Above: James Iredell—future Supreme Court justice and advocate for the Constitution in North Carolina
The editors of the Documentary History of the Ratification of the Constitution recently released two volumes of documents covering the Constitution’s ratification in North Carolina—the last state covered in the Documentary History’s series. My earlier updates summarized new findings from volumes covering South Carolina, New Hampshire, and Vermont. For full understanding, you should read this blog entry in conjunction with those three.
The North Carolina volumes are numbers 30 and 31 of the set. By far their most important lesson pertains to Article V of the Constitution—specifically the convention method of proposing amendments. The documents firmly debunk claims by some commentators that the composition of an amendments convention is unknown, unknowable, and/or must be determined by Congress. Instead, the North Carolina documents amply confirm what the records from other states tell us: an amendments convention is a “convention of the states.” This means it is composed of state delegations of equal voting power in the 300-year tradition of other conventions of the states and conventions of colonies.
But first some background:
North Carolina’s ratification was unlike that of any other state. One reason is that it occurred very late in the process—North Carolina was the second-to-last of the original 13 states to ratify. Additionally, North Carolina had two ratifying conventions rather than just one. The initial convention was held at Hillsborough during July – Aug. 1788. It refused to ratify the Constitution, concluding that the document should be amended first to include a bill of rights and various structural changes. The subsequent convention was in Fayetteville in November, 1789. By that time, Congress had proposed the Bill of Rights, and that fact helped induce the delegates to ratify the Constitution by a substantial margin. However, they also recommended several further amendments.
James Iredell’s outstanding speeches at the first convention have long been publicly available and are a valuable source for constitutional meaning. Otherwise, North Carolina witnessed less discussion about constitutional meaning than did states such as New York and Virginia. Volumes 30 and 31 include what discussion of meaning there was. The results amply confirm conclusions in my publications and in publications by other careful originalist scholars. Below I list the principal examples together with a citation of the relevant volume and page (so that “30 DH 12” means “volume 30, page 12 of the Documentary History”).
* As in other states, “Commerce” was understood to mean only mercantile trade and a few related subjects and not the entire economy. 30 DH 12, 14; 31 DH 797. Other than copyright laws, federal power was not to extend to regulating the press (or, presumably, other local businesses.) 30 DH 10, 27. Similarly, Congress has no general power to legislate criminal law. 30 DH 427. However, the founding generation recognized that federal regulation of commerce necessarily affects other human activities, such as agriculture and manufactures. 30 DH 56, 244.
* It was recognized that the courts would undertake judicial review to void unconstitutional federal actions. 30 DH 291.
* The North Carolina volumes further undermine the claim that the Constitution was adopted to protect slavery. Even in a slave state like North Carolina some of the Constitution’s strongest advocates were people who opposed slavery and the slave trade. 30 DH 103, 317, 389, 415. (And on the other side, the Constitution was opposed by many slaveholders.) Even the three-fifths compromise was not entirely pro-Southern—some North Carolinians objected to it because it increased the taxes of slaveholding states. 30 DH 253. Nor was the compromise driven by racism (although, of course, racism provided a justification for slavery). 30 DH 253.
* The right to keep and bear arms was understood to include “keeping arms for [one’s] own defense.” 30 DH 123.
* The Constitution was friendly toward religion, but generally impartial among religious denominations. 30 DH 407-08. Other than requiring an oath of office (which presupposed belief in God), the federal government would have no power over religion. 30 DH 405.
* Members of Congress cannot be impeached. 30 DH 256. Impeachment was for “abuse of trust” (a founding-era term for breach of fiduciary duty), but not for “want of judgment” (differences of opinion). 30 DH 331, 341, 342. The word “high” in the Constitution’s grounds for impeachment modifies “Misdemeanors” as well as “Crimes.” 30 DH 257.
* The Guarantee Clause is directed against monarchy and (perhaps) against aristocracy—not against democracy 30 DH 406.
* The Constitution derives its force from the people, not the states. 30 DH 368, 375.
The North Carolina records’ greatest contribution is how they increase our understanding of the amendment process. They confirm that the “convention for proposing amendments” was designed to dispense with congressional approval of amendments, 30 DH 388-89, 390, and that it is a state-driven process. 30 DH 23 (“nine states may at any time make alterations [in the Constitution].” The number “nine” is a reference to two-thirds of 13—i.e., the applying states, who control the proposing convention’s agenda). See also DH 389 & 426, 508.
Now we come to these two volumes’ contribution to our understanding of the Article V amendment process. In the ratification records of other states, references to a “second federal convention” can be confusing. The speaker or writer may mean either (1) a new constitutional convention—authorized, like the first, under the states’ reserved powers or (2) a convention for proposing amendments under Article V of the Constitution.
But the meaning is clearer in North Carolina. Its conventions occurred after nearly all the other states had ratified. North Carolinians knew the Constitution would be going into effect—or already was in effect—for 11 other states. So when a North Carolinian mentioned a second federal convention, even if he didn’t mention Article V he was almost invariably referring to an Article V convention.
The documents show that North Carolinians repeatedly—both in official and unofficial statements—labelled an Article V convention a “convention of the states.” 30 DH 433 & 453; 31 DH 545-56 (twice), 616, 705, 711, 712. (The Constitutional Convention was characterized the same way. 31 DH 616.) “Convention of the states” was used interchangeably with “federal convention,” 31 DH 720, “general convention,” 30 DH 389, and “convention of the United States.” 31 DH 708.
This is important for modern purposes because a convention of the states follows a known representational formula. It is a gathering of state delegations in conditions of sovereign equality. It is different from a “convention of the people,” which is used for in-state purposes. 30 DH 44, 69.
The North Carolina characterization of an Article V convention as a “convention of the states” confirms similar characterizations in official records in Pennsylvania, Rhode Island, New York, and Virginia. The Supreme Court confirmed it in Smith v. Union Bank, in 1831. And nothing I have ever seen in any part of the founding-era record suggests that an Article V convention is anything else.