Union and States' Rights: 150 Years After Sumter, A Legal History of Interposition, Nullification, and Secession

2. James Madison and the Constitution’s “Convention for Proposing Amendments”

30 2James Madison and the Constitution’s “Convention for Proposing Amendments” RobertG.Natelson,TheIndependenceInstitute i. the founders’ history: prior experiences with conventions Article V of the Constitution provides in relevant part: The Congress, whenever two thirds of both Houses shall deem it necessary, shallproposeAmendmentstothisConstitution,or,ontheApplicationofthe LegislaturesoftwothirdsoftheseveralStates,shallcallaConventionforproposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of threefourthsoftheseveralStates,orbyConventionsinthreefourthsthereof, astheoneortheotherModeofRatificationmaybeproposedbytheCongress.1 Thislanguagerequiresallamendmentstoberatifiedbythree-fourthsofthe states(throughlegislaturesorconventions).Italsoprovidesfortwodistinctways of proposal: by two-thirds of each chamber of Congress or by a “Convention for proposing Amendments,” called by Congress on application by two-thirds of the state legislatures. James Madison was a principal drafter of Article V.2 That he and the other Framersshouldturntoconventions,particularlyinterstateconventions,astools for amendment was not at all surprising: Conventions were well-precedented ways of accomplishing specific political tasks of the kind best not left to legisla- robert g. natelson 31 tures. Moreover, as Madison grew in age and experience, he came to view the “Convention for proposing Amendments” as an instrument by which states couldresistanabusiveoroverreachingfederalgovernment.Thischaptertraces that development in Madison’s thought. The founding generation employed the word convention in the political context to denote an assembly that, unlike a legislature, was assembled for a particular project, to be dissolved once its work was complete.3 It was, in other words,asortofadhoccommittee.Intheseventeenthcentury,theEnglish-speaking peoples had made much use of this device: “Convention Parliaments” reorganizedthegovernmentinEnglandin1660and1689 ,4 andinthelatteryear,the Americancolonistsheldatleastfourconventionsoftheirown.5 Duringtheeighteenth century, American colonists continued to resort to conventions,6 particularly during the Founding Era.7 FoundingEraconventionsdifferedwidelyinthescopeoftheirpowers.Some, referredtoas“plenipotentiary”conventions,enjoyedverywideauthority.8 Aplenipotentiary constitutional convention might both draft a new state constitution and adopt it.9 The authority of other conventions was more restricted, and some werelimitedtoasinglediscretetask.Forexample,the 1777 GeorgiaConstitution authorized conventions whose only purpose was to draft and promulgate any constitutional amendment whose subject matter was specified in petitions from amajorityofcounties.10 Similarly,theU.S.ConstitutionauthorizedstateconventionsthatwerelimitedeithertoratifyingorrejectingtheConstitution11 ortoratifyingorrejectingproposedamendments .12 Thedistinctionbetweenplenipotentiary and limited-purpose conventions often is forgotten today, particularly by peoplewhoconfuseconventionsheldundertheConstitutionwithplenipotentiary constitutional conventions.13 But the distinction is crucial to understanding the roleofandtherulesgoverninggatheringsheldunderArticleV. Although many Founding Era conventions served only a single colony or state, some were intercolonial or interstate gatherings.14 From 1774 until 1787, therewereatleastadozenintercolonialorinterstateconventions.15 Mostofthese meetingswerecalledbyoneormorecolonialorstatelegislaturesorbygoverning state conventions; a few were called by Congress or by prior interstate conventions .16 The principal intercolonial assembly was the 1st Continental Congress (also referred to as a convention);17 the interstate conventions included the 1787 Philadelphia gathering and at least ten others: two in Providence, Rhode Island (1776–77 and 1781); one in Springfield, Massachusetts (1777); one in York Town, Pennsylvania (1777);18 one in New Haven, Connecticut (1778); two in Hartford, 32 James Madison and the Constitution’s “Convention for Proposing Amendments” Connecticut(1779and1780);oneinPhiladelphia(1780);oneinBoston(1780);and oneinAnnapolis(1786).19 Attendanceatthesegatheringsrangedfromthreestates to twelve. Interstateconventions,liketheirintrastatecounterparts,variedinthescope of their authority. The scope of the 1st Continental Congress (1774) was nearly plenipotentiary:“[T]oconsultandadvise[i.e.,deliberate]20 withtheCommissionersorCommitteesoftheseveralEnglishColoniesinAmerica ,onpropermeasures foradvancingthebestgoodoftheColonies.”21 TheSpringfieldConventionof1777 probably enjoyed the second-broadest scope. It was entrusted with issues of currency , monopoly and economic oppression, and interstate trade restrictions— althoughitsauthoritywaslimitedexplicitlytomattersoutsidethecompetenceof Congress.22 Thethree-stateBostonConventionof1780waschargedwithallaspects of the ongoing Revolutionary War. The convention interpreted this charge liberallytoincluderecommendationsontradeandcurrency .23 ThefirstProvidenceConvention(1776–77)wasrestrictedtoprice-stabilization and defense measures.24 Shortly thereafter, Congress recommended that states attendinterstateconventionsinYorkTown,Pennsylvania,andCharleston,South Carolina, to consider the single subject of price-stabilization.25 Because the meeting at Providence had recommended measures on that subject for New England,26 Congress recommended that New York, New Jersey, Pennsylvania, Maryland,Delaware,andVirginiameetatYorkTown,andthattheCarolinasand Georgia convene at Charleston. That the Charleston convention ever took place hasnotbeenverified;27 theYorkTownconventiondidmeet,butadjournedwithout issuingarecommendationbecauseofatievoteamongthestatespresent.28 InterstatemeetingsatNewHaven(1778)andPhiladelphia(1780)alsofocused exclusivelyonpriceregulation.29 ThefirstHartfordConvention(1779)wasempowered to address currency and trade,30 and the second (1780) met “for the purpose of advising and consulting upon measures for furnishing the necessary supplies of men and provision for the army.”31 The second Providence Convention (1781) was entrusted only with recommending how to provide supplies to the army for a single year.32 The 1780 Philadelphia gathering was empowered to commit the participating states to the solutions it devised.33 Most interstate conventions, however,wereauthorizedonlytoissueproposalsforstateratification.34 The last of the limited-subject interstate gatherings is today the most famous.TheAnnapolisConventionof1786wastofocuson“thetradeandCommerceoftheUnitedStates .”35 ItslimitedscopeinducedMadison,whoservedas a delegate, explicitly to distinguish it from a plenipotentiary convention.36 robert g. natelson 33 Forthemostpart...