Newly published founding-era documents confirm that an amendments convention is a traditional “convention of the states”

The editors of the Documentary History of the Ratification of the Constitution recently released two volumes of documents covering the Constitution’s ratification in North Carolina—the last state covered in the Documentary History’s series. At the Independence Institute’s Constitutional Studies page, I posted earlier summaries of new findings from volumes covering South CarolinaNew Hampshire, and Vermont.

The North Carolina volumes are numbers 30 and 31 of the set. [In the citation style below, the form “30 DH 388” means “Volume 30 of the Documentary History, page 388.”]

By far their most important lesson is that they firmly debunk claims by some commentators that the composition of an amendments convention is unknown, unknowable, and/or must be determined by Congress. Instead, the North Carolina documents confirm what other states’ records tell us: An amendments convention is a “convention of the states.” This means it is composed of state delegations of equal voting power in the 300-year tradition of other conventions of the states and conventions of colonies.

But first some background:

North Carolina’s ratification was unlike that of any other state. One reason is that it occurred very late in the process—North Carolina was the second-to-last of the original 13 states to ratify. Additionally, North Carolina had two ratifying conventions rather than just one. The initial convention was held at Hillsborough during July – Aug. 1788. It refused to ratify the Constitution, concluding that the document should be amended first to include a bill of rights and various structural changes. The subsequent convention was in Fayetteville in November, 1789. By that time,  Congress had proposed the Bill of Rights, and that fact helped induce the delegates to ratify the Constitution by a substantial margin. However, they also recommended several further amendments.

In the ratification records of other states, references to a “second federal convention” may mean either (1) a new constitutional convention—authorized, like the first, under the states’ reserved powers or (2) a convention for proposing amendments under Article V of the Constitution. But because North Carolina’s conventions occurred after nearly all the other states had ratified, when North Carolinians spoke of a second convention, they almost invariably meant an Article V “convention for proposing amendments.”

These new volumes tell us what North Carolinians understood about the “convention for proposing amendments.” First, it was designed to dispense with congressional approval of amendments, 30 DH 388-89, 390. Second, it is a state-driven process. 30 DH 23 (“nine states may at any time make alterations [in the Constitution].” The number “nine” is a reference to two-thirds of 13—i.e., the applying states, who control the proposing convention’s agenda). See also DH 389 & 426, 508.

Third, North Carolinians repeatedly—both in official and unofficial statements—labelled an Article V convention a “convention of the states.” 30 DH 433 & 453; 31 DH 545-56 (twice), 616, 705, 711, 712. (The Constitutional Convention was characterized the same way. 31 DH 616.) “Convention of the states” was used interchangeably with “federal convention,” 31 DH 720, “general convention,” 30 DH 389, and “convention of the United States.” 31 DH 708.

This is important for modern purposes because a convention of the states follows a known representational formula. It is a gathering of state delegations in conditions of sovereign equality. It is different from a “convention of the people,” which is used for in-state purposes. 30 DH 44, 69.

The North Carolina characterization of an Article V convention as a “convention of the states” confirms similar characterizations in official records in Pennsylvania, Rhode Island, New York, and Virginia. The U.S. Supreme Court confirmed it in Smith v. Union Bank, in 1831 and the Tennessee Supreme Court did so in 1835. And nothing I have ever seen in any part of the founding-era record suggests that an Article V convention is anything else.