Newly-Published Ratification Documents Confirm Our Conclusions on the Amendment Process

The Wisconsin Historical Society publishes successive volumes of the Documentary History of the Constitution of the United States. As its name indicates, the Documentary History is a multi-volume set of books containing documents from the debates over the Constitution’s ratification.

The Wisconsin Historical Society published fairly recently two volumes from the debates in Maryland. There are no great surprises. In fact, the material in those volumes largely confirms conclusions about the amendment process previously published here. For example:

* Once two thirds of the states apply for a convention, Congress has no choice but to call it. In the new Maryland volumes, this is confirmed in a November 2, 1787 article published by an essayist under the pseudonym “Aratus.” (Vol. 11, at p. 43). The writer also notes that the convention process can be used to bypass Congress if it has grown too fond of its own power.

* Another essayist, “An Old Man” points out that a “framing convention” (such as the convention for proposing amendments) must have a certain degree of discretion with respect to its duties. (Vol. 11, p. 60). This supports the view, also taken by modern case law, that each assembly acting under Article V has its own prerogatives, and that other assemblies may not interfere by presuming to dictate specific conclusions.

* On the other hand, several writers confirm that the states generally control the amendment convention process. (See, e.g., Vol. 12, pp. 538, 640). In other words, it is not subject to control by Congress. By “control” I mean the state legislatures select the topic and commissioners; they can’t dictate the convention’s decisions in advance. (See the foregoing point.)

* In an address to the Maryland House of Delegates, James McHenry, who had served as a commissioner to the Constitutional Convention, stated (Vol. 11, p. 80) “It must be within the knowledge of this House Mr. Speaker that the plan of a Convention originated in Virginia.” In other words, Virginia called the Philadelphia meeting. As I have reported before, the common story that Congress called the meeting is untrue. But to give credit: New Jersey had a role as well—issuing its call the same day Virginia did, and months before Congress tried to limit the convention’s scope.

Several other disputants responded to the false change that the Philadelphia conclave had exceeded its authority (e.g., Charles Carroll, Vol. 12, p. 872).

* Alexander Contee Hanson, a respected judge and leading federalist, wrote that if a convention does wish to make a recommendation outside its authority, it should adjourn first. The idea is to acknowledge that a proposal outside authority has no legal force. Vol. 12, p. 676.