The Other Way to Amend the Constitution: The Article V. Constitutional Convention Amendment Process
Rogers, James Kenneth, Harvard Journal of Law & Public Policy
The Constitution specifies two different ways for amendments to the Constitution to be proposed. The first method allows Congress to propose amendments when such amendments are approved by at least a two-thirds vote in both houses. (1) The States can then ratify the proposed amendments. The second method is less familiar to most people, as it has never been used. This method requires Congress to call a constitutional convention to propose amendments when two-thirds of the States apply for such a convention. (2) Many questions exist about the use of this amendment process. May the convention's scope be limited to certain subject matters? If so, who may limit it? How are state applications to be tallied--separately by subject matter or cumulatively, regardless of their subject matter? What is the relevance of the convention method of proposing amendments? Why should it ever be used? Some of these uncertainties about the convention have most likely contributed to states' reluctance to use the method. Yet, as of 1993, almost 400 convention applications had been submitted to Congress by the States since 1789. (3) This Note will attempt to explore the history of the Convention Clause in Article V and answer some of the questions about its use.
A. The Constitutional Convention
Much of the confusion about Article V comes from its ambiguous language. This ambiguity is the result of compromises at the Philadelphia Convention of 1787 between groups that wanted to exclude the national legislature from participating in the amendment process and groups that wanted to grant the national legislature the sole authority to amend. (4) The earliest proposal for an amendment provision, contained in the Virginia Plan, stated that "the assent of the National Legislature ought not to be required" to amend the Constitution. (5) Convention delegates privately circulated a proposed constitution authored by Alexander Hamilton (6) that gave the power to amend the Constitution to the national legislature and the power of ratification to legislatures or conventions in the States. (7) The Convention's first official action regarding the method for amending the Constitution was to adopt Resolution 17, which stated that the Constitution should contain some means for amendment, but did not specify the particular process to be used. (8)
The first reference to the use of a convention requested by the States is found in drafts of the Constitution kept by the Committee of Detail. (9) After several revisions, the Committee's final statement stated that "[t]his Constitution ought to be amended whenever such Amendment shall become necessary; and on the Application of the Legislatures of two thirds of the States in the Union, the Legislature of the United States shall call a Convention for that Purpose.' (10) Hamilton and others argued that in addition to State legislatures, Congress should also have the power to propose amendments, and the Convention approved the addition of language giving Congress the power to propose amendments. (11) James Madison proposed new language that removed reference to a convention and gave the national legislature sole authority to propose amendments whenever it would "deem necessary, or on the application of two thirds of the Legislatures of the several States." (12) This language was adopted by the Convention, with no discussion about the elimination of the references to the use of conventions. (13)
On September 15, as the Convention was reviewing the revisions made by the Committee of Style, George Mason expressed opposition to the provisions limiting the power to propose amendments to Congress. According to the Convention records, Mason thought that "no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case." (14) In response, Gouverneur Morris and Elbridge Gerry made a motion to amend the article to reintroduce language requiring that a convention be called when two-thirds of the States applied for an amendment. …