FAQ Series Question #3: Doesn't an Article V Convention Have the Job of Drafting the Amendment?
Doesn’t the Convention called by Congress in response to the Application of two-thirds of the State legislatures have the job of drafting the amendment(s) to be proposed?
Not necessarily. The overwhelming weight of the evidence indicates that the Article V convention was ordinarily meant to propose the amendments specified by two-thirds of the State legislatures in their call-triggering application. This evidence consists of the drafting history of Article V, the meaning and usage of the word “application” and “convention,” and the contemporaneous statements of the Founders and Framers at the time the Constitution was ratified and soon thereafter.
Significantly, the drafting history shows that the original formulation of Article V was that Congress would propose amendments upon “application” from two-thirds of the state legislatures, whereupon three-fourths of the states would ratify the proposed amendments. Implicit in this formulation was the understanding that the states’ “application” would contain the desired amendment or amendments. Congress, after all, already had the power to directly propose amendments in this formulation, and it would be redundant to give Congress yet another power to propose amendments that Congress itself drafted on application of the state legislatures.
Only when George Mason objected that Congress could not be counted on to propose the amendments desired by the people acting through their state representatives, was the language of Article V changed to ensure that a “convention” would propose the desired amendments. Congress was then relegated to the sole job of calling the convention upon receipt of the “application.” In this final version of Article V, the word “application” remained and was not altered or qualified, presumably preserving its original role in specifying the amendments desired by the states. In fact, applications were commonly made by states at the time to the Continental Congress; and it was typical of an application to include a very specific request for specific things and congressional actions. You can review one here (p. 189) and here (p. 331). The drafting history and usage of the term "application" strongly supports the conclusion that the application was meant to include the amendments desired by the states.
This naturally raises the question: Why have a convention do the proposing instead of just having two-thirds of the state legislatures directly propose amendments for ratification by three-fourths of the states? In response, first of all, it is important to emphasize that conventions did not have the significance we ascribe to them today. The word convention was simply a synonym for an assembly. It did not necessarily entail any special power by virtue of being a “convention.” You can see this by reviewing the term in 18th century dictionaries here.
Also, don’t forget we are dealing with 18th century technology. There was no modern instantaneous communication. Some means of ensuring that the amendment specified in the application would actually be proposed had to exist. The convention was introduced into the language of Article V simply to ensure that what was proposed was actually what the states asked-for in their application.
In short, an analysis of the text and drafting history of Article V supports the interpretation that the “application” of two-thirds of the state legislatures would specify desired amendments. The "convention" was meant to be an assembly of state representatives, which would serve as a coordinating instrumentality in proposing the amendments specified in the application on behalf of the applying states.
The evidence for this interpretation of Article V is pretty overwhelming if you consider the statements made by the Founders as evidence of the public understanding of the provision at the time of ratification. Here are just a few:
George Washington’s representation in his April 25, 1788 letter to John Armstrong that “nine states” can get the amendments they desire, which indicates that two-thirds of the states would specify the desired amendments in their Article V application and target the convention agenda accordingly.
Federalist George Nicholas’ June 6, 1788 statement at the Virginia convention that state legislatures would apply for an Article V convention confined to a “few points;” and that “it is natural to conclude that those States who will apply for calling the Convention, will concur in the ratification of the proposed amendments.” Notice how Nicholas’ conclusion is only “natural” with the expectation that the states would typically organize a convention with a narrow and preset agenda, and only after first agreeing on one or more amendments specified in their Article V application.
Tench Coxe’s June 11, 1788 statement that: “If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such proposed amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.” Coxe further explained, “[t]hree fourths of the states concurring will ensure any amendments, after the adoption of nine or more.” Notice that these statements clearly indicate that two-thirds of the states would specify and agree on the desired amendments in their Article V application before any convention was called.
James Madison’s representation in Federalist No. 43 that the power of the states to originate amendments is equal to that of Congress, which could only be true if the Article V application had the power to specify and target the convention to desired amendments.
Alexander Hamilton’s representations in Federalist No. 85 that all amendment proposals under Article V, logically including even those originated by the states, would be brought forth without “giving or taking” and “singly;” that “nine” states [two-thirds] would effect “alterations,” that “nine” states would effect “subsequent amendment” by setting “on foot the measure,” and that we can rely on state “legislatures” to erect barriers. These statements all anticipate the amendment-specifying power of an Article V application, which alone is entirely controlled by two-thirds of the states through their legislatures; as well as a narrow and preset agenda for an Article V convention.
James Madison’s February 7, 1799 Report on the Virginia Resolutions, which observed that the states could organize an Article V convention for the “object” of declaring the Alien and Sedition Acts unconstitutional. Specifically, after highlighting that “Legislatures of the States have a right also to originate amendments to the Constitution, by a concurrence of two-thirds of the whole number, in applications to Congress for the purpose,” Madison wrote both that the states could ask their senators to propose an “explanatory amendment” clarifying that the Alien and Sedition Acts were unconstitutional, and also that two-thirds of the Legislatures of the states “might, by an application to Congress, have obtained a Convention for the same object.” Again, the Application is the stated source of the desired amendment, and the anticipation is that Article V would be targeted to a specific amendment. Here is the source at pages 403-04.
The bottom line is that all of the foregoing statements are unified by the foregoing interpretation of Article V in which the application specifies amendments and the convention serves as a coordinating instrumentality in proposing them. None of them are consistent with the interpretation that the application has no substantive content and the convention does whatever it wants.Therefore, the Compact for America approach of using an interstate agreement to ensure that an Article V convention is strictly limited to proposing the amendment contemplated by the states’ application is fully constitutional. The Article V convention does not necessarily or ordinarily have the job of drafting desired amendments.
