Convention to propose amendments to the United States Constitution

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 of the Legislatures of two thirds of the several States.” Once an Article V convention has proposed amendments, they must be ratified by three-fourths of the states in order for the amendments to become part of the Constitution. Congress has the power to choose between two methods of ratification: ratification by the state legislatures or ratification conventions called for that purpose.

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. 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." 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. The first reference in the Convention records to the idea of an amendment-proposing convention requested by the states comes from drafts of the Constitution kept by the Committee of Detail. After some debate, James Madison removed reference to the convention amendment 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. 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. 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." 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. James Madison did not oppose reintroducing language permitting the convention amendment process, but in what proved to be prescient concerns about the lack of detail in Article V about how the convention amendment process would work, stated that "difficulties might arise as to the form" a convention would take.

The text of Article V referring to the convention amendment process reads: "The Congress, . . . on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing Amendments...." Every state, except for Hawaii, has made applications for an Article V convention. 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 750. 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 several times. Congress has proposed amendments to the Constitution on several occasions, 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 away from it, Congress acted pre-emptively to propose the amendments instead. 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.

There have been two nearly-successful attempts to amend the Constitution via an Article V 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, ended by the death of its main promoter senator Everett Dirksen. After this peak, several states rescinded their applications, and interest in the proposed amendment subsided. 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 in response to concerns about whether an Article V convention could be limited to a single subject and 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).

Possible scope

Because no Article V convention has ever been convened, 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. The consensus is 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." James Madison also affirmed Hamilton's contention that Congress was obligated to call a convention when the requisite number of states requested it. 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."

By citing the Constitution's Necessary and Proper Clause, Congress has tried to enact a statute to regulate 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 congressional regulation 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 clearly indicated 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 has never been adopted by Congress.

While Congress likely has no authority to limit the scope of an Article V convention, the scholarly consensus is that the states do have that power. Larry J. Sabato is one such scholar who advanced that view in his book A More Perfect Constitution. Congress's duty to call a convention when requested by the states means that it must call the convention that the states requested. If the states, therefore, request a convention limited to a certain subject matter, then the convention that is called must be limited in the way the states requested. 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).

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. An Article V convention would merely be empowered to propose amendments. Until ratified, proposed amendments would have no constitutional effect. If a convention did attempt to exceed its scope, therefore, none of the amendments it proposed would become part of the constitution until three-fourths of the states ratified them. The states, therefore, are empowered through the ratification process to act as a check to prevent a "runaway" convention by not ratifying amendments that have been inappropriately adopted. If a convention did exceed its scope, and the states still chose to ratify the convention's proposed amendments, the proposed amendments would have to enjoy widespread popularity, since the ratification process requires the assent of even more states (three-fourths) than are required to call a convention in the first place. 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.

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. However, on at least one occasion, the Congressional Record, had included such a tabulation, which indicated the requisite two-thirds (34 states) had indeed called for a convention. In 1993 Professor Michael Paulson and his research staff assembled a complete listing of all state applications to date as an appendix to his article A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment. 103 Yale L.J. 677 (1993).

Some legal scholars believe that 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.". 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. A general petition (that is, one not limited by subject matter) asking Congress to propose amendments would serve no useful purpose, since Congress would already have the general power to propose amendments. 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.

However, other legal scholars have concluded that the plain language of Article V makes state applications for an Article V convention limited to particular subject matter invalid, and only applications that include a call for an unrestricted convention are valid.

The legislatures of some states have submitted rescissions of applications. It is not clear from the language of Article V whether such rescissions are permissible. As discussed above, however, if the purpose of Article V is to give states power over a recalcitrant Congress, and if states may limit their applications by subject matter, it is likely that courts would hold that rescissions of applications are also valid, in order to give meaningful effect to the power Article V gives to states.

Using the most restrictive criteria that state applications must not be limited to particular subject matter and that rescissions by states are valid, as of 1993 a total of forty-five states had pending applications meeting this criteria.

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.