The Nature of an Amendments Convention: How We Know It Is a “Convention of the States”

During the 20th century, many Americans suggested that constitutional amendments might address several festering problems. They also suggested triggering the convention procedure to propose such amendments.

Opponents of amendments wrote a series of articles arguing against the idea. Among their key points was the allegation that the nature of an amendments convention is unknown and/or that Congress, rather than the states, could control the procedure.

Previous to this time, it always had been understood that an amendments convention is a “convention of the states”—a well-worn, much used procedure with roots in America’s colonial era. Yet opponents enjoyed good access to the legacy media, resulting in widespread public confusion.

There is no need for such confusion, because the nature of an amendments convention is crystal clear: A Supreme Court decision, two lower court decisions. and a mass of official and unofficial documents from the Founding era through the early 20th century define an amendments convention as a convention of states. A 2020 article in Marquette Law Review by Professor Natelson collected and documented this evidence in detail. (See this pdf.)

Since the publication of this article, additional evidence has appeared in the new “Bill of Rights” volume of The Documentary History of the Ratification of the United States Constitution. The additional evidence is comprised of founding-era records from the Virginia and New York State legislatures. They show that—

* On November 11, 1788, a Virginia House of Delegates committee preparing Virginia’s application for a convention issued a report referring to an amendments convention as a “convention of the states” (p.167 of the Bill of Rights volume).

* On November 14, 1788, the House passed the application, again using that term (p. 169).

* On the same date, the House considered a draft letter to Governor George Clinton of New York, again using the same phrase. The House also considered a draft letter to the other states using the synonym, “Convention of deputies from the several States” (p.170).

* The final letter to Governor Clinton sent on November 20 also used the phrase “Convention of the States” (p.177) (also included in the Marquette Law Review article).

* A December 11, 1788 speech by Governor Clinton to the New York General Assembly referred to an amendments convention as a “General Convention of the States.” (“General” meant that all states or all states from all regions would be invited; it was not to be a regional or “partial” convention) (p. 202).

* In New York Senate proceedings on December 24, 1788, a committee headed by Senator Abraham Yates presented its formal response to the governor’s speech. The report stated, in part, “We are sensible that a revision of the system, by a Convention of the States will be necessary . . . .” (p. 209).


One last point: Modern opponents persist in referring to a convention for proposing amendments as a “constitutional convention.” We have found no—repeat no—cases of anyone in the founding generation using that term to refer to an amendments convention—nor, for that matter in the 19th century either. The misnomer “constitutional convention” apparently did not arise until the 20th century.