Article V Introduction: Defining the Confusion
See the 5 min video of an actual convention at the end
FL Law Rev 2013
By Rob Natelson – 2013
The United States Constitution authorizes two methods by which amendments may be proposed for ratification: (1) by a two thirds majority of each house of Congress or (2) by a “Convention for proposing Amendments,” which Congress is required to call upon receiving applications from two thirds of the state legislatures.2 Although state legislatures have applied repeatedly, at no time has the necessary minimum of two thirds been reached on any one topic, so Congress has never called an amendments convention.
In recent decades, commentators have expressed uncertainty about the scope of an amendments convention, the effectiveness of limits on its charge, how delegates should be selected, and who should determine its operative rules.3 They also have posed the question of whether it is essentially (to use James Madison’s dichotomy)4 a “national” or a “federal” body. In other words, is it a national assembly elected by the people and presumably apportioned by population? Or is it an assembly of delegates representing the states?5
Many of these questions arise because of a general failure to examine sufficiently the history behind and surrounding Article V. For example, the late Professor Charles L. Black, Jr. of Yale Law School concluded that an amendments convention is a “national” rather than “federal” body.6 He deduced this conclusion without referring to anything the Founders had to say on the matter and while under the misimpression that the only relevant precedent was the 1787 Constitutional Convention.7 Other questions derive from the ahistorical error of assuming that an amendments convention is the same thing as a constitutional convention,8 despite clear historical differences between the two.9
What nearly all commentators have overlooked10 is that the Framers did not write, nor did the Ratifiers adopt, Article V on a blank slate. They wrote and ratified against the background of a long tradition of multi-colony and multi-state conventions. During the century before the drafting of Article V, there had been at least 32 such gatherings—at least 21 before Independence11 and another eleven between 1776 and 1786.12 In addition, there had been several abortive, although still instructive, convention calls. These multi-government gatherings were the direct predecessors of the convention for proposing amendments, and formed the model upon which the convention for proposing amendments was based.
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Universally-accepted protocols determined multi-government convention procedures. These protocols fixed the acceptable ways of calling such conventions, selecting and instructing delegates, adopting convention rules, and conducting convention proceedings. The actors involved in the process—state legislatures and executives, the Continental and Confederation Congresses, and the delegates themselves—each had recognized prerogatives and duties, and were subject to recognized limits.13
These customs are of more than mere Founding-Era historical interest. They governed, for the most part, multi-state conventions held in the nineteenth century as well—notably but not exclusively, the Washington Conference Convention of 1861.14 More importantly for present purposes, they shaped the Founders’ understanding of how the constitutional language would be interpreted and applied.
Moreover, the Constitution, as a legal document, must be understood in the context of the jurisprudence of the time. In that jurisprudence, custom was a key definer of the “incidents” or attributes that accompanied principal (i.e., express) legal concepts and powers.15 Thus, the customs by which the founding generation initiated and conducted interstate conventions tell us how an Article V convention should be initiated and conducted; further, they help define the powers and prerogatives of the actors in the process. But beyond that, there is considerable affirmative evidence that the Founders specifically understood these customs to define the language of Article V. These practices enable us to re-capture the constitutional meaning of the terms “Application,” “call,” and “Convention for proposing Amendments.”16
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September 12-15, 2017 Phoinex BBA Planning Convention
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