A Final Vindication of the Principle of State Sovereignty in Article V
August 22, 2016
Fed Up? This #GivingTuesday Be Heard
November 28, 2017
What if the Founders Did Not Want an Article V Convention with a Broad Agenda?
December 10, 2014
Sometimes one of the best ways to understand a topic is to ask questions that challenge your starting premise.
The starting premise of many groups that are interested in calling a convention of the states for proposing constitutional amendments under Article V is that the convention was ordinarily meant to be a “drafting convention”—a convention in which delegates from the states hashed-out the text of amendments guided by a broad agenda of constitutional reform.
At least one group thinks that calling a drafting convention with a broad agenda is the only way to go.
But what if the Founders anticipated and preferred that the states would instead 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?
In other words, what if the Founders did not want a drafting convention with a broad agenda?
Ask yourself these questions in light of the known history of Article V, and it will be as if you were struck by a bolt of lightning.
Suddenly everything the Founders said about Article V is unified and makes sense; including:
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 “give or take” 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, not a drafting convention with a broad agenda. Here is the source at pages 403-04.
Finally, if the Founders did not want a drafting convention with a broad agenda to be called under Article V to be its usual mode of operation, it makes perfect sense that James Madison wrote a letter to oppose convening a second constitutional convention at the behest of the State of New York, which had sought consideration of roughly two dozen amendment topics when it conditionally ratified the Constitution. Although there is a clear difference between a constitutional convention and an Article V convention, James Madison did not change his position on the wisdom of calling a convention with a broad agenda when New York later merged its numerous amendment proposals in an application brought under Article V in February 1789.
The bottom line is that all of the evidence clearly indicates that the Founders anticipated and preferred that the states would typically organize an Article V convention with a narrow and preset agenda, and only after first agreeing on one or more amendments specified in their Article V application.
Such wisdom aligns best with the laser-focused Compact for America approach, as exemplified by the Compact for a Balanced Budget, which organizes a fully-defined, tightly-organized 24-hour convention devoted to voting up or down a pre-drafted, powerful, and vetted Balanced Budget Amendment.
None of this is to say that the states cannot call for a drafting convention with a broad agenda under Article V.
But just because you can do something, does not mean you should.
At least for the first launch of this as-yet untested process, Compact for America urges the States to deploy the Article V amendment process in accordance with the wisdom of the Founders.