This blog previously has noted that in the 1831 case of Smith v. Union Bank, the Supreme Court referred to an Article V convention as a convention of the states. Legal commentators claiming the convention’s make-up and procedures are unknown or must be determined by Congress all have overlooked Union Bank.
Only four years later the Tennessee Supreme Court implied much the same thing. In the case of State v. Foreman it discussed the 1788 North Carolina state convention that refused to ratify the constitution. The court observed:
“This convention resolved, by a majority of 184 to 84, that the most ambiguous and exceptionable parts of said Constitution of government ought to be laid before Congress, and a convention of the states, for amendment, previous to its ratification by North Carolina.“
Of course, the court was summarizing convention action rather than writing new law of its own. But the court was not actually quoting an earlier statement; the language is that of the court. This suggests the Tennessee judges had no quarrel with the North Carolina convention’s description of an amendments convention.
The case further underscores the sloppiness of law professors who claim the composition and rules of an Article V convention is unknown. Like Smith v. Union Bank, this case is in the principal legal databases, and those databases are searchable by words, phrases, and legal concepts. But just as the law professors overlooked Smith v. Union Bank, they have overlooked State v. Foreman as well.