Still More Evidence That An Amendments Convention is a “Convention of States”

2009 RGN

The term “convention of states” (or “convention of the states”) dates at least from the year 1780. By 1788 it was being applied specifically to a convention for proposing amendments under the new Constitution.

Throughout the 19th century, the phrase “convention of states” was probably the most common way to denominate an Article V convention—even more common than the formal name, “convention for proposing amendments.” In 1831, the U.S. Supreme Court itself referred to an amendments convention as a convention of the states. As far as I can find, before the 20th century no one confused it with a constitutional convention.

An earlier post listed official founding-era legislative documents and resolutions that specifically designated an amendments convention as a “convention of states.” The post you are reading, on the other hand, provides evidence from the debates over the Constitution’s ratification. Unlike the official documents, this material does not use the specific phrase “convention of states,” but it does show that participants in the ratification debates acknowledged that the convention would be state-controlled.

The ratification-debate quotations arose in the following context: The Constitution’s opponents argued that if the document proved defective in practice, it would be very difficult to amend. They therefore argued that a new convention should be called to rewrite or replace the document before the necessary nine states had ratified it.

On the other hand, the Constitution’s supporters asserted that it was better to ratify the document first, and then use Article V to remedy any shortcomings. The proponents contended that if amendments become necessary and Congress refused to propose them, then a convention could do so. Comments by both sides reflect the universal assumption that the proposing convention would be an agent of the state legislatures. They also reflect a universal assumption that the states could, through their applications, designate and limit the subject of the amendments.

At the time, there were 13 states. So nine states were necessary to ratify the Constitution, nine states were needed to force an amendments convention after ratification, and ten were required to ratify proposed amendments.

Here are some relevant comments:

* The anti-Constitution writer who signed his name “A Farmer” was probably John Mercer of Maryland, who had represented his state at the Constitutional Convention. In dismissing the amendments convention idea, he wrote, “I despair of proper state amendments.” (Italics added.) Instead he recommended a new convention before the Constitution was ratified. (12 Documentary History of the Ratification of the Constitution, p. 538).

* Samuel Chase (later to serve on the U.S. Supreme Court) agreed. He pointed out that “it is now [i.e., before the Constitution was ratified] in the power of five states to obtain amendments—afterwards there must be nine.” Id. at 640.

* Samuel Jones, a New York supporter of the Constitution, was a state lawmaker who served as a delegate to his state’s ratifying convention. He stated:

The reason why there are two modes of obtaining amendments prescribed by the constitution I suppose to be this—it could not be known to the framers of the constitution, whether there was too much power given by it or too little; they therefore prescribed a mode by which Congress might procure more, if in the operation of the government it was found necessary; and they prescribed for the states a mode of restraining the powers of the government, if upon trial it should be found they had given too much. (Italics added.) 23 id., pp. 2523-24

* Tench Coxe was among the most widely-read Federalist essayist. He took head-on the argument of the Constitution’s opponents that, once ratified, the document would be impossible to amend:

It has been asserted, that the new constitution, when ratified, would be fixed and permanent, and that no alterations or amendments, should those proposed appear on consideration ever so salutary, could afterwards be obtained. A candid consideration of the constitution will show this to be a groundless remark. It is provided, in the clearest words, that Congress shall be obliged to call a convention on the application of two thirds of the legislatures; and all amendments proposed by such convention, are to be valid when approved by the conventions or legislatures of three fourths of the states. It must therefore be evident to every candid man, that two thirds of the states can always procure a general convention for the purpose of amending the constitution, and that three fourths of them can introduce those amendments into the constitution, although the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them. Congress therefore cannot hold any power, which three fourths of the states shall not approve, on experience. (Italics in original.) 18 id., pp. 283-84.

* James Madison, who had been primarily responsible for the wording of Article V, stated the same thing more mildly. He noted that the Constitution “equally enables the General, and the State Governments, to originate the amendment of errors, as they may be pointed out by the experience on one side or on the other.” The Federalist No. 43.

Since Congress could propose amendments itself, Madison’s statement would have been inaccurate unless the states were able to propose by controlling the proposing convention.

* George Washington also understood that applying states would control the convention, since in April, 1788, he wrote to John Armstrong that “a constitutional door is open for such amendments as shall be thought necessary by nine States.” (Letter dated Apr. 25, 1788.)

* Alexander Hamilton showed the same understanding:

But every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. . . . And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.” Federalist No. 85.

Thus, those who addressed the issue during the ratification debates fully understood the state-based nature of the convention for proposing amendments—i.e., that such a gathering, like all of its predecessors, would be a “convention of states.” Their comments confirm past practice, the formal resolutions and other documents from contemporaneous state legislatures, and the U.S. Supreme Court. I have found no comments from the founding era that contradict this view.