b'October 10, 1979\n\n79-75\n\nMEMORANDUM OPINION FOR THE\nATTORNEY GENERAL\nConstitutional Convention\xe2\x80\x94Limitation of Power to\nPropose Amendments to the Constitution\n\nYou have requested our opinion on a question that involves the \xe2\x80\x9c C on\xc2\xad\nvention Clause\xe2\x80\x9d o f Article V o f the Constitution:\nThe Congress * * * on the Application o f the Legislatures of\ntwo thirds o f the several States, shall call a Convention for pro\xc2\xad\nposing Amendments, which * * * shall be valid to all Intents\nand Purposes, as part o f this C onstitution, when ratified by the\nLegislatures o f three fourths o f the several States, or by Conven\xc2\xad\ntions in three fourths thereof, as the one or the other Mode of\nRatification may be proposed by the Congress * * *\nYour question is whether this clause authorizes a general or a limited con\xc2\xad\nvention process. Does a \xe2\x80\x9c Convention for proposing Am endm ents,\xe2\x80\x9d called\nby Congress on application o f two-thirds o f the legislatures o f the States,\nhave general power to propose amendm ents on any subject that com \xc2\xad\nmands the attention o f the delegates? U nder what circumstances, if any,\n\n\'T he entire text o f Article V follows:\nThe Congress, whenever two thirds o f both Houses shall deem it necessary, shall pro\xc2\xad\npose Am endm ents to this C onstitution, or, on the A pplication o f the Legislatures o f two\nthirds o f the several States, shall call a Convention for proposing Am endm ents, which,\nin either Case, shall be valid to all Intents and Purposes, as Part o f this Constitution,\nwhen ratified by the Legislatures o f three fourths o f the several States or by Conventions\nin three fourths thereof, as the one or the other M ode o f Ratification may be proposed\nby the Congress; Provided that no A m endm ent which may be m ade prior to the Year\nO ne thousand eight hundred and eight shall in any M anner affect the first and fourth\nClauses in the Ninth Section o f the first Article; and that no State, without its Consent,\nshall be deprived o f its equal Suffrage in the Senate.\n\n390\n\n\x0cmay the powers and the proposals of the convention be limited to a par\xc2\xad\nticular field? This question has been warmly debated among constitutional\nscholars and officers o f Governm ent.2 It has never been answered or even\naddressed by any court. O ur views are set forth below.\nI.\n\nThe Convention of 1787\n\nIn the summer o f 1787 delegates from 12 of the 13 United States\nassembled in Philadelphia. They had been called to Philadelphia by C on\xc2\xad\ngress, and their purpose was to consider and propose amendments to the\nArticles o f Confederation and constitution o f the young Nation. They\nlabored through the summer and produced a new and enduring docum ent,\nthe very Constitution that your question requires us to construe.\nOne o f the im portant questions that confronted the delegates in\nPhiladelphia was whether they should honor the procedural limitations\nthat governed the amendment process. These limitations were created by\nArticle XIII o f the Articles o f Confederation and by the Act o f Congress\npursuant to which the convention had been called. Under the Act the con\xc2\xad\nvention was to consider and propose amendments to the Articles, and the\namendments were to become effective when approved by Congress and\neach o f the States.3 The Act was declaratory o f the Articles themselves.\nThe Articles allowed for amendment, but they declared that the Union o f\nthe 13 States would be \xe2\x80\x9c perpetual\xe2\x80\x9d and that the government could not be\naltered unless the alteration were \xe2\x80\x9c agreed to in a Congress o f the United\nStates * * * and * * * confirmed by the Legislatures o f every S tate.\xe2\x80\x9d\nArticle XIII.\n\n\xe2\x80\x99See Dellinger, \xe2\x80\x9c The Recurring Question o f the \xe2\x80\x98Limited\xe2\x80\x99 C onstitutional C onvention,\xe2\x80\x9d 88\nYale L .J. 1623 (1979); Van Alstyne, \xe2\x80\x9c Does Article V Restrict the States to Calling Unlimited\nConventions Only?\xe2\x80\x94A L etter to a Colleague,\xe2\x80\x9d 1978 D uke L .J. 1295; Rhodes, \xe2\x80\x9c A Limited\nFederal Constitutional C onvention,\xe2\x80\x9d 26 U. Fla. L. Rev. 1 (1973); Bonfield, \xe2\x80\x9c The Dirksen\nAmendment and The Article V Convention Process,\xe2\x80\x9d 66 Mich. L. Rev. 949 (1968); Note,\n\xe2\x80\x9c Proposed Legislation on the Convention M ethod o f Am ending the United States C onstitu\xc2\xad\ntio n ,\xe2\x80\x9d 85 Harv. L. Rev. 1612, 1629 (1972); Black, \xe2\x80\x9c Amending the Constitution: A L etter to\na Congressman,\xe2\x80\x9d 82 Yale L .J. 189, 202-03 (1972); Special C onstitutional Convention Study\nCom m ., American Bar Assoc., \xe2\x80\x9c Am endment o f the C onstitution by the Convention M ethod\nUnder Article V\xe2\x80\x9d (1974); Pullen, \xe2\x80\x9c The Application Clause o f the Am ending Provision o f the\nConstitution\xe2\x80\x9d (1951) (unpublished thesis on file at University of N orth Carolina Library);\nOrfield, Amending the Federal Constitution (1942); Jam eson, A Treatise on Constitutional\nConventions (4th ed., 1887); Bonfield, \xe2\x80\x9c Proposing Constitutional Am endm ents by C onven\xc2\xad\ntio n ,\xe2\x80\x9d 39 Notre Dame Lawyer 659 (1964); Black, Handbook o f American Constitutional\nLaw (West P ub. C o., 1927); Brickfield, \xe2\x80\x9c State Applications Asking Congress to Call a\nFederal Constitutional C onvention,\xe2\x80\x9d House Com m, on the Judiciary, 87th C ong., 1st sess.\n(Comm, print, 1961); Brickfield, \xe2\x80\x9c Problems Relating to a Federal C onstitutional C onven\xc2\xad\ntio n ,\xe2\x80\x9d House Com m, on the Judiciary, 85th C ong., 1st sess. (Comm, print, 1957); Dixon,\n\xe2\x80\x9c Article V: The Com atose Article o f O ur Living C onstitution?\xe2\x80\x9d 66 Mich. L. Rev. 931\n(1968); \xe2\x80\x9c Ervin, Proposed Legislation to Implement the Convention M ethod o f Amending\nthe C onstitution,\xe2\x80\x9d 66 Mich. L. Rev. 875 (1968); G raham , \xe2\x80\x9c The Role o f the States in P ropos\xc2\xad\ning Constitutional A m endm ents,\xe2\x80\x9d 49 ABAJ 1175 (1963); Kauper, \xe2\x80\x9c The Alternative A m end\xc2\xad\nment Process: Some O bservations,\xe2\x80\x9d 66 Mich. L. Rev. 903 (1968); Packard, \xe2\x80\x9c The States and\nthe Amending Process,\xe2\x80\x9d 45 ABAJ 161 (1959); Forkosch, \xe2\x80\x9c The Alternative Amending Clause\nin Article V ,\xe2\x80\x9d 51 Minn. L. Rev. 1053, 1075 (1967).\nM Elliot, The Debates in the Several State Conventions on the Adoption o f the Federal\nConstitution 120 (2d ed., 1836) (hereinafter \xe2\x80\x9c Elliot\xe2\x80\x9d ).\n\n391\n\n\x0cThe requirement o f unanim ous consent stood squarely in the way o f\nwhat a majority o f the delegates wanted to do. They wanted to propose\nsweeping changes in the old system, and they had no reason to believe that\ntheir proposals would be universally accepted. Rhode Island had not even\nbothered to attend the convention. Congress, whatever views it might\notherwise have entertained, stood to be abolished by the proposed reform.\nIf the Framers adhered to the amendment procedure set out in the Articles\nand in the statute, they faced a prospect o f failure. Because they greatly\nfeared the consequences o f failure,* they boldly chose to ignore the law .5\nThey drafted their new Constitution in secret session; and when they\nemerged at the end o f the summer, they proposed that their plan should\ntake effect upon ratification, not by Congress or by the legislatures o f the\nStates, but by popular conventions in the States. Moreover, they proposed\nthat ratification by conventions in nine States would be \xe2\x80\x9c sufficient for the\nEstablishment of this C onstitution between the States so ratifying the\nSame. \xe2\x80\x9d See C onstitution o f the United States, Article VII, Clause 1. [Em\xc2\xad\nphasis added.] In a word, the Framers invited conventions in nine States to\nabolish the Union.\nCongress received this plan and demurred, transmitting it to the States.\nConventions in 11 States approved it, and the plan went into effect. In\nMarch, 1789, a new Congress (a Congress o f the eleven United States of\nAmerica) assembled in New York; and it was clear by then that a funda\xc2\xad\nmental change had occurred. In accordance with the Framers\xe2\x80\x99 design, under\nthe compulsion o f political necessity and in the face o f positive law to the\ncontrary, a confederation o f 13 States had been abolished by action o f a\ndedicated majority; and a new government, resting on different principles,\nhad been established among 11 o f the former confederates.6\n\n\xe2\x80\x98George W ashington, who was not given to overstatem ent, summarized the desperate con\xc2\xad\ndition o f the Confederacy in the following way:\nT hat something is necessary, all will agree; for the situation of the General Govem m t. (if\nit can be called a govem m t.) is shaken to its foundation, and liable to be overset by every\nblast. In a w ord, it is at an end, and unless a remedy is soon applied, anarchy and confu\xc2\xad\nsion will inevitably ensue.\nLetter to Thom as Jefferson, May 30, 1787, reprinted in 29 Writings o f Washington 224 (Fitz\xc2\xad\npatrick ed., 1931).\n\xe2\x80\x99As Edm und Randolph put it, \xe2\x80\x9c There are great seasons when persons with limited powers\nare justified in exceeding them * * * .\xe2\x80\x9d 1 Max Farrand, The Records o f the Federal Con\xc2\xad\nvention o f 1787, 262 (rev\xe2\x80\x99d ed., 1966) (hereinafter, \xe2\x80\x9c F arrand\xe2\x80\x9d ). George Mason agreed that\n\xe2\x80\x9c there were besides certain crises, in which all ordinary cautions yielded to public necessity.\xe2\x80\x9d\n1 Farrand a t 338. A t another point in the debate Jam es Wilson declared that \xe2\x80\x9c lt)he house on\nfire must be extinguished, w ithout a scrupulous regard to ordinary rights.\xe2\x80\x9d 2 Farrand at 469.\n\xe2\x80\x98The abolition o f the Articles o f C onfederation and the establishment o f the new C onstitu\xc2\xad\ntion was a peaceful revolution. It was an act o f will that altered a frame o f government in a\nway that was inconsistent with existing law governing how such alterations were to be made.\nMadison himself adm itted th at this was the best legal argum ent against what the Framers had\ndone: Their proposal was defective because the new C onstitution was to be approved and\nestablished in a way that was contrary to positive law. The Federalist, No. 40, at 263 (Cooke\ne d ., 1961). Madison, a good lawyer, had no answer for that argum ent on the merits. There\nwas no answer. He could only say that if the proposal were carried into execution on the ap\xc2\xad\nproval o f conventions in nine States, a justification could be found, not in positive law, but\nin the fundam ental dem ocratic principles to which the Declaration o f Independence had re\xc2\xad\nferred\xe2\x80\x94the \xe2\x80\x9c Laws o f N ature and o f N ature\xe2\x80\x99s G o d \xe2\x80\x9d that conferred upon all men a right to\nalter bad governments in the face o f existing legal forms. Id. at 265.\n\n392\n\n\x0cWe have begun our discussion with this page o f history to illustrate two\npoints that have caused no little confusion in the traditional debate over\nlimited, in contrast to general, conventions. We want to put them behind\nus.\nFirst, the Convention o f 1787 shows that law cannot execute itself. The\npeople and their officers execute the law; and when enough o f them\nchoose to disregard it, law is ineffective. Whatever Article V o f the C on\xc2\xad\nstitution may require or permit in the way o f legal limitation on the proc\xc2\xad\ness o f amendm ent by convention, it can be no more effective than was its\npredecessor, Article XIII o f the Articles o f C onfederation, if the citizens\nand their representatives undertake to disregard it.\nThe second point is related to the first. Some have argued that the C on\xc2\xad\nvention o f 1787 demonstrates the illimitable nature o f the convention\nprocess and the futility o f academic inquiries into the legal parameters o f\nthat process, whatever they may be. We do not share that view. It is true\nthat in revolutionary times, as in 1787, law may be disregarded and, in\xc2\xad\ndeed, overturned. But for 200 years this has been a Nation under law; and\nbecause the history o f the Convention o f 1787 shows so clearly how the\nobservance and preservation o f law, even fundamental law, depends\nultimately on the consent o f the people and their representatives, it\ndemonstrates the importance and the urgency o f questions such as the one\nyou have raised. If it is for the people and their officers to execute Arti\xc2\xad\ncle V, it is our duty to understand what Article V requires and what it\npermits.\nII.\n\nThe Procedural Nature o f Article V\n\nArticle V contains two provisions that expressly limit the scope o f the\nalterations that may be made in the C onstitution. The first\xe2\x80\x94\xe2\x80\x9c that no\nAmendment which may be made prior to the Year One Thousand Eight\nHundred and Eight shall in any M anner affect the first and fourth Clauses\nin the Ninth Section o f the First Article\xe2\x80\x9d \xe2\x80\x94was legally and politically\nsignificant when drafted, but it has no present force. The second\xe2\x80\x94that\n\xe2\x80\x9c no State, without its Consent, shall be deprived o f its equal Suffrage in\nthe Senate\xe2\x80\x9d \xe2\x80\x94establishes a constitutional principle o f fundamental\nimportance.\nThese limitations on the amendability o f the C onstitution are significant\nfor our purposes because they are the only limitations on subject m atter\nthat are expressly set out in Article V. With regard to all possible am end\xc2\xad\nments, except those prohibited by these provisions, Article V is restrictive\nonly insofar as it restricts the procedures by which amendments may be\nproposed and ratified. The question we must answer is whether there are\ncircumstances in which the procedures m andated by Article V may operate\n393\n\n\x0cin such a way as to confine the constitutional power o f an Article V con\xc2\xad\nvention to a given field.7\nWe will state our conclusions in advance. First, we think that if a con\xc2\xad\nvention for proposing amendm ents were called under Article V, the consti\xc2\xad\ntutionally m andated procedures would operate to deprive the convention\no f power to make constitutionally viable proposals except with respect to\nsubjects within a predeterm ined field. That field, however broad or nar\xc2\xad\nrow, would be defined by the extraordinary legislative act that initiates the\nconvention process, the \xe2\x80\x9c A pplication\xe2\x80\x9d o f the legislatures of the States.\nWe will explain that conclusion and the reasons for it in Sections III and\nIV below.\nSecond, we think that Article V gives Congress no power to provide for\nthe ratification o f any constitutional proposal that is not developed and\nproposed in accordance with the procedures contem plated by Article V.\nJust as Congress would have no power to submit one o f its own constitu\xc2\xad\ntional proposals for ratification unless two-thirds o f the Members o f both\nHouses were in accord that the proposal was necessary and desirable, C on:\ngress would have no power to provide for the ratification o f any proposal\npropounded by a constitutional convention unless that proposal were\nresponsive to the application that justified the gathering o f the convention\nin the first instance. We will explain that conclusion and the reasons that\nsupport it in Section IV.\nIII.\n\nThe Role o f the Legislatures o f the States\n\nO ur analysis is dictated by the form o f the procedure set out in the consti\xc2\xad\ntutional text. T hat procedure involves at least five different acts or steps: an\ninitial \xe2\x80\x9c A pplication\xe2\x80\x9d by two-thirds o f the legislatures o f the States; a \xe2\x80\x9c call\xe2\x80\x9d\nto convention issued by Congress; a parliamentary convocation\xe2\x80\x94the con\xc2\xad\nvention itself\xe2\x80\x94attended by delegates selected and commissioned in a m an\xc2\xad\nner not specified by Article V; a designation by Congress o f a \xe2\x80\x9c Mode o f\nRatification\xe2\x80\x9d for any proposal made by the convention; and ratification of\nany such proposal by three-fourths o f the States in accordance with the\nmode prescribed by Congress. For our purposes, the critical step in this\nprocess is the first one, the \xe2\x80\x9c A pplication\xe2\x80\x9d o f the legislatures o f the States.\nW hat is this \xe2\x80\x9c A pplication?\xe2\x80\x9d W hat part does it play in the convention\nprocess? W hat power does it give to the legislatures o f the States?\n\n\xe2\x80\x99The notion that the C onstitution may give Congress power to impose adventitious subject\nm atter restrictions on the convention process is one that finds no support in the text o f A rti\xc2\xad\ncle V or in the drafting history. Congress, o f course, has power to m ake \xe2\x80\x9c laws which shall be\nnecessary and proper for carrying into Execution\xe2\x80\x9d the powers conferred upon it by Article V;\nbut there is nothing in Article V that suggests that it would be necessary or proper for C on\xc2\xad\ngress to create subject m atter restrictions that do not flow from the operation o f Article V\nitself. Indeed, as we will discuss below, the history o f the clause suggests rather clearly that it\nwould be altogether unnecessary and im proper for Cohgress to do so. The Framers created the\nconvention procedure for the very purpose o f preventing Congress from blocking am end\xc2\xad\nments desired by the legislatures o f the States and the delegates o f the people in convention.\n\n394\n\n\x0cThe participants in the traditional debate over limited in contrast to\ngeneral conventions have given widely, sometimes wildly, different\nanswers to these questions. Some have argued that the application can be\nnothing more than a neutral request for a convocation, a request that a\nforum be established in which constitutional questions may be debated\nand proposals made. Even if the legislatures have a specific problem in\nmind, even if they request a convention because they want the C onstitu\xc2\xad\ntion to be changed in some particular way, they must leave it entirely to the\ndelegates to determine the course that the convention will take. Indeed, if\ntheir application manifests anything other than an unqualified desire for a\nconvention with power to discuss and propose any amendm ent the\ndelegates may want to propose, it is void. It cannot provide a constitu\xc2\xad\ntional basis for a convention under Article V.\xc2\xae\nAt the other extreme, some have thought that the application process is\ndesigned to give the legislatures plenary power to determine both the form\nand the content o f the proposals that the convention may submit to the\nStates for ratification. Not only may the legislatures request that Congress\ncall a convention to consider a particular problem or a particular pro\xc2\xad\nposal, they may frame am endments and dem and that the convention do\nnothing more than vote on those amendm ents as framed. This view has\nbeen espoused in one form or another by several scholars,9 and it lies at the\nheart of some o f the applications\'0 that have been submitted to Congress\nby the States from time to time.\nWe cannot adopt either o f these views\xe2\x80\x94the view that the legislatures\nhave no power to determine what work the convention may or must do, or\nthe view that the legislatures have plenary power to propose amendm ents\nand to require that the convention do nothing more than emit them or\nquash them as it finds them good or bad. The first theory is mistaken. The\nsecond is viable, if at all, only in the most limited circumstances. The cor\xc2\xad\nrect interpretation, we believe, lies elsewhere. The textual and historical\nreasons for that opinion are given in the paragraphs that follow.\nText. \xe2\x80\x9c Congress * * * on the Application o f two thirds o f the\nLegislatures o f the States, shall call a Convention for proposing A m end\xc2\xad\nments * * * .\xe2\x80\x9d This language lends little support to the notion that the\n\n\'See, e.g., Black, \xe2\x80\x9c Am ending the C onstitution: A Letter to a Congressm an,\xe2\x80\x9d 82 Yale L .J.\n189, 202-03 (1972).\n\'See, e.g., Van Alstyne, \xe2\x80\x9c Does Article V Restrict the States to Calling Unlimited C onven\xc2\xad\ntions Only?\xe2\x80\x94A Letter to a Colleague,\xe2\x80\x9d 1978 Duke L .J. 1295.\nl0The applications have come in a wide variety o f forms. The following passage from a re\xc2\xad\ncent resolution adopted by the legislature o f the State o f Kansas (May 19, 1978) requests a\nconvention for the \xe2\x80\x9c sole and exclusive\xe2\x80\x9d purpose o f proposing an am endm ent, the specific\nterms of which are prescribed by the applicant:\nBe it further resolved: T hat alternatively, the Legislature o f the State o f Kansas hereby\nmakes application to the Congress o f the United States to call a convention for the sole\nand exclusive purpose o f proposing an am endm ent to the Constitution o f the United\nStates which would require that, in the absence o f a national emergency, the total o f all\nappropriations made by the Congress for a fiscal year shall not exceed the total o f all\nestimated federal revenues for such fiscal year.\n\n395\n\n\x0clegislatures o f the States may dem and that Congress call a constitutional\nconvention for the sole purpose o f voting up or down on proposals that\nthe legislatures themselves have brought forward. The Framers were good\ndraftsmen. W hen they wanted to give one body o f government a veto over\nthe proposals o f another, they were able to use words that clearly ex\xc2\xad\npressed that purpose. In Article V itself they gave the States power to ap\xc2\xad\nprove or disapprove what a constitutional convention might propose; but\nthe language o f Article V gives no indication that they intended this\nratification process to be a second negative, a veto cast or withheld after\nthe convention itself had voted up or down on someone else\xe2\x80\x99s work. As\nportrayed in the text, the convention is a respondent, not a censor. It is a\n\xe2\x80\x9c Convention for proposing A m endm ents.\xe2\x80\x9d It responds to an application\nand call by making proposals for constitutional change.\nW hat is the correct reading o f the text? The polar view\xe2\x80\x94the view that\nevery Article V convention must be a general convention\xe2\x80\x94is sometimes\ndefended on textual grounds. It is said that the text has a plain meaning;\nthat the legislatures are entitled to apply for a \xe2\x80\x9c convention\xe2\x80\x9d and a \xe2\x80\x9c con\xc2\xad\nvention\xe2\x80\x9d only and that this convention, being a \xe2\x80\x9c Convention for propos\xc2\xad\ning A m endm ents,\xe2\x80\x9d must be a convention for proposing amendments on\nany subject the delegates think pro p er."\nThis argument is unpersuasive. The text does not say that the\nlegislatures are to apply for a convention and a convention only. It says\nth at they are to make an \xe2\x80\x9c A pplication.\xe2\x80\x9d The text does not say that the\nconvention must be a convention for proposing amendments on any sub\xc2\xad\nject the delegates think proper. It says that the convention will be a \xe2\x80\x9c C on\xc2\xad\nvention for proposing A m endm ents.\xe2\x80\x9d These words are generic. They\ncould describe a process in which the legislatures request, and Congress\ncalls, a general convention, a convention for proposing amendments on\nany subject whatever. They could describe a process in which the\nlegislatures request, and Congress calls, a convention for proposing\namendm ents to deal with some particular problem or constitutional issue.\nThere is little in the text that encourages us to prefer the one interpretation\nto the other. There is nothing in the text that requires us to choose between\nthe two.\nW hen we turn from the text and consult the relevant historical\nmaterials, the meaning o f the convention clause comes more clearly into\nfocus. We have outlined much o f the relevant history in detailed notes,\nwhich are appended to this m em orandum. In the discussion that follows\nwe will describe the portions o f that history that have decisive bearing on\nthe question at hand.\nThe Effort to Revise the Articles. A lthough the Articles o f Confeder\xc2\xad\nation allowed for amendm ent and specified that the unanim ous consent o f\nthe States and Congress would be necessary before any alteration could\n\n"See Black, supra, at 203.\n\n396\n\n\x0coccur, they established no regular m ethod by which proposals for change\ncould be formulated and submitted to the States and Congress. Thus when\nit became clear in the mid- 1780s that changes in the Articles were neces\xc2\xad\nsary, the advocates o f change were obliged to fashion ad hoc, irregular\nprocedures in an effort to build consensus for the proposals they wished to\nbring forward. They drew on recent experience. Extraordinary intercolo\xc2\xad\nnial convocations had done much to spark and direct the rebellion against\nGreat Britain. An interstate convention, the Continental Congress, had\nproduced the Articles o f Confederation. Convention procedures had been\nused or proposed in some States to make or alter fundamental law .12 With\nthese precedents in view, the activists set about to revise the Articles\nthrough a convention process.\nVirginia took the lead. In 1786 it invited all the States to send delegates\nto a convention at Annapolis \xe2\x80\x9c to take into consideration the trade o f the\nUnited States\xe2\x80\x9d and to propose a measure that would empower the na\xc2\xad\ntional government to establish a uniform system o f trade regulation.13\nOnly five States accepted this invitation; and Hamilton and Madison, two\no f the youngest delegates, who had high hopes for a stronger union, were\nable to persuade the others that little could be accomplished by so few.\nHamilton drafted a report that recommended that a second convention be\ncalled. This convention would be attended by delegates from all the States\nand it would have power to consider, not trade and commerce only, but\n\n,JBy 1787, five State constitutions provided for amendm ent by way o f convention. Three\no f these appear to have provided for a convention the powers o f which could be limited to a\nparticular subject m atter. Georgia\xe2\x80\x99s Constitution o f 1777 provided:\nNo alteration shall be made in this constitution without petitions from a m ajority o f the\ncounties, and the petitions from each county to be signed by a m ajority o f voters in each\ncounty within this State; at which time the assembly shall order a convention to be called\nfor that purpose, specifying the alterations to be made, according to the petitions pre\xc2\xad\nferred to the assembly by the m ajority o f the counties as aforesaid. [Emphasis added.]\n1 Poore, Federal and State Constitutions, Colonial Charters and other Organic Laws 383\n(1872) (hereinafter \xe2\x80\x9c Poore\xe2\x80\x9d ). Pennsylvania\xe2\x80\x99s constitution o f 1776 provided:\nT he said council o f censors shall also have power to call a convention, to meet within\ntwo years after their sitting, if there appear to them an absolute necessity o f amending\nany article o f the constitution which may be defective, explaining such as may be\nthought not clearly express, and o f adding such as are necessary for the preservation o f\nthe rights and happiness o f the people: But the articles to be am ended, and the am end\xc2\xad\nments proposed, and such articles as are proposed to be added or abolished, shall be\npromulgated at least six m onths before the day appointed for the election o f such con\xc2\xad\nvention, for the previous consideration o f the people, that they may have an opportunity\no f instructing their delegates on the subject. [2 Poore at 1548.]\nThe provision for am endm ent in Verm ont\xe2\x80\x99s Constitution o f 1786 was almost identical to that\no f the quoted portion o f Pennsylvania\xe2\x80\x99s C onstitution. Id. at 1874-75. The reference to\n"am ending any article * * * which may be defective\xe2\x80\x9d and the requirement for prom ulgat\xc2\xad\ning the \xe2\x80\x9c articles to be am ended, and the amendm ents proposed, and such articles as are pro\xc2\xad\nposed to be added or abolished\xe2\x80\x9d indicates to us that the convention was to be limited to cer\xc2\xad\ntain topics. The two other States\xe2\x80\x94Massachusetts and New Ham pshire\xe2\x80\x94had constitutions\nthat appear to have allowed the convention more latitude. See 1 Poore at 972 (Massachusetts\nConstitution o f 1780); 2 Poore at 1293 (New Hampshire C onstitution o f 1784).\n"Com m ager, Documents o f American History 132 (9th ed., 1973).\n\n397\n\n\x0cany m atter that required constitutional correction. Ham ilton\xe2\x80\x99s report was\napproved. W hen it was published, it became the \xe2\x80\x9c direct occasion o f the\ngathering o f the convention in Philadelphia that framed the constitution\no f the United States.\xe2\x80\x9d 14\nBefore we describe the nature o f the proceedings in Philadelphia, we\nwant to emphasize a legal point that is often overlooked in conventional\naccounts. The Annapolis Convention and its successor in Philadelphia\ndem onstrate clearly and concretely that under the Articles o f Confedera\xc2\xad\ntion a convention could be convened for the purpose o f considering con\xc2\xad\nstitutional problems and formulating proposals for change; and it could\nbe given narrow or broad powers depending on the nature o f the task\nassigned to it. The Articles did not spell this out. They did not establish\nprocedures for the formulation o f constitutional proposals. But they were\npermissive. They permitted the States and Congress to establish such pro\xc2\xad\ncedures; and when the States and Congress exerted that power, the result\nwas first a limited convention in A nnapolis15 and then a general conven\xc2\xad\ntion in Philadelphia one year later.\nIn our view this is the most im portant single fact in the development of\nArticle V. W hen the Framers drafted Article V, they were not writing on a\nclean slate. They had come together to rewrite a docum ent that had al\xc2\xad\nready permitted a creative convention process to go forward, first at An\xc2\xad\nnapolis and then at Philadelphia itself; and when we view their work from\nthat perspective, the question o f purposes and intents comes more sharply\ninto focus. The Framers \xe2\x80\x9c constitutionalized\xe2\x80\x9d the convention process. Did\nthey mean to confirm and preserve the flexible procedure that was- per\xc2\xad\nmitted under the Articles, or did they mean to replace it with a rigid new\nsystem in which only one sort o f convention, a general convention, was\npossible? As we review their work, we shall keep that question before us.\nThe Proceedings o f the Convention of 1787. The delegates to the\nPhiladelphia Convention agreed rather early that they should create a\nregular mechanism by which the new Constitution could be am ended.16 To\n\n\'"Farrand, The Framing o f the Constitution (1932).\n"T he Annapolis Convention was clearly a convention with limited powers. The delegates\nwere so sensitive on that point that they felt there might be some question whether their\nrecom mendation o f a general convention was strictly within their commission, and they took\ncare to justify it. Ham ilton wrote:\nIf in expressing this wish [for a general convention], or in intimating any other senti\xc2\xad\nm ent, your Commissioners should seem to exceed the strict bounds o f their appoint\xc2\xad\nm ent, they entertain a full confidence, that a conduct, dictated by an anxiety for the\nwelfare o f the United States, will not fail to receive an indulgent construction. [Commager, Documents o f American History 133 (9th ed., 1973).]\nM adison\xe2\x80\x99s later comm ent that the A nnapolis Convention \xe2\x80\x9c did not scruple to decline the\nlimited task assigned to it, and to recom mend to the States a Convention with powers ade\xc2\xad\nquate to the occasion,\xe2\x80\x9d and that the public mind \xe2\x80\x9c favored the idea there o f a Convention\nwith fuller powers for amending the C onfederacy,\xe2\x80\x9d recognized that a constitutional conven\xc2\xad\ntio n \xe2\x80\x99s powers might vary according to its m andate. Preface to Debates in the Convention of\n1787, 3 Farrand at 545, 546. [Emphasis added.]\n\'\xe2\x80\xa2A complete account o f the proceedings relevant to Article V is set out in Appendix I.\n\n398\n\n\x0caccommodate that agreement, the committee that had been assigned the\ntask o f preparing the first draft o f the Constitution, the Committee of\nDetail, submitted a modest proposal that was accepted by the convention\nafter a brief debate. The form o f the proposal was predictable, given the\nevents o f the preceding few years:\nOn the application o f the Legislatures o f two thirds o f the States\nin the Union, for an amendment o f this Constitution, the\nLegislature o f the United States shall call a Convention for that\npurpose. [2 Farrand at 188.]\nWe see, then, that when the Framers first undertook to fashion an am end\xc2\xad\nment mechanism, they borrowed on the procedure that the States them \xc2\xad\nselves had fashioned under the Articles. It was a mechanism that involved\nan interstate convention, called on application o f the States. Two other\nfeatures o f this proposal deserve our attention. First, there was no require\xc2\xad\nment for ratification o f the convention\xe2\x80\x99s action. Was such a requirement\nimplicit? Second, the subject o f the States\xe2\x80\x99 application, the \xe2\x80\x9c thing\xe2\x80\x9d for\nwhich they were to apply, was \xe2\x80\x9c an amendment o f\xe2\x80\x9d the Constitution.\nWhat did the Framers mean by that language? Further proceedings would\nclarify that point.\nEleven days after the original proposal was accepted, it was recon\xc2\xad\nsidered. There were objections. Elbridge Gerry noted that it contained no\nrequirement for ratification o f the mandatory action taken by the conven\xc2\xad\ntion, and he feared that a majority o f the convention might therefore bind\nthe Union to innovations that would subvert the constitutions o f the\nStates.17 Alexander Hamilton noted that the provision gave the State\nlegislatures a right to \xe2\x80\x9c apply for alterations\xe2\x80\x9d but gave no similar right to\nthe national legislature. This omission was problematical, because the na\xc2\xad\ntional legislature would be the first to perceive the necessity o f am end\xc2\xad\nments, and the State legislatures would not apply for alterations \xe2\x80\x9c but with\na view to increase their own power.\xe2\x80\x9d 18 Finally, James Madison, with his\nusual foresight, objected that the convention process was vague and uncer\xc2\xad\ntain: How was the convention to be formed? By what rule was it to decide\nthe questions before it? What would be the force o f its acts?\xe2\x80\x9d\nAs a result o f these objections the proposal o f the Committee o f Detail\nwas replaced, after intervening changes, with a proposal drafted by\nMadison:\nThe Legislature of the U\xe2\x80\x94 S\xe2\x80\x94 whenever two thirds o f both\nHouses shall deem necessary, or on the application o f two thirds\no f the Legislatures o f the several States, shall propose amendments\nto this Constitution, which shall be valid to all intents and pur\xc2\xad\nposes as part thereof, when the same shall have been ratified by\nthree fourths thereof, as one or the other mode of ratification may\nbe proposed by the Legislature of the U.S. [2 Farrand at 559.]\n\n"2 Farrand at 557-58.\n"2 Farrand at 558.\n\n"Id.\n\n399\n\n\x0cThis provision did three things: First, to satisfy Hamilton, it gave the na\xc2\xad\ntional legislature power to propose am endments on its own motion when\xc2\xad\never two-thirds o f both Houses thought it necessary to do so. Second, to\nsatisfy Madison, it eliminated the convention as a device for formulating\namendments and replaced it with a system in which the national legislature\nwould propose am endm ents on the application o f two-thirds o f the\nlegislatures o f the States. Finally, to satisfy Gerry, it provided that no\namendment would become effective unless it were ratified in final form by\nthree-fourths o f the States.\nM adison\xe2\x80\x99s proposal was a significant one. It was a near predecessor o f\nArticle V, and it clarified the point that concerns us most. W hat role did\nthe Framers intend for the legislatures o f the States to play in the am end\xc2\xad\nment process? Given the terms o f M adison\xe2\x80\x99s proposal, there were two\npossibilities. It is conceivable that the legislatures were to apply to C on\xc2\xad\ngress for some unspecified change, any change, in the hope that Congress\nwould propose am endm ents in the areas where they, the legislatures,\nthought amendm ents were necessary. The other possibility was that they\nwere to apply to Congress for the changes that they, the legislatures,\nfavored. They were to apply for amendments to the Constitution and to\ndem onstrate to Congress, through their applications, that there was con\xc2\xad\nsensus among them as to the need for change in particular areas.\nIt cannot be argued with any force that M adison\xe2\x80\x99s proposal con\xc2\xad\ntemplated the first procedure, the application for a pig in a poke. The\nproposition was not that two-thirds o f the legislatures would bestow on\nCongress, through their applications, a general commission to propose\nwhatever amendments it thought necessary. Under M adison\xe2\x80\x99s system C on\xc2\xad\ngress had that power already, whenever there was consensus among twothirds o f both Houses. Rather, as M adison himself later confirmed, the\nlegislatures were to apply to Congress for amendments to the C onstitu\xc2\xad\ntion, amendments that they, the legislatures, favored; and whenever there\nwas consensus among two-thirds o f them as to the need for an amendment\nor amendments, M adison\xe2\x80\x99s proposal required Congress to make specific\nproposals responsive to that consensus.\nTwo days before they finished their work, just five days after M adison\xe2\x80\x99s\nproposal had been accepted, the Framers reviewed the amendment mech\xc2\xad\nanism once again. Roger Sherman spoke first. He feared that threefourths o f the States (the num ber needed for ratification o f proposals in\xc2\xad\nitiated either by Congress or by the State legislatures) might \xe2\x80\x9c do things\nfatal to particular States,\xe2\x80\x9d and he thought that the C onstitution should\ntherefore contain certain limitations on the kinds o f amendments that\ncould be made in it. In particular, he thought that no amendm ent should\nbe permitted that would affect a State in its \xe2\x80\x9c internal police or deprive it o f\nits equality in the Senate.\xe2\x80\x9d 20 He ultimately prevailed on the latter point.\n\n102 Farrand at 629.\n\n400\n\n\x0cSecond, George Mason noted that Congress was the only agency that\nwas given power to propose amendments. He feared that Congress might\nabuse that power by refusing to propose amendments that would be\nbeneficial to the people.21 G ouvem eur Morris and Elbridge Gerry then\nsuggested that instead o f giving Congress power to propose amendments\non the application o f the legislatures, the Constitution should require C on\xc2\xad\ngress to call a convention on application o f the legislatures. This was the\ncritical stage in the development o f Article V. The Framers accepted the\nsuggestion that Morris and Gerry had brought forward, and the result was\nthe Convention Clause as we know it today. W hat was the purpose o f the\nchange?\nWe must be clear on what was changed and what was not. There was\nonly a slight alteration in the text. It came in the words that described the\npowers o f Congress: M adison\xe2\x80\x99s language\xe2\x80\x94\xe2\x80\x9c Congress * * * on Applica\xc2\xad\ntion * * * shall propose Amendments to this C onstitution\xe2\x80\x9d \xe2\x80\x94became\n\xe2\x80\x9c Congress * * * on Application * * * shall call a Convention for pro\xc2\xad\nposing Am endm ents.\xe2\x80\x9d There was no alteration in the description o f what\nthe legislatures were to do. They were to make an \xe2\x80\x9c Application\xe2\x80\x9d in each\ncase. In procedural terms the change was equally modest. In both in\xc2\xad\nstances the legislatures were to make an \xe2\x80\x9c A pplication,\xe2\x80\x9d and a separate\nbody (Congress or the convention) was to propose amendments. The pro\xc2\xad\ncedural change came with the introduction o f an intervening step, a \xe2\x80\x9c call\xe2\x80\x9d\nto convention. This change was necessary for the simple reason that the\nconvention, unlike Congress, is not a standing body. It must be called into\nbeing before it can do its work.\nIn substantive terms the change was dramatic. Morris and Gerry\nstripped Congress o f power to propose amendments and relegated it to the\nministerial function o f calling a convention. The critical question is\nwhether they intended to do anything more than this. They intended to\nalter the role o f Congress. Did they intend to alter the role o f the States?\nThe whole point o f the application process, under M adison\xe2\x80\x99s approach,\nwas that it provided the legislatures o f the States with a means o f obtaining\nproposals responsive to their own views concerning the need for constitu\xc2\xad\ntional change. In relieving Congress o f power to make those proposals,\ndid Morris and Gerry intend as well to strip the legislatures o f power to\napply for favored amendments, or did they intend merely to replace one\nproposing authority (Congress) with another (the convention)?\nFortunately, the brief record o f the debate over Morris\xe2\x80\x99 and Gerry\xe2\x80\x99s pro\xc2\xad\nposal gives us some insight into that question. As soon as the proposal was\nmade, James Madison rose to comment on it. He said he did not see why\nCongress \xe2\x80\x9c would not be as much bound to propose amendments applied\nfor by two thirds o f the States as to call a Convention on the like appli\xc2\xad\ncation.\xe2\x80\x9d He saw no objection, however, against providing for a convention\n\n" Id.\n401\n\n\x0c\xe2\x80\x9c for the purpose o f amendments, except only that difficulties might arise\nas to the form, the quorum etc. which in Constitutional regulations ought\nto be as much as possible avoided.\xe2\x80\x9d 22\nM adison\xe2\x80\x99s statement goes to the heart o f the question before us. It illus\xc2\xad\ntrates three points. First, it shows conclusively that under his proposal the\nlegislatures o f the States were entitled to apply for amendments to the\nC onstitution, and that Congress was duty bound to make responsive pro\xc2\xad\nposals whenever two-thirds o f them had done so: Congress was \xe2\x80\x9c bound to\npropose amendments applied for by two thirds o f the States.\xe2\x80\x9d Second, it\nsuggests rather strongly that the convention proposal was an attem pt to\ndiminish the power o f Congress over the process o f amendment initiated\nby the applications o f the legislatures. That was how Madison interpreted\nit. He was saying that although he had no substantial objection to the con\xc2\xad\nvention device, he could see no real reason for it, given its purpose. It pro\xc2\xad\nvided neither more nor less protection from congressional abuse than the\nprocedure he had fashioned, for \xe2\x80\x9c Congress would be as much bound to\npropose amendments applied for by two thirds o f the States as to call a\nconvention on the like application.\xe2\x80\x9d\nFinally, M adison\xe2\x80\x99s statem ent tells us a good deal about the intended role\no f the legislatures o f the States. His statement is significant both for what\nit says and for what it does not say. Remember that the purpose of\nM adison\xe2\x80\x99s application procedure was not to give Congress power to pro\xc2\xad\npose amendments. (Congress had that power already.) The purpose was to\ngive the State governments a right to apply for amendments. If Morris and\nGerry had intended to change all that, stripping the legislatures o f power\nto dem and proposals responsive to their views, the mere substitution of\none proposing authority for another would have been the least significant\npart o f their plan. M adison\xe2\x80\x99s statem ent betrays no hint that such a radical\nchange was in the offing. Indeed, M adison\xe2\x80\x99s statement suggests that the\nrole o f the legislatures would be unaltered under M orris\xe2\x80\x99 and Gerry\xe2\x80\x99s pro\xc2\xad\nposal: Congress would call a convention for proposing amendments \xe2\x80\x9c on\nthe like application.\xe2\x80\x9d\nThe Ratification Debates. The notion that the amendment procedure\nshould make some provision for the regular governments o f the States and\nshould be responsive in part to their views concerning the need for con\xc2\xad\nstitutional change was not a radical notion in 1787. In fact, as we have\nseen, this was one o f the few propositions that was not debated in connec\xc2\xad\ntion with the amendm ent question. The Framers had real doubts about the\nrole that the new national legislature should play in the am endment proc\xc2\xad\ness. They were also concerned that the C onstitution should not be so freely\namendable that a m ajority o f the States would be able to oppress the\nothers by altering the supreme law o f the land in some discriminatory way.\nBut if the Constitution were to be amended at all, there was not much\n\n\xe2\x80\x9d 2 Farrand at 629-30.\n\n402\n\n\x0cdoubt that the States as States were proper parties to suggest where the\namendments should come and to dem and that proposals responsive to\ntheir views be formulated.\nThis should come as no surprise. Repeated assertions o f Federal power\nhave enhanced the role o f the Federal Government in our national life, but\nin 1787 the State governments were the most im portant governments in the\nUnion. It was they who had created the Union; and when questions arose\nconcerning the adequacy o f the Articles, they were very much the parties\nin interest. For that reason alone it was politic, and perhaps even necessary\nfrom the standpoint o f securing ratification o f the new C onstitution, that\nthe States, acting through their regular governments, should have been\ngiven a means o f obtaining viable proposals for change responsive to their\nown views concerning the need for change. We have suggested that the\nFramers intended to provide them with such a means; and when the\nFramers published their work and undertook to defend it, they and their\nallies took care to reassure the States on that point. A few o f the relevant\nremarks, made during the critical m onths when ratification o f the new\nConstitution was still in doubt, are set forth below.\nMany opponents o f the new C onstitution found it so objectionable that\nthey argued that the question o f revising the Articles should be subm itted\nto a second general convention at which the imperfections in the docum ent\nproduced by the Framers could be eliminated. Alexander Hamilton, tak\xc2\xad\ning his cue from John Jay, argued forcefully in The Federalist that even if\nthe new C onstitution were thought to be imperfect, it would be far easier\nto remove the imperfections by amending it after it had been adopted than\nby convening a second general convention for that purpose prior to\nratification. His argument on that point is perhaps the clearest statem ent\nby any o f the Framers concerning the nature and significance o f the\nConvention Clause.\xe2\x80\x9d\nAt a second general convention, Hamilton said, many questions would\narise; and \xe2\x80\x9c [m]any o f those who form the majority on one question may\nbecome the minority on a second, and an association dissimilar to either\nmay constitute the m ajority on a th ird .\xe2\x80\x9d 24 As a result, at a second general\nconvention there would be \xe2\x80\x9c an immense multiplication o f difficulties and\ncasualties in obtaining the collective assent to the final ac t.\xe2\x80\x9d 25 By contrast,\nunder the new Constitution, if it were adopted, reformers would be able to\nutilize the surgical amendment process set out in Article V. It would be un\xc2\xad\nnecessary to attem pt more than one improvement at a time. Proposed\namendments \xe2\x80\x9c might be brought forward singly * * * . [T]he will o f the\nrequisite number would once bring the m atter to a decisive issue. And con\xc2\xad\nsequently, whenever nine or rather ten States were united in the desire o f\n\n"See, The Federalist, No. 85, at 591-93 (Cooke ed., 1961).\n"Id. at 592.\n\xe2\x80\x9d Id .\n\n403\n\n\x0ca particular amendment, that amendment must infallibly take place * * * .\n[T]wo-thirds [nine] may set on foot the measure, three-fourths [ten] must\nratify.\xe2\x80\x9d 26 Could the national legislature frustrate this process? It could not.\nThe national legislature controlled one o f the two amendment mechanisms,\nbut not the other. Congress would be obliged to call a convention on the ap\xc2\xad\nplications o f two-thirds o f the States. Would the legislatures be able to\nmuster the necessary two-thirds? They would. \xe2\x80\x9c However difficult it may be\nsupposed to unite two-thirds or three-fourths o f the state legislatures, in\namendments which may affect local interests, [there cannot] be any room to\napprehend any such difficulty in a Union on points which are merely relative\nto the general liberty or security o f the people. We may safely rely on the\ndisposition o f the State legislatures to erect barriers against the encroach\xc2\xad\nments o f the national authority.\xe2\x80\x9d 27\nHamilton was saying, in sum, th at if the State legislatures wanted to\nperfect the new C onstitution or \xe2\x80\x9c to erect barriers against the encroach\xc2\xad\nments o f the national authority,\xe2\x80\x9d they could utilize the convention pro\xc2\xad\ncedure, they could bring measures forward with that end in mind, and they\ncould do this without submitting to the difficulties o f a \xe2\x80\x9c general\xe2\x80\x9d conven\xc2\xad\ntion in which disagreements over other points might prevent or impede\nremedial action. The State legislatures could use the convention procedure\nwithout hazarding a general convention.\nMadison made a related observation regarding the role o f the State gov\xc2\xad\nernments. He said that the Framers had foreseen \xe2\x80\x9c that useful alterations\nwill be suggested by experience.\xe2\x80\x9d They had therefore created an am end\xc2\xad\nment mechanism that \xe2\x80\x9c equally enables the general and the State govern\xc2\xad\nments to originate the am endm ent o f errors as they may be pointed out by\nthe experience on one side or on the o th er.\xe2\x80\x9d 28 Some have attem pted to cast\nthis statement in a different light, but we think that M adison\xe2\x80\x99s meaning is\nclear. The State governments, like the national government, would\ndiscover faults or \xe2\x80\x9c errors\xe2\x80\x9d in the Constitution from time to time; and the\nState governments, like the Federal Government, had been given a\nmechanism by which their views regarding the correction o f these faults\ncould be given constitutional effect. The State governments were entitled\nto ask for the correction, not o f errors perceived by others, but o f errors\nperceived by themselves. W hat gave them this right? It was the convention\nprocedure set out in Article V.\nO ther statements by the Framers bear this point out. W ashington, who\nhad presided over the Convention o f 1787, said flatly that the \xe2\x80\x9c constitu\xc2\xad\ntional door is open for such am endm ents as shall be thought necessary by\nnine States.\xe2\x80\x9d 29 Nine, o f course, was the num ber required to originate the\n\n\xe2\x80\x9c\xe2\x80\xa2Id.\n\xe2\x80\x9c Id. at 593.\n\xe2\x80\x98\'T he Federalist, No. 43, at 296 (Cooke e d ., 1961).\n" L e tte r to John A rm strong, April 25, 1788, reprinted in 29 Writings o f Washington 466\n(Fitzpatrick e d ., 1939).\n\n404\n\n\x0camendment process. Judge Dana o f Massachusetts said that if specific\namendments were generally wished for, \xe2\x80\x9c two thirds o f the several States\n[could] apply for the call o f a convention to consider them .\xe2\x80\x9d 30 In Virginia,\nWilson Nicholas predicted that the convention procedure would prove to\nbe a convenient m ethod o f amendment because, among other things, \xe2\x80\x9c the\nconventions which shall be called will have their deliberations confined to\na few points, no local interests to divert their attention; nothing but the\nnecessary alterations.\xe2\x80\x9d 31 As against the critics o f the new Constitution\nwho thought that amendments should be obtained prior to ratification,\nMadison answered that \xe2\x80\x9c they cannot but see how easy it will be to obtain\nsubsequent amendments. They can be proposed when the legislatures of\ntwo thirds o f the States shall make application for that purpose.\xe2\x80\x9d 32\nHamilton, Madison, W ashington, and their allies were perhaps guilty o f\nover-argument, but we cannot believe that they were dissembling. We\nthink their remarks about the ease and desirability o f introducing subse\xc2\xad\nquent amendments to the Constitution through the convention process\nshow clearly that they envisioned that the States could use that process for\nthe purpose o f introducing into the Constitution particular amendments\ndeemed necessary by the States and that they could do this without reopen\xc2\xad\ning the constellation o f other issues that the delegates in Philadelphia had\nso lately resolved. The legislatures could invoke the convention process for\na particular purpose without risking a general convention.33\nSummary. A fter reviewing the text in light o f the relevant historical\nmaterials, we are inclined to think that the Convention Clause has been\nmisnamed. It should have been named the \xe2\x80\x9c Application Clause,\xe2\x80\x9d because\nits basic purpose was to provide the regular governments o f the States with\n\n102 Elliot at 138.\n>\'3 Elliot at 102.\n\xe2\x80\x9c2 Elliot at 629-30.\n\xe2\x80\x99\xe2\x80\x99The Federalists\xe2\x80\x99 praise o f the convention procedure as a convenient device for introduc\xc2\xad\ning postratification am endm ents died out rather quickly after the ratifying convention in\nNew York, the last key State to ratify the Constitution, narrowly gave its approval and then\nimmediately circulated a letter urging the States to petition for a second general convention\nto redo what the Framers had done. The Virginia Assembly followed with a slightly narrower\npetition for a convention to consider the defects that had been suggested in the various State\nratifying conventions. The Federalists vigorously opposed the drive for a second general con\xc2\xad\nvention, perceiving correctly that it would work to the advantage o f the anti-Federalists,\nreopening divisive issues. Juxtaposed to their arguments in support o f Article V, their o p \xc2\xad\nposition to the initiative o f New York and Virginia lends further support to the view that the\nconvention process was thought to be a flexible procedure could be used broadly (as New\nYork proposed), or narrowly (as Ham ilton suggested), depending on the nature o f the con\xc2\xad\nsensus am ong the originating States. See Appendix III.\nFor some o f the pertinent original sources, see M adison, Letter to George Eve, January 2,\n1789, 11 Papers o f James Madison 405 (Rutland ed., 1977); 3 Elliot at 630; 5 Writings o f\nJames Madison 299, 311-12 (Gaillard H unt ed., 1904). See also M adison, Letter to G. L.\nTurberville, November 2, 1788, 5 Writings o f James Madison 299-300 (Gaillard H unt ed.,\n1904); Madison, \xe2\x80\x9c General Remarks on the C onvention,\xe2\x80\x9d 3 Farrand at 455; Jefferson, Letter\nto William Short, December 8, 1788, 14 Papers o f Thomas Jefferson 344 (Boyd ed., 1958);\nJefferson, Letter to William Carmichael, December 25, 1788, 14 Papers o f Thomas Jefferson\n385 (Boyd ed., 1958).\n\n405\n\n\x0ca means o f applying for amendm ents to the Constitution; and the conven\xc2\xad\ntion procedure was simply a device, one o f two devices considered by the\nFramers during the evolution o f the clause, through which the demands of\n13 contentious States were to be reconciled. As described by the Framers\nand invoked by the States, the process was a flexible one, much like the\nnonconstitutional process that had been worked out by the States\nthemselves under the Articles. The legislatures could use Article V to\ngather a general convention to build consensus for an integrated, com \xc2\xad\nprehensive revision o f the Constitution or for multiple amendments. New\nYork and the anti-Federalists pressed for such a convention in 1788 and\n1789. On the other hand, if the legislatures feared the divisiveness o f a\ngeneral convention (as did Madison and his allies), yet were in substantial\nagreement regarding some particular problem or issue, they could, as\nHamilton suggested, generate specific proposals through the convention\nprocedure without risking a general convention.\nIV.\n\nLegal Aspects o f a Limited Application by the Legislatures\n\nIf we had been able to conclude that the legislatures o f the States are en\xc2\xad\ntitled to apply for one thing and one thing only\xe2\x80\x94a general conven\xc2\xad\ntion\xe2\x80\x94our inquiry would be at an end. Because we have concluded that the\nlegislatures may invoke the convention process for different purposes and\nwith limited objects in view, we must consider two additional questions.\nFirst, if different legislatures apply for different kinds o f conventions,\nhow does Congress respond? Faced with applications at variance with\neach other, how does Congress judge whether the legislatures have made\nthe sort o f application that can provide a basis for a call to convention?\nSecond, if Congress does call a convention on the basis o f an application\nfor something other than a general convention, what power does the con\xc2\xad\nvention have? Does it have power to go beyond the application and make\nratifiable proposals that are not in accord with the tenor o f the application\nand call?\nThe answer to each o f these questions follows rather clearly and easily\nfrom what we have already said about the role o f the legislatures o f the\nStates and the function o f the application procedure. When we have\nestablished this connection\xe2\x80\x94the connection between the role o f the\nlegislatures, the function o f the application procedure, the role o f C on\xc2\xad\ngress in determining whether a convention should be called, and the power\no f the convention itself\xe2\x80\x94the political and legal logic o f the Convention\nClause will come sharply into focus.\nCounting Application. If one-half o f the legislatures apply for a con\xc2\xad\nvention for proposing am endm ents on the subject o f reapportionm ent and\nthe other half apply for a convention for proposing amendments to\nabolish the electoral college, how should Congress respond?34 Article V\n\nJ,The historical response o f Congress to the problem presented by applications for conven\xc2\xad\ntion is described in some detail in Appendix II. The nature o f some o f the early applications\nand their bearing on the interpretation o f Article V are described in Appendix III.\n\n406\n\n\x0csays that Congress must call a convention whenever two-thirds o f the\nlegislatures have made an \xe2\x80\x9c A pplication.\xe2\x80\x9d If two-thirds or more o f them\nhave applied for a convention, does it m atter that they are divided among\nthemselves regarding the work that the convention should do?\nThe historical materials that we have already discussed suggest that it\nmatters very much indeed. The States cannot launch an amendment unless\nthere is a consensus among two-thirds o f them that will provide a political\nbasis for the proposal. Recall Ham ilton\xe2\x80\x99s argument in The Federalist\xe2\x80\x94if\nthe new C onstitution were adopted, the States would be able to obtain\namendments that would curb the powers of the central government, but it\nwould take two-thirds o f them to float any given proposal\xe2\x80\x94two-thirds to\nset the measure on foot. Washington said much the same thing. M adison\xe2\x80\x99s\nanalysis was the most revealing o f all. Madison said that Article V \xe2\x80\x9c equal\xc2\xad\nly enables\xe2\x80\x9d Congress and the legislatures o f the States to originate the\n\xe2\x80\x9c amendment o f errors\xe2\x80\x9d perceived at one level o f government or the other.\nIn other words, the power o f the legislatures to initiate the amendment\nprocess is equal to that o f Congress. When can Congress originate \xe2\x80\x9c the\namendment o f errors\xe2\x80\x9d ? Congress can propose a constitutional am end\xc2\xad\nment if, but only if, there is an extraordinary agreement among two-thirds\no f the Members o f both Houses that an am endment is necessary. If onehalf o f the Members favor an am endment on the electoral college, C on\xc2\xad\ngress has no power to propose an amendment on either subject. Do the\nStates have greater power? We are willing to take Madison at his word.\nTheir power is equal to that o f Congress, not greater. Unless there is\ngeneral agreement among two-thirds o f the legislatures over the nature of\nthe change, or the area where change is needed (be it a general revision o f\nthe Constitution or a change in some specific area), the am endment proc\xc2\xad\ness cannot go forward via the convention route.\nWhen we view the application process in that light, we begin to under\xc2\xad\nstand the political wisdom o f Article V. The Framers wanted to make the\nConstitution amendable, but they understood the traum a o f the am end\xc2\xad\nment process. They had experienced it themselves. Through a great exer\xc2\xad\ntion, they had established a new frame o f government, and they did not\nwant additional proposals for change to be loosed on the young republic\nunless there were a firm basis for believing that the process would be worth\nthe political cost. To provide a guarantee o f that sort, they established an\nexclusive two-track system for formulating viable, ratifiable constitutional\nproposals. Under that system no proposal for change can be issued by any\nauthority unless there is a preexisting consensus supportive o f change\namong an extraordinary majority at one level o f the government or the\nother.\nHow, then, does Congress determine when to call a convention? If the\nforegoing analysis is correct, Congress must answer two questions o f fact.\nWhat do the legislatures want? How many o f them want it? The Constitu\xc2\xad\ntion does not simplify the task. It does not specify a form o f words or a\nstyle o f application through which the wishes of the legislatures are to be\n407\n\n\x0ctransmitted to Congress. It permits them to apply for different things in dif\xc2\xad\nferent ways. But in the end Congress\xe2\x80\x99 job is straightforward and unmysterious. Congress must simply assess the applications that are made, determine\nwhether there is common ground among them, and call a convention when\xc2\xad\never two-thirds of the applications exhibit a consensus supportive o f some\nparticular constitutional change.\nThis view o f the role o f Congress in counting divergent applications has\nbeen advocated by a substantial number o f commentators. See Appen\xc2\xad\ndix II, note 3. It has also played an important role in the arguments o f some\nof the dissenters, who object at the threshold to the very idea of applications\no f limited subject. The argument is this: If applications o f limited subject\nwere permitted, Congress would be obliged to respond to them. It would be\nobliged to review them for content and make judgments from time to time\nabout the nature of the consensus they express, if any. Moreover, if Con\xc2\xad\ngress were ever to call a convention on the basis o f limited applications of\nlimited subject, it might even be required or empowered to take legislative\naction in connection with the call that would limit the power o f the conven\xc2\xad\ntion in accordance with the tenor o f the applications. But the drafting\nhistory o f the Convention Clause shows that the Framers did not want the\nnational legislature to interfere with the convention process. They did not\nwant Congress to make substantive judgments that could block or channel\nthe development of constitutional proposals via the convention route. Ac\xc2\xad\ncordingly, the State legislatures cannot be permitted to file applications of\nlimited subject in the first place. They must file uniform applications for a\nconvention process that are neutral with respect to subject. Only then\xe2\x80\x94only\nwhen the task o f Congress is limited to that o f counting uniform applica\xc2\xad\ntions for a convention with general powers\xe2\x80\x94can the possibility o f imper\xc2\xad\nmissible congressional intervention be eliminated.\nWe agree with the foundations o f this argument, but the conclusions are\nflawed, in our view. It is perfectly clear that the Framers intended that the\nnational legislature would have no independent power to determine what a\nconstitutional convention may or may not do; but it stands history on its\nhead to argue that the Framers must therefore have intended to deny that\npower to the State legislatures and to abandon the question of constitutional\nchange to a transient majority o f delegates at a convention with general\npowers. Conscientious scholars may differ over these points; but as we have\nstated above, we think the relevant historical materials demonstrate that the\napplication procedure was designed to give the regular governments of the\nStates an opportunity to apply for amendments favored by them, that the\ntwo-thirds requirement, which is present in both amendment mechanisms,\nwas designed to ensure that no ratifiable constitutional proposal could ever\nbe floated unless it were responsive to a preexisting consensus among an ex\xc2\xad\ntraordinary majority at the one level o f government or the other, and that\nthe Framers inserted the convention device into the application process, not\nto frustrate either of these, purposes, but to guarantee that an entity other\nthan Congress would be charged with the duty o f responding substantively\nto the applications o f the States.\n408\n\n\x0cAside from the historical considerations, there is another difficulty\nhere. The basic constitutional choice is between a flexible application pro\xc2\xad\ncedure and a rigid application procedure\xe2\x80\x94between a procedure in which\nthe legislatures are free to apply for what they want, and a procedure in\nwhich they may apply for a general convention only. The choice between\nthese two procedures simply cannot be made on the ground that the one\ngives Congress power to frustrate the desires of the other participants in\nthe convention process, whereas the other does not. U nder the flexible\nprocedure the legislatures are free to do precisely what they are entitled to\ndo under the rigid one, and Congress is empowered to do neither more nor\nless. Under the flexible procedure the legislatures are free to apply for a\ngeneral convention, if two-thirds o f them are willing to solicit and enter\xc2\xad\ntain proposals on any subject; and Congress must respond whenever twothirds o f them have done so. The real difference between the two pro\xc2\xad\ncedures lies, not in the way they allocate power between Congress and the\nlegislatures, but in the way they allocate power between the legislatures\nand the convention itself. Under the rigid procedure the role of the con\xc2\xad\nvention is to follow wherever its delegates lead; and the convention is in\xc2\xad\nvariably empowered to do so, whatever the desires o f the legislatures may\nbe. Under the flexible procedure the convention is the servant o f the\nlegislatures. Its function is to respond to the extraordinary consensus that\nwas the predicate for the call. For all the reasons given above, we think the\nlatter conception is the one to be preferred. It is the more defensible o f the\ntwo, given the history and logic o f Article V.\nBefore passing to the final question, the question o f the power o f the\nconvention, we want to say a word about a point raised at the beginning o f\no u r discussion. How does\'Congress treat an application that requests, not\nonly that a convention be called to consider a particular problem or pro\xc2\xad\nposal, but that the convention do nothing more than approve and issue a\nspecific amendment containing terms that have been drafted by the appli\xc2\xad\ncant? At the outset we stated that applications of this kind, which on their\nface appear to foreclose any possibility o f adjustm ent or compromise, are\nviable only in very limited circumstances. We are now in a position to see\nwhy that is so. If a legislature demands that a convention do nothing more\nthan accept a predetermined draft, it drastically reduces the potential for\nagreement between its application and the applications o f other States.\nEven among applications directed at the same general problem, an appli\xc2\xad\ncation that affirmatively excludes any approach but its own adds little if\nanything to the consensus required for the call to convention. We must\ntake \xe2\x80\x9c application\xe2\x80\x9d at face value. If the applicant wants a convention for\nthe sole and exclusive purpose o f issuing its own proposal and none other,\nthere can be no common ground between its views and the views o f any\nother applicant unless the other is willing to forego everything else and\nacquiesce in the narrow demand. The other is, o f course, free to acquiesce\nby modifying its application. But if its application remains at variance\nwith the one, there is grave doubt that Congress could find, on the face o f\nthe applications, any zone o f actual agreement between the two.\n409\n\n\x0cThe Power of the Convention. If our conclusions regarding the role of\nthe legislatures and the function o f the two-thirds requirement are correct,\nthe ultimate question\xe2\x80\x94the question o f the convention\xe2\x80\x99s power\xe2\x80\x94almost\nanswers itself. We need to make only one additional analytical point.\nAnyone is free to make constitutional proposals, but no proposal can be\naccepted by the States and become part o f the C onstitution unless it is\nformulated in accordance with the procedures set out in Article V. The\nDepartment o f Justice or the State o f Michigan can make constitutional\nproposals; but these proposals however, meritorious or inviting, cannot\nbe ratified by the States. Congress itself can make proposals, but it can\nsubmit them for ratification only if it has complied with the constitutional\nprocedures governing the formulation o f proposals for change. Congress\ncan submit proposals for ratification only if two-thirds o f the Members of\nboth Houses find them necessary.\nAs we have suggested in the preceding discussion, the meaning o f the\nConvention Clause is simple and clear. A constitutional convention con\xc2\xad\nvenes, if at all, to make proposals responsive to a substantive consensus\namong the legislatures o f the States. The consensus may be general or nar\xc2\xad\nrow. It may call for a general reexamination o f the C onstitution, or it may\nbe a relatively specific agreement among the legislatures about the\ndesirability o f a particular change. In any case, the function o f the twothirds requirement in the application process is to ensure that no conven\xc2\xad\ntion will be convened and no proposal made unless there is an agreement\namong an extraordinary m ajority o f the governments o f the States that\nwould justify a responsive proposal and the ratification effort. As\nHamilton put it, it takes two-thirds to set the measure on foot. That being\nso, it is unim portant that the delegates to a constitutional convention may\nhave a moral or legal duty to respect the tenor o f the application and call\nthat brought them there. They may well have such a duty or duties, but the\nim portant point is that they have, in our view, no power to issue ratifiable\nproposals except to the extent that they honor their commission. They\nhave no more power to go beyond the consensus that summoned them to\nconvention than does Congress to propose amendments that are not\nresponsive to a consensus am ong two-thirds o f its Members.\nWe have one final word. Congress has been given power to specify a\nmode o f ratification for constitutional proposals that have developed in\naccordance with Article V. It has no power to provide for the ratification\no f any constitutional proposal except those that have, been formulated in\naccordance with Article V. Congress could not, for example, provide for\nthe ratification o f a constitutional proposal submitted for ratification by a\nbare majority o f its Members. Likewise, it could not provide for the\nratification o f a proposal emitted by a constitutional convention for which\nless than two-thirds o f the States have applied.\nJohn M . H armon\n\nAssistant A ttorney General\nOffice o f Legal Counsel\n410\n\n\x0cA PPEN D IX\n\nI\n\nProceedings o f the Convention o f 1787\nWhen the delegates met in Philadelphia, their discussion first centered\non a plan o f the union submitted by Edm und Randolph on behalf o f the\nVirginia delegation. The 13th resolution o f that plan dealt with the ques\xc2\xad\ntion o f amendment:\n. Resd. that provision ought to be made for the am endm ent o f the\nArticles o f Union whensoever it shall seem necessary, and that\nthe assent o f the National Legislature ought not to be required\nth ereto .1\nThis resolution, in a slightly modified form (\xe2\x80\x9c that provision ought to be\nmade for [hereafter] amending the system now to be established, without\nrequiring the assent o f the National Legislature),2 was first debated on\nJune 5. Although Pinckney \xe2\x80\x9c doubted the propriety or necessity o f it,\xe2\x80\x9d 3\nElbridge Gerry favored the provision:\nThe novelty & difficulty o f the experiment requires periodical\nrevision. The prospect o f such a revision would also give inter\xc2\xad\nmediate stability to the Govt. Nothing had yet happened in the\nStates where this provision existed to proves [sic] its im propriety.4\nThe convention then postponed further deliberation on the provision.5\nThe provision \xe2\x80\x9c for amending the national Constitution hereafter\nwithout consent o f National Legislature\xe2\x80\x9d was next discussed on June l l . 6\nSeveral members \xe2\x80\x9c did not see the necessity o f the [resolution] at all, nor\nthe propriety o f making the consent o f the National Legislature unneces\xc2\xad\nsary.\xe2\x80\x9d 7 George M ason, however, urged that the provision was necessary:\nThe plan now to be formed will certainly be defective, as the\nConfederation has been found on trial to be. Am endm ents there\xc2\xad\nfore will be necessary, and it will be better to provide for them , in\nan easy, regular and Constitutional way than to trust to chance\nand violence. It would be improper to require the consent o f the\nNatl. Legislature, because they may abuse their power, and\nrefuse their consent on that very account. The opportunity for\nsuch an abuse may be the fault o f the C onstitution calling for\nam endm ent.8\n\n11 Farrand at 22.\nM Farrand at 121.\n\n\xe2\x80\x98Id.\nM Farrand at 122.\n\xe2\x80\x99Id .\n\n\xe2\x80\x98 1 Farrand at 202.\n\n\xe2\x80\x98Id.\n*1 Farrand at 202-03.\n\n411\n\n\x0cEdm und Randolph supported M ason\xe2\x80\x99s arguments. The convention, how\xc2\xad\never, postponed action on the words \xe2\x80\x9c without requiring the consent o f the\nnational Legislature.\xe2\x80\x9d The other portion o f the clause (\xe2\x80\x9c provision ought\nto be made for the am endm ent o f the Articles o f Union whensoever it shall\nseem necessary\xe2\x80\x9d ) was passed without dissent.9\nThe provision as passed was then referred, to the Committee o f Detail.\nT hat committee fashioned the first draft o f the C onstitution and sub\xc2\xad\nmitted it to the convention on August 6. Article XIX o f that draft provid\xc2\xad\ned for am endm ent as follows:\nOn the application o f the Legislatures o f two thirds o f the States\nin the Union, for an am endm ent o f this C onstitution, the\nLegislature o f the United States shall call a Convention for that\np urpose.10\nThis provision was considered on August 30. Gouverneur Morris sug\xc2\xad\ngested that \xe2\x80\x9c the Legislature should be left at liberty to call a Convention,\nwhenever they please.\xe2\x80\x9d " Notwithstanding this suggestion, the provision\nwas agreed to without dissent.\nOn September 10 Gerry moved to reconsider Article XIX. Since the\nC onstitution was \xe2\x80\x9c to be param ount to the State C onstitution,\xe2\x80\x9d he feared\nthat \xe2\x80\x9c two thirds o f the States may obtain a C onvention, a majority o f\nwhich can bind the Union to innovations that may subvert the State C on\xc2\xad\nstitutions altogether.\xe2\x80\x9d 12 Alexander Hamilton seconded G erry\xe2\x80\x99s motion.\nHe did not object to the consequences feared by Gerry, for \xe2\x80\x9c there was no\ngreater evil in subjecting the people o f the U.S. to the m ajor voice than the\npeople o f a particular S tate.\xe2\x80\x9d 13 Rather, Hamilton argued:\nIt had been wished by many and was much to have been desired\nthat an easier mode for introducing am endments had been pro\xc2\xad\nvided by the Articles o f C onfederation. It was equally desirable\nnow that an easy mode should be established for supplying\ndefects which will probably appear in the new System. The mode\nproposed was not adequate. The State Legislatures.will not apply\nfor alterations but with a view to increase their own powers\xe2\x80\x94The\nNational Legislature will be the first to perceive and will be most\nsensible to the necessity o f am endm ents, and ought also to be\nempowered, whenever two thirds o f each branch should concur\nto call a Convention\xe2\x80\x94There could be no danger in giving this\npower, as the people would finally decide in the case.14\n\n*1 Farrand at 203.\nI02 Farrand at 188.\n"2 Farrand at 468.\n"2 Farrand at 557-58.\n112 Farrand at 558.\n\n\xe2\x80\x98\xe2\x80\xa2Id.\n\n412\n\n\x0cMadison \xe2\x80\x9c remarked on the vagueness o f the terms, \xe2\x80\x98call a Convention for\nthe purpose,\xe2\x80\x99 as sufficient reason for reconsidering the article.\xe2\x80\x9d 15\nSpecifically, Madison raised the questions, \xe2\x80\x9c How was a Convention to be\nformed? by what rule decide? what the force o f its acts?\xe2\x80\x9d 16 A fter this\ndebate, Gerry\xe2\x80\x99s m otion to reconsider carried.17\nRoger Sherman then moved that the following language be inserted into\nthe Article: \xe2\x80\x9c or the Legislature may propose amendments to the several\nStates for their approbation, but no amendments shall be binding until\nconsented to by the several States.\xe2\x80\x9d 18 James Wilson moved that the ap\xc2\xad\nproval o f only two-thirds o f the States should be necessary, but this m o\xc2\xad\ntion was defeated.19 Wilson then moved to require the approval o f threefourths o f the States, and this m otion was approved with dissent.20\nMadison then moved, and Hamilton seconded, that the convention\npostpone consideration o f the amended proposition and that it take up the\nfollowing:\nThe Legislature o f the U \xe2\x80\x94 S\xe2\x80\x94 whenever two thirds o f both\nHouses shall deem necessary, or on the application o f two thirds\no f the Legislatures o f the several States, shall propose amendments\nto this Constitution, which shall be valid to all intents and pur\xc2\xad\nposes as part thereof, when the same shall have been ratified by\nthree fourths at least o f the Legislatures o f the several States, or by\nConventions in three fourths thereof, as one or the other mode of\nratification may be proposed by the Legislature o f the U .S.21\nRutledge objected, on the ground that \xe2\x80\x9c he could never agree to give a\npower by which the articles relating to slaves might be altered by the States\nnot interested in that property and prejudiced against it.\xe2\x80\x9d 22 In order to ob\xc2\xad\nviate his objection, it was agreed to add to M adison\xe2\x80\x99s proposition the pro\xc2\xad\nviso \xe2\x80\x9c that no amendm ents which may be made prior to the year 1808 shall\nin any manner affect the 4 and 5 sections o f the VII article.\xe2\x80\x9d 23 As\namended, M adison\xe2\x80\x99s proposition was adopted.24\nThe Committee o f Style made minor changes in M adison\xe2\x80\x99s amended\nproposition and reported it as Article V to the convention.25 On Septem\xc2\xad\nber 15, Sherman initiated debate on this provision by expressing his fears\nthat\nthree fourths o f the States might be brought to do things fatal to\nparticular States, as abolishing them altogether or depriving them\n\n"Id.\n\'\xe2\x80\x98id.\n"id.\n"Id.\n"2 Farrand at 558-59.\n\xe2\x80\x9d 2 Farrand at 559.\n\n\xe2\x80\x9cId.\n"Id.\n"Id.\n"Id.\n"2 Farrand at 602.\n\n413\n\n\x0cof their equality in the Senate. He thought it reasonable that the\nproviso in favor of the States importing slaves should be ex\xc2\xad\ntended so as to provide that no State should be affected in its in\xc2\xad\nternal police, or deprived of its equality in the Senate.26\nGeorge Mason also objected to the provision, for he\nthought the plan of amending the Constitution exceptionable &\ndangerous. As the proposing of amendments is in both the\nmodes to depend, in the first immediately, and in the second, ul\xc2\xad\ntimately, on Congress, no amendments of the proper kind would\never be obtained by the people, if the Government should\nbecome oppressive, as he verily believed would be the case.27\nMorris and Gerry then moved to amend the provision \xe2\x80\x9c so as to require a\nConvention on application of two-thirds of the states.\xe2\x80\x9d 21 Madison\nresponded that he\ndid not see why Congress would not be as much bound to pro\xc2\xad\npose amendments applied for by two thirds of the States as to\ncall a Convention on the like application. He saw no objection\nhowever against providing for a Convention for the purpose of\namendments, except only that difficulties might arise as to the\nform, the quorum &c. which in Constitutional regulations ought\nto be as much as possible avoided.29\nThe Convention thereupon agreed to Morris\xe2\x80\x99 and Gerry\xe2\x80\x99s proposal.30\nSherman then moved to strike the requirement of three-fourths for\nratification, in order to leave \xe2\x80\x9c future Conventions to act in this matter,\nlike the present Conventions according to circumstances.\xe2\x80\x9d 31 This motion\nfailed, as did Gerry\xe2\x80\x99s motion to eliminate ratification by convention.32\nSherman then moved to add a further proviso \xe2\x80\x9c that no State shall withoutits consent be affected in its internal police, or deprived of its equal suf\xc2\xad\nfrage in this Senate.\xe2\x80\x9d 33 Madison objected, on the ground that incorpora\xc2\xad\ntion of \xe2\x80\x9c special provisos\xe2\x80\x9d would lead every State to \xe2\x80\x9c insist on them, for\ntheir boundaries, exports, etc.\xe2\x80\x9d 34 The motion was defeated; so too was\nSherman\xe2\x80\x99s next motion to strike out Article V altogether.35 Morris then\nmoved to add the single proviso \xe2\x80\x9c that no State, without its consent shall\nbe deprived of its equal suffrage in the Senate.\xe2\x80\x9d According to Madison,\nthis motion was \xe2\x80\x9c dictated by the circulating murmurs of the small States\xe2\x80\x9d\nand was thus agreed to .36 This completed deliberations on Article V.\n\n"2 Farrand at 629.\n17Id.\n"Id .\n\xe2\x80\x9d 2 Farrand at 629-30.\n!02 Farrand at 630.\n"Id .\n"Id .\ns,Id.\n14I d\n\n.\n\n\xe2\x80\x9d 2 Farrand at 630-31.\n3,2 Farrand at 631.\n\n414\n\n\x0cA PPEN D IX\n\nn\n\nCongressional Handling of Convention Applications\nThe States have filed more than 350 applications for conventions.1\nThese applications have been on a wide variety of subjects; and as we have\nsuggested, most authorities are of the view that applications on different\nsubjects should not be aggregated for the purpose of determining whether\na sufficient number of States has applied for a convention.2 Congress has\ntraditionally been of that view, for it has never, despite the large number\nof applications, called a convention.\nOn two occasions the Senate has approved legislation to establish con\xc2\xad\nvention machinery. In 1971 and 1973 the Senate passed identical bills writ\xc2\xad\nten by Senator Ervin that were premised on the proposition that a conven\xc2\xad\ntion might be called to consider a particular subject. The bills provided\nthat any call to convention would \xe2\x80\x9c set forth the nature of the amendment\nor amendments for the consideration of which the convention is called.\xe2\x80\x9d\nTo enforce this restriction, they provided that each convention delegate\nwould take an oath committing himself not to propose or vote for any pro\xc2\xad\nposed amendment not relating to the subject described in the call. The bills\nalso allowed Congress to disapprove the submission of any proposed\namendment to the States if Congress found that the proposal related to or\nincluded a subject that differed from the one specified by Congress.3\nThese provisions were founded on the conclusion of the Senate Judiciary\nCommittee that \xe2\x80\x9c the bill properly limits the scope of the convention to the\nsubject or subjects\xe2\x80\x9d that caused the States to seek constitutional amend\xc2\xad\nment in the first instance.4\n\n1125 C o n g r e s s i o n a l\n\nR eco rd\n\n(daily ed., January 15, 1979) (remarks o f Senator Helms).\n\n\xe2\x80\x98See, e.g., Bonfield, \xe2\x80\x9c The Dirksen A m endm ent and the Article V Convention Process,\xe2\x80\x9d\n66 Mich. L. Rev. 949, 970 and n. 85 (1968). The opposite view is advanced by a few com m en\xc2\xad\ntators who reason that even disparate dem ands show a widespread desire for constitutional\nchanges. See, e.g., Orfield, Amending the Federal Constitution, 42 (1942). It is generally\nagreed, however, that applications on different subjects cannot be taken as an indication of\ngeneral dissatisfaction with the entire C onstitution. See, e.g., N ote, 70 Harv. L. Rev. 1067,\n1072 (1957).\n!S. 215, 92d Cong., 1st sess. \xc2\xa7\xc2\xa7 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\n(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).\n4S. Rept. 336, 92d Cong., 1st sess. 10(1971).\n\n415\n\n\x0cA P P E N D IX\n\nID\n\nThe Early Applications of the States\nThe States made few applications for conventions during the first\n100 years after the Constitution was ratified. A majority of these early ap\xc2\xad\nplications were for general conventions.1 It has been argued that the States\nmust therefore have thought themselves empowered to ask for general\nconventions only, and that this in itself is evidence that an Article V con\xc2\xad\nvention may not be called for a limited purpose.2 We do not accept this\nview.\nThe earliest applications were made by Virginia in 1788 and by New\nYork in 1789. The Virginia application referred to the numerous objec\xc2\xad\ntions that had been made to the new Constitution:\nWe do, therefore, in behalf of our constituents, in the most\nearnest and solemn manner, make this application to Congress,\nthat a convention be immediately called, of deputies from the\nseveral States, with fu ll pow er to take into their consideration the\ndefects o f this constitution that have been suggested by the State\nConventions, and report such amendments thereto as they shall\n\nfind best suited to promote our common interests, and secure to\nourselves and our latest posterity the great and unalienable rights\nof mankind.3 [Emphasis added.]\nThe New York application voiced a similar sentiment:\nThe People of the State of New York having ratified the Con\xc2\xad\nstitution agreed to on the seventeenth day of September, in the\nyear of our Lord one thousand seven hundred and eighty-seven,\nby the Convention then assembled at Philadelphia, in the State\nof Pennsylvania, as explained by the said ratification, in the\nfullest confidence of obtaining a revision of the said Constitution\nby a General Convention; and in confidence that certain powers\nin and by the said Constitution granted, would not be exercised,\nuntil a Convention should have been called and convened for\nproposing amendments to the said Constitution: In compliance,\ntherefore, with the unanimous sense o f the Convention of this\nState, who all united in opinion that such a revision was\nnecessary to recommend the said Constitution to the approba\xc2\xad\ntion and support of a numerous body of their constituents;\n\n\'Brickfield, \xe2\x80\x9c Problem s Relating to a Federal Constitutional C onvention,\xe2\x80\x9d 85-88, House\no f Representatives Judiciary Com m ittee Print, 85th C ong., 1st sess. (1957). See also\nAmerican Bar Association, Amendm ent o f the Constitution by the Convention Method\nUnder Article V, 59-72 (1974).\n\xe2\x80\x99Black, \xe2\x80\x9c Amending the Constitution: A Letter to a Congressm an,\xe2\x80\x9d 82 Yale L .J. 189,\n201-03 (1972).\n*1 A n n a l s o f C o n g r e s s 248-49 (Gales & Seaton, eds. 1789).\n\n416\n\n\x0cand a majority of the members of which conceived several ar\xc2\xad\nticles of the Constitution so exceptionable, that nothing but such\nconfidence, and an invincible reluctance to separate from our\nsister States, could have prevailed upon a sufficient number to\nassent to it, without stipulating for previous amendments: And\nfrom a conviction that the apprehensions and discontents which\nthose articles occasion, cannot be removed or allayed, unless an\nact to revise the said Constitution be among the first that shall be\npassed by the new Congress; we, the Legislature of the State of\nNew York, do, in behalf of our constituents, in the most earnest\nand solemn manner, make this application to the Congress, that\na Convention of Deputies from the several States be called as\nearly as possible, with fu ll powers to take the said Constitution\ninto their consideration, and to propose such amendments\nthereto, as they shall fin d best calculated to prom ote our com \xc2\xad\nmon interests, and secure to ourselves and our latest posterity,\nthe great and unalienable rights o f m a n k i n d [Emphasis added.]\n\nBecause both Virginia and New York expressed a general concern over the\nadequacy of the Constitution, it is not surprising that they applied for a\ngeneral convention. These applications do not support the contention that\nthe applicants believed that they could ask for a general convention only.\nIndeed, the inclusion in these applications of language specifying that the\nrequested convention should have \xe2\x80\x9c full\xe2\x80\x9d or \xe2\x80\x9c general\xe2\x80\x9d powers suggests\nrather clearly that the powers of an Article V convention were not thought\nto be invariably general but were thought to be dependent on the terms of\nthe applications of the States. It is unnecessary to request that a conven\xc2\xad\ntion have full or general powers if full or general powers are the only kind\nof powers that a convention can have.\nApplications for conventions were made at two other points during the\nfirst 100 years. During the nullification controversy three States filed ap\xc2\xad\nplications. South Carolina resolved that \xe2\x80\x9c it be expedient that a convention\nof the States be called as early as practicable to consider and determine\nsuch questions of disputed power as have arisen between the States of this\nconfederacy and the General Government.\xe2\x80\x9d 5 Alabama \xe2\x80\x9c recommended\xe2\x80\x9d\nto Congress \xe2\x80\x9c the call of a Federal Convention to propose such amend\xc2\xad\nments to the constitution as may be proper to restrain Congress from\nexerting the taxing power for the substantive protection of domestic\nmanufactures.\xe2\x80\x9d 6 Georgia applied to Congress to call a convention, to the\nend, among others, \xe2\x80\x9c that the principle informed in a Tariff for the direct\nprotection of domestic industry may be settled\xe2\x80\x9d and \xe2\x80\x9c a system of Federal\n\n\xe2\x80\x98H\n\no use\n\nJournal\n\n\xe2\x80\x99Sen a te J o u rn al\n\n29-30 (1789); 1 A n n a l s o f C o n g r e s s 271 (1789).\n83, 22d C o n g ., 2d se ss. (1833).\n\n\xe2\x80\x98Id. at 194-95.\n\n417\n\n\x0ctaxation may be established, which shall be equal in its operation upon the\nwhole people * * * .\xe2\x80\x9d 7 In our view, these resolutions make no applica\xc2\xad\ntion for a convention with unlimited powers; rather, they request a con\xc2\xad\nvention for the purpose of addressing problems broadly identified in the\napplications themselves.\nSome States applied for conventions during the period just preceding\nthe Civil War. President Buchanan had recommended that the Congress\nor the State legislatures might originate \xe2\x80\x9c an explanatory amendment of\nthe Constitution on the subject of slavery.\xe2\x80\x99\xe2\x80\x9d President Lincoln, while\nrefraining from any \xe2\x80\x9c recommendation of amendments,\xe2\x80\x9d had opined that\n\xe2\x80\x9c the convention mode seems preferable, in that it allows amendments to\noriginate with the people themselves.\xe2\x80\x9d 9 In accordance with that sentiment,\nseveral States\xe2\x80\x94New Jersey, Indiana, Kentucky, Illinois, and\nOhio\xe2\x80\x94adopted resolutions applying to Congress for a convention. These\nresolutions were general in nature. Typically, they called for a \xe2\x80\x9c conven\xc2\xad\ntion for proposing amendments.\xe2\x80\x9d 10 One can argue that they indicate that\nthe applicants believed their only recourse under Article V was to apply for\na general convention, but one can argue with equal force that the form of\nthese applications was dictated by the desire for a convention with\nunlimited power to avert the impending crisis.\n\n\'T he Georgia application actually presented to the Senate contained an enum eration of\n\xe2\x80\x9c particulars\xe2\x80\x9d more extensive than those cited in the text. Senate Journal 65-66, 22d Cong.,\n2d sess. (1833). However, the one authority known to us to have studied this m atter exten\xc2\xad\nsively states that the Georgia H ouse resolution, containing this larger enum eration, had been\nsubstantially narrowed by the Georgia Senate to the form quoted in the text, but the G ov\xc2\xad\nernor\xe2\x80\x99s Office mistakenly transm itted the House resolution to the Congress. See Pullen,\nsupra (note 2) at 42-44.\n\xe2\x80\xa255 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).\n\xe2\x80\x994 Collected Works o f Abraham Lincoln, 269-70 (Basler ed. 1953).\n\'"See the resolutions cited in Pullen, supra (note 2), at 79-85.\n\n418\n\n\x0c'