The Impending “Convention for Proposing Amendments” — Part II

Note: This series of six articles originally appeared in the Washington Post’s “Volokh Conspiracy,” a leading constitutional law website. Part I appears below, and Parts III-VI will be posted in the coming weeks.

How Article V was Drafted and Ratified

The commissioners who met in Philadelphia to propose a plan to render the American political system “adequate to the exigencies of the union” decided early in the proceedings to add a mechanism for amendment. Edmund Randolph’s Virginia Plan contemplated such a mechanism. The Virginia Plan did not specify what it would be, other than to provide that the consent of the national legislature should not be required.

The Constitution’s first draft, reported to the convention by the Committee of Detail on August 6, 1787, specified that amendments would be proposed, and presumably ratified, by a convention called by Congress on the application of two thirds of the states. Thus, in the framers’ deliberations, proposal by interstate convention preceded the decision to allow proposal by Congress.

During the ensuing discussion, the convention accepted a motion by Elbridge Gerry that amendments be subject to state ratification and a suggestion by Alexander Hamilton that Congress be allowed to propose. The result was a draft that (1) omitted the convention, (2) allowed Congress to propose sua sponte, and (3) required Congress to draft an amendment demanded by two thirds of the states.

George Mason of Virginia was dissatisfied. He argued that the draft’s language would enable Congress to block any amendment to correct federal abuse. Without dissent the convention altered the language to provide that a convention rather than Congress draft state-initiated amendments.

Article V does not expressly define the composition of an amendments convention. James Madison (whose draft of Article V Mason’s motion altered) initially questioned how it would be constituted. This has led some to suggest that its composition is a mystery or that the Constitution leaves the composition for Congress to determine.

No one who fairly examines the historical record can doubt, however, that the final understanding was that an amendments convention would be constituted as a convention of the states. This is nearly as clear as anything in history ever is. There are several reasons for so concluding.

First, the only model of an interstate convention known to the Founders was the “convention of the states” model.

Second, statements made during the ratification debates — by, among others, Hamilton, Tench Coxe, George Washington and Madison himself — reveal the assumption that the convention was to be a creature of the states.

Third, the initial Article V application, submitted by Virginia in 1788, explicitly identified the gathering as a “convention of the states.”

Fourth, various legislative resolutions and other legislative documents issued during the Founding Era in New York, Pennsylvania and Rhode Island specifically referred to an amendments convention as a convention of the states. A few decades later, the Supreme Court confirmed this designation.

So why did Article V not specify the convention’s composition? Because there was no need to. The framers’ method was not to recite in the Constitution matters that everyone knew. Their method was to focus on issues that might otherwise be in doubt. Everyone knew that an interstate convention was made up of commissioners in delegations (“committees”) from the several states; that the states were equal with respect to suffrage; that state legislatures determined how commissioners were selected and instructed them; that the call could be broad or narrow; and that the convention’s authority was limited to the scope of the call.

Article V did, however, address issues that existing practice had not resolved or could not resolve. They were as follows:

What was an “application,” and what was a “call?” During the Founding Era, either of those terms could designate the formal invitation to meet. Article V determined
that the former referred to a state legislature’s demand for a convention and the latter to the formal invitation.

When would a call issue? Article V required a call when two thirds of the states applied for (demanded) it.

What was the calling agency? During the Founding Era, interstate meetings could be called by Congress, by prior conventions or by individual states. Article V determined that the calling agency for an amendments convention would be Congress.

Could this convention adopt amendments, or would it merely propose? Article V determined that this convention would propose only, and that proposals would be subject to state ratification or rejection.

As Madison recognized in Federalist No. 39, Article V’s final text contained a careful blend of “national” and “federal” features. The proposal process was finely balanced to ensure equality between the national legislature and the states. As Madison observed in Federalist No. 43, Article V “equally enable[d] the general and the State governments to originate the amendment of errors.” One way the balance was achieved was allowing both the national legislature and the states (by convention) to propose amendments. Another was by offsetting supermajority requirements. For example, the states may consider an amendment informally at any time, but they may not initiate official consideration unless two thirds agree. Congress, on the other hand, may consider an amendment by a simple majority, or merely by a member introducing a resolution.

Offsetting this seeming asymmetry is another: A convention of the states may propose by a simple majority, but Congress may do so only with the agreement of two thirds.

Article V’s convention language was discussed during the ratification debates. When the Constitution’s opponents argued that the new federal government might overreach or abuse its powers, its advocates countered that the states could respond by adopting appropriate amendments. New York lawmaker and ratifier Samuel Jones pointed out that:

[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.

Similarly, Tench Coxe reassured his wide readership 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.

Without the reassuring effect of the Article V convention process, ratification might not have occurred.