Article V Conventions Clause

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ARTICLE V CONVENTIONS CLAUSE

Article V provides for two methods of proposing amendments to the Constitution. Congress may propose amendments by a two-thirds vote of both houses or "on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments." Any amendments proposed by a constitutional convention, like those proposed by Congress, become part of the Constitution upon ratification by three-fourths of the states. No such convention has been called since the adoption of the Constitution. In the 1980s, however, more than thirty state legislatures applied to Congress for the calling of a "limited" convention restricted to proposing a balanced budget amendment to the Constitution. Proponents claimed to be only a few states short of the thirty-four applications necessary to trigger such a constitutional convention. Other states have in recent years submitted applications for constitutional conventions limited to other single subjects, including abortion, school prayer, and term limitations for members of Congress.

The issue of the validity of these applications has been a subject of sharp debate. Do the state legislatures have the power to control the agenda of a constitutional convention by limiting the convention to considering only one precise amendment or one defined subject? If the state legislatures do not have the authority to limit the convention to a single subject or a particular amendment, should state applications that contemplate a "limited" convention be treated as valid application for a more general convention? Some light is shed on these questions by the debates over the amending process at the constitutional convention of 1787.

The drafters of the Constitution were generally in agreement that some provision should be made for future amendments and that Congress should be empowered to propose amendments. There was also agreement that Congress should not be the only body empowered to propose amendments. As george mason of Virginia noted, exclusive congressional authority to propose amendments would pose a problem if Congress itself were in need of constitutional reform. One alternative—allowing state legislatures to propose amendments—was rejected after alexander hamilton warned that "[t]he State Legislatures will not apply for alterations but with a view to increase their own powers." If state legislatures had the power to propose amendments that would then be returned to those same state legislatures for ratification, those legislatures could enhance their power at the expense of the national government without the active participation of any national forum.

The constitutional convention device created by Article V provided an institution in addition to Congress empowered to propose constitutional amendments. Such a convention would be, like Congress, a deliberative body capable of assessing, from a national perspective, the need for constitutional change and drafting proposals for submission to the states for ratification. At the same time it would not be Congress and therefore could not pose the threat of legislative self-interest blocking needed reform of Congress itself.

The essential characteristic of the constitutional convention is that it is free of the control of the existing institutions of government. The convention mode of proposing amendments was seen as avoiding both the problem of congressional obstruction of needed amendments and the problem posed by state legislative self-interest. To be sure, such a convention can be held only upon the petition of state legislatures; once properly convened, however, such a convention, in the view of many scholars, may properly determine its own agenda and submit for ratification the amendments it deems appropriate.

The most contentious question concerning constitutional conventions under Article V is whether state requests for a convention are valid applications if they presume to limit the convention to a single amendment specified in the application. Many of the applications submitted in the 1980s, for example, called for a convention for "the sole and exclusive purpose" of proposing an amendment requiring a balanced federal budget.

Some scholars and members of Congress argued that such "limited" applications were valid and that if a sufficient number of legislatures applied in this fashion Congress should call a "limited" convention. Some of those who consider the applications valid would have Congress limit the convention to the exact wording proposed by the state legislatures; others would have Congress broaden the subject matter to the "federal budget," for example, and limit the convention to this more general subject.

There is a substantial argument, however, that applications for a "limited" convention are simply invalid. The debates of the Framers suggest that any convention was to be free of controlling limits imposed either by Congress or by the state legislatures. Although the applying state legislatures are free, of course, to suggest amendments they desire a convention to consider, the convention itself would have the final authority to determine what kinds of amendments to propose. If the state legislatures were to possess, in addition to the right to summon a convention into existence and to ratify any proposed amendments, the added power to control the convention's deliberations by specifying the amendment to be proposed, state legislatures would be given more authority over constitutional revision than the Framers contemplated.

The argument that state legislatures lack the power to control a convention's proposals does not preclude an applying state legislature from suggesting the amendment it desires the convention to consider or even from submitting a suggested draft, as long as the application is premised on an understanding that the convention has final control over the decision of what amendments to propose. Many state legislatures that applied in the 1980s made it clear that they opposed the calling of a convention if the convention could not be limited, and some explicitly deemed their applications "null and void" unless "the convention is limited to the subject matter of this Resolution." If it is the case that a "Convention for proposing Amendments" has the final authority under the Constitution to determine what amendments to propose, then state resolutions requesting a convention only if the convention is restricted by constraints that cannot constitutionally be imposed are not valid.

Walter Dellinger
(1992)