An Amendments Convention is a “Convention of the States”—the Evidence Continues to Pile Up

During the 20th century, opponents of the Article V convention procedure began to apply the erroneous term “constitutional convention” to Article V’s “Convention for proposing Amendments.” They further claimed that the composition and protocols of such a convention were unknown—or, in the phrase of one law professor, “shrouded in legal mystery of the most fundamental sort.”

These claims were historical and legal nonsense, but during the 1970s they became widely accepted by law professors and other academics. To set the record straight, in 2020 I wrote an article published in Marquette Law Review showing why the claims of “mystery” are historical and legal nonsense.

The Marquette Law Review Article

The article reproduced language from numerous Founding-Era, 19th century, and early 20th century documents—both official and unofficial—clearly identifying a convention for proposing amendments as a “convention of the states” or “convention of states.” The article also quoted the first Article V state application ever issued. The Virginia legislature adopted it in 1788, even before some states had ratified the Constitution. It specifically called an amendments convention a “convention of the states.”

The article further included excerpts from legislative proceedings in New York, North Carolina, Pennsylvania, and Rhode Island—all of which referred to an amendments convention as a “convention of the states.”

The article pointed out that over 30 conventions of states (or, before Independence, colonies) already been held by the time the Constitution was ratified. Because all followed the same general selection procedures and general protocols, there certainly was no mystery among the Founders about the general composition and protocols of an amendments convention. Indeed, several of the Constitution’s drafters had attended previous gatherings of that sort.

Of course, some people tend to discount what the Founders said, and look instead to subsequent constitutional practice. Accordingly, my article went beyond the Founding era. It identified numerous 19th century and 20th century documents—again, both official and unofficial—calling an amendments convention a “convention of the states” or “convention of states.” Among them were two 19th century court decisions: One by the Supreme Court of Tennessee and the other by the Supreme Court of the United States.

Finally, the article noted that since the Constitution was ratified, there have been nearly a dozen additional conventions of states—again, following the same general procedures.

More Evidence Surfaces

As if this were not enough, on May 23, 2024, I supplemented the article with a blog post containing later-discovered Founding-Era evidence. This new material came from the official records of the State of North Carolina. It included a letter from that state’s governor dated August 15, 1788; proceedings in the state senate journal of November 15, 1788; and proceedings in the November 21, 1788 journal of the state house of commons. All referred to an amendments convention as a “convention of the states.”

Now There’s So Much More!

In recent years, the editors of the Documentary History of the Ratification of the Constitution have been issuing new volumes—so far three new volumes (37 – 39)—on the history of the Bill of Rights. Those volumes contain many additional documents showing how the founding generation used the phrases “convention of the states,” “general convention” and “convention for proposing amendments” as synonyms.

Moreover, these documents show that the term “convention of the states” was persistent and well-considered. It was not applied by accident or on the spur of the moment. Here are the references from Volume 37:

* On October 30, 1788, the Virginia House of Delegates, in the committee of the whole, resolved:

“Resolved, That it is the opinion of this committee, That for quieting the minds of the good citizens of this Commonwealth, and securing their dearest rights and liberties, and preventing those disorders, which must arise under a government not founded in the confidence of the people, application be made to the Congress of the United States, so soon as they shall assemble under the said Constitution, to call a Convention for proposing amendments to the same, according to the mode therein directed.

“Resolved, That it is the opinion of this committee, That a committee ought to be appointed to draw up and report to this House a proper instrument of writing, expressing the sense of the General Assembly, and pointing out the reasons which induce them to urge their application thus early for the calling the aforesaid Convention of the States.” (p. 163).

* The resolution also decided that a circular letter be prepared “expressive of the wish of the General Assembly of this Commonwealth, that they may join in an application to the New Congress, to appoint a Convention of the States.” (p. 164).

* On November 11, 1788, a committee reported on the proposal of “an application to the Congress of the United States to call a Convention of the States.” (p. 167.

* On November 14, “The House, according to the order of the day, resolved itself into a committee of the whole House on an application to Congress to call a Convention of the States, to take into consideration the defects of the constitution, and report the necessary amendments.” (p. 168).

* Approval of the actual resolution for a “convention of the states” then followed (p. 169).

* The Virginia legislature began to prepare a letter to Governor Clinton of New York urging the calling of a “convention of the states.” (pp. 170 & 177).

* On Nov. 20, 1788, the House of Delegates considered certain “amendments of the Senate to the resolutions, containing an application to Congress to call a Convention of the States, to take into consideration the amendments proposed to the constitution of government of the United States.” (p. 174). The formal application was approved the same day (p. 175-76).

* The Pennsylvania legislature responded by declining Virginia’s invitation, referring to the proposed gathering as a “Convention of the states for amending the federal constitution.” (p. 189 & 191).

* But in New York, Governor Clinton approved Virginia’s idea, again referring to an amendments convention as “a General Convention of the States.” (p.202).

* In the ensuing New York legislative proceedings, the proposed assembly was described the same way (p. 209).

* And in ensuing South Carolina legislative proceedings, the proposed assembly also was described as a “convention of the states” (p. 569).

Still More!

Volume 38 of the Documentary History does not contain relevant material, but Volume 39 does. Specifically, it reproduces correspondence among participants in the politics of the day showing that they also understood an amendments convention to be a “convention of the states.” Among them:

* A letter dated June 14, 1788 from Edmund Pendleton (Virginia’s leading judge and president of his state’s ratifying convention) to Richard Henry Lee (p. 62).

* An item from the Massachusetts Centinel newspaper dated Sept. 27, 1788 (two references on p. 196).

* An op-ed signed “Camillus” in the Baltimore Gazette, dated Sept. 30, 1788 (p. 238).

* A letter from Francis Corbin (a Federalist leader in the Virginia ratifying convention) to James Madison, dated Oct. 21, 1788.

* An op-ed by “A Federal Republican” appearing in the New York Journal, Dec. 11, 1788 (p. 410).

* An unsigned “Address Supporting the Election to James Monroe to the U.S. House of Representatives, composed near the end of 1788 (p. 456).

Parting Shots . . . .

Critics of interpreting the Constitution according to its original meaning point out that sometimes there is insufficient evidence of the meaning of a constitutional clause, and sometimes the available evidence conflicts. That can be true—although less often than sometimes claimed. But that certainly is not true of the nature of an amendments convention. On this issue, the evidence is overwhelming, and all of it points in the same direction.

As for those who persist in calling amendments convention a “constitutional convention”—well, the academics who edited the Documentary History sometimes made that mistake. But none of the Founding-era documents they reproduce ever does—not one.