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The Article V Convention: An Instrumentality Directed by the Application

What follows is the latest research on Article V, which has not been specifically considered or addressed by any Article V opponent.

What is significant about this research is that it shows conclusively that the Founders regarded the Article V convention to be an instrumentality of the states, which would be targeted by the states to proposing specific amendments specified in their application. The notion that an Article V convention would ordinarily be an autonomous sovereign body free to draft any amendment it wished is actually inconsistent with the entire historical record.

The Compact for a Balanced Budget and its activating congressional resolution are simply the practical means of ensuring the Founders’ vision is actually enforced given the various misinterpretations of Article V that have been advanced in the past. The compact approach to Article V is really the best way to ensure all legal and political disputes surrounding Article V are settled before the untested process of convening an Article V convention is initiated.

It is important to begin by reading the next-to-final draft of Article V and how it was amended into the final draft in the Report of Proceedings from the Philadelphia Convention here. As shown, the next-to-final draft of Article V placed the power to propose amendments on “Application” of the state legislatures originally in the hands of Congress. Because this mode of amending the Constitution was meant to allow the States to propose amendments they desired, it is clear that Congress was not supposed to draft the amendments. Thus, the only source of the amendments that Congress would propose under this next-to-final formulation of Article V would have had to originate from the “Application” that the states advanced. Of course, the final draft of Article V replaced Congress with a “Convention for proposing amendments” as the proposing body; but nothing in the Report of Proceedings suggests that the Founders meant for the Application to stop furnishing the text of desired amendments, as before.

In fact, “applications” were a common way of petitioning Congress for specific relief of all kinds during the Founding era. For proof, visit this Journal of the Continental Congress and read page 189 (June 1780 application from New Hampshire) and page 331 (October 1780 application from New York). There is nothing in this custom and usage to suggest that an application for an Article V convention could not also petition for the proposal of specific relief in the form of the proposal of one or more specified amendments by convention. It would be odd to suggest that the Founders intended to deviate from this common and contemporaneous understanding of the nature and power of an “Application” to Congress.

Taken together, this evidence of the drafting history and public understanding of “application” at the time of the founding strongly supports the conclusion that the convention process was proposed solely to avoid giving Congress a practical monopoly of power over the amendment process, not to deprive the states of the ability to specify amendments in their Application (as in the next-to-final version of Article V).

As shown below, this conclusion is supported by everything the Founders contemporaneously said about the Article V convention process.

  • Exhibit A: read Tench Coxe’s representations during the time of the ratification debates. He said, “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 the desired amendments in their Article V application.

  • Exhibit B: read Federalist No. 43, notice how James Madison says the power of the states to originate amendments is equal to that of Congress. This could only be true if the Article V Application specified amendments and if the Article V convention were an instrumentality of the states in proposing the specified amendments.

  • Exhibit C: read Federalist No. 85. Notice also that Hamilton emphasizes how two-thirds of the states (then “nine”) would seek “alterations” and “set on foot the measure” and that we can rely on state “legislatures” to erect barriers. Obviously, an amendment is the “alteration” or “measure” of which Hamilton writes. This confirms the amendment-specifying power of an Article V application, which alone is entirely controlled by two-thirds of the states through their legislatures.

  • Exhibit E: Read 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” on the assumption that the states would typically organize a convention after first agreeing on the amendments, presumably specified in their Article V application.

  • Exhibit F: on February 7, 1799, James Madison’s Report on the Virginia Resolutions 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. Read the source at pages 403-04.

The bottom line is that every significant historical figure who addressed the issue assumed or specifically represented that the states’ Article V “Application” would advance the amendments desired by the states for proposal by the Article V convention. This assumption and representation is consistent with the conclusion that the Article V “Application” used to trigger the convention call would ordinarily include the text of one or more desired amendments, and the convention would have the instrumental role of ensuring the desired amendment or amendment were actually proposed. We respectfully submit to you, there is no evidence suggesting otherwise.

In fact, the idea that a “convention” intrinsically has autonomous sovereign drafting power is totally inconsistent with 18th century usage. The word convention was simply a synonym for an assembly. You can see this by reviewing the term in 18th century dictionaries here. Given such usage, there is no reason to interpret an Article V convention as having exclusive amendment drafting power by virtue of being a “convention.” As to the claim that there would be no need for a proposing convention if it did not possess autonomous drafting powers, or that a proposing convention must necessarily have more deliberative authority than a ratifying convention, this argument is specious. We are dealing with 18th century technology. There was no modern instantaneous communication. Some coordinated means of ensuring that the amendment specified in the application would actually be proposed had to exist. It is perfectly sensible that a proposing convention was introduced into the language of Article V simply to ensure the necessary coordination occurred among the states so that what was proposed was actually what the states asked-for in their application. Indeed, that is the entire reason why the next-to-final version of Article V, which had Congress proposing amendments on application of the states, was replaced with a “convention for proposing amendments.”

Lastly, it is very interesting that in 1957, the State of Indiana drafted and passed an “Application” following precisely this interpretation. Check it out here. It seems to have been understood before the “runaway convention” controversy arose in the 1960s that the application could be used by the states to very tightly target the amendment process under Article V.

We at Compact for America Educational Foundation hope you will find this evidence as compelling as we have. It has persuaded numerous experts to our point of view who did not previously have the same perspective. You won't be alone.

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