What the Founders Said   Leave a comment

Article V of the U.S. Constitution states:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or   by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress….Article V Process Flow Chart

There are two ways of proposing amendments:

• Proposal by two-thirds of each house of Congress, and

• Proposal through the state-application-for-convention process.

Under the latter procedure, two thirds of the states (34 of the current 50) file “applications” with Congress. Congress “shall” call a convention for proposing amendments. That convention then may propose one or more amendments.

There also are two ways of ratifying amendments:

(1) approval by three-fourths of the state legislatures, and

(2) approval by three-fourths of state conventions.

Congress selects the ratification method used in each case. Under either ratification method, no proposed amendment becomes part of the Constitution unless approved by 38 of the 50 states.

Although this text seems clear, uncertainties arise unless it is read against a Founding-era background. Some of the uncertainties pertaining to the state-application-for-convention are as follows:

• Would a convention for proposing amendments be (or could it become) a “constitutional convention” with unlimited power to change (or even rewrite) the Constitution?

• Can states applying for a convention for proposing amendments limit the subject matter the convention may consider?

• If there are sufficient applications, must Congress call such a convention?

• How should Congress count the applications to meet the two-thirds threshold – that is, are all applications aggregated, or are they separated by subject matter?

• Can Congress determine the rules and composition of the convention?

• Is Congress obliged to send a convention’s proposals to the states for ratification?

Founding-era documents suggest that the two procedures for proposing amendments were designed to be equally usable, valid, and effective. Congress received power to initiate amendments because the Framers believed that Congress’ position would enable it readily to see defects in the system. If Congress refused to adopt a needed amendment, however – particularly one to curb its own power – the states could initiate it.  As one Anti-Federalist writer predicted, “We shall never find two thirds of a Congress voting or proposing anything which shall derogate from their own authority and importance.”

In the New York legislature, Samuel Jones explained the plan this way:

The reason why there are two modes of obtaining amendments prescribed by the constitution I suppose to be this – it could not be known to the framers of the constitution, whether there was too much power given by it or too little; they therefore prescribed a mode by which Congress might procure more, if in the operation of the government it was found necessary; and they prescribed for the states a mode of restraining the powers of the government, if upon trial it should be found they had given too much.

 Wow, don’t we live in that second reason!

 The Federalist essayist Tench Coxe, then serving in the Confederation Congress, described the role of the state-application-for-convention procedure:

It has been asserted, that the new constitution, when ratified, would be fixed and permanent, and that no alterations or amendments, should those proposed appear on consideration ever so salutary, could afterwards be obtained. A candid consideration of the constitution will shew [sic] this to be a groundless remark. It is provided, in the clearest words, that Congress shall be obliged to call a convention on the application of two thirds of the legislatures; and all amendments proposed by such convention, are to be valid when approved by the conventions or legislatures of three fourths of the states. It must therefore be evident to every candid man, that two thirds of the states can  always procure a general convention for the purpose of amending the constitution, and that three fourths of them can introduce those amendments into the constitution, although the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them. Congress therefore cannot hold any power, which three fourths of the states shall not approve, on experience.

James Madison stated it more mildly in Federalist No. 43:

The Constitution “equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”

Thus, the state-application-for-convention process was inserted for specific reasons, and it was designed to be used. We may have personal doubts on whether the process is a good idea in the 21st century, but the Founders thought it was good idea regardless of circumstance.

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