The constitutionality of a limited convention: an originalist analysis.

• Author: Rappaport, Michael B.
• Position: IV. Evidence from Early Interpretations A. Interpretation of the Prior Version of Article V through VII. Conclusion, with footnotes, p. 83-109

1. INTERPRETATION OF THE PRIOR VERSION OF ARTICLE V

   Initially, the Convention considered the amendment provision contained in the Virginia Plan, which stated "that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto." (70) A modified version of this provision was submitted to the Committee on Detail, which reported a clause stating, "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." (71) This clause, however, was controversial, with objections being raised from a variety of perspectives. Elbridge Gerry criticized it on the ground that it appeared to permit a convention to amend the constitution without any further ratification procedure. Alexander Hamilton opposed it also because it allowed only the state legislatures, not the national legislature, to call for a convention. (72)

   At this point, James Madison proposed a replacement for the Committee on Detail's provision. Initially, the replacement met with favor, being approved by a vote of nine states for, one against, and one divided. After being edited for stylistic purposes, Madison's provision stated:

   The Congress, 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, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures 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 Congress: Provided that no amendment which may be made prior to the year 1808 shall in any manner affect the 1 & 4 clauses in the 9. Section of article 1. (73) This provision closely resembles the final Article V language. It was largely the penultimate version of the article, and was changed mainly to employ a convention rather than Congress to draft amendments when the two thirds of the states had applied.

   Let us begin by exploring the meaning of this provision. The provision allows amendments to be proposed in two ways. First, it permits two thirds of both houses of Congress to propose amendments. Second, it permits Congress, presumably by majority vote, to propose an amendment upon application of two thirds of the state legislatures.

   It seems clear that this provision allows the state legislatures to apply for Congress to propose either an amendment relating to a subject or a specifically worded amendment. In both cases, the provision would require Congress to follow the terms of the applications.

   The strength of this interpretation derives from the fact that the provision requires a two thirds vote when Congress acts on its own, but allows Congress to use majority rule when it acts on the applications of the state legislatures. If Congress was not bound by the state legislatures' instructions, it is hard to understand why Congress was required to secure two thirds when acting on its own, but only a majority when acting pursuant to state applications. Thus, when the state legislatures require that Congress propose an amendment concerning a specific subject, Congress would be obligated to pass an amendment and could use majority rule. Similarly, when the state legislatures required that Congress propose a specific amendment, Congress would also be obligated to pass that amendment and could use majority rule. The alternative interpretation of Madison's proposal--that the state legislatures' applications were not binding on the Congress--cannot account for the way that the provision uses majority and supermajority rules and is therefore extremely weak.

   This straightforward reading of the provision that I offer also appears to be James Madison's interpretation of it, which can be seen by his response to a proposal to amend the provision. George Mason had argued that Madison's proposal gave Congress too great a role in the amendment process. Mason stated, "As the proposing of amendments is in both the 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...." (74) As a result, Gouvernor Morris and Elbridge Gerry moved to amend the article "so as to require a Convention on application of 2/3 of the States," which eventually became the final version of Article V. (75) Madison objected to the Morris/Gerry proposal on the ground that he "did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a Convention on the like application." (76)

   Madison's response reveals his support for the above interpretation in two ways. First, the language of his response suggests that the state legislatures would be applying for amendments to be proposed. There is not the slightest suggestion that the state applications would merely allow Congress to decide on its own what amendments to propose. Second, that Madison thought his provision would bind Congress as much as the final Article V also suggests that the states would be proposing amendments in some form. If Congress were given discretion as to what amendments to propose, Madison would not have spoken of it as being bound to the same extent as Congress is to call a convention.

   Moreover, that Mason and the other delegates objected to Madison's proposal does not suggest that they disagreed with Madison's interpretation of it. Rather, they may have objected to Congress's additional role under Madison's version for other reasons. First, if the states sought an amendment on a subject, such as controlling federal debt, Madison's proposal would give Congress more ability to block the amendment than the final Article V did, even though Congress was obligated under Article V to call the limited convention. While there may be some discretion involved in deciding whether to call a convention, there is considerably more discretion involved in drafting an amendment applied for by the states. Under Madison's proposal, Congress could use its role to draft a bad provision or to pass nothing at all, claiming it could not agree on a specific proposal. Second, if the states could not agree on either a specifically worded amendment or a general idea for an amendment, the power to propose an amendment then would be possessed entirely by Congress. By contrast, under the final Article V, if the states could not agree on a specifically worded amendment or a general idea for an amendment, they could still apply for an unlimited convention. This would be far preferable from Mason's perspective, because the convention would be independent of Congress.

   The meaning of Madison's proposal helps to clarify the meaning of the actual Article V in several important respects. First, the meaning of Madison's proposal confirms the analysis of propose that I offered in Section IIIA above. Under Madison's proposal, when two thirds of the state legislatures applied to Congress for an amendment, Congress was required to propose that amendment, not just any amendment. But if "propose" meant unlimited discretion to recommend a measure, as the unlimited convention view holds, then Madison's provision would not have this meaning. By contrast, if "propose" simply meant "to offer for adoption," then the provision has exactly the meaning that Madison and others believed it had. When the state legislatures apply for an amendment, Congress is required to offer it for adoption by the ratifiers--to propose it.

   Second, the meaning of Madison's provision is also revealing as to the language concerning state applications. Both Madison's proposal and Article V contain virtually the same language as to applications--"on the application of two thirds" of the state legislatures. Under Madison's proposal, this language clearly contemplates that the applications can apply for particular amendments (either in general terms or in specific language) and that Congress will be bound to follow these applications. That the actual Article V uses the same language strongly suggests that application has the same meaning and therefore adopts the limited convention view on this issue.

   Finally, if one does not merely focus on the individual words "propose" or "apply," but instead looks at the phrases in the clauses, this perspective also supports the limited convention view. Commentators who favor the unlimited convention view interpret the language in the actual Article V, "The Congress ... on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments," as not allowing the states to place limits on what the convention can propose. Part of the argument seems to be that there is nothing explicit allowing the states to limit the convention and no implicit authority is implied. But the very similar language in Madison's proposal, "The Congress ... on the application of two thirds of the Legislatures of the several States, shall propose amendments to this Constitution," clearly allows the states to place limits on what Congress can propose, even though there is nothing explicit allowing the states to do so. It is hard to see the basis of the distinction between Article V and Madison's proposal.

   Thus, the language in Madison's proposal strongly suggests that the final version of Article V adopts the limited convention view as to the meaning of both state legislative applications and the convention's proposing power.

2. INTERPRETATIONS FROM THE RATIFICATION PERIOD

   It is not merely the actions of the Philadelphia Convention that support a limited convention. At least...