Who Sets the Agenda for Article V Convention   Leave a comment

Article V provides that Congress shall call a convention for proposing amendments “on the Application of the Legislatures of two thirds of the several States.”

Those opposing an Article V convention insist, with almost no proof, that the states have no control over the subject matter of a convention once they apply for it. Founding-era records deny that claim.

As my previous post showed, Founding era conventions were mostly limited in subject matter; delegating entities held the universally recognized prerogative of restricting their delegates’ authority. The amendments conventions under the existing constitutions of Vermont, Pennsylvania, and Georgia were explicitly limited, while Massachusetts was implicitly limited, and the Georgia procedure seems to have been the basis for the Article V process.

The evidence suggests strongly that a convention for proposing amendments would not have been treated as different.

The state application-for-convention procedure was to serve as an effective congressional bypass. Without the power to specify the kinds of amendments they wanted, the states could apply for a convention only if they wished to open the entire Constitution for reconsideration, which would undercut the value of the procedure and impair its principal purpose.

Comments from Federalists promoting the Constitution during the ratification debates emphasized the essential equality of Congress and the states in proposing amendments. In Federalist No. 43, Madison wrote that the Constitution “equally enables the general and the State governments to originate the amendment of errors.” As far as amendments were concerned, Congress and the states were on equal ground. Congress may propose directly, while the states must operate through a convention; if Congress may specify a subject when it proposes amendments, the states may too.

The ratification-era records reveal a prevailing understanding that states could and usually wood specify particular subject matter at the beginning of the process. Madison wondered at the Philadelphia convention why, if states applied for one or more amendments, a convention was even necessary. He felt the application was sufficient to require Congress to send that amendment to the states for ratification. Similarly, in Federalist No. 85, Hamilton wrote that:

every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly…. And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.

Hamilton’s reference to nine states represented the two-thirds then necessary to force a convention, and his reference to ten states represented the three-quarters necessary to ratify the convention’s proposals. Later in the same paper, he referred to “two thirds or three fourths of the State legislatures” uniting in particular amendments.

George Washington understood that applying states would specify the convention subject matter. In April 1788, he wrote “a constitutional door is open for such amendments as shall be thought necessary by nine States.”  When explaining that Congress could not block the state-application-for-convention procedure, Tench Coxe wrote:

If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such proposed amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.

Coxe understood that states would make application explicitly to promote particular amendments. Madison, Hamilton, Washington, and Coxe were all Federalists, but on this issue their opponents agreed. An Anti-Federalist writer, “An Old Whig,” argued that amendments were unlikely:

[T]he legislatures of two thirds of the states, must agree in desiring a convention to be called. This will probably never happen; but if it should happen, then the convention may agree to the amendments or not as they think right; and after all, three fourths of the states must ratify the amendments….” (“The amendments” here presumably means the amendments proposed in advance of the convention.) Another Anti-Federalist, Abraham Yates, Jr., wrote, “We can’t get the Amendments unless 2/3 of the States first Agree to a Convention And as Many to Agree to the Amendments – And then 3/4 of the Several Legislatures to Confirm them.”

Delegates to the state ratifying convention also believed that the states, more often than not, would determine the subject matter to be considered in the convention. In Rhode Island, convention delegate Col. William Barton celebrated Article V by saying that it “ought to be written in Letters of Gold” because there was a “Fair Opportunity furnished” of “Amendments provided by the states.”  In Virginia, Anti-Federalists argued that before the Constitution was ratified, a new plenary constitutional convention should be called to rewrite the document and add a bill of rights. A Federalist leader, George Nicholas, rejoined that it made more sense to ratify first and then employ Article V’s state-application-for-convention route:

On the application of the legislatures of two thirds of the several states, a convention is to be called to propose amendments, which shall be a part of the Constitution when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof. It is natural to conclude that those states who will apply for calling the convention will concur in the ratification of the proposed amendments.

Of course, such a conclusion would be “natural” only if the convention was expected to stick to the agenda of the states that “apply for calling the convention.” That was Nicholas’ understanding:

There are strong and cogent reasons operating on my mind, that the amendments, which shall be agreed to by those states, will be sooner ratified by the rest than any other that can be proposed. The [ratifying] conventions which shall be so called will have their deliberations confined to a few points; no local interest to divert their attention; nothing but the necessary alterations. They will have many advantages over the last [plenary] Convention. No experiments to devise; the general and fundamental regulations being already laid down.

There seems to have been little dissent to the understanding that the applying states would fix the agenda. The belief was so widespread that it sometimes led to the assumption that the states, rather than the convention, would do the proposing.

That the Framers and Ratifiers thought this way is demonstrated by the procedure they followed in adopting the Bill of Rights – a procedure very close to the one initially proposed by Edmund Randolph at the federal convention. As a first step, seven states (although through their ratifying conventions rather than their legislatures) adopted sample amendments for consideration by a later proposing body. Samuel Adams urged this step to the Massachusetts ratifying convention, saying the states should “particularize the amendments necessary to be proposed.” Second, an Article V convention – or Congress, because it acted quickly enough – would choose among the state suggestions, draft the actual amendments, and send them to the states for ratification or rejection. Third, the states would either ratify or reject.

This historical evidence pretty well disproves the view of a few writers that state applications referring to subject matter are void. It also disables those arguing that amendments conventions cannot be limited from carrying the burden of proving that those conventions were to be governed by rules different from those applied to other conventions. Evidence strongly suggests that the states legally could limit the scope of a convention for proposing amendments, and that the Founders expected this to happen more often than not.

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