Convention to propose amendments to the United States Constitution

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Article Five of the United States Constitution provides for two methods to propose amendments to the Federal Constitution. The first is a vote by two-thirds of each house of Congress. The second method is a Convention to propose amendments to the United States Constitution, or simply an "Article V convention." According to Article V, an amendment-proposing convention must be called, “on the application to the Legislatures of two thirds of the several States.” Once an Article V convention has proposed (an) amendment(s), that/those amendment(s) must be ratified by three-fourths of the states in order for the amendment(s) to become part of the Constitution. Once proposed, Congress has the power to choose between two methods of ratification of the amendment(s): either by the state legislatures or via ratification conventions within the states called for that purpose.

Contents 1 History 2 Possible Scope 3 Subject Matter of Applications 4 Recissions of Applications 5 Supreme Court Interpretations of Article V 6 References

[edit] History

To guard against oppressive government of any kind, the authors of the United States Constitution sought to establish institutional checks and balances. In framing the Constitution as the fundamental embodiment of such safeguards, the Constitutional Convention assembled in Philadelphia in 1787.^[1] One of the main reasons for the 1787 Convention was that the Articles of Confederation required the unanimous consent of all 13 states for the national government to take action. This system had proved unworkable, and the newly-written Constitution sought to address this problem.

The first proposal for a method of amending the Constitution offered in the Constitutional Convention, contained in the Virginia Plan, sought to circumvent the national legislature, stating that "the assent of the National Legislature ought not to be required." ^[2] In response, Alexander Hamilton privately circulated a proposal that gave the power to propose amendments to the national legislature, and the power to ratify the amendments to the states.^[3] The first reference in the Convention records to an amendment-proposing convention applied for by the states to amend the Constitution comes from drafts of the Constitution kept by the Committee of Detail.^[4] After some debate, James Madison removed reference to the convention amendment-proposing process, giving the national legislature sole authority to propose amendments whenever it thought necessary or when two-thirds of the states applied to the national legislature.^[5] As the Convention reviewed the revision the Committee of Style had made, several delegates voiced opposition to the idea of the national legislature retaining sole power to propose constitutional amendments.^[6] George Mason argued from the floor of the Convention that it "would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account." Mason added that, "no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive."^[7] In response to these concerns, the Convention unanimously voted to add the language allowing states to apply to Congress for a convention to propose amendments to the Constitution.^[8] James Madison did not oppose reintroducing language permitting the convention amendment-proposing process, but in what proved to be prescient concerns about the lack of detail in Article V about how the convention amendment-proposing process would work, stated that "difficulties might arise as to the form" a convention would take. ^[9]

The text of Article V referring to the convention amendment-proposing process reads: "The Congress, . . . on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing Amendments...." Of the 50 states, 49 of them have, at one time or another, made application for an Article V convention. The only state never to have done so is Hawaii. The majority of such applications were made in the 20th century. While there is no official count of the number of applications, one private count puts the total number of applications at 567.^[10] Even though the Article V convention process has never been used to amend the Constitution, the number of states applying for a convention has nearly reached the required threshold a few times. Some amendments to the Constitution were proposed by Congress, at least in part, because of the threat of an Article V convention. Rather than risk such a convention taking control of the amendment process, Congress acted pre-emptively to propose the desired amendments. At least four amendments (the Seventeenth, Twenty-First, Twenty-Second, and Twenty-Fifth Amendments) have been identified as being proposed by Congress at least partly in response to the threat of an Article V convention. ^[11]

There have been two nearly-successful attempts to amend the Constitution via convention since the late 1960s. The first try was an attempt to propose an amendment that would overturn two controversial Supreme Court decisions, Wesberry v. Sanders and Reynolds v. Sims, dealing with voting districts and apportionment of votes in state elections. The attempt fell only one state short of reaching the 34 needed to force Congress to call a convention in 1969. After this peak, several states rescinded their applications, and interest in the proposed amendment subsided.^[12] The next nearly-successful attempt to call a convention was in the late 1970s and 1980s, in response to the ballooning Federal deficit. States began applying to Congress for an Article V convention to propose a balanced-budget amendment. By 1983, the number of applications had reached 32, only two states short of the 34 needed to force such a convention. Enthusiasm for the amendment subsided, once again in response to concerns about whether an Article V convention could be limited to a single subject and perhaps also because Congress passed the Gramm-Rudman-Hollings Act, which required that the budget be balanced by 1991 (but that Act was overturned by the Supreme Court in 1986).

[edit] Possible Scope

Because no Article V convention has ever been assembled, there are many unanswered questions about how such a convention would function in practice. One major question is whether the scope of the convention's subject matter could be limited. Some scholars assert that Congress probably does not have the power to limit a convention, because the language of Article V leaves no discretion to Congress, merely stating that Congress "shall" call a convention when the proper number of state applications have been received. Comments made at the time the Constitution was adopted indicate that it was understood when the Constitution was drafted that Congress would have no discretion. In The Federalist No. 85, Alexander Hamilton stated that when the proper number of applications had been received, Congress was "obliged" to call a convention and that "nothing is left to the discretion of Congress." ^[13]. James Madison also affirmed Hamilton's contention that Congress was obligated to call a convention when the requisite number of states requested it.^[14] In the North Carolina debates about ratifying the Constitution, James Iredell, who subsequently became one of the founding members of the Supreme Court, stated that when two-thirds of states have applied to Congress for a convention, Congress is "under the necessity of convening one" and that they have "no option."^[15]

By citing the Constitution's Necessary and Proper Clause, Congress has tried to enact a statute to clarify how an Article V convention would function. Sponsored by the late Senator Sam Ervin, such a bill passed the U.S. Senate unanimously in 1971 and again in 1973, but the proposed legislation remained bottled up in the Committee on the Judiciary in the U.S. House of Representatives and died both times. Opponents to statutory clarification of an Article V convention's operations argue that neither Article I nor Article V of the Constitution grants Congress this power, and that the Founders intended that Congress "have no option." While the text and history of Article V seems to imply that Congress has no authority to enact such legislation, there has been no opportunity for Federal courts to decide whether Congress has such authority because such legislation since no such statute was approved by both houses of Congress.

While Congress might have no authority to limit the scope of an Article V convention, the scholarly consensus is that the states do have that power. Congress' duty to call a convention when applied for by the states means that it must call the convention. If the states, therefore, request a convention limited to a certain subject matter, then the convention that is called must be what the states requested.^[16] The drafting history of the Constitution at the Constitutional Convention of 1787 provides evidence that it was the Framers' intent that an Article V convention could be limited by the states according to subject matter (see the next section, "Subject Matter of Applications" for a further discussion). ^[17]

If states have the power to limit an Article V convention to a particular subject matter, and Congress only has power to call a convention but no further power to control or regulate it, then a potential concern becomes whether an Article V convention could become a "runaway convention" that attempts to exceed its scope. But an Article V convention would merely propose (an) amendment(s). Until ratified, (a) proposed amendment(s) would have no effect. If an Article V convention did attempt to exceed its authority, no amendment(s) it proposed would become part of the Constitution until three-fourths of the state ratified that/those amendment(s). The ratification process, therefore, acts as a check to prevent a "runaway" convention. If a convention 'did' exceed its scope, and the states still chose to ratify whatever the convention proposed, the convention's work product would have to enjoy widespread popularity, since the ratification process requires supermajority support, that being the approval of more states than is required to trigger the assembling of an Article V convention in the first place.^[18] Fears that an Article V convention may exceed its scope are likely unfounded, in light of the United States' experience with state constitutional conventions. Over 600 state constitutional conventions have been held to amend state constitutions, with little evidence that any of them have exceeded their scope.^[19]

[edit] Subject Matter of Applications

A related question is whether Congress must tally all applications received, regardless of their subject matter, or whether Congress must tally them according to their subject matter. If Congress must tally them according to subject matter, then it would only be able to call an Article V convention if it receives applications from 34 states requesting an Article V convention to address the same subject matter. States have requested that Congress call an Article V convention to propose amendments on a variety of subjects. According to the National Archives, Congress has, however, never officially tabulated the applications, nor separated them by subject matter.^[20]

The drafting history of Article V indicates that states may limit the subject matter of their applications, and that Congress has a duty to tally applications separately by subject matter. During the drafting process, the Philadelphia Convention at one point adopted a version of Article V that gave power to Congress to propose amendments when two-thirds of both houses agreed, "or on the application of two thirds of the Legislatures of the several states."^[21]. This version of Article V lacked any provision for a constitutional convention requested by the states. Instead, it included language almost identical to the final version of Article V, that instead gave states the power to petition Congress to propose amendments, rather than to call a convention. Because the language between these two revisions is almost identical, it gives a better understanding of the meaning the Framers understood Article V to have. It is obvious that applications from states petitioning Congress to propose amendments would be limited to a certain subject matter. And, of course, Congress itself has the general to propose any amendment on any subject that it deems necessary. This language only makes sense if one understands it to mean that the Framers understood that state petitions to Congress would be limited by subject matter. Thus, in order to give effect to the originally understood meaning of Article V, and to give effect to states' intent when making applications to Congress for a convention, the accepted view is that state applications to Congress should be tallied individually, by subject matter, to determine whether the two-thirds threshold of state applications has been met.^[22]

[edit] Recissions of Applications

The legislatures of some states have chosen to rescind their previous applications for an Article V convention. It is not clear from the language of Article V whether such rescissions are permissible. As discussed above, however, if it is the purpose of Article V to give states power over a recalcitrant Congress, and if states may limit their applications by subject matter, then it would seem reasonable that an application may later be validly rescinded, in order to give meaningful effect to the power Article V confers upon the states.^[23] The following is a list of recent rescinding actions among state lawmakers:

• Alabama and Florida in 1988;
• Louisiana in 1990 (but in 2008, Louisiana again applied for a convention—this time to place into the Constitution the statutory Posse Comitatus Act);
• Idaho and Oregon in 1999;
• North Dakota and Utah in 2001;
• Arizona in 2003;
• Georgia, South Carolina and Virginia in 2004;
• Montana in 2007; and
• Oklahoma and Wyoming in 2009.

[edit] Supreme Court Interpretations of Article V

While the Supreme Court has never definitively interpreted the meaning of Article V, it has, on four separate occasions, referred to the Article V convention process:

Dodge v. Woolsey, 59 U.S. 331 (1855): “[The people] have directed that amendments should be made representatively for them, by the congress . . . ; or where the legislatures of two thirds of the several States shall call a convention for proposing amendments, which, in either case, become valid, to all intents and purposes, as a part of the constitution, when ratified . . . .”

Hawke v. Smith, 253 U.S. 221 (1920): “[Article V] makes provision for the proposal of amendments either by two-thirds of both houses of Congress or on application of the Legislatures of two-thirds of the states; thus securing deliberation and consideration before any change can be proposed.”

Dillon v. Gloss 256 U.S. 368 (1921): In discussing Congress's power to propose amendments, the Court affirmed that “[a] further mode of proposal—as yet never invoked—is provided, which is, that on the application of two thirds of the states Congress shall call a convention for the purpose.”

United States v. Sprague, 282 U.S. 716 (1931): “[A]rticle 5 is clear in statement and in meaning, contains no ambiguity and calls for no resort to rules of construction. . . . It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses, or, on the application of the legislatures of two-thirds of the States, must call a convention to propose them.”

Because of the political question doctrine, however, it is an open question whether federal courts could assert jurisdiction over a legal challenge to Congress, should it refuse to call a convention.

[edit] References

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