally binding on the parties entering into it.”35 Both contract and agreement defined as “written instrument”... “To evidence” ... “an agreement” [or 10