What is an Amendments Convention “Application?” What is a “Call?”

Rob at James Madison's home in Virginia

Article V of the Constitution states that “The Congress . . . on Applications of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments.”

As I pointed out in my book, The Original Constitution: What It Actually Said and Meant, 18th century writers were imbued heavily with Latin language usage, and the English of the time often revealed a Latinate flavor.

The dominant meaning of the Latin verb “applicare” pertained to one thing touching or connecting to another. The word was used, for example, of a ship touching harbor.

A very similar meaning prevailed in 18th century English usage, as revealed by a survey of twelve 18th-century dictionaries. “Apply” and “application” referred to the joining of one thing with another, either literally or (in speech) metaphorically. Thus, when one applied to another, one addressed the other. Today the word sometimes implies a supplication, but when the Constitution was adopted, that was not the principal sense. An “application” could come from an equal, a superior, or a petitioner.

In fact, the language of Article V rules out the possibility that when the states apply to Congress they do so as mere petitioners or suppliants. This is because the applications of two thirds of the states are binding on Congress. If Congress receives the requisite number of applications, it is required to call. Article V’s emphasis on the powers of state legislatures in this process is underscored by its drafting history: The immediate model for the Article V convention process apparently was a provision in the Georgia constitution that required the state legislature to call an amendments convention on receiving “petitions” from a majority of counties. However, “petition” connotes a request from an inferior to a superior. The framers changed the word to “application,” which usually did not have that connotation.

A call was a particular kind of application. Specifically, it was either an invitation (implying that attendance was voluntary) or a summons (implying that attendance was mandatory). The words in the Constitution do not provide explicitly whether a congressional call requires state legislatures to send commissioners to a “Convention for proposing Amendments.” But the courts, quite properly, tell us that Article V is to be read in the context of historical usages, and the prevailing 18-century custom was that state participation in a multi-state convention was voluntary. This conclusion is consistent with the basic idea of a “convention of states” as a gathering of sovereigns or semi-sovereigns.

In view the foregoing, the following facts about 1780s convention practice are not surprising:

* A recommendation by an interstate convention to the states that authorized it sometimes was called an application. Because an application was merely an address from one person or entity to another, a recommendation was indeed a form of application.

* A request to the Confederation Congress to call a convention was sometimes referred to as an application.

* The convention call itself was sometimes referred to as an application.

Article V did not spell out convention details because the procedures were so well known that doing so was unnecessary. But in a few cases, there were ambiguities in usage, so Article V clarified them. One example was that Article V clarified how the terms “application” and “call” were to be used in amendment practice.

One last point: Some activists argue that the state’s right to apply for a convention is a state power retained by the Tenth Amendment because the right of a state to apply predated the Constitution. The courts disagree, so as a practical matter this claim is pretty much academic. The courts have decided that all legislative and convention authority exercised under Article V comes from the Constitution, and not from powers reserved by the Tenth Amendment.