Convention to propose amendments to the United States Constitution

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Article Five of the United States Constitution provides an option to assemble a national Convention to propose amendments to the United States Constitution as an alternative to the process of securing two-thirds approval in both houses of Congress.

The history of the Convention as a means of altering the fundamental law of a nation is documented in "Prelude to the Grand Convention," the first chapter of a book published in 1988 by Oxford University Press. The author, Russell Caplin, notes that the prototype for a constitutional convention was the convocation at Runnymede in 1215, which created the Magna Carta.[1]

Against oppressive government of any kind, the authors of the United States Constitution sought to establish institutional checks and balances. In framing the Constitution as the fundamental embodiment of such safeguards, the "Grand Convention" (assembled in Philadelphia, 1787) anticipated that, at some point, amending the basic law of the land might become necessary and yet be squelched by an unresponsive Congress. Foreseeing a day when the long-term health of the nation could depend upon a process that empowered states to secure amendments over the opposition of the national government, the delegates to the grand convention made provision for a future convention.

When two-thirds of the state legislatures shall apply - i.e. both houses of the legislature in 34 states - then Article V of the Constitution requires the Congress to "call a convention for proposing amendments." In the Federalist Papers Alexander Hamilton notes that applications by two-thirds of the states would be "peremptory," and in the particular of whether Congress issues such a call, "nothing is left to the discretion of that body." [2] In 1789 James Madison affirmed Hamilton's point that a refusal by Congress to call the convention would be unconstitutional.[3]

The convention to propose an amendment (or amendments) carries no ratification powers. Article V authorizes the convention only to draft and propose amendment(s), which must then be ratified by either the state legislatures or unicameral ratifying conventions conducted within the individual states. The Framers built considerable complexity into the national legislature, whereas the convention was left unstructured, with its procedures permitted to be relatively simple and facile. The convention would consist of a single assembly of delegates (not two chambers as in Congress); and under Jefferson's lex majoris partis [4] a simple majority of members present and voting would suffice to submit a proposed amendment to the states.

Contents

[edit] Purpose

The framers of the Constitution wanted a means whereby to bypass a potentially unwilling Congress in the amendment-proposing process. They thought that there could be circumstances in which Congress might ignore valid pleas to amend the Constitution.

At the outset many of the Framers were loath to give Congress a monopoly over the amending process. On May 29, 1787, the Virginia Plan, the prototype from which the Constitution evolved, was introduced to the Constitutional Convention at Philadelphia; it included the following resolution: "Res(olve)d. that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto." George Mason, one of Virginia’s seven delegates, argued from the floor of the Convention that it “would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account.” Mason added that, “no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive.”[5]

Not since the Constitutional Convention at Philadelphia in 1787 [6] has there been a national convention to amend the country's constitution. All of the twenty-seven amendments thus far incorporated into the U.S. Constitution were proposed by Congress. The convention method is equally valid, however, given its status under the fifth article of the Constitution as one of two legal ways whereby to revise the written Constitution.

[edit] Process

In order to call a national convention for proposing amendments, two-thirds of the state legislatures must pass resolutions requesting a convention for that purpose. Delegates to the convention would then be responsible for developing the proposed amendment to be submitted back to the states for ratification.

After an Article V convention, the amendment must be ratified by three quarters of the states. This could be done by the state legislatures, or the ratification process could resemble a referendum if (as was the case with the 21st Amendment) the people themselves elect ratifying conventions. Under this option, delegates could be elected to ad hoc state conventions.

[edit] History

Over time, Congress has received numerous applications for an Article V Convention submitted by States throughout every section of the country. Nonetheless, Congress has never called a convention because the several hundred applications propose amendments on widely differing subjects (see below under "Subject Matter of Applications"). A federal court case considered but rejected the claim that Congress must call a convention based on the sum total of all applications to date. An appeal of the ruling was rejected by the U.S. Supreme Court.

The first Congress did respond in 1789 to a formidable movement for a second constitutional convention. This prospect prompted Congress to compose and submit to the states the Bill of Rights, the first ten Amendments to the Constitution.[7]

That same "Constitutional Brinksmanship," came again to the fore during the 20th century. On three different occasions, state legislatures did submit contemporaneous applications on a specific subject which approached the two-thirds of the states needed to trigger a national convention:

  • During the Progressive Era – as calculated in a congressional study printed six decades later – only two more states were needed to call a convention for an amendment to mandate direct election of U.S. Senators.[8] The looming mandate from the states helped break resistance in the U.S. Senate, which had several times refused to follow the House of Representatives in support of letting the voters rather than state legislators elect U.S. Senators. The states submitted a total of at least 29 applications for a convention call (by other counts 31). Under such pressure the measure was approved by Congress in May of 1912 and ratified a year later as the 17th Amendment.[9] [5]
  • After the Baker v. Carr decision of 1962 “asserted Federal judicial authority over the basic structure of government in the various states” (the U.S. Supreme Court would soon mandate that both houses of state legislatures be apportioned strictly by population), a campaign began to overturn the ruling via a constitutional convention. The movement's purpose was to restore the people’s “right to determine how they shall be governed.” During the years 1963-1969, guided nationally by US Senator Everett Dirksen of Illinois, the movement garnered the support of 33 of the 50 states. But Sen. Dirksen died on the threshold of victory, a single state short of the two-thirds required by Article V.[10]
  • About a decade later, from 1978-1983, states submitted 32 of the necessary 34 applications for a convention on the subject of a balanced budget amendment. Two additional applications would have put Congress under the obligation of calling a national convention to draft and propose a federal constitutional amendment requiring that the budget of the United States government be balanced except during time of war.[11]

[edit] Possible scope

Constitutional scholars are divided as to how a national, amendment-proposing convention would function procedurally, and whether such a convention would be limited to the one subject for which it was summoned or whether delegates could expand the agenda as they might see fit.[12] Opponents of a convention assert "There is no consensus as to whether or not the convention would have the power to simply disavow the Constitution altogether and propose replacing it with an entirely new document and that it is worth noting that such an outcome would be similar to what happened when the Convention of 1787 ended up writing the current Constitution. That convention was called for the purpose of revising the earlier Articles of Confederation, but it chose instead to abandon the articles in favor of a completely new document." However, these opponents fail to note that the 1787 convention was authorized by the Articles of Confederation, an act of Congress, and votes by the states; and that under this act of Congress any action taken by the 1787 convention was invalid unless ratified by both a vote of Congress and the states.[13] As then, so now: anything that emerges from an Article V convention is merely a proposal, without force or effect until ratified by the states. Under Article V three-fourths of the states (38 of 50) are the minimum necessary to ratify.

By citing the Constitution's necessary-and-proper clause, Congress might enact a statute to clearly define many of the currently ambiguous and debatable features of this procedure. Sponsored by the late Senator Sam Ervin, such a bill passed the U.S. Senate unanimously in 1971 and again in 1973, but the proposed legislation remained locked up in a House committee where it died.

However neither Article I nor Article V of the Constitution grants Congress this power, and the Founders intended Congress "have no option." It appears therefore that meddling by Congress would constitute usurpation in that the legislative branch could exert control over the convention, thus virtually taking the two methods of amendment under Article V and combining them into one.

Whether such a statute would be binding on convention delegates is also a matter of scholarly uncertainty. Insofar as Article V gives to the Congress no express authority beyond calling the convention into session after the number of state applications reach the required threshold, why would the convention once convened have to bow to Congress? The primary purpose of the Framers in providing an alternative to Congress in the amending process is quite simply to bypass a recalcitrant or hopelessly corrupt Congress. Thus to the extent that Congress regulates the internal procedures of the convention - say by mandating a supermajority for convention submissions to the states - rather than leaving such decisions to the convention itself, the raison d'etre of the alternative mode is undermined.

Be that as it may, there is little dissent about the spirit of Article V. By including a clause for the holding of a national amendment-proposing convention, the Framers of the U.S. Constitution intended to provide a peaceful alternative to a violent revolt during times of strong public dissatisfaction with the federal government.

[edit] Number of Applications

Every state has applied, from South Dakota, 27 times, to Hawaii, 1 time. Most applications are from the 20th century; one count puts the total number of applications at 567. [6]

[edit] Subject Matter of Applications

Congress is required to call a convention after the submission of applications by two-thirds of the states (currently 34 of 50), but it is – and always has been – the U.S. Congress who counts the applications. Indeed Congress has, according to the National Archives, never officially totaled the applications.[14] Since 1899 the strongest Convention movements – i.e. those which secured more than a dozen state applications - were: reapportionment (33); balanced budget (32); direct election of US Senators (31); limitation of US taxing power (39); prohibition of polygamy (27); limited taxation (24); revenue sharing (18); pro-life(16); revision of Article V (13).[15]

Some statistics relevant to state applications for a general convention under Article V are as follows: States have submitted a sum total of 22 applications for a “general revision” during the time frame, 1788-1929 – but with only one, Wisconsin’s, submitted since the Progressive Era (pre-WWI). There were no applications for a “general revision” between 1929 and the present.

The following is excerpted from the U.S. Senate hearings held in 1967 under the chairmanship of the late Sen. Sam Ervin, considered the foremost constitutional expert in Congress at that time. The testimonies are informative, and the several appendices offer a wealth of information. For example:

p. 106: “… Since 1899, there have been comparatively few applications for a general convention, with a preponderant number of petitions requesting a convention to propose only amendments frequently set forth verbatim in the text of the application itself. More and more the application process has been utilized either to prod a reluctant Congress into proposing amendments itself or to relieve abuses through their enactment of remedial legislation. “In view of the transformation of applications from general requests, which were familiar to the framers in 1787, to those now most frequently submitted asking only for a limited reformation, there would seem to be no logical reason whatever for overlooking the language contained in the petition of the States and forcing a general convention upon those States requesting nothing more than a single amendment to the Constitution. A contrary determination would often be a variance with the very wishes of those States submitting application to the Congress as well as constitute a very narrow and restrictive interpretation of Article V itself. The provision would be reduced almost to the point of absurdity if Congress were forced to call a general convention to revise the entire Constitution upon the application of 19 States seeking a limit on taxes, 12 States a limit on wives, and [12]… more States a limit on the number of new States to be admitted to the Union.” [16]

[edit] Rescission of applications

The legislatures of some states have seen fit to rescind or cancel their prior applications for an amendment-proposing national convention either out of fear of the possible results of such a convention or because the reasons for the summoning such a convention were later rendered moot. Nothing in Article V permits or even suggests that states have the right to withdraw their applications (as this would constitute a veto both of Congress and other state applications) and Congress has never even examined or acknowledged these rescissions as to do so would first compel Congress to recognize what was being recessed and thus validate the applications and therefore cause Congress to call a convention. [7] States which have submitted so-called rescissions include:

[edit] National Groups Advocating for an Article V Convention

Friends of the Article V Convention (FOAVC) [8] was formed in late 2006 to inform and educate the public about the constitutional right to an Article V convention, as well at the need for a general convention to obtain political and governmental reforms not pursued by the U.S. Congress. FOAVC's official position is that hundreds of applications submitted over the years by every state in the Union makes it long overdue that Congress issue the call for a convention. FOAVC denies that two-thirds of the states must apply in a reasonably contemporaneous time frame for a convention to consider one particular subject matter. Also being developed by FOAVC is a program to promote additional applications from the various state legislatures for an Article V convention.

Treatise on Twelve Lights[17] is a non-profit project proposing an Article V Convention; not however for a general purpose, but to advance a single overarching Amendment to the U.S. Constitution. The idea is to form a five-fold coalition (one part sacred, four parts secular) of citizens united in sufficient power to enact one arch-amendment. The associated online book by Robert Struble, Jr., concludes with a prototype text for such an amendment, organized into political, economic and cultural categories. As expressed in the book's secondary title, the intent is To Restore America the Beautiful under God and the Written Constitution. Chapter four consists of a detailed political / historical analysis of the Article V convention process.

[edit] References

  1. ^ Russell L. Caplan, Constituitonal Brinksmanship, Amending the Constitution by National Convention (New York: Oxford University Press, 1988), p. 5.
  2. ^ Alexander Hamilton, Federalist Papers, no. 85, third to last paragraph. Hamilton states: "But there is yet a further consideration, which proves beyond the possibility of a doubt, that the observation is futile. It is this that the national rulers, whenever nine States concur, will have no option upon the subject. By the fifth article of the plan, the Congres will be obliged "on the application of the legislatures of two thirds of the States [which at present amount to nine], to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof." The words of this article are peremptory. The Congress "shall call a convention." Nothing in this particular is left to the discretion of that body. And of consequence, all the declamation about the disinclination to a change vanishes in air. Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority. If the foregoing argument is a fallacy, certain it is that I am myself deceived by it, for it is, in my conception, one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration."
  3. ^ James Madison, letter to George Eve, 2 January 1789. See also Madison's remark in the House, that it is "...out of the power of Congress to decline complying," in 1 Annals of Congress, 1 Congress 1, (5 May 1789), p. 260. Caplin, supra, p. ix notes: "Once Congress has received the correct number of applications, it must, if all other requirements are met, call the convention.... If, on the other hand, Congress resists a mandate for change despite the fulfillment of all prerequisites, an amendment desired by an overwhelming part of the nation will have been unconstitutionally thwarted and confidence in the government lost."
  4. ^ Jefferson's Manual, section 41, states: "The voice of the majority decides; for the lex majoris partis is the law of all councils, elections & c., where not otherwise expressly provided." Jefferson's Manual was prepared by T.J. during his Vice Presidency, 1797-1801, and it remains part of the official rules in each house of Congress. [Senate Manual, section 741.13; Rules of the House of Representatives, section 508]. Despite the absence of any express provision in Article V that in any way contradicts the lex majoris partis, a bill passed the US Senate in 1971 (and again in 1973) seeking to mandate a supermajority from within the convention in order to submit proposed amendments to the states. The "Federal Constitutional Convention Procedures Act" was designated as S 215, and in 1973 as S 1272; both bills passed the Senate unanimously but each died in committee in the House.
  5. ^ Russell L. Caplan, Constituitonal Brinksmanship, pp. 27-29; quoting Max Farrand, ed., The Records of the Federal Convention of 1787, 4 vols., (New Haven: Yale University Press, revised ed., 1937), 1:22, 202-03, 629.
  6. ^ Catherine Drinker Bowen, Miracle at Philadelphia (Boston: Little-Brown, 1966).
  7. ^ Caplin, Constitutional Brinksmanship, pp. 39-40.
  8. ^ Congressional Record, 92 Congress 1 (Oct. 19, 1971), p. S16519.
  9. ^ Ibid., pp. 61-65. However, by the FOAVC interpretation, as the applications for a convention on direct election of Senators were submitted prior to 1912 when the Union consisted of but 46 states, there were already 31 applications on file from the states. This total [based perhaps on the ABA count, and on Caplin, pp. 63-64] should have caused a convention call as two-thirds of 46 is 30.67, so that 31 applications would have exceeded the requirement by a fraction of a state. No doubt factored in at the time was the apparently moot nature of the issue after Congress itself submitted the proposed Amendment to the states, which presumably is equivalent to what the convention would have done. But FOAVC takes the position that Congress violated its duty under the Constitution by failing to issue the Convention call after 31 states applied.
  10. ^ Caplin, Ibid., pp. 73-78.
  11. ^ Ibid., pp. 78-89.
  12. ^ The Constitutional Convention As An Amending Device, sponsored jointly by the American Historical Assoc. and the American Political Science Assoc. for Project '87, edited by Kermit L. Hall, Harold M. Hyman and Leon V. Sigal (1981).
  13. ^ Caplan, Constituitonal Brinksmanship, p. 26. [1]
  14. ^ Rodney A. Ross, Center for Legislative Archives, National Archieves and Records Administration, March 12, 2007 letter to U.S. Senator Bernie Sanders, Vermont, "Unfortunately there is no single category for petitions asking for amendments to the Constitution, let alone for amendments by the convention route."
  15. ^ See, for example, the chart in The Congressional Record, 92 Congress 1 (Oct. 19, 1971), p. S16519. See also the American Bar Association Report of 1973, “Amendment of the Constitution: By The Convention Method Under Article V.” For a 21st century resource see the court documents filed by Bill Walker, [2]
  16. ^ The standard text on constitutional conventions in this country was for many years the still valuable volume by judge John Alexander Jameson, A Treatise on Constitutional Conventions: Their History, Powers, and Modes Of Proceeding (Chicago: Callaghan And Co., 1887). One of the best government sources, with extensive appendices and bibliography, is Federal Constitutional Convention, October 30 & 31, 1967 hearings before the Subcommittee on Separation of Powers, Senate Judiciary Committee, 90 Congress 1, (Washington, D.C.: Government Printing Office, 1968). See also the ABA Report cited above. For a 21st century resource see the court documents filed by Bill Walker, [3]. Two valuable books published by Oxford University Press are, Russell L. Caplan, Constitutional Brinksmanship: Amending the Constitution by National Convention (1988), and Sanford Levinson, Our Undemocratic Constitution: Where The Constitution Goes Wrong and How We the People Can Correct It (2006). Caplan's book is must reading for the serious student of the Article V convention process.
  17. ^ Robert Struble, Jr., Treatise on Twelve Lights: To Restore America the Beautiful under God and the Written Constitution,[4]


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