Scope of Power of Constitutional Convention to Propose Amendments to the Constitution

Opinion

October 10, 1979

79-75 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

Constitutional Convention—Limitation of Power to Propose Amendments to the Constitution

You have requested our opinion on a question that involves the “ C on­ vention Clause” o f Article V o f the Constitution:

The Congress * * * on the Application o f the Legislatures of two thirds o f the several States, shall call a Convention for pro­ posing Amendments, which * * * shall be valid to all Intents and Purposes, as part o f this C onstitution, when ratified by the Legislatures o f three fourths o f the several States, or by Conven­ tions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress * * * Your question is whether this clause authorizes a general or a limited con­ vention process. Does a “ Convention for proposing Am endm ents,” called by Congress on application o f two-thirds o f the legislatures o f the States, have general power to propose amendm ents on any subject that com ­ mands the attention o f the delegates? U nder what circumstances, if any,

'T he entire text o f Article V follows:

The Congress, whenever two thirds o f both Houses shall deem it necessary, shall pro­ pose Am endm ents to this C onstitution, or, on the A pplication o f the Legislatures o f two thirds o f the several States, shall call a Convention for proposing Am endm ents, which, in either Case, shall be valid to all Intents and Purposes, as Part o f this Constitution, when ratified by the Legislatures o f three fourths o f the several States or by Conventions in three fourths thereof, as the one or the other M ode o f Ratification may be proposed by the Congress; Provided that no A m endm ent which may be m ade prior to the Year O ne thousand eight hundred and eight shall in any M anner affect the first and fourth Clauses in the Ninth Section o f the first Article; and that no State, without its Consent, shall be deprived o f its equal Suffrage in the Senate.

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may the powers and the proposals of the convention be limited to a par­ ticular field? This question has been warmly debated among constitutional scholars and officers o f Governm ent.2 It has never been answered or even addressed by any court. O ur views are set forth below.

I. The Convention of 1787

In the summer o f 1787 delegates from 12 of the 13 United States assembled in Philadelphia. They had been called to Philadelphia by C on­ gress, and their purpose was to consider and propose amendments to the Articles o f Confederation and constitution o f the young Nation. They labored through the summer and produced a new and enduring docum ent, the very Constitution that your question requires us to construe.

One o f the im portant questions that confronted the delegates in Philadelphia was whether they should honor the procedural limitations that governed the amendment process. These limitations were created by Article XIII o f the Articles o f Confederation and by the Act o f Congress pursuant to which the convention had been called. Under the Act the con­ vention was to consider and propose amendments to the Articles, and the amendments were to become effective when approved by Congress and each o f the States.3 The Act was declaratory o f the Articles themselves. The Articles allowed for amendment, but they declared that the Union o f the 13 States would be “ perpetual” and that the government could not be altered unless the alteration were “ agreed to in a Congress o f the United States * * * and * * * confirmed by the Legislatures o f every S tate.” Article XIII.

’See Dellinger, “ The Recurring Question o f the ‘Limited’ C onstitutional C onvention,” 88 Yale L .J. 1623 (1979); Van Alstyne, “ Does Article V Restrict the States to Calling Unlimited Conventions Only?—A L etter to a Colleague,” 1978 D uke L .J. 1295; Rhodes, “ A Limited Federal Constitutional C onvention,” 26 U. Fla. L. Rev. 1 (1973); Bonfield, “ The Dirksen Amendment and The Article V Convention Process,” 66 Mich. L. Rev. 949 (1968); Note, “ Proposed Legislation on the Convention M ethod o f Am ending the United States C onstitu­ tio n ,” 85 Harv. L. Rev. 1612, 1629 (1972); Black, “ Amending the Constitution: A L etter to a Congressman,” 82 Yale L .J. 189, 202-03 (1972); Special C onstitutional Convention Study Com m ., American Bar Assoc., “ Am endment o f the C onstitution by the Convention M ethod Under Article V” (1974); Pullen, “ The Application Clause o f the Am ending Provision o f the Constitution” (1951) (unpublished thesis on file at University of N orth Carolina Library); Orfield, Amending the Federal Constitution (1942); Jam eson, A Treatise on Constitutional Conventions (4th ed., 1887); Bonfield, “ Proposing Constitutional Am endm ents by C onven­ tio n ,” 39 Notre Dame Lawyer 659 (1964); Black, Handbook o f American Constitutional Law (West P ub. C o., 1927); Brickfield, “ State Applications Asking Congress to Call a Federal Constitutional C onvention,” House Com m, on the Judiciary, 87th C ong., 1st sess. (Comm, print, 1961); Brickfield, “ Problems Relating to a Federal C onstitutional C onven­ tio n ,” House Com m, on the Judiciary, 85th C ong., 1st sess. (Comm, print, 1957); Dixon, “ Article V: The Com atose Article o f O ur Living C onstitution?” 66 Mich. L. Rev. 931 (1968); “ Ervin, Proposed Legislation to Implement the Convention M ethod o f Amending the C onstitution,” 66 Mich. L. Rev. 875 (1968); G raham , “ The Role o f the States in P ropos­ ing Constitutional A m endm ents,” 49 ABAJ 1175 (1963); Kauper, “ The Alternative A m end­ ment Process: Some O bservations,” 66 Mich. L. Rev. 903 (1968); Packard, “ The States and the Amending Process,” 45 ABAJ 161 (1959); Forkosch, “ The Alternative Amending Clause in Article V ,” 51 Minn. L. Rev. 1053, 1075 (1967).

M Elliot, The Debates in the Several State Conventions on the Adoption o f the Federal Constitution 120 (2d ed., 1836) (hereinafter “ Elliot” ).

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The requirement o f unanim ous consent stood squarely in the way o f what a majority o f the delegates wanted to do. They wanted to propose sweeping changes in the old system, and they had no reason to believe that their proposals would be universally accepted. Rhode Island had not even bothered to attend the convention. Congress, whatever views it might otherwise have entertained, stood to be abolished by the proposed reform. If the Framers adhered to the amendment procedure set out in the Articles and in the statute, they faced a prospect o f failure. Because they greatly feared the consequences o f failure,* they boldly chose to ignore the law .5 They drafted their new Constitution in secret session; and when they emerged at the end o f the summer, they proposed that their plan should take effect upon ratification, not by Congress or by the legislatures o f the States, but by popular conventions in the States. Moreover, they proposed that ratification by conventions in nine States would be “ sufficient for the Establishment of this C onstitution between the States so ratifying the Same. ” See C onstitution o f the United States, Article VII, Clause 1. [Em­ phasis added.] In a word, the Framers invited conventions in nine States to abolish the Union.

Congress received this plan and demurred, transmitting it to the States. Conventions in 11 States approved it, and the plan went into effect. In March, 1789, a new Congress (a Congress o f the eleven United States of America) assembled in New York; and it was clear by then that a funda­ mental change had occurred. In accordance with the Framers’ design, under the compulsion o f political necessity and in the face o f positive law to the contrary, a confederation o f 13 States had been abolished by action o f a dedicated majority; and a new government, resting on different principles, had been established among 11 o f the former confederates.6

‘George W ashington, who was not given to overstatem ent, summarized the desperate con­ dition o f the Confederacy in the following way:

T hat something is necessary, all will agree; for the situation of the General Govem m t. (if it can be called a govem m t.) is shaken to its foundation, and liable to be overset by every blast. In a w ord, it is at an end, and unless a remedy is soon applied, anarchy and confu­ sion will inevitably ensue.

Letter to Thom as Jefferson, May 30, 1787, reprinted in 29 Writings o f Washington 224 (Fitz­ patrick ed., 1931).

’As Edm und Randolph put it, “ There are great seasons when persons with limited powers are justified in exceeding them * * * .” 1 Max Farrand, The Records o f the Federal Con­ vention o f 1787, 262 (rev’d ed., 1966) (hereinafter, “ F arrand” ). George Mason agreed that “ there were besides certain crises, in which all ordinary cautions yielded to public necessity.” 1 Farrand a t 338. A t another point in the debate Jam es Wilson declared that “ lt)he house on fire must be extinguished, w ithout a scrupulous regard to ordinary rights.” 2 Farrand at 469.

‘The abolition o f the Articles o f C onfederation and the establishment o f the new C onstitu­ tion was a peaceful revolution. It was an act o f will that altered a frame o f government in a way that was inconsistent with existing law governing how such alterations were to be made. Madison himself adm itted th at this was the best legal argum ent against what the Framers had done: Their proposal was defective because the new C onstitution was to be approved and established in a way that was contrary to positive law. The Federalist, No. 40, at 263 (Cooke e d ., 1961). Madison, a good lawyer, had no answer for that argum ent on the merits. There was no answer. He could only say that if the proposal were carried into execution on the ap­ proval o f conventions in nine States, a justification could be found, not in positive law, but in the fundam ental dem ocratic principles to which the Declaration o f Independence had re­ ferred—the “ Laws o f N ature and o f N ature’s G o d ” that conferred upon all men a right to alter bad governments in the face o f existing legal forms. Id. at 265.

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We have begun our discussion with this page o f history to illustrate two points that have caused no little confusion in the traditional debate over limited, in contrast to general, conventions. We want to put them behind us.

First, the Convention o f 1787 shows that law cannot execute itself. The people and their officers execute the law; and when enough o f them choose to disregard it, law is ineffective. Whatever Article V o f the C on­ stitution may require or permit in the way o f legal limitation on the proc­ ess o f amendm ent by convention, it can be no more effective than was its predecessor, Article XIII o f the Articles o f C onfederation, if the citizens and their representatives undertake to disregard it.

The second point is related to the first. Some have argued that the C on­ vention o f 1787 demonstrates the illimitable nature o f the convention process and the futility o f academic inquiries into the legal parameters o f that process, whatever they may be. We do not share that view. It is true that in revolutionary times, as in 1787, law may be disregarded and, in­ deed, overturned. But for 200 years this has been a Nation under law; and because the history o f the Convention o f 1787 shows so clearly how the observance and preservation o f law, even fundamental law, depends ultimately on the consent o f the people and their representatives, it demonstrates the importance and the urgency o f questions such as the one you have raised. If it is for the people and their officers to execute Arti­ cle V, it is our duty to understand what Article V requires and what it permits.

II. The Procedural Nature o f Article V

Article V contains two provisions that expressly limit the scope o f the alterations that may be made in the C onstitution. The first—“ that no Amendment which may be made prior to the Year One Thousand Eight Hundred and Eight shall in any M anner affect the first and fourth Clauses in the Ninth Section o f the First Article” —was legally and politically significant when drafted, but it has no present force. The second—that “ no State, without its Consent, shall be deprived o f its equal Suffrage in the Senate” —establishes a constitutional principle o f fundamental importance.

These limitations on the amendability o f the C onstitution are significant for our purposes because they are the only limitations on subject m atter that are expressly set out in Article V. With regard to all possible am end­ ments, except those prohibited by these provisions, Article V is restrictive only insofar as it restricts the procedures by which amendments may be proposed and ratified. The question we must answer is whether there are circumstances in which the procedures m andated by Article V may operate

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in such a way as to confine the constitutional power o f an Article V con­ vention to a given field.7 We will state our conclusions in advance. First, we think that if a con­ vention for proposing amendm ents were called under Article V, the consti­ tutionally m andated procedures would operate to deprive the convention o f power to make constitutionally viable proposals except with respect to subjects within a predeterm ined field. That field, however broad or nar­ row, would be defined by the extraordinary legislative act that initiates the convention process, the “ A pplication” o f the legislatures of the States. We will explain that conclusion and the reasons for it in Sections III and IV below.

Second, we think that Article V gives Congress no power to provide for the ratification o f any constitutional proposal that is not developed and proposed in accordance with the procedures contem plated by Article V. Just as Congress would have no power to submit one o f its own constitu­ tional proposals for ratification unless two-thirds o f the Members o f both Houses were in accord that the proposal was necessary and desirable, C on: gress would have no power to provide for the ratification o f any proposal propounded by a constitutional convention unless that proposal were responsive to the application that justified the gathering o f the convention in the first instance. We will explain that conclusion and the reasons that support it in Section IV.

III. The Role o f the Legislatures o f the States

O ur analysis is dictated by the form o f the procedure set out in the consti­ tutional text. T hat procedure involves at least five different acts or steps: an initial “ A pplication” by two-thirds o f the legislatures o f the States; a “ call” to convention issued by Congress; a parliamentary convocation—the con­ vention itself—attended by delegates selected and commissioned in a m an­ ner not specified by Article V; a designation by Congress o f a “ Mode o f Ratification” for any proposal made by the convention; and ratification of any such proposal by three-fourths o f the States in accordance with the mode prescribed by Congress. For our purposes, the critical step in this process is the first one, the “ A pplication” o f the legislatures o f the States. W hat is this “ A pplication?” W hat part does it play in the convention process? W hat power does it give to the legislatures o f the States?

’The notion that the C onstitution may give Congress power to impose adventitious subject m atter restrictions on the convention process is one that finds no support in the text o f A rti­ cle V or in the drafting history. Congress, o f course, has power to m ake “ laws which shall be necessary and proper for carrying into Execution” the powers conferred upon it by Article V; but there is nothing in Article V that suggests that it would be necessary or proper for C on­ gress to create subject m atter restrictions that do not flow from the operation o f Article V itself. Indeed, as we will discuss below, the history o f the clause suggests rather clearly that it would be altogether unnecessary and im proper for Cohgress to do so. The Framers created the convention procedure for the very purpose o f preventing Congress from blocking am end­ ments desired by the legislatures o f the States and the delegates o f the people in convention.

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The participants in the traditional debate over limited in contrast to general conventions have given widely, sometimes wildly, different answers to these questions. Some have argued that the application can be nothing more than a neutral request for a convocation, a request that a forum be established in which constitutional questions may be debated and proposals made. Even if the legislatures have a specific problem in mind, even if they request a convention because they want the C onstitu­ tion to be changed in some particular way, they must leave it entirely to the delegates to determine the course that the convention will take. Indeed, if their application manifests anything other than an unqualified desire for a convention with power to discuss and propose any amendm ent the delegates may want to propose, it is void. It cannot provide a constitu­ tional basis for a convention under Article V.® At the other extreme, some have thought that the application process is designed to give the legislatures plenary power to determine both the form and the content o f the proposals that the convention may submit to the States for ratification. Not only may the legislatures request that Congress call a convention to consider a particular problem or a particular pro­ posal, they may frame am endments and dem and that the convention do nothing more than vote on those amendm ents as framed. This view has been espoused in one form or another by several scholars,9 and it lies at the heart of some o f the applications'0 that have been submitted to Congress by the States from time to time.

We cannot adopt either o f these views—the view that the legislatures have no power to determine what work the convention may or must do, or the view that the legislatures have plenary power to propose amendm ents and to require that the convention do nothing more than emit them or quash them as it finds them good or bad. The first theory is mistaken. The second is viable, if at all, only in the most limited circumstances. The cor­ rect interpretation, we believe, lies elsewhere. The textual and historical reasons for that opinion are given in the paragraphs that follow.

Text. “ Congress * * * on the Application o f two thirds o f the Legislatures o f the States, shall call a Convention for proposing A m end­ ments * * * .” This language lends little support to the notion that the

'See, e.g., Black, “ Am ending the C onstitution: A Letter to a Congressm an,” 82 Yale L .J. 189, 202-03 (1972).

'See, e.g., Van Alstyne, “ Does Article V Restrict the States to Calling Unlimited C onven­ tions Only?—A Letter to a Colleague,” 1978 Duke L .J. 1295.

l0The applications have come in a wide variety o f forms. The following passage from a re­ cent resolution adopted by the legislature o f the State o f Kansas (May 19, 1978) requests a convention for the “ sole and exclusive” purpose o f proposing an am endm ent, the specific terms of which are prescribed by the applicant:

Be it further resolved: T hat alternatively, the Legislature o f the State o f Kansas hereby makes application to the Congress o f the United States to call a convention for the sole and exclusive purpose o f proposing an am endm ent to the Constitution o f the United States which would require that, in the absence o f a national emergency, the total o f all appropriations made by the Congress for a fiscal year shall not exceed the total o f all estimated federal revenues for such fiscal year.

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legislatures o f the States may dem and that Congress call a constitutional convention for the sole purpose o f voting up or down on proposals that the legislatures themselves have brought forward. The Framers were good draftsmen. W hen they wanted to give one body o f government a veto over the proposals o f another, they were able to use words that clearly ex­ pressed that purpose. In Article V itself they gave the States power to ap­ prove or disapprove what a constitutional convention might propose; but the language o f Article V gives no indication that they intended this ratification process to be a second negative, a veto cast or withheld after the convention itself had voted up or down on someone else’s work. As portrayed in the text, the convention is a respondent, not a censor. It is a “ Convention for proposing A m endm ents.” It responds to an application and call by making proposals for constitutional change.

W hat is the correct reading o f the text? The polar view—the view that every Article V convention must be a general convention—is sometimes defended on textual grounds. It is said that the text has a plain meaning; that the legislatures are entitled to apply for a “ convention” and a “ con­ vention” only and that this convention, being a “ Convention for propos­ ing A m endm ents,” must be a convention for proposing amendments on any subject the delegates think pro p er."

This argument is unpersuasive. The text does not say that the legislatures are to apply for a convention and a convention only. It says th at they are to make an “ A pplication.” The text does not say that the convention must be a convention for proposing amendments on any sub­ ject the delegates think proper. It says that the convention will be a “ C on­ vention for proposing A m endm ents.” These words are generic. They could describe a process in which the legislatures request, and Congress calls, a general convention, a convention for proposing amendments on any subject whatever. They could describe a process in which the legislatures request, and Congress calls, a convention for proposing amendm ents to deal with some particular problem or constitutional issue. There is little in the text that encourages us to prefer the one interpretation to the other. There is nothing in the text that requires us to choose between the two.

W hen we turn from the text and consult the relevant historical materials, the meaning o f the convention clause comes more clearly into focus. We have outlined much o f the relevant history in detailed notes, which are appended to this m em orandum. In the discussion that follows we will describe the portions o f that history that have decisive bearing on the question at hand.

The Effort to Revise the Articles. A lthough the Articles o f Confeder­ ation allowed for amendm ent and specified that the unanim ous consent o f the States and Congress would be necessary before any alteration could

"See Black, supra, at 203.

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occur, they established no regular m ethod by which proposals for change could be formulated and submitted to the States and Congress. Thus when it became clear in the mid- 1780s that changes in the Articles were neces­ sary, the advocates o f change were obliged to fashion ad hoc, irregular procedures in an effort to build consensus for the proposals they wished to bring forward. They drew on recent experience. Extraordinary intercolo­ nial convocations had done much to spark and direct the rebellion against Great Britain. An interstate convention, the Continental Congress, had produced the Articles o f Confederation. Convention procedures had been used or proposed in some States to make or alter fundamental law .12 With these precedents in view, the activists set about to revise the Articles through a convention process.

Virginia took the lead. In 1786 it invited all the States to send delegates to a convention at Annapolis “ to take into consideration the trade o f the United States” and to propose a measure that would empower the na­ tional government to establish a uniform system o f trade regulation.13 Only five States accepted this invitation; and Hamilton and Madison, two o f the youngest delegates, who had high hopes for a stronger union, were able to persuade the others that little could be accomplished by so few. Hamilton drafted a report that recommended that a second convention be called. This convention would be attended by delegates from all the States and it would have power to consider, not trade and commerce only, but

,JBy 1787, five State constitutions provided for amendm ent by way o f convention. Three o f these appear to have provided for a convention the powers o f which could be limited to a particular subject m atter. Georgia’s Constitution o f 1777 provided:

No alteration shall be made in this constitution without petitions from a m ajority o f the counties, and the petitions from each county to be signed by a m ajority o f voters in each county within this State; at which time the assembly shall order a convention to be called for that purpose, specifying the alterations to be made, according to the petitions pre­ ferred to the assembly by the m ajority o f the counties as aforesaid. [Emphasis added.]

1 Poore, Federal and State Constitutions, Colonial Charters and other Organic Laws 383 (1872) (hereinafter “ Poore” ). Pennsylvania’s constitution o f 1776 provided:

T he said council o f censors shall also have power to call a convention, to meet within two years after their sitting, if there appear to them an absolute necessity o f amending any article o f the constitution which may be defective, explaining such as may be thought not clearly express, and o f adding such as are necessary for the preservation o f the rights and happiness o f the people: But the articles to be am ended, and the am end­ ments proposed, and such articles as are proposed to be added or abolished, shall be promulgated at least six m onths before the day appointed for the election o f such con­ vention, for the previous consideration o f the people, that they may have an opportunity o f instructing their delegates on the subject. [2 Poore at 1548.]

The provision for am endm ent in Verm ont’s Constitution o f 1786 was almost identical to that o f the quoted portion o f Pennsylvania’s C onstitution. Id. at 1874-75. The reference to "am ending any article * * * which may be defective” and the requirement for prom ulgat­ ing the “ articles to be am ended, and the amendm ents proposed, and such articles as are pro­ posed to be added or abolished” indicates to us that the convention was to be limited to cer­ tain topics. The two other States—Massachusetts and New Ham pshire—had constitutions that appear to have allowed the convention more latitude. See 1 Poore at 972 (Massachusetts Constitution o f 1780); 2 Poore at 1293 (New Hampshire C onstitution o f 1784).

"Com m ager, Documents o f American History 132 (9th ed., 1973).

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any m atter that required constitutional correction. Ham ilton’s report was approved. W hen it was published, it became the “ direct occasion o f the gathering o f the convention in Philadelphia that framed the constitution o f the United States.” 14 Before we describe the nature o f the proceedings in Philadelphia, we want to emphasize a legal point that is often overlooked in conventional accounts. The Annapolis Convention and its successor in Philadelphia dem onstrate clearly and concretely that under the Articles o f Confedera­ tion a convention could be convened for the purpose o f considering con­ stitutional problems and formulating proposals for change; and it could be given narrow or broad powers depending on the nature o f the task assigned to it. The Articles did not spell this out. They did not establish procedures for the formulation o f constitutional proposals. But they were permissive. They permitted the States and Congress to establish such pro­ cedures; and when the States and Congress exerted that power, the result was first a limited convention in A nnapolis15 and then a general conven­ tion in Philadelphia one year later.

In our view this is the most im portant single fact in the development of Article V. W hen the Framers drafted Article V, they were not writing on a clean slate. They had come together to rewrite a docum ent that had al­ ready permitted a creative convention process to go forward, first at An­ napolis and then at Philadelphia itself; and when we view their work from that perspective, the question o f purposes and intents comes more sharply into focus. The Framers “ constitutionalized” the convention process. Did they mean to confirm and preserve the flexible procedure that was- per­ mitted under the Articles, or did they mean to replace it with a rigid new system in which only one sort o f convention, a general convention, was possible? As we review their work, we shall keep that question before us.

The Proceedings o f the Convention of 1787. The delegates to the Philadelphia Convention agreed rather early that they should create a regular mechanism by which the new Constitution could be am ended.16 To

'"Farrand, The Framing o f the Constitution (1932). "T he Annapolis Convention was clearly a convention with limited powers. The delegates were so sensitive on that point that they felt there might be some question whether their recom mendation o f a general convention was strictly within their commission, and they took care to justify it. Ham ilton wrote:

If in expressing this wish [for a general convention], or in intimating any other senti­ m ent, your Commissioners should seem to exceed the strict bounds o f their appoint­ m ent, they entertain a full confidence, that a conduct, dictated by an anxiety for the welfare o f the United States, will not fail to receive an indulgent construction. [Commager , Documents o f American History 133 (9th ed., 1973).]

M adison’s later comm ent that the A nnapolis Convention “ did not scruple to decline the limited task assigned to it, and to recom mend to the States a Convention with powers ade­ quate to the occasion,” and that the public mind “ favored the idea there o f a Convention with fuller powers for amending the C onfederacy,” recognized that a constitutional conven­ tio n ’s powers might vary according to its m andate. Preface to Debates in the Convention of 1787, 3 Farrand at 545, 546. [Emphasis added.]

'•A complete account o f the proceedings relevant to Article V is set out in Appendix I.

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accommodate that agreement, the committee that had been assigned the task o f preparing the first draft o f the Constitution, the Committee of Detail, submitted a modest proposal that was accepted by the convention after a brief debate. The form o f the proposal was predictable, given the events o f the preceding few years:

On the application o f the Legislatures o f two thirds o f the States in the Union, for an amendment o f this Constitution, the Legislature o f the United States shall call a Convention for that purpose. [2 Farrand at 188.]

We see, then, that when the Framers first undertook to fashion an am end­ ment mechanism, they borrowed on the procedure that the States them ­ selves had fashioned under the Articles. It was a mechanism that involved an interstate convention, called on application o f the States. Two other features o f this proposal deserve our attention. First, there was no require­ ment for ratification o f the convention’s action. Was such a requirement implicit? Second, the subject o f the States’ application, the “ thing” for which they were to apply, was “ an amendment o f” the Constitution. What did the Framers mean by that language? Further proceedings would clarify that point.

Eleven days after the original proposal was accepted, it was recon­ sidered. There were objections. Elbridge Gerry noted that it contained no requirement for ratification o f the mandatory action taken by the conven­ tion, and he feared that a majority o f the convention might therefore bind the Union to innovations that would subvert the constitutions o f the States.17 Alexander Hamilton noted that the provision gave the State legislatures a right to “ apply for alterations” but gave no similar right to the national legislature. This omission was problematical, because the na­ tional legislature would be the first to perceive the necessity o f am end­ ments, and the State legislatures would not apply for alterations “ but with a view to increase their own power.” 18 Finally, James Madison, with his usual foresight, objected that the convention process was vague and uncer­ tain: How was the convention to be formed? By what rule was it to decide the questions before it? What would be the force o f its acts?”

As a result o f these objections the proposal o f the Committee o f Detail was replaced, after intervening changes, with a proposal drafted by Madison:

The Legislature of the U— S— whenever two thirds o f both Houses shall deem necessary, or on the application o f two thirds o f the Legislatures o f the several States, shall propose amendments to this Constitution, which shall be valid to all intents and pur­ poses as part thereof, when the same shall have been ratified by three fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the U.S. [2 Farrand at 559.]

"2 Farrand at 557-58. "2 Farrand at 558. "Id.

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This provision did three things: First, to satisfy Hamilton, it gave the na­ tional legislature power to propose am endments on its own motion when­ ever two-thirds o f both Houses thought it necessary to do so. Second, to satisfy Madison, it eliminated the convention as a device for formulating amendments and replaced it with a system in which the national legislature would propose am endm ents on the application o f two-thirds o f the legislatures o f the States. Finally, to satisfy Gerry, it provided that no amendment would become effective unless it were ratified in final form by three-fourths o f the States.

M adison’s proposal was a significant one. It was a near predecessor o f Article V, and it clarified the point that concerns us most. W hat role did the Framers intend for the legislatures o f the States to play in the am end­ ment process? Given the terms o f M adison’s proposal, there were two possibilities. It is conceivable that the legislatures were to apply to C on­ gress for some unspecified change, any change, in the hope that Congress would propose am endm ents in the areas where they, the legislatures, thought amendm ents were necessary. The other possibility was that they were to apply to Congress for the changes that they, the legislatures, favored. They were to apply for amendments to the Constitution and to dem onstrate to Congress, through their applications, that there was con­ sensus among them as to the need for change in particular areas.

It cannot be argued with any force that M adison’s proposal con­ templated the first procedure, the application for a pig in a poke. The proposition was not that two-thirds o f the legislatures would bestow on Congress, through their applications, a general commission to propose whatever amendments it thought necessary. Under M adison’s system C on­ gress had that power already, whenever there was consensus among two- thirds o f both Houses. Rather, as M adison himself later confirmed, the legislatures were to apply to Congress for amendments to the C onstitu­ tion, amendments that they, the legislatures, favored; and whenever there was consensus among two-thirds o f them as to the need for an amendment or amendments, M adison’s proposal required Congress to make specific proposals responsive to that consensus.

Two days before they finished their work, just five days after M adison’s proposal had been accepted, the Framers reviewed the amendment mech­ anism once again. Roger Sherman spoke first. He feared that three- fourths o f the States (the num ber needed for ratification o f proposals in­ itiated either by Congress or by the State legislatures) might “ do things fatal to particular States,” and he thought that the C onstitution should therefore contain certain limitations on the kinds o f amendments that could be made in it. In particular, he thought that no amendm ent should be permitted that would affect a State in its “ internal police or deprive it o f its equality in the Senate.” 20 He ultimately prevailed on the latter point.

102 Farrand at 629.

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Second, George Mason noted that Congress was the only agency that was given power to propose amendments. He feared that Congress might abuse that power by refusing to propose amendments that would be beneficial to the people.21 G ouvem eur Morris and Elbridge Gerry then suggested that instead o f giving Congress power to propose amendments on the application o f the legislatures, the Constitution should require C on­ gress to call a convention on application o f the legislatures. This was the critical stage in the development o f Article V. The Framers accepted the suggestion that Morris and Gerry had brought forward, and the result was the Convention Clause as we know it today. W hat was the purpose o f the change?

We must be clear on what was changed and what was not. There was only a slight alteration in the text. It came in the words that described the powers o f Congress: M adison’s language—“ Congress * * * on Applica­ tion * * * shall propose Amendments to this C onstitution” —became “ Congress * * * on Application * * * shall call a Convention for pro­ posing Am endm ents.” There was no alteration in the description o f what the legislatures were to do. They were to make an “ Application” in each case. In procedural terms the change was equally modest. In both in­ stances the legislatures were to make an “ A pplication,” and a separate body (Congress or the convention) was to propose amendments. The pro­ cedural change came with the introduction o f an intervening step, a “ call” to convention. This change was necessary for the simple reason that the convention, unlike Congress, is not a standing body. It must be called into being before it can do its work.

In substantive terms the change was dramatic. Morris and Gerry stripped Congress o f power to propose amendments and relegated it to the ministerial function o f calling a convention. The critical question is whether they intended to do anything more than this. They intended to alter the role o f Congress. Did they intend to alter the role o f the States? The whole point o f the application process, under M adison’s approach, was that it provided the legislatures o f the States with a means o f obtaining proposals responsive to their own views concerning the need for constitu­ tional change. In relieving Congress o f power to make those proposals, did Morris and Gerry intend as well to strip the legislatures o f power to apply for favored amendments, or did they intend merely to replace one proposing authority (Congress) with another (the convention)?

Fortunately, the brief record o f the debate over Morris’ and Gerry’s pro­ posal gives us some insight into that question. As soon as the proposal was made, James Madison rose to comment on it. He said he did not see why Congress “ would not be as much bound to propose amendments applied for by two thirds o f the States as to call a Convention on the like appli­ cation.” He saw no objection, however, against providing for a convention

" Id.

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“ for the purpose o f amendments, except only that difficulties might arise as to the form, the quorum etc. which in Constitutional regulations ought to be as much as possible avoided.” 22 M adison’s statement goes to the heart o f the question before us. It illus­ trates three points. First, it shows conclusively that under his proposal the legislatures o f the States were entitled to apply for amendments to the C onstitution, and that Congress was duty bound to make responsive pro­ posals whenever two-thirds o f them had done so: Congress was “ bound to propose amendments applied for by two thirds o f the States.” Second, it suggests rather strongly that the convention proposal was an attem pt to diminish the power o f Congress over the process o f amendment initiated by the applications o f the legislatures. That was how Madison interpreted it. He was saying that although he had no substantial objection to the con­ vention device, he could see no real reason for it, given its purpose. It pro­ vided neither more nor less protection from congressional abuse than the procedure he had fashioned, for “ Congress would be as much bound to propose amendments applied for by two thirds o f the States as to call a convention on the like application.”

Finally, M adison’s statem ent tells us a good deal about the intended role o f the legislatures o f the States. His statement is significant both for what it says and for what it does not say. Remember that the purpose of M adison’s application procedure was not to give Congress power to pro­ pose amendments. (Congress had that power already.) The purpose was to give the State governments a right to apply for amendments. If Morris and Gerry had intended to change all that, stripping the legislatures o f power to dem and proposals responsive to their views, the mere substitution of one proposing authority for another would have been the least significant part o f their plan. M adison’s statem ent betrays no hint that such a radical change was in the offing. Indeed, M adison’s statement suggests that the role o f the legislatures would be unaltered under M orris’ and Gerry’s pro­ posal: Congress would call a convention for proposing amendments “ on the like application.”

The Ratification Debates. The notion that the amendment procedure should make some provision for the regular governments o f the States and should be responsive in part to their views concerning the need for con­ stitutional change was not a radical notion in 1787. In fact, as we have seen, this was one o f the few propositions that was not debated in connec­ tion with the amendm ent question. The Framers had real doubts about the role that the new national legislature should play in the am endment proc­ ess. They were also concerned that the C onstitution should not be so freely amendable that a m ajority o f the States would be able to oppress the others by altering the supreme law o f the land in some discriminatory way. But if the Constitution were to be amended at all, there was not much

” 2 Farrand at 629-30.

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doubt that the States as States were proper parties to suggest where the amendments should come and to dem and that proposals responsive to their views be formulated.

This should come as no surprise. Repeated assertions o f Federal power have enhanced the role o f the Federal Government in our national life, but in 1787 the State governments were the most im portant governments in the Union. It was they who had created the Union; and when questions arose concerning the adequacy o f the Articles, they were very much the parties in interest. For that reason alone it was politic, and perhaps even necessary from the standpoint o f securing ratification o f the new C onstitution, that the States, acting through their regular governments, should have been given a means o f obtaining viable proposals for change responsive to their own views concerning the need for change. We have suggested that the Framers intended to provide them with such a means; and when the Framers published their work and undertook to defend it, they and their allies took care to reassure the States on that point. A few o f the relevant remarks, made during the critical m onths when ratification o f the new Constitution was still in doubt, are set forth below.

Many opponents o f the new C onstitution found it so objectionable that they argued that the question o f revising the Articles should be subm itted to a second general convention at which the imperfections in the docum ent produced by the Framers could be eliminated. Alexander Hamilton, tak­ ing his cue from John Jay, argued forcefully in The Federalist that even if the new C onstitution were thought to be imperfect, it would be far easier to remove the imperfections by amending it after it had been adopted than by convening a second general convention for that purpose prior to ratification. His argument on that point is perhaps the clearest statem ent by any o f the Framers concerning the nature and significance o f the Convention Clause.”

At a second general convention, Hamilton said, many questions would arise; and “ [m]any o f those who form the majority on one question may become the minority on a second, and an association dissimilar to either may constitute the m ajority on a th ird .” 24 As a result, at a second general convention there would be “ an immense multiplication o f difficulties and casualties in obtaining the collective assent to the final ac t.” 25 By contrast, under the new Constitution, if it were adopted, reformers would be able to utilize the surgical amendment process set out in Article V. It would be un­ necessary to attem pt more than one improvement at a time. Proposed amendments “ might be brought forward singly * * * . [T]he will o f the requisite number would once bring the m atter to a decisive issue. And con­ sequently, whenever nine or rather ten States were united in the desire o f

"See, The Federalist, No. 85, at 591-93 (Cooke ed., 1961). "Id. at 592. ” Id .

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a particular amendment, that amendment must infallibly take place * * * . [T]wo-thirds [nine] may set on foot the measure, three-fourths [ten] must ratify.” 26 Could the national legislature frustrate this process? It could not. The national legislature controlled one o f the two amendment mechanisms, but not the other. Congress would be obliged to call a convention on the ap­ plications o f two-thirds o f the States. Would the legislatures be able to muster the necessary two-thirds? They would. “ However difficult it may be supposed to unite two-thirds or three-fourths o f the state legislatures, in amendments which may affect local interests, [there cannot] be any room to apprehend any such difficulty in a Union on points which are merely relative to the general liberty or security o f the people. We may safely rely on the disposition o f the State legislatures to erect barriers against the encroach­ ments o f the national authority.” 27 Hamilton was saying, in sum, th at if the State legislatures wanted to perfect the new C onstitution or “ to erect barriers against the encroach­ ments o f the national authority,” they could utilize the convention pro­ cedure, they could bring measures forward with that end in mind, and they could do this without submitting to the difficulties o f a “ general” conven­ tion in which disagreements over other points might prevent or impede remedial action. The State legislatures could use the convention procedure without hazarding a general convention.

Madison made a related observation regarding the role o f the State gov­ ernments. He said that the Framers had foreseen “ that useful alterations will be suggested by experience.” They had therefore created an am end­ ment mechanism that “ equally enables the general and the State govern­ ments to originate the am endm ent o f errors as they may be pointed out by the experience on one side or on the o th er.” 28 Some have attem pted to cast this statement in a different light, but we think that M adison’s meaning is clear. The State governments, like the national government, would discover faults or “ errors” in the Constitution from time to time; and the State governments, like the Federal Government, had been given a mechanism by which their views regarding the correction o f these faults could be given constitutional effect. The State governments were entitled to ask for the correction, not o f errors perceived by others, but o f errors perceived by themselves. W hat gave them this right? It was the convention procedure set out in Article V.

O ther statements by the Framers bear this point out. W ashington, who had presided over the Convention o f 1787, said flatly that the “ constitu­ tional door is open for such am endm ents as shall be thought necessary by nine States.” 29 Nine, o f course, was the num ber required to originate the

“•Id. “ Id. at 593. ‘'T he Federalist, No. 43, at 296 (Cooke e d ., 1961). " L e tte r to John A rm strong, April 25, 1788, reprinted in 29 Writings o f Washington 466 (Fitzpatrick e d ., 1939).

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amendment process. Judge Dana o f Massachusetts said that if specific amendments were generally wished for, “ two thirds o f the several States [could] apply for the call o f a convention to consider them .” 30 In Virginia, Wilson Nicholas predicted that the convention procedure would prove to be a convenient m ethod o f amendment because, among other things, “ the conventions which shall be called will have their deliberations confined to a few points, no local interests to divert their attention; nothing but the necessary alterations.” 31 As against the critics o f the new Constitution who thought that amendments should be obtained prior to ratification, Madison answered that “ they cannot but see how easy it will be to obtain subsequent amendments. They can be proposed when the legislatures of two thirds o f the States shall make application for that purpose.” 32 Hamilton, Madison, W ashington, and their allies were perhaps guilty o f over-argument, but we cannot believe that they were dissembling. We think their remarks about the ease and desirability o f introducing subse­ quent amendments to the Constitution through the convention process show clearly that they envisioned that the States could use that process for the purpose o f introducing into the Constitution particular amendments deemed necessary by the States and that they could do this without reopen­ ing the constellation o f other issues that the delegates in Philadelphia had so lately resolved. The legislatures could invoke the convention process for a particular purpose without risking a general convention.33 Summary. A fter reviewing the text in light o f the relevant historical materials, we are inclined to think that the Convention Clause has been misnamed. It should have been named the “ Application Clause,” because its basic purpose was to provide the regular governments o f the States with

102 Elliot at 138. >'3 Elliot at 102. “2 Elliot at 629-30. ’’The Federalists’ praise o f the convention procedure as a convenient device for introduc­ ing postratification am endm ents died out rather quickly after the ratifying convention in New York, the last key State to ratify the Constitution, narrowly gave its approval and then immediately circulated a letter urging the States to petition for a second general convention to redo what the Framers had done. The Virginia Assembly followed with a slightly narrower petition for a convention to consider the defects that had been suggested in the various State ratifying conventions. The Federalists vigorously opposed the drive for a second general con­ vention, perceiving correctly that it would work to the advantage o f the anti-Federalists, reopening divisive issues. Juxtaposed to their arguments in support o f Article V, their o p ­ position to the initiative o f New York and Virginia lends further support to the view that the convention process was thought to be a flexible procedure could be used broadly (as New York proposed), or narrowly (as Ham ilton suggested), depending on the nature o f the con­ sensus am ong the originating States. See Appendix III.

For some o f the pertinent original sources, see M adison, Letter to George Eve, January 2, 1789, 11 Papers o f James Madison 405 (Rutland ed., 1977); 3 Elliot at 630; 5 Writings o f James Madison 299, 311-12 (Gaillard H unt ed., 1904). See also M adison, Letter to G. L. Turberville, November 2, 1788, 5 Writings o f James Madison 299-300 (Gaillard H unt ed., 1904); Madison, “ General Remarks on the C onvention,” 3 Farrand at 455; Jefferson, Letter to William Short, December 8, 1788, 14 Papers o f Thomas Jefferson 344 (Boyd ed., 1958); Jefferson, Letter to William Carmichael, December 25, 1788, 14 Papers o f Thomas Jefferson 385 (Boyd ed., 1958).

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a means o f applying for amendm ents to the Constitution; and the conven­ tion procedure was simply a device, one o f two devices considered by the Framers during the evolution o f the clause, through which the demands of 13 contentious States were to be reconciled. As described by the Framers and invoked by the States, the process was a flexible one, much like the nonconstitutional process that had been worked out by the States themselves under the Articles. The legislatures could use Article V to gather a general convention to build consensus for an integrated, com ­ prehensive revision o f the Constitution or for multiple amendments. New York and the anti-Federalists pressed for such a convention in 1788 and 1789. On the other hand, if the legislatures feared the divisiveness o f a general convention (as did Madison and his allies), yet were in substantial agreement regarding some particular problem or issue, they could, as Hamilton suggested, generate specific proposals through the convention procedure without risking a general convention.

IV. Legal Aspects o f a Limited Application by the Legislatures

If we had been able to conclude that the legislatures o f the States are en­ titled to apply for one thing and one thing only—a general conven­ tion—our inquiry would be at an end. Because we have concluded that the legislatures may invoke the convention process for different purposes and with limited objects in view, we must consider two additional questions. First, if different legislatures apply for different kinds o f conventions, how does Congress respond? Faced with applications at variance with each other, how does Congress judge whether the legislatures have made the sort o f application that can provide a basis for a call to convention? Second, if Congress does call a convention on the basis o f an application for something other than a general convention, what power does the con­ vention have? Does it have power to go beyond the application and make ratifiable proposals that are not in accord with the tenor o f the application and call?

The answer to each o f these questions follows rather clearly and easily from what we have already said about the role o f the legislatures o f the States and the function o f the application procedure. When we have established this connection—the connection between the role o f the legislatures, the function o f the application procedure, the role o f C on­ gress in determining whether a convention should be called, and the power o f the convention itself—the political and legal logic o f the Convention Clause will come sharply into focus.

Counting Application. If one-half o f the legislatures apply for a con­ vention for proposing am endm ents on the subject o f reapportionm ent and the other half apply for a convention for proposing amendments to abolish the electoral college, how should Congress respond?34 Article V

J,The historical response o f Congress to the problem presented by applications for conven­ tion is described in some detail in Appendix II. The nature o f some o f the early applications and their bearing on the interpretation o f Article V are described in Appendix III.

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says that Congress must call a convention whenever two-thirds o f the legislatures have made an “ A pplication.” If two-thirds or more o f them have applied for a convention, does it m atter that they are divided among themselves regarding the work that the convention should do?

The historical materials that we have already discussed suggest that it matters very much indeed. The States cannot launch an amendment unless there is a consensus among two-thirds o f them that will provide a political basis for the proposal. Recall Ham ilton’s argument in The Federalist—if the new C onstitution were adopted, the States would be able to obtain amendments that would curb the powers of the central government, but it would take two-thirds o f them to float any given proposal—two-thirds to set the measure on foot. Washington said much the same thing. M adison’s analysis was the most revealing o f all. Madison said that Article V “ equal­ ly enables” Congress and the legislatures o f the States to originate the “ amendment o f errors” perceived at one level o f government or the other. In other words, the power o f the legislatures to initiate the amendment process is equal to that o f Congress. When can Congress originate “ the amendment o f errors” ? Congress can propose a constitutional am end­ ment if, but only if, there is an extraordinary agreement among two-thirds o f the Members o f both Houses that an am endment is necessary. If one- half o f the Members favor an am endment on the electoral college, C on­ gress has no power to propose an amendment on either subject. Do the States have greater power? We are willing to take Madison at his word. Their power is equal to that o f Congress, not greater. Unless there is general agreement among two-thirds o f the legislatures over the nature of the change, or the area where change is needed (be it a general revision o f the Constitution or a change in some specific area), the am endment proc­ ess cannot go forward via the convention route.

When we view the application process in that light, we begin to under­ stand the political wisdom o f Article V. The Framers wanted to make the Constitution amendable, but they understood the traum a o f the am end­ ment process. They had experienced it themselves. Through a great exer­ tion, they had established a new frame o f government, and they did not want additional proposals for change to be loosed on the young republic unless there were a firm basis for believing that the process would be worth the political cost. To provide a guarantee o f that sort, they established an exclusive two-track system for formulating viable, ratifiable constitutional proposals. Under that system no proposal for change can be issued by any authority unless there is a preexisting consensus supportive o f change among an extraordinary majority at one level o f the government or the other.

How, then, does Congress determine when to call a convention? If the foregoing analysis is correct, Congress must answer two questions o f fact. What do the legislatures want? How many o f them want it? The Constitu­ tion does not simplify the task. It does not specify a form o f words or a style o f application through which the wishes of the legislatures are to be

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transmitted to Congress. It permits them to apply for different things in dif­ ferent ways. But in the end Congress’ job is straightforward and unmysterious . Congress must simply assess the applications that are made, determine whether there is common ground among them, and call a convention when­ ever two-thirds of the applications exhibit a consensus supportive o f some particular constitutional change.

This view o f the role o f Congress in counting divergent applications has been advocated by a substantial number o f commentators. See Appen­ dix II, note 3. It has also played an important role in the arguments o f some of the dissenters, who object at the threshold to the very idea of applications o f limited subject. The argument is this: If applications o f limited subject were permitted, Congress would be obliged to respond to them. It would be obliged to review them for content and make judgments from time to time about the nature of the consensus they express, if any. Moreover, if Con­ gress were ever to call a convention on the basis o f limited applications of limited subject, it might even be required or empowered to take legislative action in connection with the call that would limit the power o f the conven­ tion in accordance with the tenor o f the applications. But the drafting history o f the Convention Clause shows that the Framers did not want the national legislature to interfere with the convention process. They did not want Congress to make substantive judgments that could block or channel the development of constitutional proposals via the convention route. Ac­ cordingly, the State legislatures cannot be permitted to file applications of limited subject in the first place. They must file uniform applications for a convention process that are neutral with respect to subject. Only then—only when the task o f Congress is limited to that o f counting uniform applica­ tions for a convention with general powers—can the possibility o f imper­ missible congressional intervention be eliminated.

We agree with the foundations o f this argument, but the conclusions are flawed, in our view. It is perfectly clear that the Framers intended that the national legislature would have no independent power to determine what a constitutional convention may or may not do; but it stands history on its head to argue that the Framers must therefore have intended to deny that power to the State legislatures and to abandon the question of constitutional change to a transient majority o f delegates at a convention with general powers. Conscientious scholars may differ over these points; but as we have stated above, we think the relevant historical materials demonstrate that the application procedure was designed to give the regular governments of the States an opportunity to apply for amendments favored by them, that the two-thirds requirement, which is present in both amendment mechanisms, was designed to ensure that no ratifiable constitutional proposal could ever be floated unless it were responsive to a preexisting consensus among an ex­ traordinary majority at the one level o f government or the other, and that the Framers inserted the convention device into the application process, not to frustrate either of these, purposes, but to guarantee that an entity other than Congress would be charged with the duty o f responding substantively to the applications o f the States.

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Aside from the historical considerations, there is another difficulty here. The basic constitutional choice is between a flexible application pro­ cedure and a rigid application procedure—between a procedure in which the legislatures are free to apply for what they want, and a procedure in which they may apply for a general convention only. The choice between these two procedures simply cannot be made on the ground that the one gives Congress power to frustrate the desires of the other participants in the convention process, whereas the other does not. U nder the flexible procedure the legislatures are free to do precisely what they are entitled to do under the rigid one, and Congress is empowered to do neither more nor less. Under the flexible procedure the legislatures are free to apply for a general convention, if two-thirds o f them are willing to solicit and enter­ tain proposals on any subject; and Congress must respond whenever two- thirds o f them have done so. The real difference between the two pro­ cedures lies, not in the way they allocate power between Congress and the legislatures, but in the way they allocate power between the legislatures and the convention itself. Under the rigid procedure the role of the con­ vention is to follow wherever its delegates lead; and the convention is in­ variably empowered to do so, whatever the desires o f the legislatures may be. Under the flexible procedure the convention is the servant o f the legislatures. Its function is to respond to the extraordinary consensus that was the predicate for the call. For all the reasons given above, we think the latter conception is the one to be preferred. It is the more defensible o f the two, given the history and logic o f Article V.

Before passing to the final question, the question o f the power o f the convention, we want to say a word about a point raised at the beginning o f o u r discussion. How does'Congress treat an application that requests, not only that a convention be called to consider a particular problem or pro­ posal, but that the convention do nothing more than approve and issue a specific amendment containing terms that have been drafted by the appli­ cant? At the outset we stated that applications of this kind, which on their face appear to foreclose any possibility o f adjustm ent or compromise, are viable only in very limited circumstances. We are now in a position to see why that is so. If a legislature demands that a convention do nothing more than accept a predetermined draft, it drastically reduces the potential for agreement between its application and the applications o f other States. Even among applications directed at the same general problem, an appli­ cation that affirmatively excludes any approach but its own adds little if anything to the consensus required for the call to convention. We must take “ application” at face value. If the applicant wants a convention for the sole and exclusive purpose o f issuing its own proposal and none other, there can be no common ground between its views and the views o f any other applicant unless the other is willing to forego everything else and acquiesce in the narrow demand. The other is, o f course, free to acquiesce by modifying its application. But if its application remains at variance with the one, there is grave doubt that Congress could find, on the face o f the applications, any zone o f actual agreement between the two.

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The Power of the Convention. If our conclusions regarding the role of the legislatures and the function o f the two-thirds requirement are correct, the ultimate question—the question o f the convention’s power—almost answers itself. We need to make only one additional analytical point.

Anyone is free to make constitutional proposals, but no proposal can be accepted by the States and become part o f the C onstitution unless it is formulated in accordance with the procedures set out in Article V. The Department o f Justice or the State o f Michigan can make constitutional proposals; but these proposals however, meritorious or inviting, cannot be ratified by the States. Congress itself can make proposals, but it can submit them for ratification only if it has complied with the constitutional procedures governing the formulation o f proposals for change. Congress can submit proposals for ratification only if two-thirds o f the Members of both Houses find them necessary.

As we have suggested in the preceding discussion, the meaning o f the Convention Clause is simple and clear. A constitutional convention con­ venes, if at all, to make proposals responsive to a substantive consensus among the legislatures o f the States. The consensus may be general or nar­ row. It may call for a general reexamination o f the C onstitution, or it may be a relatively specific agreement among the legislatures about the desirability o f a particular change. In any case, the function o f the two- thirds requirement in the application process is to ensure that no conven­ tion will be convened and no proposal made unless there is an agreement among an extraordinary m ajority o f the governments o f the States that would justify a responsive proposal and the ratification effort. As Hamilton put it, it takes two-thirds to set the measure on foot. That being so, it is unim portant that the delegates to a constitutional convention may have a moral or legal duty to respect the tenor o f the application and call that brought them there. They may well have such a duty or duties, but the im portant point is that they have, in our view, no power to issue ratifiable proposals except to the extent that they honor their commission. They have no more power to go beyond the consensus that summoned them to convention than does Congress to propose amendments that are not responsive to a consensus am ong two-thirds o f its Members.

We have one final word. Congress has been given power to specify a mode o f ratification for constitutional proposals that have developed in accordance with Article V. It has no power to provide for the ratification o f any constitutional proposal except those that have, been formulated in accordance with Article V. Congress could not, for example, provide for the ratification o f a constitutional proposal submitted for ratification by a bare majority o f its Members. Likewise, it could not provide for the ratification o f a proposal emitted by a constitutional convention for which less than two-thirds o f the States have applied.

John M . H armon

Assistant A ttorney General Office o f Legal Counsel

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A PPEN D IX I

Proceedings o f the Convention o f 1787

When the delegates met in Philadelphia, their discussion first centered on a plan o f the union submitted by Edm und Randolph on behalf o f the Virginia delegation. The 13th resolution o f that plan dealt with the ques­ tion o f amendment:

. Resd. that provision ought to be made for the am endm ent o f the Articles o f Union whensoever it shall seem necessary, and that the assent o f the National Legislature ought not to be required th ereto .1 This resolution, in a slightly modified form (“ that provision ought to be made for [hereafter] amending the system now to be established, without requiring the assent o f the National Legislature),2 was first debated on June 5. Although Pinckney “ doubted the propriety or necessity o f it,” 3 Elbridge Gerry favored the provision:

The novelty & difficulty o f the experiment requires periodical revision. The prospect o f such a revision would also give inter­ mediate stability to the Govt. Nothing had yet happened in the States where this provision existed to proves [sic] its im propriety.4 The convention then postponed further deliberation on the provision.5 The provision “ for amending the national Constitution hereafter without consent o f National Legislature” was next discussed on June l l . 6 Several members “ did not see the necessity o f the [resolution] at all, nor the propriety o f making the consent o f the National Legislature unneces­ sary.” 7 George M ason, however, urged that the provision was necessary:

The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Am endm ents there­ fore will be necessary, and it will be better to provide for them , in an easy, regular and Constitutional way than to trust to chance and violence. It would be improper to require the consent o f the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account. The opportunity for such an abuse may be the fault o f the C onstitution calling for am endm ent.8

11 Farrand at 22. M Farrand at 121. ‘Id. M Farrand at 122. ’Id . ‘ 1 Farrand at 202. ‘Id. *1 Farrand at 202-03.

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Edm und Randolph supported M ason’s arguments. The convention, how­ ever, postponed action on the words “ without requiring the consent o f the national Legislature.” The other portion o f the clause (“ provision ought to be made for the am endm ent o f the Articles o f Union whensoever it shall seem necessary” ) was passed without dissent.9 The provision as passed was then referred, to the Committee o f Detail. T hat committee fashioned the first draft o f the C onstitution and sub­ mitted it to the convention on August 6. Article XIX o f that draft provid­ ed for am endm ent as follows:

On the application o f the Legislatures o f two thirds o f the States in the Union, for an am endm ent o f this C onstitution, the Legislature o f the United States shall call a Convention for that p urpose.10 This provision was considered on August 30. Gouverneur Morris sug­ gested that “ the Legislature should be left at liberty to call a Convention, whenever they please.” " Notwithstanding this suggestion, the provision was agreed to without dissent.

On September 10 Gerry moved to reconsider Article XIX. Since the C onstitution was “ to be param ount to the State C onstitution,” he feared that “ two thirds o f the States may obtain a C onvention, a majority o f which can bind the Union to innovations that may subvert the State C on­ stitutions altogether.” 12 Alexander Hamilton seconded G erry’s motion. He did not object to the consequences feared by Gerry, for “ there was no greater evil in subjecting the people o f the U.S. to the m ajor voice than the people o f a particular S tate.” 13 Rather, Hamilton argued:

It had been wished by many and was much to have been desired that an easier mode for introducing am endments had been pro­ vided by the Articles o f C onfederation. It was equally desirable now that an easy mode should be established for supplying defects which will probably appear in the new System. The mode proposed was not adequate. The State Legislatures.will not apply for alterations but with a view to increase their own powers—The National Legislature will be the first to perceive and will be most sensible to the necessity o f am endm ents, and ought also to be empowered, whenever two thirds o f each branch should concur to call a Convention—There could be no danger in giving this power, as the people would finally decide in the case.14

*1 Farrand at 203. I02 Farrand at 188. "2 Farrand at 468. "2 Farrand at 557-58. 112 Farrand at 558. ‘•Id.

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Madison “ remarked on the vagueness o f the terms, ‘call a Convention for the purpose,’ as sufficient reason for reconsidering the article.” 15 Specifically, Madison raised the questions, “ How was a Convention to be formed? by what rule decide? what the force o f its acts?” 16 A fter this debate, Gerry’s m otion to reconsider carried.17 Roger Sherman then moved that the following language be inserted into the Article: “ or the Legislature may propose amendments to the several States for their approbation, but no amendments shall be binding until consented to by the several States.” 18 James Wilson moved that the ap­ proval o f only two-thirds o f the States should be necessary, but this m o­ tion was defeated.19 Wilson then moved to require the approval o f three- fourths o f the States, and this m otion was approved with dissent.20 Madison then moved, and Hamilton seconded, that the convention postpone consideration o f the amended proposition and that it take up the following:

The Legislature o f the U — S— whenever two thirds o f both Houses shall deem necessary, or on the application o f two thirds o f the Legislatures o f the several States, shall propose amendments to this Constitution, which shall be valid to all intents and pur­ poses as part thereof, when the same shall have been ratified by three fourths at least o f the Legislatures o f the several States, or by Conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the Legislature o f the U .S.21 Rutledge objected, on the ground that “ he could never agree to give a power by which the articles relating to slaves might be altered by the States not interested in that property and prejudiced against it.” 22 In order to ob­ viate his objection, it was agreed to add to M adison’s proposition the pro­ viso “ that no amendm ents which may be made prior to the year 1808 shall in any manner affect the 4 and 5 sections o f the VII article.” 23 As amended, M adison’s proposition was adopted.24 The Committee o f Style made minor changes in M adison’s amended proposition and reported it as Article V to the convention.25 On Septem­ ber 15, Sherman initiated debate on this provision by expressing his fears that three fourths o f the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them

"Id. '‘id. "id. "Id. "2 Farrand at 558-59. ” 2 Farrand at 559. “Id. "Id. "Id. "Id. "2 Farrand at 602.

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of their equality in the Senate. He thought it reasonable that the proviso in favor of the States importing slaves should be ex­ tended so as to provide that no State should be affected in its in­ ternal police, or deprived of its equality in the Senate.26 George Mason also objected to the provision, for he thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second, ul­ timately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.27 Morris and Gerry then moved to amend the provision “ so as to require a Convention on application of two-thirds of the states.” 21 Madison responded that he did not see why Congress would not be as much bound to pro­ pose amendments applied for by two thirds of the States as to call a Convention on the like application. He saw no objection however against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum &c. which in Constitutional regulations ought to be as much as possible avoided.29 The Convention thereupon agreed to Morris’ and Gerry’s proposal.30 Sherman then moved to strike the requirement of three-fourths for ratification, in order to leave “ future Conventions to act in this matter, like the present Conventions according to circumstances.” 31 This motion failed, as did Gerry’s motion to eliminate ratification by convention.32 Sherman then moved to add a further proviso “ that no State shall withoutits consent be affected in its internal police, or deprived of its equal suf­ frage in this Senate.” 33 Madison objected, on the ground that incorpora­ tion of “ special provisos” would lead every State to “ insist on them, for their boundaries, exports, etc.” 34 The motion was defeated; so too was Sherman’s next motion to strike out Article V altogether.35 Morris then moved to add the single proviso “ that no State, without its consent shall be deprived of its equal suffrage in the Senate.” According to Madison, this motion was “ dictated by the circulating murmurs of the small States” and was thus agreed to .36 This completed deliberations on Article V.

"2 Farrand at 629. 17Id. "Id . ” 2 Farrand at 629-30. !02 Farrand at 630. "Id . "Id . s,Id. 14I d .

” 2 Farrand at 630-31. 3,2 Farrand at 631.

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A PPEN D IX n

Congressional Handling of Convention Applications

The States have filed more than 350 applications for conventions.1 These applications have been on a wide variety of subjects; and as we have suggested, most authorities are of the view that applications on different subjects should not be aggregated for the purpose of determining whether a sufficient number of States has applied for a convention.2 Congress has traditionally been of that view, for it has never, despite the large number of applications, called a convention.

On two occasions the Senate has approved legislation to establish con­ vention machinery. In 1971 and 1973 the Senate passed identical bills writ­ ten by Senator Ervin that were premised on the proposition that a conven­ tion might be called to consider a particular subject. The bills provided that any call to convention would “ set forth the nature of the amendment or amendments for the consideration of which the convention is called.” To enforce this restriction, they provided that each convention delegate would take an oath committing himself not to propose or vote for any pro­ posed amendment not relating to the subject described in the call. The bills also allowed Congress to disapprove the submission of any proposed amendment to the States if Congress found that the proposal related to or included a subject that differed from the one specified by Congress.3 These provisions were founded on the conclusion of the Senate Judiciary Committee that “ the bill properly limits the scope of the convention to the subject or subjects” that caused the States to seek constitutional amend­ ment in the first instance.4

1125 C o n g r e s s i o n a l R eco rd (daily ed., January 15, 1979) (remarks o f Senator Helms). ‘See, e.g., Bonfield, “ The Dirksen A m endm ent and the Article V Convention Process,” 66 Mich. L. Rev. 949, 970 and n. 85 (1968). The opposite view is advanced by a few com m en­ tators who reason that even disparate dem ands show a widespread desire for constitutional changes. See, e.g., Orfield, Amending the Federal Constitution, 42 (1942). It is generally agreed, however, that applications on different subjects cannot be taken as an indication of general dissatisfaction with the entire C onstitution. See, e.g., N ote, 70 Harv. L. Rev. 1067, 1072 (1957).

!S. 215, 92d Cong., 1st sess. §§ 6(a), 8(a), 11(b)(1), 117 C o n g r e s s i o n a l R e c o r d 36805 (1971); S. 1272, 93d Cong., 1st sess., 119 C o n g r e s s i o n a l R e c o r d 22731-37 (1973).

4S. Rept. 336, 92d Cong., 1st sess. 10(1971).

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A P P E N D IX ID

The Early Applications of the States

The States made few applications for conventions during the first 100 years after the Constitution was ratified. A majority of these early ap­ plications were for general conventions.1 It has been argued that the States must therefore have thought themselves empowered to ask for general conventions only, and that this in itself is evidence that an Article V con­ vention may not be called for a limited purpose.2 We do not accept this view.

The earliest applications were made by Virginia in 1788 and by New York in 1789. The Virginia application referred to the numerous objec­ tions that had been made to the new Constitution:

We do, therefore, in behalf of our constituents, in the most earnest and solemn manner, make this application to Congress, that a convention be immediately called, of deputies from the several States, with fu ll pow er to take into their consideration the defects o f this constitution that have been suggested by the State Conventions, and report such amendments thereto as they shall find best suited to promote our common interests, and secure to ourselves and our latest posterity the great and unalienable rights of mankind.3 [Emphasis added.]

The New York application voiced a similar sentiment:

The People of the State of New York having ratified the Con­ stitution agreed to on the seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven, by the Convention then assembled at Philadelphia, in the State of Pennsylvania, as explained by the said ratification, in the fullest confidence of obtaining a revision of the said Constitution by a General Convention; and in confidence that certain powers in and by the said Constitution granted, would not be exercised, until a Convention should have been called and convened for proposing amendments to the said Constitution: In compliance, therefore, with the unanimous sense o f the Convention of this State, who all united in opinion that such a revision was necessary to recommend the said Constitution to the approba­ tion and support of a numerous body of their constituents;

'Brickfield, “ Problem s Relating to a Federal Constitutional C onvention,” 85-88, House o f Representatives Judiciary Com m ittee Print, 85th C ong., 1st sess. (1957). See also American Bar Association, Amendm ent o f the Constitution by the Convention Method Under Article V, 59-72 (1974).

’Black, “ Amending the Constitution: A Letter to a Congressm an,” 82 Yale L .J. 189, 201-03 (1972).

*1 A n n a l s o f C o n g r e s s 248-49 (Gales & Seaton, eds. 1789).

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and a majority of the members of which conceived several ar­ ticles of the Constitution so exceptionable, that nothing but such confidence, and an invincible reluctance to separate from our sister States, could have prevailed upon a sufficient number to assent to it, without stipulating for previous amendments: And from a conviction that the apprehensions and discontents which those articles occasion, cannot be removed or allayed, unless an act to revise the said Constitution be among the first that shall be passed by the new Congress; we, the Legislature of the State of New York, do, in behalf of our constituents, in the most earnest and solemn manner, make this application to the Congress, that a Convention of Deputies from the several States be called as early as possible, with fu ll powers to take the said Constitution into their consideration, and to propose such amendments thereto, as they shall fin d best calculated to prom ote our com ­ mon interests, and secure to ourselves and our latest posterity, the great and unalienable rights o f m a n k i n d [Emphasis added.]

Because both Virginia and New York expressed a general concern over the adequacy of the Constitution, it is not surprising that they applied for a general convention. These applications do not support the contention that the applicants believed that they could ask for a general convention only. Indeed, the inclusion in these applications of language specifying that the requested convention should have “ full” or “ general” powers suggests rather clearly that the powers of an Article V convention were not thought to be invariably general but were thought to be dependent on the terms of the applications of the States. It is unnecessary to request that a conven­ tion have full or general powers if full or general powers are the only kind of powers that a convention can have.

Applications for conventions were made at two other points during the first 100 years. During the nullification controversy three States filed ap­ plications. South Carolina resolved that “ it be expedient that a convention of the States be called as early as practicable to consider and determine such questions of disputed power as have arisen between the States of this confederacy and the General Government.” 5 Alabama “ recommended” to Congress “ the call of a Federal Convention to propose such amend­ ments to the constitution as may be proper to restrain Congress from exerting the taxing power for the substantive protection of domestic manufactures.” 6 Georgia applied to Congress to call a convention, to the end, among others, “ that the principle informed in a Tariff for the direct protection of domestic industry may be settled” and “ a system of Federal

‘H o use Journal 29-30 (1789); 1 A n n a l s o f C o n g r e s s 271 (1789). ’Sen a te J o u rn al 83, 22d C o n g ., 2d se ss. (1833). ‘Id. at 194-95.

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taxation may be established, which shall be equal in its operation upon the whole people * * * .” 7 In our view, these resolutions make no applica­ tion for a convention with unlimited powers; rather, they request a con­ vention for the purpose of addressing problems broadly identified in the applications themselves.

Some States applied for conventions during the period just preceding the Civil War. President Buchanan had recommended that the Congress or the State legislatures might originate “ an explanatory amendment of the Constitution on the subject of slavery.’” President Lincoln, while refraining from any “ recommendation of amendments,” had opined that “ the convention mode seems preferable, in that it allows amendments to originate with the people themselves.” 9 In accordance with that sentiment, several States—New Jersey, Indiana, Kentucky, Illinois, and Ohio—adopted resolutions applying to Congress for a convention. These resolutions were general in nature. Typically, they called for a “ conven­ tion for proposing amendments.” 10 One can argue that they indicate that the applicants believed their only recourse under Article V was to apply for a general convention, but one can argue with equal force that the form of these applications was dictated by the desire for a convention with unlimited power to avert the impending crisis.

'T he Georgia application actually presented to the Senate contained an enum eration of “ particulars” more extensive than those cited in the text. Senate Journal 65-66, 22d Cong., 2d sess. (1833). However, the one authority known to us to have studied this m atter exten­ sively states that the Georgia H ouse resolution, containing this larger enum eration, had been substantially narrowed by the Georgia Senate to the form quoted in the text, but the G ov­ ernor’s Office mistakenly transm itted the House resolution to the Congress. See Pullen, supra (note 2) at 42-44.

•55 C o n g r e s s i o n a l G l o b e , 36th C ong., 2d sess., app. 4 (1860). ’4 Collected Works o f Abraham Lincoln, 269-70 (Basler ed. 1953). '"See the resolutions cited in Pullen, supra (note 2), at 79-85.