Proposals of Amendments by Convention

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Article V:

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.

Article V establishes an alternative method for amending the Constitution by a convention of the states.1 It provides that Congress “shall call a Convention for proposing Amendments” upon the request of two-thirds of the state legislatures.2 This method of proposing amendments, which scholars have debated at length, has never been used.3 This essay surveys a few of the most prominent debates surrounding an Article V convention of the states.

One ongoing debate concerns whether Congress must call a convention upon the request of two-thirds of the states. Article V states that Congress “shall call a Convention” when enough states have applied for one. Some of the Constitution’s Framers, concerned that Congress would block amendments favorable to the states,4 argued that this language would obligate Congress to call for a convention after receiving the requisite number of state requests.5 Furthermore, some of the earliest Members of Congress argued that Congress had no power to deliberate on whether to call an Article V convention once it received the requisite number of applications.6

However, more recently, some modern scholars have theorized that Congress may be able to block a convention by exercising its apparent role in reviewing state applications and deciding whether the requisite number of states has applied for a convention.7 In addition, Congress might refuse to submit amendments that result from an Article V convention to the states for ratification.8 Because it seems unlikely that the Supreme Court would order Congress to call a convention or submit a proposed amendment to the states,9 such arguments raise questions about whether Article V effectively obligates Congress to call for a convention.

Another ongoing debate revolves around whether a state convention, once called, may be limited to addressing certain topics. Concerns with a so-called “runaway convention” that proposes amendments on subjects beyond the scope of the initial call have prompted many of these debates. Some commentators have argued that states may (or must) determine the scope of an Article V convention by applying for a convention on a specific subject or group of subjects.10 Congress would then be obliged to call a convention only on the issues in the state applications.11 Other scholars have argued that the text of the Constitution provides only for a general convention, one not limited in scope to considering amendments on a particular matter.12

A third prominent debate concerns Congress’s control over other aspects of a convention. During debates over the Constitution, James Madison questioned how an Article V convention would be formed and conduct its proceedings.13 In the modern era, scholars have debated various issues, including: (1) how delegates to the convention should be chosen; (2) whether Congress, state legislatures, or the delegates should set rules of procedure for the convention; (3) the vote threshold would be required to propose an amendment in convention; and (4) how voting rights on a proposed amendment should be apportioned among the states.14 Beginning at least as early as the 1960s, Members of Congress have introduced various pieces of legislation that would seek to establish some procedures for an Article V convention.15

Since 1960, the states have submitted more than 180 applications for Article V conventions on various subjects.16 However, Congress has never deemed Article V’s threshold for calling a convention to be met. Many unresolved questions surround the state application process, including how to determine whether state applications address the same subject matter and whether the applications expire after a certain amount of time.17 In the past several decades, the states have come closest to satisfying the threshold for calling a convention of the states on the issues of apportionment in state legislatures18 and requiring a balanced federal budget.19

1: U.S. Const. art. V.
2: Id.
3: Although the convention method for proposing amendments has never been used, some scholars have speculated that the states may “prod” Congress into proposing an amendment on a particular matter by applying for an Article V convention on that issue. See, e.g., Dwight W. Connely, Amending the Constitution: Is This Any Way to Call for a Constitutional Convention?, 22 Ariz. L. Rev. 1011, 1015, 1016 n.49 (1980).
4: 2 The Records of the Federal Convention of 1787, at 629–31 (Max Farrand ed., 1911) [hereinafter Farrand’s Records] (Madison’s notes, Sept. 15, 1787).
5: For example, writing in the Federalist Papers, Alexander Hamilton stated that Congress would be “obliged” to call a convention “on the application of the legislatures of two thirds of the States.” The Federalist No. 85 (Alexander Hamilton).
6: 1 Annals of Cong. 260–61 (1789).
7: See Michael B. Rappaport, Reforming Article V: The Problems Created by the National Convention Amendment Method and How to Fix Them, 96 Va. L. Rev. 1509, 1527 (2010) ( “If different states apply for limited conventions covering marginally different subjects, then it is quite possible that Congress will use its discretion to determine that the requisite number of states have not agreed on a single subject to apply for a convention. Similarly, even if two-thirds of the states applied for the same limited convention, Congress might use its discretion to determine that limited conventions are not allowed.” ). But see Morris D. Forkosch, The Alternative Amending Clause in Article V: Reflections and Suggestions, 51 Minn. L. Rev. 1053, 1079 (1967) ( “Congress has its own independent machinery to propose amendments in the first alternative, and to give Congress the power to review the proposals necessarily deprives the [state convention method] of its independence.” ).
8: See Michael Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765, 777–78 (2011). But see Gerland Gunther, The Convention Method of Amending the United States Constitution, 14 Ga. L. Rev. 1, 23 (1979) (acknowledging that Congress may review applications for a convention for conformity with Article V, but adopting the view that Congress cannot refuse to submit a proposed amendment to the states).
9: One scholar has suggested that, even if the Supreme Court exercised jurisdiction over the case, it appears unlikely the Court would “issue an order compelling Congress to carry out a duty which can hardly be called a simple ministerial duty or would, in the alternative, take it upon itself to prescribe the procedures for a convention.” See Paul G. Kauper, The Alternative Amendment Process: Some Observations, 66 Mich. L. Rev. 903, 905–06 (1968) ( “Whether any legal procedure would be available to compel [Congress] to perform its duty is another question.” ).
10: Rappaport, supra note 7, at 1518 (surveying scholarly debates on the issue). Some scholars have argued that Article V permits states to apply for a convention on particular amendment text. E.g., Rappaport, supra note 7, at 1518.
11: Limited convention proposals could call for an Article V convention to consider an amendment establishing congressional term limits or requiring a balanced federal buget, for example. Rappaport, supra note 7, at 1513.
12: See Rappaport, supra note 7, at 1518.
13: 2 Farrand’s Records, supra note 4, at 630 (Madison’s notes, Sept. 15, 1787).
14: See, e.g., Sam J. Ervin, Jr., Proposed Legislation to Implement the Convention Method of Amending the Constitution, 66 Mich. L. Rev. 875, 892–94 (1968) (discussing federal legislation seeking to address these questions).
15: See, e.g., id.
16: Clerk of the United States House of Representatives, Selected Memorials, https://clerk.house.gov/SelectedMemorial.
17: Is There a Constitutional Convention in America’s Future?: Hearing Before the H. Comm. on the Judiciary, 103d Cong. 6–10 (1993).
18: Some states sought an Article V convention to consider a constitutional amendment that would overturn the Supreme Court’s decision in Reynolds v. Sims, 377 U.S. 533 (1964). In that case, the Supreme Court held that the Fourteenth Amendment’s Equal Protection Clause requires that state legislative houses be apportioned “substantially” on the basis of population. Id. at 568–76.
19: See Clerk of the United States House of Representatives, Selected Memorials, https://clerk.house.gov/SelectedMemorial; Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-seventh Amendment, 103 Yale L.J. 677, 764–89 (1993) (cataloguing state applications for conventions on different subjects). This essay not examine whether a state may amend, rescind, or place conditions on an application for a convention.