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CONVENTION OF STATES A HANDBOOK FOR LEGISLATORS AND CITIZENS - CONVENTIONOFSTATES.COM
Convention
  of States
 ConventionOfStates.com

    A Handbook for
Legislators and Citizens
           Third Edition

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CONVENTION OF STATES A HANDBOOK FOR LEGISLATORS AND CITIZENS - CONVENTIONOFSTATES.COM
ConventionofStates Handbook
                   A PROJECT OF CITIZENS FOR SELF-GOVERNANCE

                   A Solution As BIG As The Problem!

Table of Contents
The Case for a Convention of States

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. . . . . . 10
We 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
     “Can We Trust the Constitution? Answering the
     ‘Runaway Convention’ Myth” by Michael Farris . . . . . . . . . . . . . . . . . . . . . . . . . 17
     Excerpts from “Founding-Era Conventions and the Meaning of the
     Constitution’s ‘Convention for Proposing Amendments’ ”
     by Professor Robert G. Natelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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CONVENTION OF STATES A HANDBOOK FOR LEGISLATORS AND CITIZENS - CONVENTIONOFSTATES.COM
Introduction

                                                                                                      ConventionofStates Handbook
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
Levin’s bestselling book, The Liberty Amendments, has opened the eyes of millions of Americans
to the possibility of stopping the federal abuses of power through a Convention of States. Although
we began the COS Project independently, our plan is a near-perfect match with Levin’s ideas.

The plan we propose does not commit us to any particular amendments. That will be up to the
states when they convene. But it does commit us to a particular subject—proposed amendments
must be designed to limit the power of the federal government.

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ConventionofStates Handbook

                                                                                                               “If we do nothing to halt
                                                                                                               these abuses, we run the
                                                                                                               risk of becoming, as
                                                                                                               Alexis de Tocqueville
                                                                                                               warned, nothing more
                                                                                                               than ‘a flock of timid and
                                                                                                               industrious animals, of
                                                                                                               which the government is
                                                                                                               the shepherd.’ ”

                              Washington, D.C., Is Out of Control
                              and Will Not Relinquish Power
                              We see four major abuses of the federal                                                  regulations have lowered the real GDP
                              government:                                                                              growth by 2% and made America
                                                                         1. The Spending

                                                                                                                       72% poorer.
                                                                         and Debt Crisis
                              • The Spending and Debt Crisis             The $17 trillion national debt is stagger-
                                                                         ing, but it only tells a part of the story.
                              • The Regulatory Crisis                    If we apply the normal rules of business      3. Congressional Attacks
                              • Congressional Attacks on State           accounting, the federal government            on State Sovereignty
                                Sovereignty                              owes at least $50 trillion more in vested     For years, Congress has been using fed-
                                                                         Social Security benefits and other pro-       eral grants to keep the states under its
                              • Federal Takeover of Decision             grams. This is why the government can-        control. By attaching mandates to fed-
                                Making                                   not tax its way out of debt. Even if it       eral grants, Congress has turned state
                              These abuses are not mere instances of     confiscated everything owned by pri-          legislatures into their regional agencies
                              bad policy. They are driving us towards    vate citizens and companies, there            rather than treating them as truly inde-
                              an age of “soft tyranny” in which the      would still not be enough to cover the        pendent republican governments.
                              government “softens, bends, and            debt.
                                                                                                                       A radical social agenda and an erosion
                              guides” men’s wills. If we do nothing to
                                                                                                                       of the rights of the people accompany
                              halt these abuses, we run the risk of
                                                                                                                       all of this. While substantial efforts
                              becoming, as Alexis de Tocqueville
                                                                         2. The Regulatory Crisis
                                                                         The federal bureaucracy has placed a          have been made to combat social engi-
                              warned in 1840, nothing more than          regulatory burden upon businesses that        neering and protect peoples’ rights, we
                              “a flock of timid and industrious ani-     is complex, conflicted, and crushing.         have missed one of the most important
                              mals, of which the government is the       Little accountability exists when exec-       principles of the American founding.
                              shepherd.”                                 utive agencies—rather than Congress—          State legislatures need to be free to
                                                                         enact the real substance of the law.          implement the will of the voters in their
                                                                         Research from the American Enterprise         own states, not the will of Congress.
                                                                         Institute, shows that since 1949 federal

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CONVENTION OF STATES A HANDBOOK FOR LEGISLATORS AND CITIZENS - CONVENTIONOFSTATES.COM
protection of liberty requires a strict     Government, rather than the States,
                                             adherence to the principle that power is    would assume such responsibilities.
4. Federal Takeover of the

                                                                                                                                     ConventionofStates Handbook
                                             limited and delegated.                      Yet the powers conferred upon the
Decision Making Process
The Founders believed the structures of
a limited government would provide the                                                   Federal Government by the Constitu-
                                             Washington, D.C., does not believe
greatest protection of liberty. There                                                    tion were phrased in language broad
                                             this principle, as evidenced by an
were to be checks and balances at the                                                    enough to allow for the expansion of
                                             unbroken practice of expanding the
federal level. And everything not specif-                                                the Federal Government’s role.
                                             boundaries of federal power. In a
ically granted to Congress for legisla-      remarkably frank admission, the             New York v. United States, 505 U.S.
tive control was to be left to the states    Supreme Court rebuffed a constitutional     144, 157 (1992).
and the people.                              challenge to the federal spending power
                                                                                        This is not a partisan issue. Washington,
Collusion among decision makers in           by acknowledging its approval of pro-
                                                                                        D.C., will never voluntarily relinquish
Washington, D.C., has overrun these          grams that violate the original meaning
                                                                                        meaningful power—no matter who is
checks and balances. The federal judi-       of the Constitution:
                                                                                        elected. The only rational conclusion is
ciary supports Congress and the White         This framework has been sufficiently      this: unless some political force outside
House in their ever-escalating attack         flexible over the past two centuries to   of Washington, D.C., intervenes, the
upon the jurisdiction of the fifty states.    allow for enormous changes in the         federal government will continue to
This is more than an attack on the inde-      nature of government. The Federal         bankrupt this nation, embezzle the legit-
pendence of the states. This robs the         Government undertakes activities          imate authority of the states, and
people of their most fundamental lib-         today that would have been unimag-        destroy the liberty of the people. Rather
erty—the right of self-governance.            inable to the Framers in two senses;      than securing the blessings of liberty for
We need to realize that the structure of      first, because the Framers would not      future generations, Washington, D.C., is
decision making matters. Who decides          have conceived that any government        on a path that will enslave our children
what the law shall be is even more            would conduct such activities; and        and grandchildren to the debts of
important than what is decided. The           second, because the Framers would         the past.
                                              not have believed that the Federal

                                                                             “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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CONVENTION OF STATES A HANDBOOK FOR LEGISLATORS AND CITIZENS - CONVENTIONOFSTATES.COM
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                                 “By calling a convention of states, we can stop the federal
                                 spending and debt spree, the power grabs of the federal courts,
                                 and other misuses of federal power.”

                              The Founders Gave Us a Solution:
                              A Convention of States
                              Most people don’t know that there are        By calling a convention of states, we        must agree for any of the proposed
                              two methods to propose amendments to         can stop the federal spending and            amendments to be ratified.
                              the Constitution.                            debt spree, the power grabs of the fed-
                                                                                                                        Congress has no authority to stop
                                                                           eral courts, and other misuses of
                              1. Two-thirds of each house of                                                            such a process. The Founders made sure
                                                                           federal power. The current situation is
                                 Congress agrees to propose a partic-                                                   of that.
                                                                           precisely what the Founders feared, and
                                 ular amendment; or
                                                                           they gave us a solution we have a duty       We are approaching a crossroads. One
                              2. Two-thirds of the state legislatures      to use.                                      path leads to the escalating power of an
                                 pass applications for an amend-                                                        irresponsible centralized government,
                                                                           After the states propose, debate, and
                                 ments convention.                                                                      ultimately resulting in the financial ruin
                                                                           vote upon the proposed amendments,
                                                                                                                        of generations of Americans. The other
                              The Founders knew the federal govern-        they will be sent to the 50 state legisla-
                                                                                                                        path leads to the restoration of liberty
                              ment might one day become drunk with         tures for ratification. Congress must
                                                                                                                        and an American renaissance.
                              power. The most important check to this      choose one of two “modes of ratifica-
                              power is Article V. Article V gives states   tion.” They can either submit the            Which will you choose?
                              the authority to hold a convention for       amendments to state conventions
                              the purpose of proposing amendments          elected for that purpose or to the state
                              to the Constitution.                         legislatures. Three-quarters of the states

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CONVENTION OF STATES A HANDBOOK FOR LEGISLATORS AND CITIZENS - CONVENTIONOFSTATES.COM
ConventionofStates Handbook
Article V, U.S. Constitution
The Congress, whenever two thirds of both Houses      fourths thereof, as the one or the other Mode of
shall deem it necessary, shall propose Amendments     Ratification may be proposed by the Congress;
to this Constitution, or, on the Application of the   Provided that no Amendment which may be made
Legislatures of two thirds of the several States,     prior to the Year One thousand eight hundred and
shall call a Convention for proposing Amend-          eight shall in any Manner affect the first and fourth
ments, which, in either case, shall be valid to all   Clauses in the Ninth Section of the first Article;
Intents and Purposes, as part of this Constitution,   and that no State, without its Consent, shall be
when ratified by the Legislatures of three fourths    deprived of its equal Suffrage in the Senate.
of the several States, or by Conventions in three

                                               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 to
                                               reintroduce language requiring that a
                                               convention be called when two-thirds of
                                               the States applied for an amendment.”
                                                                          30 Harvard Journal of Law and
                                                                        Public Policy 1005, 1007 (2007).

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CONVENTION OF STATES A HANDBOOK FOR LEGISLATORS AND CITIZENS - CONVENTIONOFSTATES.COM
How Our Proposal Differs from
ConventionofStates Handbook

                              Other Article V Plans
                              We believe our strategy gives us an          raising taxes. We need spending              • A prohibition of using international
                              excellent chance of success.                 restraints as well. We need restraints on      treaties and law to govern the domestic
                                                                           taxation. We need prohibitions against         law of the United States
                              Two goals separate our plan from all
                                                                           improper federal regulation. We need to      • A limitation on using Executive Orders
                              other Article V efforts:
                                                                           stop unfunded mandates.                        and federal regulations to enact laws
                              1. We want to call a convention for a                                                       (since the Congress is supposed to be
                                                                           No current Article V proposal has been
                                 particular subject rather than a par-                                                    the exclusive agency to enact laws)
                                                                           able to reach the 34 state applications
                                 ticular amendment. Instead of calling
                                                                           needed to call a Convention of States.       • Imposing real checks and balances
                                 a convention for a balanced budget
                                                                           There is not enough momentum behind            on the Supreme Court (such as
                                 amendment (though we are entirely
                                                                           any one amendment. Ideally, the Con-           term limits)
                                 supportive of such an amendment),
                                                                           vention of States Project allows all these   • Placing a limit on federal taxation
                                 we want to call a convention for the
                                                                           Article V efforts to combine, giving
                                 purpose of limiting the power and                                                      Of course, these are merely examples of
                                                                           them the collective force necessary to
                                 jurisdiction of the federal govern-                                                    what could be up for discussion. So long
                                                                           call a convention.
                                 ment.                                                                                  as a proposed amendment relates to lim-
                                                                           Once called, the delegates will be able      iting the power of the federal govern-
                              2. We believe the grassroots is the key
                                                                           to debate and propose a complete pack-       ment, the Convention of States itself
                                 to calling a successful convention.
                                                                           age of restraints on all branches of the     would determine which ideas deserve
                                 The goal is to build a political oper-
                                                                           federal government. This is what our         serious consideration, and it will take a
                                 ation in a minimum of 40 states, get-
                                                                           plan will do. It would allow ALL             majority of votes from the states to for-
                                 ting 100 people to volunteer in at
                                                                           amendments germane to “limiting the          mally propose any amendments.
                                 least 75% of the state legislative dis-
                                                                           power and jurisdiction of the federal
                                 trict (that’s 3,000 districts). We                                                     American citizens have become so frus-
                                                                           government” to be considered.
                                 believe this is very realistic. Through                                                trated with runaway federal power that
                                 the support of the American people                                                     they have begun discussing ideas like
                                 this project will succeed.                What Sort of Amendments
                                                                                                                        nullification and even secession. Such
                                                                                                                        ideas are not only impractical; they
                                                                           Could Be Passed?
                                                                           The following are examples of amend-         could ultimately lead to a violent con-
                                                                           ment topics that could be proposed at a
                              Our Solution Is
                                                                                                                        flict. We need not turn to such dangerous
                                                                           convention of states:                        alternatives. The Founders gave us a
                              Big Enough to

                                                                           • A balanced budget amendment                legitimate path to save our liberty by
                              Solve the Problem
                              Rather than calling a convention for a
                              specific amendment, Citizens for Self-       • Reducing federal spending power            using our state governments to impose
                              Governance has launched the Conven-            (fixing the General Welfare Clause)        binding restraints on the federal govern-
                              tion of States Project to urge state                                                      ment. We must use the power granted to
                                                                           • Reducing federal regulatory power
                              legislatures to properly use Article V to                                                 the states in the Constitution.
                                                                             (fixing the Commerce Clause)
                              call a convention for a particular sub-
                              ject—reducing the power of Washing-
                              ton, D.C. It is important to note that a
                              convention for an individual amend-
                                                                              “The Founders gave us a legitimate path
                              ment (e.g. a balanced budget amend-             to save our liberty by using our state
                              ment) would be limited to that single
                              idea. Requiring a balanced budget is a          governments to impose binding restraints
                              great idea that CSG fully supports. Con-
                              gress, however, could comply with a             on the federal government.”
                              balanced budget amendment by simply

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CONVENTION OF STATES A HANDBOOK FOR LEGISLATORS AND CITIZENS - CONVENTIONOFSTATES.COM
Our Political Plan to Call

                                                                                                                                          ConventionofStates Handbook
a Convention of States
                                               CSG’s President, Mark Meckler, was           Unfortunately, the balanced budget plan
                                               the co-founder of the Tea Party              relies on applications that were enacted
The Grassroots
The leadership of the COS Project
believes the success of a Convention of        Patriots — the largest tea party group in    ten, twenty, and thirty years ago.
States depends directly on American            the country. Michael Farris is the           The grassroots organizations that
citizens. Our plan is not only simple, it      founder of the Home School Legal             achieved those victories are long gone.
is realistic:                                  Defense Association. As such, he brings      Starting fresh insures that we have cur-
                                               with him over 30 years of grassroots         rent political operations in all the states
• We will build a viable political opera-      leadership and activism in all 50 states.    necessary to actually ratify any
  tion that is active in at least 40 states.   Eric O’Keefe was the lead organizer for      proposed amendments.
• These 40 states have approximately           the term limits movement that resulted
                                                                                            Starting fresh also allows us to avoid
  4,000 state house districts. Our goal is     in 23 states passing ballot initiatives to
                                                                                            any legal difficulties that may arise dur-
  to have a viable political operation in      that effect. We not only have experi-
                                                                                            ing the “aggregation” process. Applica-
  at least 3,000 of these districts.           enced staff for this project, but we are
                                                                                            tions must deal with the same issue in
                                               also networking with like-minded coali-
• We will have 3,000 district captains                                                      order for them to be counted towards the
                                               tion members across America.
  who will organize at least 100 people                                                     necessary 34 states (or, in order for them
  in each district to contact their            The strategic advantage of a fresh start     to be “aggregated”). Many of the bal-
  state legislators to support a conven-       on the application process is that we will   anced budget applications, for example,
  tion of states, and turn out at least        be building current grassroots opera-        are sufficiently different that they may
  25 people per district at legislative        tions in all of the states needed            be subject to legal challenge when the
  hearings.                                    to ratify any proposed amendments, and       time comes to determine which states
                                               have them all addressed at one conven-       are included in the count. It is unlikely
Legislators must know that our grass-          tion. If one of the existing proposals       all balanced budget applications cur-
roots team will have their backs if they       (such as the balanced budget applica-        rently pending will be successfully
support a Convention of States. A wide-        tions) achieved 34 valid applications,       aggregated. We will be proceeding with
spread grassroots organization has been        CSG certainly would support it as well.      a unified application using the same
missing from the Article V movement.                                                        operative language in all states.
                                                                                            Thus, there is both a legal advantage
                                                                                            (clear aggregation) and a political
                                                                                            advantage (current grassroots network-
                                                                                            ing) to a fresh start on the application
                                                         The success of
                                                                                            process. Moreover, we will have a
                                                                                            greater ability to protect our liberty by
                                                         a Convention
                                                                                            addressing the full scope of the prob-
                                                                                            lems in Washington, D.C., through a
                                                         of States
                                                                                            Convention of States.
                                                         depends
                                                                                            This unique strategy combined with
                                                         directly on                        strong grassroots support will provide a
                                                                                            clear path to victory.
                                                                                            Only one question remains. Will you
                                                         the American
                                                                                            help?
                                                         citizens.

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CONVENTION OF STATES A HANDBOOK FOR LEGISLATORS AND CITIZENS - CONVENTIONOFSTATES.COM
Why a Convention of States Is the Safest
ConventionofStates Handbook

                              Alternative to Preserve Our Liberty
                              The most common objection to an Arti-            ally when it changed the rules of the
                              cle V convention envisions a doomsday            process in midstream. See, Idaho v.
                                                                                                                           American citizens must evaluate the rel-
                              scenario where delegates disregard the           Freeman, 529 F. Supp. 1107 (D.
                                                                                                                           ative safety of two choices. Should we
                              purpose of the convention, rewrite the           Idaho 1981). CSG’s Senior Fellow
                                                                                                                           allow our runaway federal government
                              Constitution, and change the entire              for Constitutional Studies, Michael
                                                                                                                           to continue to abuse the Constitution
                              American system of government. This              Farris, was lead counsel for several
                                                                                                                           and the rights of the people, with the
                              has been called the “runaway conven-             Washington state legislators in that
                                                                                                                           vague hope that someday Washington,
                              tion” scenario, and it is based on fear          litigation.
                                                                                                                           D.C., will see the light and relinquish
                              and misinformation.
                                                                            4. There is absolutely no historical           power? Or should we call a Convention
                              Here are the facts:                              precedent for a runaway conven-             of States, trusting that one of the many
                                                                               tion. Many opponents of a Conven-           lines of defense will stop any misuse of
                              1. There is a clear, strong single-sub-
                                                                               tion of States make the historically        power?
                                 ject precedent that would almost
                                                                               false allegation that our Constitution
                                 certainly be declared binding in                                                          At the end of the day, we must trust
                                                                               was adopted as the result of an ille-
                                 the event of a court challenge.                                                           either Congress or the states. Recent
                                                                               gal runaway convention. This argu-
                                 There have been over 400 applica-                                                         history makes that an easy choice.
                                                                               ment was invented by the enemies of
                                 tions from state legislatures for an                                                      Washington, D.C., is clearly the greatest
                                                                               the Constitution and is unsupported
                                 Article V convention in the history                                                       danger to our liberty.
                                                                               by historical fact. The truth is that the
                                 of the Republic. No such convention
                                                                               new process for adopting the Consti-        We believe the choice is clear. A Con-
                                 has ever been called because there
                                                                               tution was unanimously approved             vention of States is the safest path to
                                 has never been an application from
                                                                               by both the Congress and all 13             preserve self-government and liberty.
                                 two-thirds of the states on a single
                                                                               states as required by the Articles of
                                 subject. In addition to this, there is a
                                                                               Confederation. (See “Can We Trust
                                 huge amount of historical precedent
                                                                                                                             “At the end of the day,
                                                                               the Constitution?” by Michael Farris
                                 that limits interstate conventions to
                                                                               on page 17).
                                 a particular subject. See Professor                                                         we must trust either
                                 Robert G. Natelson’s handbook              Thus, there are multiple lines of
                                 here: ww.alec.org/publications/            defense against any amendment that
                                 article-v-handbook/. Also see his          departs from the original subject:
                                                                                                                             Congress or the States.
                                 essay on page 19.                          (1) A majority of states at the Conven-
                                                                            tion would almost certainly vote such a
                              2. Ratification of any proposed
                                                                                                                             Recent history makes
                                                                            proposal to be out of order; (2) If such
                                 amendment requires the approval
                                                                            an amendment was proposed, a proper
                                 of 38 states. It only takes 13 states
                                                                                                                             that an easy choice.
                                                                            legal challenge would certainly be filed
                                 to vote “no” to defeat any proposed
                                                                            and have a great chance of success;
                                 amendment. The chances of 38 state
                                                                            (3) It is highly probable that at least 13
                                                                                                                             Washington, D.C., is
                                 legislatures approving a rogue
                                                                            states would defeat any such proposed
                                 amendment are effectively zero.
                                                                            amendment during the ratification                clearly the greatest
                              3. Improper changes to the process            process; (4) It is a historical fallacy to
                                 can be legally challenged by state         argue that we have an established
                                 legislators. Federal courts have held      precedent of Conventions changing the
                                                                                                                             danger to our liberty.”
                                 that Congress acted unconstitution-        rules illegally.

10
ConventionofStates Handbook
                                                                              “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.”

We Know How a Convention of States
Would Operate
There are some who claim we know               Constitutional Convention, when               history. Not a single one exceeded its
nothing about how a Convention of              states or colonies met together on            prescribed mandate—not even the
States would function. They say that no        average every 40 months. There are            Constitutional Convention, despite
precedent exists for such a convention,        well-established rules from these             anti-historical claims to the contrary.
and it should be avoided due to all the        conventions that would govern any            • The state legislatures’ applications fix
unknowns. The historical record shows          convention today.                              the subject matter for a convention for
us that these assertions are plainly false.   • A Convention of States is a meeting of        proposing amendments. When two-
History tells us how a Convention of            sovereign governments, and each               thirds of the states apply on a given
States would operate. Interstate conven-        state has one vote. Each state commis-        subject, Congress must call the con-
tions were common during the Found-             sioner is empowered and instructed            vention. However, congressional
ing Era, and the rules and procedures           by his or her state legislature.              power is limited to setting the initial
for such conventions were widely                                                              time and place of meeting.
                                              • A convention “call” cannot determine
accepted. (For more on this historical
                                                how many delegates each state sends         The language in Article V does not
precedent see Professor Natelson’s arti-
                                                or how they are chosen. That is a mat-      specify any procedural rules because
cle on page 19.) According to Professor
                                                ter for each state legislature to decide.   the Founders knew them so well. It
Robert Natelson, leading expert on the
Article V process, we know that:              • As was true of earlier interstate gath-     would have seemed unnecessary to
                                                erings, the convention for proposing        specify exactly how an interstate con-
• The “convention for proposing                 amendments is called to propose solu-       vention would operate. These rules are
  amendments” was consciously mod-              tions to discrete, pre-assigned prob-       well-established and would be upheld
  eled on multi-state conventions held          lems. There have been at least 36           by the courts today.
  during the century leading up to the          multi-state conventions in American

                                                                                                                                         11
ConventionofStates Handbook

                                                                                                                   “The best plan is for
                                                                                                                   state legislatures to
                                                                                                                   adopt applications
                                                                                                                   with operative
                                                                                                                   language that is
                                                                                                                   identical or as
                                                                                                                   close to identical
                                                                                                                   as possible.”

                              Action Steps for Legislators
                              To call a Convention of States, 34 state     one state’s application be counted           final count. The best plan is for state
                              legislatures must pass applications on       toward the required 34-state majority,       legislatures to adopt applications with
                              the same subject matter. Governors play      or will it be considered distinct from       operative language that is identical or as
                              no official role in this process. A simple   those of other states? The great variety     close to identical as possible. CSG’s
                              majority rule applies unless the state       of applications for a proposed balanced      model application is contained in the
                              legislature has adopted prior rules          budget amendment demonstrates the            Appendix on page 16. This model
                              requiring a different number.                problem. Most legal scholars believe         application was drafted in consultation
                                                                           that a handful of the existing applica-      with a wide range of constitutional
                              “Aggregation” is the most important
                                                                           tions will be considered sufficiently dis-   scholars, legislators, and citizen
                              issue for legislators to consider. Will
                                                                           tinct to deny aggregation status in a        activists.

12
Action Steps for Citizens

                                                                                                                                      ConventionofStates Handbook
Ultimately, the success of a Convention       necting with state legislators, and build-   • Attending legislative hearings
of States depends on the citizens of the      ing the grassroots network. In each state      to show support for a Convention
United States. The grassroots will be the     legislative district, a District Captain       of States.
engine that drives this project. If Amer-     will be appointed to coordinate and          • Organizing and speaking at events
icans are willing to sacrifice their time     mobilize volunteers in their district.         in your area as a representative
and energy, there is still a chance to halt                                                  for COS.
                                              There are a number of ways volunteers
the tyrannical abuses of the federal
                                              will be able to be involved in helping       For more information about leadership
government.
                                              move the project forward:                    job descriptions and volunteer opportu-
In each state, we will appoint three                                                       nities visit www.conventionofstates.com.
                                              • Recruiting friends, family, neighbors
state-wide volunteer leaders: the State
                                                and co-workers to join the effort.         The Founders gave us the tools to
Director, Legislative Liaison, and
Coalitions Director. These individuals        • Writing letters, making calls, and         curb the federal abuse of power. It’s
will organize the movement across               visiting state legislator’s offices to     time we stand up and use them to pre-
the state, coordinating volunteers, con-        encourage them to support a Conven-        serve liberty—not only for ourselves
                                                tion of States.                            but for posterity.

                                                                                           “The grassroots
                                                                                           will be the engine
                                                                                           that drives this
                                                                                           project.”

                                                                                                                                      13
Leadership of the Convention of States Project
ConventionofStates Handbook

                                                                                                   O’Keefe’s book on the corruption of Congress, “Who Rules
                                                     Citizens for Self-Governance,                 America,” won praise from the late freedom advocate
                                                     Mark Meckler

                                                     President                                     Milton Friedman.

                                                     B.A. in English Literature, San Diego         O’Keefe also serves on the board of directors of the Wisconsin
                                                     State University                              Club for Growth, which has been active defending
                                                                                                   Gov. Walker’s agenda during legislative campaigns, recall
                                                     J.D., with honors, University of the          campaigns, and legislative races.
                                                     Pacific McGeorge School of Law
                                                                                                   When he is not engaged in political activities, O’Keefe is a
                              Mark Meckler is the founder and President of Citizens for Self-      private investor based in rural Wisconsin, where he and his
                              Governance, an organization created to support grassroots            wife raised three children.
                              activism 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 regularly
                                                                                                                            Citizens for Self-Governance,
                                                                                                                            Michael Farris
                              called on for political commentary in all forms of media.
                                                                                                                            Senior Fellow for Constitutional
                              Meckler is the co-founder and former National Coordinator                                     Studies, Head of Convention of
                              for the Tea Party Patriots, the largest tea party organization in                             States Project
                              the nation. He left the organization in February 2009 and
                                                                                                                            B.A. in Political Science, magna
                              founded CSG to work more broadly on expanding the self-
                                                                                                                            cum laude, Western Washington
                              governance movement beyond the partisan divide.
                                                                                                                            University
                              As the President of CSG, Meckler makes sure that all projects,
                                                                                                   J.D., with honors, Gonzaga University School of Law
                              including Convention of States, are fully and appropriately
                              funded, staffed and managed, with a focus on strict steward-         LL.M., with merit, in Public International Law, University
                              ship of donor dollars for maximum leverage and effect.               of London
                              Meckler is also personally involved in all media and public
                              relations efforts.                                                   Michael Farris is the Chancellor of Patrick Henry College and
                                                                                                   Chairman of the Home School Legal Defense Association. He
                              Meckler and his wife Patty live in Northern California with          was the founding president of each organization.
                              their teenage children, where they share a love of outdoor
                              recreation and equestrian activities.                                Farris is a constitutional appellate litigator who has served as
                                                                                                   lead counsel in the United States Supreme Court, 8 federal
                                                                                                   circuit courts, and the appellate courts of 13 states.
                                                       Eric O’Keefe                                He has been a leader on Capitol Hill for over 30 years
                                                       Citizens for Self-Governance,               and is widely known for his leadership on homeschooling, reli-
                                                       Board of Directors                          gious freedom, and the preservation of American sovereignty.
                                                        Eric O’Keefe has a 25-year history as      A prolific author, Farris has been recognized with a number of
                                                        an active strategist, board member,        awards including the Salvatori Prize for American Citizenship
                                                        and donor with organizations working       by the Heritage Foundation and as one of the “Top 100
                                                        to advance individual liberty, promote     Faces in Education for the 20th Century” by Education Week
                                                        citizen engagement and restore con-        magazine.
                              stitutional governance. O’Keefe helped found U.S. Term Lim-
                              its in 1991 and, and in recent years, co-founded the Campaign        Farris and his wife Vickie have 10 children and 17 grandchildren.
                              for Primary Accountability, the Health Care Compact Alliance,
                              and Citizens for Self-Governance. O’Keefe is also a founding
                              board member of the Center for Competitive Politics and Cit-
                              izens in Charge Foundation.

14
Appendix

                                                                                                                            ConventionofStates Handbook
                                                                                   We want you to have all
                                                                                   of the information you
                                                                                   need to get involved.

                                                                                   Please see the materials
                                                                                   we’ve gathered for
                                                                                   you to be the most
                                                                                   informed person in
                                                                                   your community.

                                                                                   It’ll take hard work,
                                                                                   but it’s time to spread
                                                                                   the word!

   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 the
   Constitution’s ‘Convention for Proposing Amendments’”
   by Professor Robert G. Natelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

                                                                                                                            15
ConventionofStates Handbook
                                          www.ConventionofStates.com Model Application for States

                                     Application for a Convention of the States
                                      Under Article V of the U.S. Constitution
                              Whereas, the Founders of our Constitution empowered State Legislators to be guardians of liberty against future
                              abuses 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 process
                              of 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 people—particularly for the generations
                              to come—to propose Amendments to the Constitution of the United States through a Convention of the States
                              under 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 Article
                              V 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 and
                              Secretary 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 transmit
                              copies 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 Constitution
                              of the United States until the legislatures of at least two-thirds of the several states have made applications on
                              the same subject.
                                                                           The Convention of States
                                                                                is a project of

16
Can We Trust the Constitution?

                                                                                                                                      ConventionofStates Handbook
Answering The “Runaway Convention” Myth
Michael Farris, JD, LLM
Chancellor, Patrick Henry College
Senior Fellow for Constitutional Studies, Citizens for Self-Governance

                                                                                         We can’t walk
                                                                                         boldly into our
                                                                                         future, without first
                                                                                         understanding
                                                                                         our history.

Some people contend that our Consti-         ticipating at Annapolis concluded that a    tion prior to the time that Congress
tution was illegally adopted as the          broader convention was needed to            acted to endorse it. The states told their
result of a “runaway convention.”            address the nation’s concerns. They         delegates that the purpose of the Con-
They make two claims:                        named the time and date (Philadelphia;      vention was the one stated in the
                                             second Monday in May).                      Annapolis Convention resolution: “to
1. The convention delegates were
                                             The Annapolis delegates said they were      render the constitution of the Federal
   instructed to merely amend the
                                             going to work to “procure the concur-       Government adequate for the exigencies
   Articles of Confederation, but they
                                             rence of the other States in the appoint-   of the Union.”
   wrote a whole new document.
                                             ment of Commissioners.” The goal of         Congress voted to endorse this Conven-
2. The ratification process was              the upcoming convention was “to render      tion on February 21, 1787. It did not pur-
   improperly changed from 13 state          the constitution of the Federal Govern-     port to “call” the Convention or give
   legislatures to 9 state ratification      ment adequate for the exigencies of the     instructions to the delegates. It merely
   conventions.                              Union.”                                     proclaimed that “in the opinion of
                                             What role was Congress to play in call-     Congress, it is expedient” for the Con-
The Delegates Obeyed                         ing the Convention? None. The               vention to be held in Philadelphia on the
                                             Annapolis delegates sent copies of their    date informally set by the Annapolis
                                                                                         Convention and formally approved by 7
Their Instructions from
                                             resolution to Congress solely “from
                                                                                         state legislatures.
the States
The claim that the delegates disobeyed       motives of respect.”
their instructions is based on the idea      What authority did the Articles of Con-     Ultimately, 12 states appointed dele-
that Congress called the Constitutional      federation give to Congress to call such    gates. Ten of these states followed the
Convention. Proponents of this view          a Convention? None. The power of            phrasing of the Annapolis Convention
assert that Congress limited the dele-       Congress under the Articles was strictly    with only minor variations in wording
gates to amending the Articles of Con-       limited, and there was no theory of         (“render the Federal Constitution
federation. A review of legislative          implied powers. The states possessed        adequate”). Two states, New York and
history clearly reveals the error of this    residual sovereignty which included the     Massachusetts, followed the formula
claim. The Annapolis Convention, not         power to call this convention.              stated by Congress (“solely amend the
Congress, provided the political impetus                                                 Articles” as well as “render the Federal
                                             Seven state legislatures agreed to send
for calling the Constitutional Conven-                                                   Constitution adequate”).
                                             delegates to the Constitutional Conven-
tion. The delegates from the 5 states par-                                                                 Continued to page 18
                                                                                                                                      17
Can We Trust The Constitution? Answering The “Runaway Convention” Myth
ConventionofStates Handbook

                              Continued from page 17

                              Every student of history should know          islatures. Moreover, the Annapolis Con-       than state legislatures. This was done in
                              that the instructions for delegates came      vention and a clear majority of the states    accord with the preamble of the Consti-
                              from the states. In Federalist 40, James      insisted that any amendments coming           tution—the Supreme Law of the Land
                              Madison answered the question of “who         from the Constitutional Convention            would be ratified in the name of “We the
                              gave the binding instructions to the del-     would have to be approved in this same        People” rather than “We the States.”
                              egates.” He said: “The powers of the          manner—by Congress and all 13 state           But before this change in ratification
                              convention ought, in strictness, to be        legislatures.                                 could be valid, all 13 state legislatures
                              determined by an inspection of the com-       The reason for this rule can be found in      would also have to consent to the new
                              missions given to the members by their        the principles of international law. At the   method. All 13 state legislatures did just
                              respective constituents [i.e. the states].”   time, the states were sovereigns. The         this by calling conventions of the people
                              He then spends the balance of Federalist      Articles of Confederation were, in            to vote on the merits of the Constitution.
                              40 proving that the delegates from all 12     essence, a treaty between 13 sovereign        Twelve states held popular elections to
                              states properly followed the directions       nations. Normally, the only way changes       vote for delegates. Rhode Island made
                              they were given by each of their states.      in a treaty can be ratified is by the         every voter a delegate and held a series
                              According to Madison, the February            approval of all parties to the treaty.        of town meetings to vote on the Consti-
                              21st resolution from Congress was
                                                                            However, a treaty can provide for some-       tution. Thus, every state legislature con-
                              merely “a recommendatory act.”
                                                                            thing less than unanimous approval if all     sented to the new ratification process
                              The States, not Congress, called the          the parties agree to a new approval           thereby validating the Constitution’s
                              Constitutional Convention. They told          process before it goes into effect. This is   requirements for ratification.
                              their delegates to render the Federal         exactly what the Founders did.                Those who claim to be constitutionalists
                              Constitution adequate for the exigencies
                                                                            When the Convention sent its draft of         while contending that the Constitution
                              of the Union. And that is exactly what
                                                                            the Constitution to Congress, it also rec-    was illegally adopted are undermining
                              they did.
                                                                            ommended a new ratification process.          themselves. It is like saying George
                                                                            Congress approved both the Constitu-          Washington was a great American hero,
                              The Ratification Process                      tion itself and the new process.              but he was also a British spy. I stand
                                                                            Along with changing the number of             with the integrity of our Founders who
                                                                                                                          properly drafted and properly ratified
                              Was Properly Changed
                              The Articles of Confederation required        required states from 13 to 9, the new rat-
                              any amendments to be approved by              ification process required that state con-    the Constitution.
                              Congress and ratified by all 13 state leg-    ventions ratify the Constitution rather

                                                                                            History tells the story.
                                                                                            The Constitution was legally
                                                                                            adopted.
                                                                                            Now, let’s move on to getting
                                                                                            our nation back to the
                                                                                            greatness the Founders
                                                                                            originally envisioned.
18
[The following is an excerpt from Professor Robert G. Natelson’s Florida Law Review article titled below. For brevity all
 citations have been removed. It can be downloaded in full at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2044296.

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

         Founding-Era Conventions and
        the Meaning of the Constitution’s
    “Convention For Proposing Amendments”
                                 Professor Robert G. Natelson
                      The Independence Institute; Montana Policy Institute
                                                  April 22, 2012
                                            65 Fla. L. Rev. 615 (2013)

                                            them. In 1660 a “convention Parlia-          During the run-up to Independence,
                                            ment” had recalled the Stuart line, in the   conventions within particular colonies
Overview Of Prior

                                            person of Charles II, to the throne of       issued protests, operated as legislatures
American Experience
                                            England. A 1689 convention Parliament        when the de jure legislature had been
With Conventions […]
A. Conventions Before                       had adopted the English Bill of Rights,      dissolved, and removed British officials
the Constitution                            declared the throne vacant, and invited      and governed in their absence. After
The Founders understood a political         William and Mary to fill it. Also in         Independence, conventions wrote sev-
“convention” to be an assembly, other       1689, Americans resorted to at least         eral state constitutions.
than a legislature, designed to undertake   four conventions in three different
                                                                                         Those state constitutions also resorted
prescribed governmental functions. The      colonies as mechanisms to replace
                                                                                         to conventions as elements of their
convention was a familiar and approved      unpopular colonial governments, and in
                                                                                         amendment procedures. The Pennsyl-
device: several generations of English-     1719 they held yet another.
                                                                                         vania Constitution of 1776 and the
men and Americans had resorted to
                                                                                                           Continued to page 20

                                                                             “The Founders understood a
                                                                             political ‘convention’ to
                                                                             be an assembly, other than
                                                                             a legislature, designed
                                                                             to undertake prescribed
                                                                             governmental functions.”

                                                                             What does that mean
                                                                             for a modern Convention
                                                                             of States?

                                                                                                                                     19
Founding-Era Conventions and the Meaning of the Constitution’s
ConventionofStates Handbook

                              “Convention For Proposing Amendments” Continued from page 19

                              Vermont Constitution of 1786 both           and New Jersey. The Dominion proved         in 1744 at Lancaster, Pennsylvania; in
                              authorized amendments conventions           unpopular, and in 1689 colonial con-        1745, 1746, 1751, and 1754 at Albany;
                              limited as to subjects by a “council of     ventions swept it away; nevertheless,       and in 1768 at Fort Stanwix (Rome),
                              censors.” The Massachusetts Constitu-       northeastern governments continued to       New York.
                              tion of 1780 provided for amendment         confer together. Many of these meetings
                                                                                                                      The assembly at Lancaster became one
                              by convention. The Georgia Constitu-        were conclaves of colonial governors,
                                                                                                                      of the more noted. Participants included
                              tion of 1777 required the legislature to    usually conferring on issues of defense
                                                                                                                      Pennsylvania, Maryland, Virginia, and
                              call a convention to draft constitutional   against French Canada and her
                                                                                                                      several Indian tribes. The proceedings
                              amendments whose gist had been pre-         allied Indian tribes, rather than conven-
                                                                                                                      lasted from June 22 to July 4, 1744, and
                              scribed by a majority of counties.          tions of diplomatic delegations. An
                                                                                                                      produced the Treaty of Lancaster. Even
                                                                          example from outside the Northeast
                              Conventions within individual colonies                                                  more important, however, was the
                                                                          was the meeting of five governors
                              or states represented the people, towns,                                                seven-colony Albany Congress of 1754,
                                                                          held at Alexandria, Virginia in 1755.
                              or counties. Another sort of “conven-                                                   whose proceedings are discussed in
                                                                          Many others, however, were full-dress
                              tion” was a gathering of three or more                                                  Part IV.A.
                                                                          conventions among commissioners
                              American governments under protocols
                                                                          appointed from three or more colonies.      The most famous inter-colonial conven-
                              modeled on international diplomatic
                                                                          These meetings were usually, but            tions were the Stamp Act Congress of
                              practice. These multi-government
                                                                          not always, held under the sanction of      1765 and the First Continental Con-
                              conventions were comprised of delega-
                                                                          royal authorities.                          gress of 1774, discussed in Parts IV.B
                              tions from each participating govern-
                                                                                                                      and IV.C. As for the Second Continental
                              ment, including, on some occasions,         To be specific: Three colonies met at
                                                                                                                      Congress (1775-81), participants might
                              Indian tribes. Before Independence,         Boston in 1689 to discuss defense
                                                                                                                      initially have thought of it as a conven-
                              such gatherings often were called “con-     issues. The following year, the acting
                                                                                                                      tion, but it is not so classified here
                              gresses,” because “congress” was an         New York lieutenant governor called,
                                                                                                                      because it really served as a continuing
                              established term for a gathering of sov-    without royal sanction, a defense con-
                                                                                                                      legislature.
                              ereignties. After Independence, they        vention of most of the continental
                              were more often called “conventions,”       colonies to meet in New York City. The      After the colonies had declared them-
                              presumably to avoid confusion with the      meeting was held on May 1, 1690, with       selves independent states, they contin-
                              Continental and Confederation Con-          New York, Massachusetts Bay, Con-           ued to gather in conventions. All of
                              gresses. But both before and after Inde-    necticut, and Plymouth colonies in          these meetings were called to address
                              pendence the terms could be employed        attendance. A similar gathering             specific issues of common concern.
                              interchangeably.                            occurred in 1693 in New York, this time     Northeastern states convened twice in
                                                                          under Crown auspices. Other defense         Providence, Rhode Island—in Decem-
                              Multi-government congresses or con-
                                                                          conventions were held in New York           ber, 1776 and January, 1777, and again
                              ventions were particularly common in
                                                                          City in 1704, Boston in 1711, Albany in     in 1781. Other conventions of north-
                              the Northeast, perhaps because govern-
                                                                          1744 and 1745, and New York City in         eastern states met in Springfield, Mas-
                              ments in that region had a history of
                                                                          1747. The New England colonies held         sachusetts (1777); New Haven,
                              working together. In 1643 the four
                                                                          yet another in 1757.                        Connecticut (1778); Hartford, Con-
                              colonies of Massachusetts, Plymouth
                                                                                                                      necticut (1779 and 1780); and Boston,
                              Colony, Connecticut, and New Haven          In addition to defense conventions,
                                                                                                                      Massachusetts (1780). Conventions that
                              formed the United Colonies of New           there were conventions serving as
                                                                                                                      included states outside the Northeast
                              England. Essentially a joint standing       diplomatic meetings among colonies
                                                                                                                      included those at York Town, Pennsyl-
                              committee of colonial legislatures, this    and sovereign Indian tribes, particularly
                                                                                                                      vania (1777), Philadelphia, Pennsylva-
                              association was not always active, but      the Iroquois. There were at least ten
                                                                                                                      nia (1780 and, of course, 1787),
                              endured at least formally until 1684. In    such conclaves between 1677 and 1768
                                                                                                                      and Annapolis, Maryland (1786). There
                              1695, the Crown created the Dominion        involving three or more colonies. Those
                                                                                                                      also were abortive calls for multi-
                              of New England, a unified government        ten included gatherings in 1677, 1689,
                                                                                                                      state conventions in Fredericksburg,
                              imposed on New England, New York,           1694, and 1722 at Albany, New York;

20
Virginia, Charleston, South Carolina,       “convention of committees.” It was to         presumed to set the voting rules while
and elsewhere.                              be a forum in which state delegations         calling a third Hartford convention, two

                                                                                                                                       ConventionofStates Handbook
                                            could meet on the basis of sovereign          of the four states invited refused to par-
Thus, the Constitutional Convention
                                            equality. Its purpose is to put the “states   ticipate. In the few instances in which
of 1787—far from being the unique
                                            in convention assembled” on equal             convention calls suggested how sover-
event it is often assumed to be—
                                            footing with Congress in proposing            eign governments should select their
was but one in a long line of
                                            amendments.                                   commissioners, some of those govern-
similar gatherings.
                                                                                          ments disregarded the suggestions, but
                                            Founding-Era practice informs us that
                                                                                          their commissioners were seated any-
                                            Article V applications and calls may ask
                                                                                          way. This record therefore suggests that
                                            for either a plenipotentiary convention
Conclusion: What
                                                                                          a convention call, as the Constitution
                                            or one limited to pre-defined subjects.
Prior Conventions
                                                                                          uses the term, may not include legally-
                                            Most American multi-government gath-
Tell Us About The
                                                                                          binding terms other than time, place,
                                            erings had been limited to one or more
                                                                                          and subject. However, the occasional
Convention For
                                            subjects, and the ratification-era record
                                                                                          Founding-Era practice of making calls
Proposing Amendments
As noted above, Founding-Era customs        shows affirmatively that the Founders
assist us in understanding the attributes                                                 and applications conditional and of
                                            expected that most conventions for pro-
and procedures inherent in a “conven-                                                     rescinding them suggests that
                                            posing amendments would be similarly
tion for proposing amendments,” and                                                       Article V applications and calls also
                                            limited. Founding-Era practice informs
the powers and prerogatives of the                                                        may be made conditional or rescinded.
                                            us also that commissioners at an
actors in the process. This Conclusion                                                    In accordance with Founding-Era prac-
                                            amendments convention were to oper-
draws on the historical material col-                                                     tice, states are free to honor or reject
                                            ate under agency law and remain within
lected above, together with the brief                                                     calls, as they choose.
                                            the limits of their commissions. Neither
constitutional text, to outline those       the record of Founding Era conventions        Universal pre-constitutional practice
attributes and procedures.                  nor the ratification debates offer signif-    tells us that states may select, commis-
The previous record of American con-        icant support for the modern claim that       sion, instruct, and pay their delegates as
ventions made it clear that a convention    a convention cannot be limited.               they wish, and may alter their instruc-
for proposing amendments was to be,                                                       tions and recall them. Although the
                                            The only Founding Era efforts to insert
like its immediate predecessors, an                                                       states may define the subject and
                                            in a convention call prescriptions other
inter-governmental diplomatic gather-                                                     instruct their commissioners to vote in
                                            than time, place, and subject-matter
ing—a “convention of the states” or                                                       a certain way, the convention as a whole
                                            were abortive. When Massachusetts
                                                                                                            Continued to page 22

                                                                             “History and the
                                                                             constitutional text
                                                                             inform us that a
                                                                             convention for proposing
                                                                             amendments is, like
                                                                             its direct predecessors,
                                                                             a multi-government
                                                                             proposing convention.”
                                                                                                                                       21
Founding-Era Conventions and the Meaning of the Constitution’s
ConventionofStates Handbook

                              “Convention For Proposing Amendments” Continued from page 21

                              makes its own rules, elects its own          ing amendments is, like its direct pred-      • During the Founding Era a call
                              officers, establishes and staffs its own     ecessors, a multi-government proposing          could come from one or more states,
                              committees, and sets its own time            convention. This suggests that an               from Congress, or from another con-
                              of adjournment.                              amendments convention is deliberative           vention. Article V prescribes that
                                                                           in much the same way its predecessors           the call for an amendments conven-
                              All Founding-Era conventions were
                                                                           were. This suggests further that when a         tion comes only from Congress,
                              deliberative bodies. This was true to a
                                                                           legislature attempts in its application to      but is mandatory when two thirds of
                              certain extent even of conventions
                                                                           compel the convention to merely vote            the states have submitted similar
                              whose formal power was limited to an
                                                                           up-or-down on prescribed language, it           applications.
                              up-or-down vote. When Rhode Island
                                                                           is not utilizing the application power in
                              lawmakers submitted the Constitution                                                       • During the Founding Era, one propos-
                                                                           a valid way.
                              to a statewide referendum in town                                                            ing convention (that of 1787) had
                              meetings rather than to a ratifying con-     Prevailing convention practice during           attempted to specify how the states
                              vention, a principal criticism was that      the Founding Era permitted a few pro-           were to review its recommendations.
                              the referendum lacked the deliberative       cedural variations, and it is precisely in      Article V clarifies that an amend-
                              qualities of the convention. Critics con-    these areas that the text of Article V pre-     ments convention does not have this
                              tended that a ratifying convention,          scribes procedure. Specifically:                power.
                              unlike a referendum, provided a central
                                                                           • During the Founding Era, multi-state        Thus do text and history fit together to
                              forum for a full hearing and debate and
                                                                             conventions could be authorized             guide us in the use of Article V.
                              exchange of information among people
                                                                             merely to propose solutions for state
                              from different locales. They further
                                                                             approval, or, less commonly, to
                              contended that the convention offered a
                                                                             resolve issues; in the latter case each
                              way to supplement the affirmative or
                                                                             state “pledged its faith” to comply
                              negative vote with non-binding recom-
                                                                             with the outcome. Article V clarifies
                              mendations for amendments.
                                                                             that an amendments convention only
                              Before and during the Founding Era,            may propose. At the Constitutional
                              American multi-government conven-              Convention, the Framers rejected
                              tions enjoyed even more deliberative           proffered language to create an
                              freedom than ratifying conventions—            amendments convention that could
                              as, indeed, befits the dignity of a diplo-     resolve.
                              matic gathering of sovereignties. No
                                                                           • During the Founding Era, a proposing
                              multi-government convention was lim-
                                                                             convention could be plenipotentiary
                              ited to an up-or-down vote. Each was
                                                                             or limited. Article V clarifies that nei-
                              assigned discrete problems to work on,
                                                                             ther the states nor Congress may call
                              but within that sphere each enjoyed
                                                                             plenipotentiary conventions under
                              freedom to deliberate, advise, consult,
                                                                             Article V, because that Article author-
                              confer, recommend, and propose.
                                                                             izes only amendments to “this Consti-
                              Multi-government conventions also
                                                                             tution,” and, further, it proscribes
                              could refuse to propose. Essentially,
                                                                             certain amendments.
                              they served as task forces where dele-
                              gates from different states could share      • During the Founding Era, an “appli-
                              information, debate, compare notes, and        cation” for a multi-government con-
                              try to hammer out creative solutions to        vention could refer either to (1) a
                              the problems posed to them.                    request from a state to Congress to
                                                                             call, or (2) the call itself. Article V
                              History and the constitutional text
                                                                             clarifies that an application has only
                              inform us that a convention for propos-
                                                                             the former meaning.

22
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