Principles Governing the Interpretation and Exercise of Article v pOwers

• Date: 01 June 1982
• DOI: 10.1177/106591298203500207
• Author: Bill Gaugush
• Published date: 01 June 1982
• Subject Matter: Articles

PRINCIPLES GOVERNING
THE
INTERPRETATION
AND
EXERCISE
OF
ARTICLE
V
POWERS
BILL GAUGUSH
The College of Wooster
MENDMENTS
to the United States Constitution have been few and
far between. Since its ratification in 1789, the Constitution has
~
undergone only twenty-six amendments. Ten of these, known
collectively as the Bill of Rights, were ratified in 1791. Article V of the Con-
stitution provides for two alternatives for proposing amendments.’ Either
the Congress, upon two-thirds of both houses deeming it necessary, or a
Convention, called by Congress upon receipt of applications from two-thirds
of the states, may propose amendments. All twenty-six amendments to the
Constitution have been proposed by Congress. Although several applica-
tions for a Convention have been submitted by various states2 the necessary
two-thirds to effect the calling has at no time been obtained.3 3
Disagreement among constitutional scholars as regards the role of Con-
gress and the states in calling a Convention may, in part, be attributable to
the desuetude of this procedure. Moreover, this issue has never been pre-
sented to the United States Supreme Court for adjudication. Consequently,
questions concerning the calling of a Convention have yet to be answered
authoritatively. But this is true only in regard to the particulars. Broad prin-
ciples governing the amendment process in general are discernible in several
Supreme Court decisions dealing with Article V. Furthermore, the historical
evidence which is available serves to provide some indication of the Framers’
intentions as regards the constitutional function of the states, the Congress,
and the Convention, respectively, in the process for proposing amendments.
These two threads, relevant Supreme Court decisions and historical data,
when pulled through the eye of common sense, seam the fabric on which the
details of embroidery must be stitched.
’Article V
of the United States Constitution reads as follows: The Congress, whenever two thirds of both
Houses shall deem necessary, shall propose Amendments to this Constitution, or, on the Applica-
tion of the Legislature of two thirds of the several States, shall call a Convention for proposing
Amendments, which, in either Case, shall be valid to all intents and Purposes, as Part of this Con-
stitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions
in three fourths thereof, as the one or the other Mode of ratification may be proposed by the Con-
gress ; Provided that no Amendment which may be made prior to the Year One thousand eight
hundred and eight shall in any Manner affect the first and fourth clauses in the Ninth Section of the
first Article; and that no State, without its Consent, shall be deprived of its equal suffrage in the
Senate (U.S., Constitution).
2
For a tabulation, by subject matter and by state, of applications filed with the Congress during the
period 1787-1957, see U.S., Congress (1957: 84-96). For an updated tabulation see also American
Bar Association (1974: 59-76), U.S., Congress (1971b) and U.S., Congress (1974).
3
Whether two-thirds of the states have at any time properly applied for a Convention is not a question
that lends itself to a definitive response. The answer depends on a number of factors, particularly
the question whether the application was submitted within a reasonable time period. Questions per-
taining to this process have yet to be authoritatively answered. By 1912, for example, two-thirds of
the states had applied for a Convention for the purpose of proposing an amendment providing for
the popular election of Senators. Rather than call a Convention, the Congress proposed what is
now
the Seventeenth Amendment to the Constitution. See American Bar Association (1974: 72).

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213
HISTORICAL RECORD
The records of the Convention debates include scant reference to the
formulation of what ultimately became Article V. Nevertheless, the
evidence that is available illuminates the intentions of the Framers as
regards the role of the states in applying for a Convention and the role of the
Convention in proposing amendments.
The Virginia Plan, which served as the basis for the 1787 Convention’s
proceedings, included a declaration calling for an amending procedure that
did not require the consent of the Congress:
13. Resd. that provision ought to be made for the amendment of the Articles of
Union whensoever it shall seem necessary, and the assent of the National Legis-
lature ought not to be required thereto (Farrand, 1937: I, 22).
Each of the proposals that were to follow, however, included some form
of participation by the Congress. The first of these provided for minimal
congressional participation:
On
the application of the Legislatures of two thirds of the States in the Union for an
amendment of this Constitution, the Legislature of the United States shall call a
Convention for that purpose (Farrand, 1937: II, 188 and 557).
Alexander Hamilton objected to this proposal because he believed that the
states would apply for a Convention only &dquo;with a view to increase their own
powers.&dquo; Hamilton then suggested that the &dquo;National Legislature ... ought
to be empowered whenever two thirds of each branch should concur to call a
Convention.&dquo; James Madison reacted skeptically to Hamilton’s suggestion
and offered his own proposal:
The Legislature of the U- S- whenever two thirds of both Houses shall deem
necessary, or on the application of two thirds of the Legislatures of the several
States, shall propose amendments to this Constitution ... (Farrand, 1937: II,
554-59).
Madison’s proposal was agreed to and sent to the committee on style, which
made only minor changes4 before returning it for reconsideration. During
reconsideration George Mason objected to the revised version because he
&dquo;thought the plan of amending the Constitution exceptional and dangerous.
As the proposing of amendments is in both modes to depend, in the first
immediately, and in the second, ultimately, on Congress, no amendments of
the proper kind would ever be obtained by the people, if the Government
should become oppressive as he verily believed...