Article V Process

Article V Process for State Legislatures to Amend the U.S. Constitution

Article V of the U.S. Constitution: 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 several 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 of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress…

Because a convention for proposing amendments has never been called, the process seems mysterious to some. There need be no mystery. The nature of the process is recoverable from American history and American law. We know how other federal conventions worked during the Founding, and we have nearly two centuries of experience after the Founding with state applications and with other kinds of conventions.

Twenty Legal Rules for Conventions for Proposing Amendments

  1. To trigger the process, two thirds of the state legislatures must adopt resolutions “applying” to congress for a convention for proposing amendments on one or more subjects (or, if they wish, for a convention at which all subjects may be considered).

  1. State governors have no formal role in the application process.

  1. Ideally, each application should specify only one subject, so that there are no relevant differences among applications. Differences can give congress an excuse to refuse to aggregate them toward the two thirds threshold.

  1. The applications may include recommended amendments or convention rules, but must not purport to require particular wording for the amendment or particular rules. Ideally, any recommendations should be placed in a separate resolution (rather than in the application) to avoid confusion.

  1. Upon receiving 34 applications (two thirds of the state legislatures) on the same general subject(s), congress must “call” a convention.

  1. The congressional duty to call, unlike the congressional legislative power, is enforceable judicially.

  1. The president has no formal role in the resolution calling the convention.

  1. The convention call is limited to specifying place, time and subject matter. Perhaps congress may name a temporary presiding officer to call the convention to order and preside until the convention selects its own president.

  1. The convention consists of delegations from all states that wish to participate, with one vote per state.

  1. The convention adopts its own rules. Neither congress nor the states may prescribe rules to the convention. The convention may, by one vote per state, alter the rule of voting.

  1. Each state legislature decides how its own delegates are to be chosen and how many delegates it will send. However, no matter what the delegation size, the voting rule at the convention is “one state, one vote” unless the convention adopts a rule to the contrary.

  1. As a matter of prudence and comity, each state should limit the size of its delegation to three or (at most) five. A state’s vote is cast according to the sentiment of the majority of the delegates present from that state. If the delegates from a particular state then on the floor are tied, no vote is cast from that state.

  1. Although a state’s application may not require a particular amendment, delegates are subject to instructions from their state legislatures (or the legislative agents designated for the purpose).

  1. As a matter of prudence, therefore, the delegates probably should be selected by the state legislature rather than appointed by the governor or elected by the people. The delegate selection method is, however, within the discretion of each state legislature.

  1. The convention may refuse to propose any amendments. The convention may not propose an amendment outside its prescribed agenda.

  1. Like any agent, the convention may make any recommendations it wishes, but recommendations that are outside the scope of the convention agenda or otherwise not qualifying as “proposed amendments” have no legal force and may not be ratified.

  1. If the convention proposes one or more amendments, congress must decide on one of the two modes of ratification the constitution allows – ratification by three fourths of the state legislatures or ratification by three fourths of state conventions. This duty is enforceable judicially.

  1. The president has no formal role in the mode-of-ratification selection process and state governors have no role in the ratification process.

  1. The convention has no power to alter the mode of ratification.

  1. The election and make-up of state conventions are determined in each state by state law.

The State Application and Convention Process: Step by Step

  1. The State Legislatures make an application

What is an application? An “application” is a state legislative resolution directing Congress to call a convention for proposing one or more amendments. The application should be addressed to Congress. It should assert specifically and unequivocally that it is an application to Congress for a convention pursuant to Article V. The resolution should not merely request that Congress propose a particular amendment, nor should it merely request that Congress call a convention.

Who may apply? The Constitution grants the right to apply exclusively to the state legislatures. Applications need not be signed by the governor, and may not be vetoed, anything in the state constitution or laws notwithstanding. Moreover, applying cannot be delegated to the people via initiative or referendum, anything in the state constitution or laws notwithstanding. However, the signature of the governor does not invalidate an application, nor does an initiative or referendum that is purely advisory in nature.

The scope of the convention sought. A legislature may apply for an open convention—that is, not limited as to subject matter. Few people, however, are interested in an open convention or in a convention for the sake of a convention. Generally, the goal is to advance amendments of a distinct type, with the convention limited to that purpose. Applications may recommend, but not dictate, particular wording to the convention.

How long does an application last? An application probably lasts until it is duly rescinded.

  1. Congress makes the “call”

Aggregation” of applications. When 34 state legislatures have submitted applications on the same subject, the Constitution requires Congress to call a convention for proposing amendments. Both the historical and legal background of Article V and modern commentary clarify that the congressional role at this point is merely “ministerial” rather than “discretionary.” In other words, the Constitution assigns Congress a routine duty it must perform. It is important to note, however, that congressional receipt of 34 applications is not sufficient; those applications must relate to the same subject matter.

Congress sets the initial time and place of the convention, but otherwise has no authority over procedures or composition. The President has no role in this or any other part of the process.

  1. States select commissioners

The Founders modeled the interstate convention on international diplomatic practice. As in diplomatic meetings, each sovereignty decides how to select its own delegation or “committee” and how many to send. Each state sends a committee of commissioners to the convention, chosen by the state legislature or as the state legislature directs. Each commissioner is empowered to act by a document called a “commission,” issued in such matter as the state legislature directs.

  1. The convention

Conventions for proposing amendments are interstate or “federal,” and serve the limited purpose of drafting and proposing amendments to the states for ratification or rejection. Conventions for proposing amendments, like other federal conventions, are made up of delegates who are agents of the state legislatures. In effect, the entire convention is a collective agent of the state legislatures.

All states, not merely the applying states, are entitled to send committees to a convention for proposing amendments. The convention is, as James Madison once asserted, “subject to the forms of the Constitution.” In other words, it is not “plenipotentiary” (or “constitutional”) in nature. The convention must follow the rules of the Constitution, including those in Article V. The convention cannot change the ratification procedure.

Prior rules and practice governing interstate conventions show that conventions must honor the terms of their call and limit themselves to the scope of the subject matter they are charged with addressing. The scope of the subject matter is set by the scope of the 34 or more successful applications, and ideally Congress should reproduce that scope in its call.

The convention elects its own officers and sets its own rules.

Like other diplomatic personnel, convention commissioners are subject to instruction from home—in this case from the legislature or the legislature’s designee. The designee could be a committee, the executive, or another person or body. Although state applications cannot specify particular wording for an amendment, a state could instruct its commissioners to not agree to any amendment that did not include particular language. In accordance with Founding Era practice and the convention’s purpose, each state should pay its own delegates.

The convention may opt to propose one or more amendments within the designated subject matter or it may adjourn without proposing anything. Unless altered by convention rule, proposal requires only a majority vote.

The Constitution does not require that a proposal be transmitted to Congress or to any other particular entity; the proposal is complete when the rules of the convention says it is. Because Congress must choose a mode of ratification, however, the convention should officially transmit the proposal to Congress. Once amendments are proposed or the delegates decide not to propose any, the purpose of the convention has been served, and it must adjourn.

  1. Ratification

In general, ratification of convention-proposed amendments is the same as for congressionally-proposed amendments.

If the convention validly proposes one or more amendments, Article V requires Congress to select one of two “Mode(s) of Ratification” for each. Congress may decide that the amendments be submitted to state conventions elected for that purpose (the mode selected for the 21st Amendment, repealing Prohibition) or to the state legislatures (the mode selected for all other amendments). The obligation of Congress to select a mode should be enforceable judicially, but it is completely up to Congress which of the two modes it chooses. Neither the applying state legislatures nor the convention may dictate which mode Congress selects.

If the convention makes a recommendation outside the state-imposed agenda, it is only a recommendation of the sort any agent is entitled to make. It may be persuasive, but is without legal force. In other words, it is not a “proposed” amendment. Congress may not designate a mode of ratification for it, nor may the states ratify it.

As is true of any other proposed amendments, the convention’s proposals are ineffective unless “ratified by the Legislatures of three fourths of the several States, or by Convention in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.” The three fourths requirement virtually guarantees that no amendment can be adopted without the support of a majority (and more likely a supermajority) of the American people.

Article V Assemblies and Enumerated Powers

Article V envisions roles in the amendment process for four distinct sorts of assemblies:

Congress;

State legislatures;

Ratifying conventions; and

Conventions for proposing amendments.

Article V grants eight distinct enumerated powers to these assemblies. Four powers are granted at the

Proposal stage and four at the ratification stage. At the proposal stage the Constitution grants:

To two thirds of each house of Congress authority to propose amendments;

To two thirds of the state legislatures power to require Congress to call a convention for proposing amendments;

To Congress power to call that convention (and requires it to do so); and

To the convention authority to propose amendments.

At the ratification stage, the Constitution

Authorizes Congress to select whether ratification shall be by state legislatures or state conventions;

If Congress selects the former method, authorizes three fourths of state legislatures to ratify;

If Congress selects the latter method, empowers (and requires) each state to call a ratifying convention; and

Further empowers three fourths of those conventions to ratify. (3, p4, c1, p4 – c2, p3)

Supporting documentation

Proposing Constitutional Amendments by a Convention of the States: A Handbook for State Lawmakers (2013) by Robert G. Natelson

Proposing Constitutional Amendments by Convention: Rules Governing the Process by Robert G. Natelson, 78 Tenn. L. Rev. 693 (2011)

Amending the Constitution by Convention: A More Complete View of the Founders’ Plan (2010) by Robert G. Natelson

Amending the Constitution by Convention: Lessons for Today from the Constitution’s First Century (2011) by Robert G. Natelson

Amending the Constitution by Convention: Practical Guide for Citizens and Policymakers (2012) by Robert G. Natelson