Most state legislatures have filed applications with Congress demanding a national convention for proposing constitutional amendments. Americans are asking just what kind of convention the Constitution requires.Nearly all experts believe an amendments convention is a “convention of the states”—the traditional term for a meeting in which representatives of state legislatures deliberate on the basis of sovereign equality. The rule at a convention of the states is that each state has an equal voice.
This would be a familiar procedure: There have been about 40 conventions of states in American history—although this one would be the first called to propose constitutional amendments under the authority of the Constitution itself.
Other commentators—predominately, but not exclusively, convention opponents—argue an amendments convention should consist of popularly elected delegates, perhaps allocated by population.
The Constitution itself merely refers to the assembly as a “Convention for proposing Amendments.” So we must look at history to understand how the Founders understood the term.
During the century before the Constitution was drafted, conventions among North American colonies, and later among states, met on average every three or four years. After Independence in 1776, the pace quickened: The Constitutional Convention of 1787 was the 11th interstate gathering in 11 years. All were assemblies of state delegations, operating as ambassadors from their respective states.
The delegates were officially called “commissioners” and the meetings dubbed either “conventions of the states” or by some well-recognized synonym.
The fact that the founders knew only of the “convention of the states” model of interstate meeting suggests strongly they intended an amendments convention to work the same way. The new study shows how the “convention of states” approach fits within the Constitution they drafted and approved.
Additionally, the study collects numerous documents in which Founders specifically labeled an amendments convention a “convention of the states.” All these documents originated when Americans still were debating the new Constitution. Remarkably, everyone seems to have shared the view that an amendments convention would be a “convention of the states,” irrespective of whether he favored the Constitution.
For example, in New York legislative debates, two lawmakers referred to an amendments convention as a “convention of the states.” One was John Lansing Jr., who had served as a framer in Philadelphia. Similarly, in South Carolina, another framer, Charles Cotesworth Pinkney, referred to the amendments convention in much the same way.
Newspaper articles used the same term. Leading founders such as George Washington, James Madison, and Alexander Hamilton made comments that reveal their assumption that an amendments convention is a convention of the states.
Perhaps most persuasive of all are the references to “convention of the states” in state legislative resolutions and other government documents. During 1788 and 1789, several state legislatures debated whether to formally apply to Congress for a convention, primarily to obtain a bill of rights. The very first application, passed by the Virginia legislature, used the term “convention of the states,” and the second (New York’s) used a common synonym.
The study observes: “Within a few months amid the ratification debates, five states in different regions of the country—three in favor, one against, and one neutral—issued seven official documents identifying an amendments convention as a convention of the states.”
For a such a gathering, the state legislatures decide how many commissioners to send to the convention and how they are chosen. Previous experience suggests state legislatures will select most commissioners. That ensures the commissioners are experienced in public policy and official drafting.
When the convention is called to order, each delegation will have an equal voice. Although the assembly theoretically could change that rule, no convention of states ever has.
If delegations from all 50 states attend, then 26 will be able to propose an amendment. Their proposal will, however, be merely a proposal. To become part of the Constitution, three-fourths of the states (38) must approve, thereby assuring the amendment has strong popular support.
Among the best tools for interpreting the Constitution are public explanations by its advocates made during the ratification fight. These explanations helped shape how the public understood the Constitution. They reassured the public about what the Constitution did NOT mean.
Those statements were at the heart of the ratification deal.
One reason the Federalist Papers are so useful because they were exactly this sort of literature. But they are tough going for many readers, both now and then. That helps explain why the more readable essays of Tench Coxe likely had as much influence with the common people as The Federalist.
So when Coxe explains what the Constitution means, we must attend respectfully.
Here is Tench Coxe writing about the Article V amendment process. This passage comes from an op-ed in the Pennsylvania Gazette of June 11, 1788:
The sovereign power of altering and amending the constitution . . . does not lie with this foederal legislature, whom some have erroneously apprehended to be supreme—That power, which is truly and evidently the real point of sovereignty, is vested in the several legislatures and [ratifying] conventions of the states, chosen by the people respectively within them. The foederal government cannot alter the constitution, but the representative bodies of the states, that is, their legislatures and conventions, only can execute these acts of sovereign power.
From the foregoing circumstances results another reflection equally satisfactory and important, which is, that as the foederal legislature . . . cannot prevent such wholesome alterations and amendments as are now desired, or which experience may hereafter suggest. . . . 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 amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.
This statement is a very fat one, but here’s its skeleton:
1. Some people are claiming that under the Constitution, Congress will hold supreme power.
2. But real supremacy belongs to those who can amend the Constitution.
3. The Constitution puts that power in the hands of the state legislatures and state ratifying conventions—the “representative bodies of the states.”
4. Congress cannot alter the Constitution.
5. And Congress cannot block amendments it doesn’t like—by, for example, refusing to call an amendments convention that two thirds of the state legislatures want.
Let’s look at some of the wider implications:
* Congress can’t pass amendments alone. This argues against claims that Congress can gerrymander the membership of a “convention for proposing amendments,” change deadlines in midstream, or otherwise dominate the amendment process.
* By contrast, state legislatures and state conventions can amend the Constitution any time they want, and Congress can’t block them. This necessarily means that only state legislatures control the convention for proposing amendments. It means they can limit the scope of their applications, of the call, and of the convention. And it means they can choose and instruct their commissioners as they wish.
* This power to amend is in the “representative bodies of the states.” When a state legislature or state convention operates under Article V, it acts as a direct representative of the people, not as an arm of state government. Thus, Coxe’s article tends to support modern case law and undercut claims that state governments can direct or change the amendment process through laws and compacts.
Interposition was James Madison’s term for one of the checks and balances in our Constitution. The Constitution contemplates a range of methods, from public relations campaigns to an Article V amendments convention.
Just as the legislative, judicial, and executive branches of the federal government have the privilege and obligation of checking each other, so do the states and federal government.
A recent paper published by the Heartland Institute explains interposition and the ways the states can pursue it. I’ve had a lot of requests for copies.
Article V of the Constitution states that “The Congress . . . on Applications of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments.”
As I pointed out in my book, The Original Constitution: What It Actually Said and Meant, 18th century writers were imbued heavily with Latin language usage, and the English of the time often revealed a Latinate flavor.
The dominant meaning of the Latin verb “applicare” pertained to one thing touching or connecting to another. The word was used, for example, of a ship touching harbor.
A very similar meaning prevailed in 18th century English usage, as revealed by a survey of twelve 18th-century dictionaries. “Apply” and “application” referred to the joining of one thing with another, either literally or (in speech) metaphorically. Thus, when one applied to another, one addressed the other. Today the word sometimes implies a supplication, but when the Constitution was adopted, that was not the principal sense. An “application” could come from an equal, a superior, or a petitioner.
In fact, the language of Article V rules out the possibility that when the states apply to Congress they do so as mere petitioners or suppliants. This is because the applications of two thirds of the states are binding on Congress. If Congress receives the requisite number of applications, it is required to call.
A call was a particular kind of application. Specifically, it was either an invitation (implying that attendance was voluntary) or a summons (implying that attendance was mandatory). The words in the Constitution do not provide explicitly whether a congressional call requires state legislatures to send commissioners to a “Convention for proposing Amendments.” But the courts, quite properly, tell us that Article V is to be read in the context of historical usages, and the prevailing 18-century custom was that state participation in a multi-state convention was voluntary. This conclusion is consistent with the basic idea of a “convention of states” as a gathering of sovereigns or semi-sovereigns.
In view the foregoing, the following facts about 1780s convention practice are not surprising:
* A recommendation by an interstate convention to the states that authorized it sometimes was called an application. Because an application was merely an address from one person or entity to another, a recommendation was indeed a form of application.
* A request to the Confederation Congress to call a convention was sometimes referred to as an application.
* The convention call itself was sometimes referred to as an application.
Article V did not spell out convention details because the procedures were so well known that doing so was unnecessary. But in a few cases, there were ambiguities in usage, so Article V clarified them. One example was that Article V clarified how the terms “application” and “call” were to be used in amendment practice.
One last point: Some activists argue that the state’s right to apply for a convention is a state power retained by the Tenth Amendment because the right of a state to apply predated the Constitution. The courts disagree, so as a practical matter this claim is pretty much academic. The courts have decided that all legislative and convention authority exercised under Article V comes from the Constitution, and not from powers reserved by the Tenth Amendment.
The Impending Convention for Proposing Amendments — Part VI
Note: This is the last in a series of six articles that originally appeared in the Washington Post’s “Volokh Conspiracy,” a leading constitutional law website. Parts I – V appear below this post.
How the Procedures for a Modern Amendments Convention May Unfold
Parts I to V of this series discussed the background and nature of the Constitution’s “Convention for proposing Amendments.” This final installment surveys the most likely scenarios for calling a convention, and possible developments if 34 states apply on any one subject or an overlapping group of subjects.
The subject matter for amendments submitted to a convention will depend on which of several application drives induces Congress to issue the first call. The possibilities are complicated by the fact that some applications are vulnerable legally. For example, convention opponents have argued that applications that are “too old” are invalid or “stale” on that account. This argument was significantly weakened by adoption of the 27th amendment, in which unrepealed ratifications two centuries old were accepted as valid.
More serious is the fact that many extant applications purport to limit the convention to considering only an amendment with prescribed wording. That may render them inherently invalid or inaggregable with more general applications.
The number of unrepealed applications is in the hundreds, although no one subject has attained the threshold of 34. Some are from now-abandoned campaigns, such as those for banning polygamy and repealing the 16th amendment (which dropped the apportionment requirement for the income tax). The application totals are at the website of the Article V Library.
Among the currently active campaigns, the frontrunner is the Balanced Budget Amendment Task Force, which claims applications from 27 states. In 2014, Citzens for Self-Governance began its “Convention of States” project. Relying on grassroots enthusiasm, it has won the endorsement of four state legislatures. All four applications closely track the form recommended by “Convention of States” activists: They would empower the convention to consider fiscal restraints on the federal government, term limits and reductions in federal power.
Also enjoying the endorsement of four states is the Wolf PAC movement, which seeks campaign finance reform. Realistically, Wolf PAC is unlikely to reach the threshold of 34. This is partly because of the conservative political composition of most state legislatures and partly because not all of its applications are fully consistent. In addition, while the general idea of campaign finance reform enjoys strong public support, most specific proposals involve granting more power to Congress. This is a tough sell at a time when the electorate is deeply dissatisfied with Congress.
Other Article V campaigns include those aiming to impose a single subject rule on Congress, a revived push for congressional term limits and the Act 2 Movement, which promotes term limits, fiscal restraints, campaign finance reform and creation of a fourth branch of government to enforce the law against the other three.
Once a campaign claims to have reached the 34-state minimum, Congress will have to determine whether the applications truly “aggregate” with each other. If the campaign is for a balanced-budget amendment, Congress may have to exercise some discretion. Although most balanced-budget applications simply demand a convention to consider the subject, three purport to limit the convention to prescribed language. Congress may have to determine whether to aggregate the two sets. Congressional discretion also may be necessary to decide whether applications that demand an unlimited convention should be included in the total.
How Congress reacts will, of course, be influenced by the then-current political environment. I have stressed to state legislators the need to communicate forcefully both to Congress and the general public the conditions under which Congress must call and the proper limits of a call. State legislative planners have responded well to this advice.
Interstate conventions held earlier in our history included commissioners who had attended prior interstate conventions. Because that sort of experience is lacking today, state legislative planning groups have sprung up to prepare: the State Legislators Article V Caucus, the Assembly of State Legislatures and the Convention of States Caucus. In addition, two trade organizations of state lawmakers, the National Conference of State Legislatures and the American Legislative Exchange Council, have presented programs on convention issues.
Necessarily, there have been some mistakes. Recently the executive committee of the Assembly of State Legislatures recommended to the general membership an impractical system of convention rules mandating super-majorities and weighted voting, and even co-presidents and co-committee chairs from opposite parties. The general membership’s firm rejection of those rules suggests that wisdom is likely to prevail over the long term, and that when a convention does meet it will have the benefit of a viable procedural template.
Earlier this year, I undertook a study of prior convention rules to ascertain their modern applicability. Here are some of my conclusions:
* Most of the rules applied at 18th and 19th century conventions are still viable. In fact, some these rules are echoed in modern legislative practice.
* Any set of convention rules must be supplemented by default rules. For this purpose, I recommended “Mason’s Manual,” by far the most commonly used rule book in American state legislatures. Both the Assembly of State Legislatures and the Convention of States project have adopted this recommendation.
* The principles of one state/one vote and decision-by-simple-majority sometimes have been challenged, but ultimately every convention has retained or returned to them for most purposes.
* Although in theory a bare majority of low-population states could cause the
convention to propose an unpopular amendment, modern political conditions render this highly improbable.
* Ratification is quite a different process from proposal. A proposal’s margin of victory at the convention is probably not a strong predictor of whether or not it is ratified.
* Some traditional rules will have to be modified. For example, rules barring
commissioners from access to written materials will yield to the world of electronic hand-held devices. Traditional rules of secrecy will yield to modern values of transparency.
* In prior conventions, the distances between the state capital and the convention site required most legislatures to rely heavily on their commissioners’ discretion once those commissioners had received their initial instructions. Modern communications will enable commissioning authorities to exercise more influence on their representatives. On balance, this is probably a good development, since it reduces the chance of commissioners exceeding their authority, and it involves a wider group in the negotiating process.
* A modern 50-state convention probably will consist of between 200 and 250
commissioners. Some states may appoint alternates as well. Each state legislature is free to fix the size of its own “committee,” but at my suggestion most planners are contemplating convention rules that limit the number of commissioners on the floor from any state at any one time. This will reduce the incentives for states to flood the assembly, as Tennessee did at the 1850 Nashville convention.
* Some states may boycott, as Rhode Island boycotted the Constitutional Convention. Over the three-plus centuries of American multi-government conventions, none has ever attained 100 percent participation.
Whether or not a modern convention actually proposes an amendment, and whether any such amendment is ratified, the event will provoke new public interest in our constitutional system. It may also revivify awareness of the role of the states in American federalism.