What's in a Word? "Application" as the Pivot Point for State Control in Article V by CFA CEO Chip De
So which is the best interpretation of “application?” A good place to start is the draft of Article V submitted by the Committee of Style to the Philadelphia Convention delegates for final consideration:
"The Congress, whenever two-thirds of both houses shall deem necessary, or on the application of two-thirds of the legislatures of the several states, shall propose amendments to this Constitution, which shall become valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several states, or by Conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the Congress."
This draft required all amendments to be proposed by Congress, even when the proposal was triggered by the “application” of the states. To avoid redundancy with Congress’ own power to propose amendments directly, it is obvious from this original formulation that the word “application” was not just an empty trigger for Congress to formulate its own amendments. It was understood to have substantive content and to specify the amendment the states wanted Congress to propose.
Of course, Col. George Mason was famously concerned that Congress would not cooperate with this process. As a result, Gouverneur Morris and Elbridge Gerry amended the Committee of Style draft to place the authority to propose the desired amendments with a convention to be called by Congress, and not Congress itself.
There is no hint in this change, however, that Founders intended for the state’s “application” to be deprived of the substantive ability to designate the desired amendments to be proposed, as in the original draft of Article V. Instead, the final version of Article V changed only the body that directly proposed the amendment—from Congress to a convention. The word “application” remained the same, and presumably so did its meaning. There is nothing in the legislative history of Article V that suggests that the amendments to be proposed in convention would necessarily arise solely and independently from the convention delegates, who would have the deliberative freedom to propose anything under the sun.
In fact, there is abundant evidence that the word “application” retained the same meaning as in the original version of Article V; and would continue to specify the amendments desired by the states. The whole point of the new version of Article V, after all, was to better ensure the states could obtain the amendments they desired in the event Congress balked or sabotaged the state-originated amendment process. That would hardly be the case if the application of the states furnished no substantive direction as to which amendments to propose in convention, leaving the agenda of the convention in the hands of Congress to determine in its call or otherwise subject to the whims of unbound delegates.
It is far more natural to conclude that the Founders replaced Congress with a convention as the proposing body only because technological limitations required a centralized body that was entirely under the control of the states through bound delegates to ensure that the proposed amendment actually conformed to what the states wanted. There was simply no other way for the proposal process to be coordinated to conform to the desires of the states in an age without telephones or internet.
In short, a review of the drafting history behind the final version of Article V strongly indicates that the “Application of the Legislatures” would detail the amendments desired by the states. Upon receipt of an application that obtained the concurrence of two-thirds of the state legislatures, Congress would then be obligated to call the convention in accordance with the terms and provisions of the application. Congress would have no discretion to do otherwise. The convention would then be empowered to propose the desired amendments detailed in the application.
This interpretation is confirmed by the contemporaneous meaning of “application.” At the time of the founding, “applications” were understood as petitions that requested some sort of remedy or relief from a legislative or judicial body. They could be as general or specific as the applicant wanted. Congressional action triggered by an application would naturally be regarded as granting the relief sought by the application. This usage and understanding of “application” is perfectly consistent with the idea that an Article V application could seek the proposal of specified amendment; and that agenda would be deemed adopted by the mandatory call of Congress triggered in response to it.
The interpretation of “application” as having substantive content in advancing specific amendments for proposal by an Article V convention is also confirmed by the representations of George Washington, James Madison and Alexander Hamilton. All three Founders famously represented respectively in personal correspondence, Federalist No. 43 and Federalist No. 85 that the states had an equal power with Congress to propose amendments and that two-thirds of the states would have the ability to advance desired amendments through Article V. These representations could be true only if an Article V application had substantive content consisting of the ability to specify desired amendments. This is because only the Article V application was under the direct control of two-thirds of the states.
Thus, the best textual and contextual interpretation of the convention mode of proposing amendments under Article V is that amendment proposals were meant to originate from the state legislatures in their "application," and thereafter to be formally proposed by the convention; serving as a coordinating body under the control of those very same legislatures, to ensure that the states could obtain desired amendments.
The laser-focus of the Compact for a Balanced Budget on advancing a specific Balanced Budget Amendment is therefore entirely consistent with the original meaning of Article V, as revealed by an assessment of the meaning of “application.”
* * *
With a contribution of $1, $5, $10 or more, you can help us send scholars to up to 10 states to spread the word about Compact for America!
If you have not done so already, please visit the Compact for America website and load up on intellectual ammunition.
Please show your support for the cause by purchasing cool Compact for America gear.
Finally, please join a cast of celebrities, statesmen, and scholars at the Second Annual Liberty Amendment Dinner on October 18, 2014, at the Hilton El Conquistador in Tucson, Arizona!