Yet more evidence comes to light that an amendments convention is a “convention of the states”

by Rob Natelson

A great deal of evidence already has been published showing that a convention for proposing amendments is a convention of the states. In other words, it is a gathering of state delegations, representing their state legislatures in conditions of sovereign equality.

But now still more evidence has come to light.

The Background

Since the 1960s, commentators opposed to an amendments convention have been claiming that its nature is a “mystery.” Some even claim Congress can direct the amendments convention process—even though the Constitution’s framers adopted the process precisely as a way to amend the Constitution over the objections of Congress.

In 2020, I published an article with Marquette Law Review (pdf) that collected a large number of documents and court decisions, both from the Founding era and after. They showed indisputably that an amendments convention is a “convention of the states”—a frequently-employed kind of gathering with precedents going back to 1677.

The Founding era information collected in my article included (1) official state convention resolutions, (2) official state legislative resolutions, (3) transcripts of ratifying convention and state legislative debates, (3) various publications, and (4) the first Article V state application ever issued—by Virginia in 1788. All referred to a convention for proposing amendments as a “convention of states” or, occasionally, as a “convention of deputies from the several states.”

Enter the Documentary History

Since 1976, a group of scholars sponsored by the Wisconsin Historical Society has been compiling a multi-volume set called The Documentary History of the Ratification of the United States Constitution. Its 40+ volumes have been issued over many years. Recently, the last volume pertaining to the Constitution’s ratification was published, and all volumes were placed on the internet.

At some point the editors of the Documentary History decided to expand their project to include the adoption of the Bill of Rights. The first Bill of Rights volume was issued in 2020, but I was not able to obtain a copy until 2022. It contains 1788 state legislative records I had been unable to access. It contains even more instances in an amendments convention is called a “convention of states.”

Virginia Legislative Records

The Virginia state legislative records show that term being used repeatedly even before the Virginia Article V application was adopted. (For those who wish to find the documents themselves, I’m including the page number of the Documentary History’s first Bill of Rights volume):

* On November 11, 1788, a House of Delegates committee preparing the application issued a report referring the an amendments convention as a “convention of the states” (p.167).

* 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). (I did include this letter in my Marquette Law Review article.)

New York Legislative Records

My Marquette article itemized New York legislative records that referred to an amendments convention as either a “convention of the states” or a “convention of deputies from the several States.” However, the new volume of the Documentary History contains even more:

* 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 of amendments convention persist in calling it a “constitutional convention.” I 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” to refer to an amendments convention apparently did not arise until the 20th century.