When We Amend the Constitution, Make Sure We Follow the U.S. Procedure, not the “Confederate States” Procedure

People who claim that states may, through state law, dictate the wording of amendments to the interstate “convention for proposing amendments” are not accurately representing the system laid out in Article V of the U.S. Constitution. Rather, they are unwittingly advocating a system similar to the one adopted by the defunct “Confederate States of America.”

In 1861, a convention of seceding slave states meeting in Montgomery, Alabama drafted a constitution for their new Confederate States of America (CSA). Their product was based largely on the U.S. Constitution. However, it also differed in important ways—and not just on the subject of slavery. Some of the differences offer valuable insights into the constitutional thinking of the time.

Article V of the CSA Constitution set forth its amendment procedure. Its differences from Article V of the U.S. Constitution are instructive. The entire text of CSA Article V is reproduced below. Here is a line-by-line analysis of the differences:

* The CSA document provides: “Upon the demand of any three States, legally assembled in their several conventions, the Congress shall summon a convention of all the States. . . “

This was the only way the CSA amendment process was initiated. The Confederate Congress had no power to propose amendments.

In addition to allowing congressional proposal, the U.S. Constitution authorizes two thirds of the state legislatures to apply for (demand) a convention. Note that the states as such do not pass applications; their representative assemblies do. By contrast, in the Confederate charter the states themselves—represented in convention by their sovereign people—initiated amendments. The change shows that the CSA framers understood the difference between a legislative application and a state application.*

On the other hand, the description “convention of all the states” was not really a change. It largely tracked common understanding as well as an 1831 Supreme Court description of a convention for proposing amendments as a “convention of the states.”

* “. . . to take into consideration such amendments to the Constitution as the said States shall concur in suggesting at the time when the said demand is made . . . .”

The idea here was that the three proposing states would draft the amendments and agree to them in advance of the convention, as opposed to the convention drafting them as under the U.S. system.

* “ . . . and should any of the proposed amendments to the Constitution be agreed on by the said convention, voting by States . . . ”

In the CSA charter, the convention of states merely approved or disapproved what the three states had proposed. By contrast, under the U.S. Constitution the convention actually proposed the amendments, and by long-established established practice the proposing convention did the drafting. The CSA charter changed this practice.

* “. . . and the same be ratified by the Legislatures of two-thirds of the several States, or by conventions in two-thirds thereof, as the one or the other mode of ratification may be proposed by the general convention . . . “

This provision contained two changes. First, it allowed the interstate convention, rather than the Confederate Congress, to determine whether ratification would be by state legislatures or state conventions. Secondly, it reduced the ratification margin from three fourths to two thirds. Modern research suggests—and others have learned from practical experience—that as the number of voters increases, the best percentage for a supermajority declines. (An 80% supermajority might produce the best results among a board of five, but a 60% majority might produce the best results among an assembly of 300.)

The drafters of the CSA document hoped that their new confederation soon would have more states than the original U.S. 13—perhaps 15—and that additional states might be added as the CSA expanded to the West and into the Caribbean. In a confederation of, say, 20 states, a two thirds majority might more sense than a three fourths majority. As events unfolded, of course, the CSA never contained more than 11 states.

* “But no State shall, without its consent, be deprived of its equal representation in the Senate.”

This is the same wording as in the U.S. Constitution, minus two provisions that had expired in 1808.

The full text of the CSA Constitution’s Article V is as follows:

Upon the demand of any three States, legally assembled in their several conventions, the Congress shall summon a convention of all the States, to take into consideration such amendments to the Constitution as the said States shall concur in suggesting at the time when the said demand is made; and should any of the proposed amendments to the Constitution be agreed on by the said convention, voting by States, and the same be ratified by the Legislatures of two- thirds of the several States, or by conventions in two-thirds thereof, as the one or the other mode of ratification may be proposed by the general convention, they shall thenceforward form a part of this Constitution. But no State shall, without its consent, be deprived of its equal representation in the Senate.

* Footnote from above: The U.S. Constitution sometimes contains different wording when it prescribes that the state legislature act for the state as such rather than merely for itself. Thus: “Each Stateshall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. . . ” Art. II, Sec. 1, cl. 2.