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OF PROHIBITION
JASON O. HEFLIN
I. WHY CONVENTIONS? ........................................................................ 344
II. DELEGATED FEDERAL POWER OR INHERENT STATE
SOVEREIGNTY? ............................................................................... 347
III. FORMATION AND CONDUCT OF STATE CONVENTIONS ................... 350
IV. LESSONS FOR A PROPOSING CONVENTION ..................................... 354
343
344
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some may find it safer to work for constitutional change through Congress
alone, even if it is that body itself that most requires change, than to pursue
an untested mode.
Supporters of a proposing convention, however, can take heart in the
fact that the deployment of an Article V mode left dormant since the
framing of the Constitution would not, in fact, be unprecedented. Just as it
does at the proposal stage, Article V provides two modes at the ratification
stage. Congress must choose either ratification by three-quarters of the
state legislatures or by conventions in three-quarters of the states.5 For the
first twenty amendments, Congress chose the state legislature mode.6 For
what would become the Twenty-First Amendment, however, Congress
chose the state convention mode. 7 Article V speaks with no more
specificity in regard to state conventions than it does in regard to
convention[s] for proposing amendments.8 Thus, the state conventions
posed many problems analogous to those posed by a proposing
convention; those problems, however, proved surmountable in the pursuit
of constitutional change.
This Article will describe the convention mode used to ratify the
Twenty-First Amendment. It will first outline some of the concerns
underlying the choice of the convention method. It will then review the
debate over whether Congress or the states held the power to regulate the
state conventions. It will then briefly review some of the procedures
adopted by the states and the conduct of the conventions themselves. It
will conclude with a discussion of a few lessons a proponent of a proposing
convention should draw from the experience of the Twenty-First
Amendment.
I. WHY CONVENTIONS?
The Twenty-First Amendment repealed the Eighteenth Amendment,
ending federal alcohol prohibition in the United States.9 Interestingly,
although they disagreed on the substantive issue,10 both major political
parties made convention ratification of a change to the Eighteenth
Amendment a plank in their 1932 party platforms. Democrats explicitly
5. Id.
6. Abraham C. Weinfeld, Power of Congress over State Ratifying Conventions, 51
HARV. L. REV. 473 (1938).
7. Id.
8. U.S. CONST. art. V.
9. U.S. CONST. amend. XXI.
10. DAVID E. KYVIG, REPEALING NATIONAL PROHIBITION 143 (2nd ed. 2000).
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ARTICLE V CONVENTIONS
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11. Gerhard Peters and John T. Woolley, Democratic Party Platform of 1932, AM.
PRESIDENCY PROJECT (June 27, 1932), http://www.presidency.ucsb.edu/ws/?pid=29595.
12. Gerhard Peters & John T. Woolley, Republican Party Platform of 1932, AM.
PRESIDENCY
PROJECT
(June
14,
1932),
http://www.presidency.ucsb.edu/ws/index.php?pid=29638. The Republican platform
noted that the controversy over repeal distract[ed] attention from...national problems,
and that opinion within the party was varied on the question. Id.
13. Peters, supra note 11.
14. Peters, supra note 12.
15. John C. Gebhart, Movement Against Prohibition, 163 ANNALS AM. ACAD. POL. &
SOC. SCI. 172, 180 (1932).
16. There was some effort to propose the amendment for ratification by legislatures,
but this effort was quickly overcome. See 76 CONG. REC. 4, 148 (1933).
17. Gebhart, supra note 15; see also Herbert Brucker, How Long, O Prohibition? 234
N. AM. REV. 347, 353 (1932) (noting that support for repeal was strongest in the cities).
18. See Michael Munger & Thomas Schaller, The Prohibition-Repeal Amendments: A
Natural Experiment in Interest Group Influence, 90 PUB. CHOICE 139, 155-56 (1997)
(finding, through regression analysis, that states with a higher farm income per capita were
less likely to support repeal).
346
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would feel no such pressure.19 With national polls showing strong popular
support in more than three-quarters of the states,20 proponents would have
been concerned that state legislatures might magnify the power of antirepeal sentiment.
The case of ratification of the Eighteenth Amendment in Ohio
provided a cautionary tale on the imperfect connection between
legislatures and the popular will. There, the houses of the state legislature
ratified the prohibition amendment in lopsided votes,21 after which a
narrow majority of voters in a statewide referendum came to the opposite
result, rejecting ratification.22 The issue went to the Supreme Court, which
held the referendum ineffective and recognized the legislatures
ratification.23 This precedent of a dry state legislature frustrating a wet
popular majority (though a very narrow one), likely informed the
preference for conventions.
A second concern extended to both those favoring and those opposing
repeal. Many, on both sides, perceived the issue of repeal to be so
contentious that it should be submitted to the people themselves to ensure
the legitimacy of the outcome, and thereby allow the nation to move past
this divisive issue.24 Article V does not provide a popular vote mode of
ratification,25 but commentators at the time believed that a convention
process in which voters chose between wet and dry delegates would
serve essentially the same function as a direct popular vote.26 Of course,
the pro-repeal fear of malapportionment and the shared fear of a
ratification process that did not definitively settle the issue were facets of
a single problem. The basic fear underlying both concerns was a fear that
state legislatures could not be trusted to accurately represent the
sentiments of their constituents, at least on the issue of repeal.
19. See Thomas S. Schaller, Democracy at Rest: Strategic Ratification of the TwentyFirst Amendment, 28 PUBLIUS 81, 85 (Spring 1998).
20. Gebhart, supra note 15, at 173 (discussing the results of a 1932 Literary Digest poll
finding that only eight states would be likely to vote against repeal, short of the thirteen
needed to prevent ratification).
21. The vote in the Senate was twenty in favor, twelve opposed; in the Assembly it was
eighty-five in favor, twenty-nine opposed. Schaller, supra note 19, at 82.
22. Id. (The vote was 500,450 opposed, 499,971 in favor.).
23. Hawke v. Smith, 253 U.S. 221, 231 (1920).
24. See Gebhardt, supra note 15, at 85.
25. See Hawke, 253 U.S. at 231 (holding that a state does not have the authority to
submit ratification to a popular referendum).
26. See Brucker, supra note 17, at 353.
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act of the people, not of the states,34 and, therefore, the states have no
independent power over amendments. The powers conferred on the
Congress and the state legislatures in Article V are national political
powers entirely outside the scope of the general legislative, executive, and
judicial power.35 Thus, a ratifying body (either a legislature or a
convention) acts not as an agent of the state, but rather as an agent of the
people.36 Because there is no independent state power over the federal
function of ratification, a state cannot have power over ratifying
conventions.37 Therefore, either Congress holds such power, or no one
does. In fact, Congress holds this power by virtue of the Necessary and
Proper Clause, as without it, Congress could not exercise its power to
choose the mode of ratification.38 Palmer analogized this power to the
power to set a time limit for ratification through the legislature mode, a
power which the Supreme Court had previously upheld.39 Furthermore, if
the state legislatures had power to regulate conventions, the intent of the
Constitution would be frustrated because the two modes of ratification
would collapse into a single mode.40 Finally, Palmer dismissed the fact
that the conventions that ratified the Constitution itself were called into
being under the auspices of the state legislatures as having no bearing on
the interpretation of Article V, because Article V did not govern those
conventions.41
Howard Lee McBain, Ruggles Professor of Constitutional Law and
dean of the political science faculty at Columbia University, echoed
Palmers support for federal control in a later article in the same paper.42
McBain contrasted legislatures with conventions: legislatures had a
permanent existence and were constituted according to defined rules,
while conventions were ad hoc bodies that necessarily required an external
authority to define rules for their constitution.43 He analogized Congresss
competence to do so to its competence to regulate the counting of the votes
of presidential electors pursuant to Article II, Section 3, which it had done
by way of an elaborate statute in 1886, filling a hiatus in the
34. Id. at 131 (citing Barron v. Baltimore, 7 Pet. 243, 247 (1833)).
35. Id. at 131-32 (citing Hawke v. Smith, 253 U.S. 221, 229 (1920)).
36. Id. at 132.
37. Id.
38. U.S. CONST. art I, 8.
39. 76 CONG. REC. 132 (citing Dillon v. Gloss, 256 U.S. 368 (1921)).
40. Id. at 130, 132.
41. Id. at 133.
42. Howard Lee McBain, Or By Conventions: A Phrase in the Constitution with New
Significance, N. Y. TIMES, Dec. 11, 1932, at E1.
43. Id.
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ARTICLE V CONVENTIONS
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44. Id.
45. Id.
46. Id.
47. James M. Beck, Senate Votes Dry Repeal by Conventions in States; House Will Act
Monday, N. Y. TIMES, Feb. 17, 1933, at XX2.
48. Id.
49. Id.
50. Id.
51. Id.
52. Id.
350
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2016]
ARTICLE V CONVENTIONS
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Id. at 564.
Brown, supra note 56, at 1011.
Id.
Id.
BROWN, supra note 60, at 535-36.
Id. at 585.
Id.
In re Opinion of the Justices, 167 A. 176, 179 (Me. 1933).
Brown, supra note 56, at 1010.
Id. at 1013-14.
352
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71.
72.
73.
74.
75.
76.
77.
78.
79.
80.
Id. at 1014.
Id. at 1013-14.
Id.
In re Opinion of the Justices, 167 A. 176, 180 (Me. 1933).
In re Opinions of the Justices, 226 Ala. 565, 569 (Ala. 1933).
Id. at 569.
Id. (citing Hawke v. Smith, 253 U.S. 221, 226-27 (1920)).
Id.
Id.
Id.
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referendum effort that gave rise to Hawke during the fight over the
Eighteenth Amendment.92 The court there held that, in passing the bill, the
legislature was exercising federal power, and therefore the state right to
obtain a referendum through petition was not applicable.93 A similar
attempt in Missouri met the same fate.94
IV. LESSONS FOR A PROPOSING CONVENTION
Proposing conventions and ratifying conventions are different beasts.
While not precedential, the experience of the Twenty-First Amendment
provides some lessons for those seeking a proposing convention. The most
salient lessons for a future proposing convention involve the apparent
absence of sabotage at the state level, the effects of district and at-large
voting, and the question of delegate pledging and convention deliberation.
One concern about a proposing convention is that, since the purpose
of the convention is to obtain amendment proposals outside Congress,
Congress might sabotage the convention by prescribing election
procedures that would derail the effort or skew the outcome. This concern
mirrors the fear in the Twenty-First Amendment ratification process that
state legislatures would manipulate delegate selection. Given the fear of
overrepresentation of rural interests in the legislatures, one might have
expected those legislatures to populate the conventions with delegates
from similarly malapportioned districts. However, in actual fact, if the
legislatures engaged in any such attempt at swaying the vote, it appears
not to have had any noticeable effect on the outcome. If those legislatures
had skewed representation in that manner, one would expect to see a
disparity between the popular vote and the convention votes. Of the eleven
states that chose the district method and held conventions before
ratification was achieved, ten produced conventions in which more than
90% of delegates voted for ratification.95 In the eleventh, Indiana, 75% of
convention delegates voted for ratification, but only 64% of voters in the
special election had voted for ratification.96
One speculative but plausible explanation for this apparent lack of
effective gerrymandering is that support for ratification was perceived to
be so strong that such an effort would have been futile. Popular opinion,
including both national political parties supporting at least some degree of
change to prohibition, the efforts of organized repeal groups like the
92.
93.
94.
95.
96.
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ARTICLE V CONVENTIONS
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Number
delegates106
Alabama
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
116
14
75
22
15
50
17
67
No law passed
21
50
329
99
No law passed
19
No law passed
80
24
45
100
21
No law passed
68
106.
107.
108.
109.
of
Delegate
Election votes
Convention
election107
for ratification108
votes
for
ratification109
Mixed
58.7%
100.0%
At large
76.9%
100.0%
District
59.5%
100.0%
At large
76.1%
100.0%
At large
67.9%
100.0%
Mixed
87.2%
100.0%
At large
77.2%
100.0%
At large
80.1%
100.0%
NA
NA
NA
At large
58.0%
100.0%
At large
78.2%
100.0%
District
64.1%
74.8%
At large
60.2%
100.0%
NA
NA
NA
At large
61.4%
100.0%
NA
NA
NA
District
68.4%
100.0%
Mixed
81.8%
100.0%
District
81.7%
100.0%
District
74.7%
99.0%
At large
65.1%
100.0%
NA
NA
NA
At large
76.2%
100.0%
358
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
District
District
District
At large
Mixed
At large
At large
District
NA
At large
At large
District
At large
At large
At large
District
At large
District
At large
At large
At large
District
At large
At large
District
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Unavailable
No election
Caucus
71.5%
86.3%
77.5%
88.7%
29.1%
NA
71.2%
No election
65.2%
76.2%
87.8%
48.0%
NA
51.4%
61.4%
60.2%
66.5%
63.0%
70.2%
61.6%
82.1%
Unavailable
91.8%
No convention
100.0%
100.0%
99.0%
100.0%
100.0%
No convention
NA
100.0%
No convention
95.7%
100.0%
100.0%
0.0%
NA
100.0%
100.0%
100.0%
100.0%
100.0%
95.9%
100.0%
100.0%
100.0%
110. Equal to the number of legislative representatives in the state. No election was held.
BROWN, supra note 60, at 660.