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State ratifying conventions

From Wikipedia, the free encyclopedia

State ratifying conventions are one of the two methods established by Article V of the United States Constitution for ratifying proposed constitutional amendments. The only amendment that has been ratified through this method thus far is the 21st Amendment in 1933.

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  • Constitutional Compromises: Crash Course Government and Politics #5
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Transcription

Hi, I'm Craig, and this is Crash Course Government and Politics, and today we're going to talk about the single most important document in America, one that we'll be talking about a lot over next few months. No, I'm not talking about O Magazine - it's the United States Constitution, and what we're really gonna focus on is how it got made and how it became the foundation of our government. Those of you who watched the U.S. History series with John Green probably remember that the government set up by the Constitution is actually the second attempt at an American government. Also, as pointed out in the comments, you probably noticed that I am not John Green. The first American government, which was in place during the Revolutionary War and for almost 10 years afterwards, was the Articles of Confederation. Like many first attempts, the Articles government had some good ideas and it meant well, but it was poorly executed. Give it a break, it never did this before! So when delegates gathered in Philadelphia in 1787 to revise the Articles, they ended up scrapping the whole thing and creating a new Constitution. It's probably not because they didn't know what revise meant. So, the delegates from the various states each had their own agendas at the Constitutional Convention, and that made it difficult for them to agree on what the new government should look like. In order to hammer out a Constitution, they had to do something you don't see very much of in government these days - compromise. Oh, let's compromise, I'm sorry, eagle, I didn't mean... Before we get into what those compromises were, it's kinda necessary to look at what was so bad about the Articles government in the first place. The main thing was it really couldn't govern. There was no executive branch or president and no judiciary to settle disputes. It was basically just a congress where each state was equally represented and they all pretty much had veto power and could sink legislation they didn't like. All decisions were collective, which meant that very few decisions were actually made, because it's really hard to get 13 people to agree on something that will be in the interest of all 13. I can barely agree with Stan on anything. Right, Stan? He said wrong. Most important, the Articles government had no power to levy taxes, which meant that if it needed any money to do, well, anything, it had to ask for the money from the states, which were free to say, "No, I don't think we'll be giving you any money today. ...or tomorrow. Or ever." As I remember from my college years - and I don't remember much - living without money is awful. Without money, it's pretty much impossible for a government to do anything, except buy ramen noodles. The Articles government was able to accomplish one notable thing, though. One of the big issues it had to deal with was Americans moving out West, which in the 1770's and 80's meant to places like Ohio and Indiana that weren't states yet. The government managed to set up rules for these settlements in the Northwest Ordinance of 1787, which set up a system for eventual statehood. But most importantly, it forbade slavery in these territories, which, as students of American history know, was kind of a big deal. You wouldn't know that, you're not a student of American history. You're a symbol of America, bird! I'm not gonna punch you. Other than that, though, the Articles government was a flop. And the very thing that made it so ineffective threatened to screw up any attempts at new government, too. This was the issue of competing interests between different states, more specifically the states with large populations and the smaller states. Basically, a state with a large population like, say, Virginia, had different needs than a state with a small population, like Delaware. More importantly, large states might stand to benefit more from any government spending. When the delegates decided to make a new congress, these large population states wanted the number of representatives to that congress to be proportional to the states' populations, which would mean that the larger states would have more representatives than the smaller ones. This idea, a large congress made up of many delegates, was called The Virginia Plan. Because it was put forward by the delegates from Wisconsin. Just kidding...Virginia. The delegates from small New Jersey put forward a plan that would have a congress where each state would send an equal number of representatives. In other words, something that looked a lot like the Articles government. This New Jersey Plan would prevent smaller states from being dominated by the larger states, and also ensure that the large states wouldn't be able to vote themselves a bigger share of government spending. These two opposing interests threatened to scuttle the whole new government thing until Roger Sherman from Connecticut proposed The Great Compromise, that gave us bicameral legislature that we talked about in episode two, and we've all come to know and love, sometimes. So The Great Compromise meant that we would have a two-house legislature, but this wasn't the only issue related to how the seats in Congress would be apportioned. The membership in the House would be based on the state's population, but at the time there was an issue about how to count that population. The issue was slavery. More specifically, how to count slaves as part of a state's population. Let's go to the Thought Bubble. The states with large slave populations, like South Carolina and Virginia, had a pretty big interest in counting these slaves for the purposes of determining representation. And the states with few slaves didn't want them counted at all. Because this would mean that the white non-slave people in those states with lots of slaves would effectively be better represented than the white non-slave people in the states with few slaves. The delegates at the Constitutional Convention solved this problem with another compromise that was decidedly less great. Article 1 Section 2 of the Constitution includes the following clause: "Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons." If you're looking for the word "slave," you won't find it. They're the ones described by the phrase, "three-fifths of all other persons." This is the notorious Three-Fifths Compromise. What it means is that in order to determine how many representatives a state has, you count the number of free people in the state, including indentured servants, and add to that number three-fifths of the number of non-free persons, otherwise known as slaves. So in terms of counting, each slave was worth three-fifths of each free person. Thanks, Thought Bubble. Anyway, this meant that states with large populations of slaves would be disproportionately represented in Congress, but not quite so badly that most northern states with small numbers of slaves wouldn't vote for the Constitution. What this also did was enshrine the idea that slaves, who were mostly black, were worth less than free people, who were mostly white. And it embedded slavery into the Constitution. So before this constitution of compromise could go into effect, it had to be ratified by at least 9 of the 13 states. So each state had a special convention where delegates could vote on whether or not to adopt the new constitution. These conventions were more open to the public than the Constitutional Convention itself, and the ratification process is the reason why some people say the Constitution is based on the will of the people. But not everybody wanted the Constitution, and they needed convincing. This is where things get a little confusing. Did you want the Constitution? Did ya? In 1787, public opinion about the Constitution was pretty evenly divided. Those who wanted the Constitution were called Federalists, largely because of the Federalist Papers, a series of articles written by Alexander Hamilton, James Madison, and John Jay. They wrote the Federalist Papers to convince voters in New York to ratify the Constitution. And since New York did eventually ratify the document, I guess they worked. But we should listen to both sides of the argument...in the Clone Zone. So joining us in the Clone Zone today will be Federalist Clone and Anti-Federalist Clone. Let's hear from Federalist Clone first. Feddy? Can I call you Feddy? No. The Federalists were the incredibly intelligent Americans who thought that a strong central government would benefit the country as a whole. They tended to come from cities, and often they represented commercial classes, especially wealthy people, who had lent money to the government during the Revolution. They liked the new Constitution because they felt that a strong national government would pay its debts, and this was good for business. They also tended to want stronger ties with England, again because England was a good trading partner. Given the raging success of the Articles government, it's pretty clear that the Federalists were right. Okay, now let's hear from Anti-Federalist Clone. How do you respond, Anti? I'm not your aunt! Sure, Federalists were right to believe in tyranny. Anti-Federalists were right to be skeptical of a large government that would trample on our individual liberties. They didn't want a big government that would tax them to death, and possibly take away their slaves. In general, Anti-Federalists felt that states would be the best protectors of people's rights and liberties, because being smaller, they would be more responsive to people's needs. Okay? The Anti-Federalists published pamphlets and articles, too. But we weren't quite as organized, so we didn't have a coherent set of Anti-Federalist Papers to push on government students. Okay, okay, you seem really mad about this. I am. But you eventually lost the debate. I did. Huzzah! How come he got to shoot fireworks-- --I didn't know he was gonna-- --I wanna shoot fireworks-- Okay? I'm sorry, I'm sorry--next time. You can have fireworks. So the Federalist position won out and the Constitution was ratified. And that's the government that Americans have been living under ever since. Hooray! Because the Constitution was passed, we tend to think that everyone loved it. But it wasn't nearly as clear-cut as hindsight makes it appear. Eventually, the Federalists had to offer another compromise, promising a Bill of Rights in the first ten amendments. This isn't called one of the constitutional compromises because it happened outside of the Convention, but it was yet another example of how different interests had to give a little in order to get a Constitution passed. It's very important to remember that compromise, the idea of balancing interests and giving a little to get a lot, is embedded in the Constitution. While today it seems like a political dirty word, compromise is the basis of the American government itself. Thanks for watching. I'll seeya next week. Well, I'll compromise. Seeya in a week and a half. Let's face it; Stan's probably not going to get this done in time anyway. Crash Course Government and Politics is produced in association with PBS Digital Studios. Support for Crash Course U.S. Government comes from Voqal. Voqal supports non-profits that use technology and media to advance social equity. Learn more about their mission and initiatives at voqal.org. Crash Course was made by all of these nice people at the Chad and Stacy Emigholz Studio, in tropical Indianapolis. Thanks for watching. I'm going to the beach.

Constitutional text

Article V reads in pertinent part (italics added):

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths thereof, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.…

Use of the convention ratification option

Ratification of a proposed amendment has been done by state conventions only once—the 1933 ratification process of the 21st Amendment.[1] The 21st is also the only constitutional amendment that repealed another one, that being the 18th Amendment, which had been ratified 14 years earlier.

As is true for a state legislature when ratifying a proposed federal constitutional amendment, a state ratifying convention may not in any way change a proposed constitutional amendment, but must accept or reject the proposed amendment as written.

Purpose

The U.S. constitutional amendment process

The convention method of ratification described in Article V is an alternate route to considering the pro and con arguments of a particular proposed amendment, as the framers of the Constitution wanted a means of potentially bypassing the state legislatures in the ratification process.

To some extent, the convention method of ratification loosely approximates a one-state, one-vote national referendum on a specific proposed federal constitutional amendment, thus allowing the sentiments of registered voters to be somewhat more directly felt on highly sensitive issues. The theory is that the delegates of the conventions—who presumably would themselves be average citizens—might be less likely to bow to political pressure to accept or to reject a given amendment than would be the case with state legislators. The United States Supreme Court has ruled that a popular referendum is not a substitute for either the legislature or a ratifying convention—nor can a referendum approve of, or disapprove of, a state legislature's, or a convention's, decision on an amendment (Hawke v. Smith, 253 U.S. 221, [1920]). This ruling was challenged in Arizona State Legislature v. Arizona Independent Redistricting Commission, in which the United States Supreme Court defined the term "legislature" broadly to include "the power that makes laws", which the court held included direct lawmaking by the people of the state.[2] The majority opinion stated that the Article V use of the term "legislature" applied only to the representative body of the states as a "federal" function, as opposed to a "state" function of the legislature as prescribed in Article 1, Section 4 of the U.S. Constitution. This conflict over the interpretation of the word "legislature" creates potential constitutional questions over the role that popular referendums could play in state ratifying conventions.

New Mexico law provides that the members of its legislature would themselves be the delegates and form such a ratifying convention—if Congress were to again select that particular method of ratification.[3] The issue having never come before the federal courts, it is unknown whether this New Mexico state law violates Article V.

By state

In a state's legislature, the ratification method is procedurally simple—merely propose a resolution, memorial, or proclamation of ratification and vote it up or down in each chamber of that state legislature. But using the convention method of ratification is a bit more complicated because it is, by necessity, separate and different from a state legislature. As early as the 1930s, state lawmakers enacted laws to prepare for the possibility of Congress specifying the convention method of ratification. Many laws refer to a one-off event, with an ad-hoc convention convened solely for the purposes of the 21st Amendment. Other laws, however, provided guidelines for ratifying conventions in general.

Delaware

In Delaware, the governor announces an election of delegates; the latest date possible is the next general election held at least three months after the amendment has been proposed.

The convention has 17 members, of which 7 are from New Castle County, 5 from Kent County, and 5 from Sussex County. Slates of candidates are nominated by petition; nine slates are selected, one for each county and for each position (for, against, or uncommitted as to the proposed amendment) based on the petitions with the most signatures. In the election, slates from the three counties are merged into three tickets (for, against, or uncommitted), and delegates are all elected using at-large statewide block voting; there is the option to vote straight-ticket but no write-in.[4]

Florida

In Florida, the governor has 45 days to announce the election. The election is held between five and ten months after Congress proposes the amendment, unless a statewide election is to be held within a year in which case the governor can hold the delegates election at that time.

The convention has 67 members. They are all elected using at-large statewide block voting, with candidates being listed on the ballot by category of whether they declared themselves for, against, or unpledged as to the proposed amendment; write-in votes are allowed. Filing for candidacy requires a $25 fee and a 500-name petition if the candidate declares themselves pledged.

The convention meets on the second Tuesday following the election and a majority of delegates forms a quorum. Delegates receive no compensation.[5]

New Mexico

In New Mexico, the governor has 10 days to call a convention. The convention is not elected, but formed by all members of the New Mexico Legislature.

The legislators meet in the chamber of the New Mexico House of Representatives and is presided over by the lieutenant governor. They receive compensation for three days.[3]

Vermont

In Vermont, the governor has 60 days to call for the election of delegates to the state ratifying convention. The state convention has 14 members, as many as counties in Vermont.

The governor, lieutenant governor, and speaker of the Vermont State House nominate 28 candidates, two from each county: one for ratification and one against. Candidates are listed on the ballot by label (for or against); the election of delegates uses at-large statewide block voting, where every elector can vote for up to 14 candidates regardless of label and the top-fourteen vote-getters are elected; write-in votes are allowed.

The governor chooses a date for the opening of the convention, within 20 to 30 days after the election. The convention meets in the Vermont Senate chamber in Montpelier, and a majority of the elected delegates are a quorum. The Vermont state code gives few rules for the proceedings of the convention, with a $10 compensation and reimbursement of expenses.[6]

References

  1. ^ Everett S. Brown, Ratification of the Twenty First Amendment to the Constitution of the United States: State Convention Records and Laws (Ann Arbor: University of Michigan Press, 1938).
  2. ^ "Court documents" (PDF). www.supremecourt.gov. 2014. Retrieved 2020-06-19.
  3. ^ a b New Mexico Statutes, Chapter 1 Article 18
  4. ^ Delaware Code, Title 15, Chapter 77
  5. ^ Florida Statutes, Chapter 107
  6. ^ Vermont Statutes, Title 17 Chapter 31 (§§1811–1825)
This page was last edited on 5 December 2023, at 15:04
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