Convention to propose amendments to the United States Constitution
A convention to propose amendments to the United States Constitution, also referred to as an Article V Convention, state convention, or amendatory convention is one of two methods authorized by Article Five of the United States Constitution whereby amendments to the United States Constitution may be proposed: on the Application of two thirds of the State legislatures the Congress shall call a convention for proposing amendments, which become law only after ratification by three-fourths of the states. The Article V convention method has never been used; but 33 amendments have been proposed by the other method, a two-thirds vote in both houses of Congress; and 27 of these have been ratified by three-fourths of the States. Although there has never been a federal constitutional convention since the original one, at the state level more than 230 constitutional conventions have assembled in the United States.
While there have been calls for an Article V Convention based on a single issue such as the balanced budget amendment, it is not clear whether a convention summoned in this way would be legally bound to limit discussion to a single issue; law professor Michael Stokes Paulsen has suggested that such a convention would have the "power to propose anything it sees fit", whereas law professor Michael Rappaport and attorney-at-law Robert Kelly believe that a limited convention is possible.
In recent years, some have argued that state governments should call for such a convention. They include Michael Farris, Lawrence Lessig, Sanford Levinson, Larry Sabato, Jonathan Turley, Mark Levin, Ben Shapiro, and Greg Abbott. In 2015, Citizens for Self-Governance launched a nationwide effort to require Congress to call an Article V Convention, through a project called Convention of the States, in a bid to "rein in the federal government"., CSG's resolution has passed in 20 states. Similarly, the group Wolf-PAC chose this method to promote its cause, which is to overturn the U.S. Supreme Court's decision in Citizens United v. FEC. Their resolution has passed in five states.
In late 2023, The Heritage Foundation issued a report titled Reconsidering the Wisdom of an Article V Convention of the States.
Organizations opposed to an Article V convention include the John Birch Society, the Center on Budget and Policy Priorities, Eagle Forum, Common Cause, Cato Institute, and the Ron Paul Institute for Peace and Prosperity. Law Professor emeritus William A. Woodruff has pointed out that James Madison, the Father of the Constitution, a member of the Virginia legislature, a delegate to the Philadelphia Convention, and a delegate to the Annapolis Convention that recommended what became the Philadelphia Convention, was opposed to an Article V convention to consider adding a bill of rights to the Constitution. When asked whether a convention should be called to consider a bill of rights, Madison said, "Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a second.... " Woodruff urges state legislators who are asked to vote in favor of an application to Congress to call an Article V convention to carefully consider the knowns and unknowns of the convention method before opening Constitutions to a series of unintended consequences. Peter M. Shane writes that a convention could be more malapportioned than Congress. Amendments pending ratifications could polarize state-level politics.
History
At the time the 1787 Constitutional Convention convened in Philadelphia, eight state constitutions included an amendment mechanism. Amendment-making power rested with the legislature in three of the states and in the other five it was given to specially elected conventions. The Articles of Confederation provided that amendments were to be proposed by Congress and ratified by the unanimous vote of all thirteen state legislatures. This was seen by the Federalists as a major flaw in the Articles, as it created a nearly insurmountable obstacle to constitutional reform. The amendment process crafted during the Constitutional Convention, James Madison later wrote in The Federalist No. 43, was designed to establish a balance between pliancy and rigidity:Creation of the amendment process
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." This was subsequently modified by the Committee of Detail to include a process whereby Congress would call for a constitutional convention on the request of two-thirds of the state legislatures.
During the debate on the Committee of Detail's report, James Madison expressed concern about the lack of detail in the article regarding how the convention amendment process would work, stating that "difficulties might arise as to the form" a convention would take. He later proposed removing reference to the convention amendment process, thus 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. 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 National 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.
Permissible scope of applications to Congress
A frequent question is whether applications from the states can omit to mention subject matter, and instead request an unlimited convention. Practice suggests that separate unlimited applications submitted to Congress at different times are not allowed. Article V itself calls for "the application of the legislatures" instead of calling for plural "applications".States have requested that Congress convene 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. On at least one occasion though, the Congressional Record has included such a tabulation, which indicated that, as of September 22, 1981, thirty states had made a request for a balanced budget amendment. In 1993, professor Michael Paulsen and his research staff assembled a listing of all state applications to date, but neither Paulsen's list, nor any other, can be safely characterized as "complete" since there may very well be state applications that have been overlooked and/or forgotten.
In two law review articles in 1993 and again in 2011, Paulsen argued that state applications for an Article V convention limited to a particular subject matter are invalid and that only applications that include a call for an unrestricted convention are valid. If Paulsen's criteria that state applications must not be limited to particular subject matter and that a rescission by states are valid, then forty-five applications from states were active as of 1993. Paulsen argues that Congress has had ample direction to call a convention on these grounds.
There has been no definitive determination by the Supreme Court regarding the state convention amendment method, though it has handled several cases and an array of arguments on the scope which Amendments can ultimately affect. The 1939 case Coleman v. Miller, which questioned whether a state legislature could relinquish endorsement of an Amendment pertaining to child labor, decided in part, "the question whether a reasonable time had elapsed since submission of the proposal was a nonjusticiable political question, the kinds of considerations entering into deciding being fit for Congress to evaluate, and the question of the effect of a previous rejection upon a ratification was similarly nonjusticiable, because the 1868 Fourteenth Amendment precedent of congressional determination 'has been accepted. The case is seen to stand as authority for the proposition that at least some decisions with respect to the proposal and ratifications of constitutional amendments are exclusively within the purview of Congress, either because they are textually committed to Congress or because the courts lack adequate criteria of determination to pass on them.
Permissible scope of proposed amendments
Because no Article V convention has ever been convened, there are various 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 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, 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. Senator Orrin Hatch made a similar proposal several times in the late 1980s culminating in 1991 with no more success. 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." There has been no opportunity for federal courts to decide whether Congress has such authority because such legislation has never been adopted by Congress.
Some scholars believe that states have the power to limit the scope of an Article V convention: Larry Sabato is one scholar who advanced that view. Some feel that 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 would likely need to be limited in the way the states requested.
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. If a convention did attempt to exceed its scope, none of the amendments it proposed would become part of the constitution until three-fourths of the states ratified them, which is more states than are required to call a convention in the first place. Some proponents of a convention express doubt that an Article V convention would exceed its scope, 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. This is reinforced by the fact that prior to the 1787 Philadelphia Convention, there were many other conventions of the states where the delegates operated within the scope of their commissions.
Further, at many Conventions, States have directly controlled their delegates. In the New Hampshire Convention to ratify the U.S. Constitution, delegates were sent with instructions to vote against the Constitution: when they were convinced that the voters had been mistaken, the delegates later returned to their constituents to convince them and request new instructions, allowing the convention to represent the true voice of the people.
Similarly, in the 1787 Convention, problems arose after two of New York's delegates walked out in protest, as the New York State Legislature had created a rule that required two delegates to agree to cast a vote on behalf of the state. As the legislature opted not to send new delegates, Alexander Hamilton accepted the authority of the state and was unable to cast a vote for the remainder of the convention. This is the fundamental difference between a Delegate to a Convention, there to do the bidding of their constituents, and a Representative to a Legislature, there to stand in place of their constituents and make decisions based on their own deliberation.
The delegates to the 1787 Constitutional Convention did disregard Congress's recommendation to "solely amend the Articles" but as Madison noted in Federalist No. 40, the resolution Congress passed in February 1787 endorsing the convention was only a recommendation. Regardless, the delegates sent nothing to the States at all, sending their new Constitution to Congress, as was their mandate. Congress debated the matter before voting to send it on to the States for ratification with no recommendation for or against.