The other way to amend the constitution: the article v. constitutional convention amendment process.

• Author: Rogers, James Kenneth

1. INTRODUCTION

   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.

2. HISTORY

   1. 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. (15) Madison stated that he did not object to the convention method, but in expressing what proved to be prophetic concerns, he pointed out that "difficulties might arise as to the form" the convention would take. (16) Morris and Gerry's motion was unanimously adopted. (17) After Roger Sherman expressed concern that the Constitution could be amended to take power away from smaller states, (18) the clause stating "that no State, without its consent" could be deprived of "equal suffrage in the Senate" was added. (19) No further changes were made to the text of Article V, and the final version of the Constitution was adopted. (20) The final text of Article V reads:

   The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures 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 Constitution, 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 Congress; 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. (21) B. Attempts to Use the Convention Method

   Although the convention method for proposing amendments has never been used, the threat of a convention has sometimes spurred Congress to action. During debates over the Constitution's ratification, the threat of a second constitutional convention was a key factor in Congress proposing the Bill of Rights. (22) There have been several occasions where the number of state applications for a convention was close to reaching the required two-thirds; at least once during the course of events leading to the adoption of the Seventeenth Amendment, the threat of a constitutional convention may have spurred Congress to act preemptively to propose the desired amendment itself. (23) The prospect of a convention may also have played a role in leading Congress to propose the Twenty-first, Twenty-second, and Twenty-fifth Amendments. (24)

   In the last four decades, there have been two nearly-successful attempts by the States to call a convention, each attempt needing applications from only one or two additional states to reach the two-thirds requirement. The first attempt was a reaction to two Supreme Court decisions, Wesberry v. Sanders (25) and Reynolds v. Sims, (26) which dealt with the apportionment of votes and voting districts. State legislatures began to file applications with Congress requesting a convention to address the issue of these reapportionment decisions, and the Council of State Governments officially endorsed such an amendment. (27) By 1969, thirty-three states had submitted applications calling for a convention to address the apportionment issue, one short of the thirty-four needed. (28) Shortly afterwards, however, several states rescinded their applications, and the momentum for a constitutional amendment to overturn these Supreme Court decisions declined. (29) There were two likely reasons for the failure of this attempt to call a convention. First, as the number of states that had applied approached thirty-four, well-publicized speculation that the convention, once called by Congress, could not be limited to a single issue spread fear of an uncontrollable convention. Second, as states reapportioned their districts to comply with the Supreme Court decisions, opponents of reapportionment realized that it did not threaten rural interests, as they had previously feared. (30)

   The second nearly-successful attempt to call a convention arose out of the state legislatures' desire for a balanced-budget amendment in the late 1970s and early 1980s. As was the case with the Seventeenth Amendment, pressure from applications requesting a convention led the Republican-controlled Senate to approve a balanced budget amendment in 1982 by a margin of 69 to 31. (31) The amendment, however, did not have enough support to pass in the Democrat-controlled House of Representatives. (32) The States were unable to provoke a response from Congress as they had been able to with the Seventeenth Amendment.

   The first state application for a balanced budget amendment was made by North Dakota in 1975, and the thirty-second was made by Missouri in 1983. (33) The drive to request a convention then lost momentum. (34) Among the reasons for this slowdown were, once again, fears that a convention could not be limited to a single subject, a decrease in the number of Republicans (who tended to support the amendment more than Democrats) in state legislatures, and concern in the Northeast about the loss of federal grants if the budget were balanced. (35) Another significant reason for the loss of momentum was the passage in Congress of the Balanced Budget and Emergency Deficit Control Act, known as the...