The History Behind The Adoption Of the Convention of States Under Article V of the Constitution

(The Heritage Guide to the Constitution)

T

he Constitutional Convention of 1787, during which the Constitution was drafted, was itself a “Convention of States” and was often referred to as such. Both the Virginia Plan of May 29, 1787, and the draft Constitution reported by the Committee of Detail on August 6, envisioned that federal conventions would prepare and adopt all amendments. On September 10, the Convention agreed that amendments would be proposed by Congress, either on its own initiative or upon the demand of two-thirds of the states, and that these amendments would require ratification by the states.

The Committee of Style included this method for adopting all amendments in its second-to-last draft of the Constitution. This prompted a strong response from George Mason of Virginia, who believed the committee’s plan for amending the Constitution was unacceptable and dangerous. Mason argued that the proposal of amendments would depend on Congress, as no amendments would ever be achieved by the people. Elbridge Gerry of Massachusetts and Gouverneur Morris of Pennsylvania, who served on the Committee, proposed an amendment to the article that would allow the states, upon two-thirds of the states calling for a Convention of the existing states, to convene and propose amendments.

James Madison of Virginia did not see why Congress would not be bound to propose amendments requested by two-thirds of the states through a Convention based on similar applications. In other words, Madison believed that Congress would be obligated to propose the specific amendments brought forth by two-thirds of the state legislatures. Madison saw no objection, however, to providing for a Convention to propose amendments. Still, he acknowledged that issues might arise regarding the form, quorum, and other particulars, which should be avoided as much as possible in the Constitution. Despite Madison’s doubts, the Morris-Gerry motion was approved unanimously, and the call for a convention by two-thirds of the states was added back into the draft Constitution.

The Framers’ inclusion of the “convention of states” mechanism in the Constitution allowed states to participate in the process of proposing amendments. This process was familiar because there had been at least twenty conventions of colonies between 1677 and 1787. There is no doubt that the Founders understood an amendments convention to be a “Convention of the States.” Existing official and unofficial records from the Founding Era clearly establish this.

THE RATIFICATION DEBATES

Advocates of the Constitution assured the ratifying public that if amendments should prove necessary, the state legislatures could obtain them, relying on the Convention Proposal Clause and the understanding that an amendments convention was a “convention of the states.” In Federalist No. 85, Alexander Hamilton stated that “whenever ten states were united in the desire of a particular amendment, that amendment must infallibly take place.”

The Constitution’s advocates also emphasized that if a sufficient number of states applied, Congress would have no choice but to call a convention. “The words of this article are peremptory,” noted Hamilton. “The Congress shall call a convention.’ Nothing in this particular is left to the discretion of that body.”

Another advocate of the Constitution, Tench Coxe, had been Pennsylvania’s delegate to the Annapolis Convention. Coxe’s published writings were more accessible and perhaps more popular than the Federalist Papers. (Tench Coxe, A Friend of Society and Liberty, Pa. Gazette, July 23, 1788). Yet his crucial role in ratification debates is often overlooked.  Coxe repeatedly resorted to the Convention Proposal Clause to calm public concern. He explained that “two-thirds of the states can always procure a general convention for the purpose of amending the constitution.” Moreover, “three-fourths of them can introduce those amendments into the constitution” even when “the President, Senate, and Federal House of Representatives should be unanimously opposed to each and all of them.” Coxe echoed Mason’s argument: The convention procedure was a way to obtain amendments while bypassing any meaningful interference from Congress.

Participants in the ratification debates assumed that most of all amendments conventions would be limited to considering amendments of the kind designated in the state legislative application. In Federalist No. 85, Hamilton wrote that “every amendment to the constitution, if once established, would be a single proposition, and brought forward individually. There is no record of any doubt among the Framers or ratifiers of this fact.

APPLICATIONS BY STATES FOR CONVENTIONS

The Constitution was ratified on June 21, 1788, when New Hampshire became the ninth of the original thirteen states to ratify it. The Virginia legislature issued the first Article V legislative application on November 14, 1788, demanding a “convention of the states” to consider “the defects of this Constitution that have been suggested by the State ratifying Conventions,” and the First Congress would propose what would become the first ten amendments.

The first application campaign that came close to the two-thirds threshold needed to trigger a convention was for the direct election of Senators. When Congress finally proposed the Seventh Amendment in 1912, twenty-nine of the then-necessary thirty-two applications had been submitted.

MECHANICS OF A CONVENTION OF THE STATES

Article V case law clearly and consistently relies on historical practice.  Some Article V cases have arisen under the Convention Proposal Clause, but even these cases have not effectively settled many questions about the clause. Combining judicial and historical precedent produces several conclusions.

 First: When a state legislature applies for a convention, as when any assembly exercises an Article V function, it operates independently of state constitutional and legal standards; an application may be limited to specific subjects. An application may also be plenary – that is, unlimited as to any subject. Applications do not expire with the passage of time, but a legislature may impose a termination date or rescind it.

Second: Congress is not obliged to call the convention until two-thirds of state legislatures have applied on the same general topic. Then Congress must issue the call, specifying the time, place, and subject matter designated by the conforming applications.  Despite Hamilton’s assurance that Congress has no discretion in calling a convention, Congress may have to exercise some threshold discretion on whether the subject matters are generally the same.

Third: Each state legislature designates the number of commissioners in the delegation and the mode of selecting them. It also formally instructs them on how to cast their votes. When the convention meets, it elects its own officers and adopts its own rules. Each state is presumed to receive one vote, although the convention, by a majority of states present and voting, may alter this formula. The convention is limited to the agenda defined by the legislative applications and the congressional call. Such a limit is a uniform practice for the conventions of states.

Sources: The Heritage Guide to the Constitution; and Robert G. Natelson, a nationally known constitutional scholar and author whose research into the history and legal meaning of the Constitution has been cited repeatedly at the U.S. Supreme Court, both by parties and by justices.

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