                                                                           October 10, 1979


79-75       MEMORANDUM OPINION FOR THE
            ATTORNEY GENERAL

            Constitutional Convention—Limitation of Power to
            Propose Amendments to the Constitution



  You have requested our opinion on a question that involves the “ C on­
vention Clause” o f Article V o f the Constitution:
     The Congress * * * on the Application o f the Legislatures of
     two thirds o f the several States, shall call a Convention for pro­
     posing Amendments, which * * * shall be valid to all Intents
     and Purposes, as part o f this C onstitution, when ratified by the
     Legislatures o f three fourths o f the several States, or by Conven­
     tions in three fourths thereof, as the one or the other Mode of
     Ratification may be proposed by the Congress * * *
Your question is whether this clause authorizes a general or a limited con­
vention process. Does a “ Convention for proposing Am endm ents,” called
by Congress on application o f two-thirds o f the legislatures o f the States,
have general power to propose amendm ents on any subject that com ­
mands the attention o f the delegates? U nder what circumstances, if any,




  'T he entire text o f Article V follows:
     The Congress, whenever two thirds o f both Houses shall deem it necessary, shall pro­
     pose Am endm ents to this C onstitution, or, on the A pplication o f the Legislatures o f two
     thirds o f the several States, shall call a Convention for proposing Am endm ents, which,
     in either Case, shall be valid to all Intents and Purposes, as Part o f this Constitution,
     when ratified by the Legislatures o f three fourths o f the several States or by Conventions
     in three fourths thereof, as the one or the other M ode o f Ratification may be proposed
     by the Congress; Provided that no A m endm ent which may be m ade prior to the Year
     O ne thousand eight hundred and eight shall in any M anner affect the first and fourth
     Clauses in the Ninth Section o f the first Article; and that no State, without its Consent,
     shall be deprived o f its equal Suffrage in the Senate.

                                              390
may the powers and the proposals of the convention be limited to a par­
ticular field? This question has been warmly debated among constitutional
scholars and officers o f Governm ent.2 It has never been answered or even
addressed by any court. O ur views are set forth below.

                             I.   The Convention of 1787

   In the summer o f 1787 delegates from 12 of the 13 United States
assembled in Philadelphia. They had been called to Philadelphia by C on­
gress, and their purpose was to consider and propose amendments to the
Articles o f Confederation and constitution o f the young Nation. They
labored through the summer and produced a new and enduring docum ent,
the very Constitution that your question requires us to construe.
   One o f the im portant questions that confronted the delegates in
Philadelphia was whether they should honor the procedural limitations
that governed the amendment process. These limitations were created by
Article XIII o f the Articles o f Confederation and by the Act o f Congress
pursuant to which the convention had been called. Under the Act the con­
vention was to consider and propose amendments to the Articles, and the
amendments were to become effective when approved by Congress and
each o f the States.3 The Act was declaratory o f the Articles themselves.
The Articles allowed for amendment, but they declared that the Union o f
the 13 States would be “ perpetual” and that the government could not be
altered unless the alteration were “ agreed to in a Congress o f the United
States * * * and * * * confirmed by the Legislatures o f every S tate.”
Article XIII.


   ’See Dellinger, “ The Recurring Question o f the ‘Limited’ C onstitutional C onvention,” 88
Yale L .J. 1623 (1979); Van Alstyne, “ Does Article V Restrict the States to Calling Unlimited
Conventions Only?—A L etter to a Colleague,” 1978 D uke L .J. 1295; Rhodes, “ A Limited
Federal Constitutional C onvention,” 26 U. Fla. L. Rev. 1 (1973); Bonfield, “ The Dirksen
Amendment and The Article V Convention Process,” 66 Mich. L. Rev. 949 (1968); Note,
“ Proposed Legislation on the Convention M ethod o f Am ending the United States C onstitu­
tio n ,” 85 Harv. L. Rev. 1612, 1629 (1972); Black, “ Amending the Constitution: A L etter to
a Congressman,” 82 Yale L .J. 189, 202-03 (1972); Special C onstitutional Convention Study
Com m ., American Bar Assoc., “ Am endment o f the C onstitution by the Convention M ethod
Under Article V” (1974); Pullen, “ The Application Clause o f the Am ending Provision o f the
Constitution” (1951) (unpublished thesis on file at University of N orth Carolina Library);
Orfield, Amending the Federal Constitution (1942); Jam eson, A Treatise on Constitutional
Conventions (4th ed., 1887); Bonfield, “ Proposing Constitutional Am endm ents by C onven­
tio n ,” 39 Notre Dame Lawyer 659 (1964); Black, Handbook o f American Constitutional
Law (West P ub. C o., 1927); Brickfield, “ State Applications Asking Congress to Call a
Federal Constitutional C onvention,” House Com m, on the Judiciary, 87th C ong., 1st sess.
(Comm, print, 1961); Brickfield, “ Problems Relating to a Federal C onstitutional C onven­
tio n ,” House Com m, on the Judiciary, 85th C ong., 1st sess. (Comm, print, 1957); Dixon,
“ Article V: The Com atose Article o f O ur Living C onstitution?” 66 Mich. L. Rev. 931
(1968); “ Ervin, Proposed Legislation to Implement the Convention M ethod o f Amending
the C onstitution,” 66 Mich. L. Rev. 875 (1968); G raham , “ The Role o f the States in P ropos­
ing Constitutional A m endm ents,” 49 ABAJ 1175 (1963); Kauper, “ The Alternative A m end­
ment Process: Some O bservations,” 66 Mich. L. Rev. 903 (1968); Packard, “ The States and
the Amending Process,” 45 ABAJ 161 (1959); Forkosch, “ The Alternative Amending Clause
in Article V ,” 51 Minn. L. Rev. 1053, 1075 (1967).
   M Elliot, The Debates in the Several State Conventions on the Adoption o f the Federal
Constitution 120 (2d ed., 1836) (hereinafter “ Elliot” ).

                                             391
   The requirement o f unanim ous consent stood squarely in the way o f
what a majority o f the delegates wanted to do. They wanted to propose
sweeping changes in the old system, and they had no reason to believe that
their proposals would be universally accepted. Rhode Island had not even
bothered to attend the convention. Congress, whatever views it might
otherwise have entertained, stood to be abolished by the proposed reform.
If the Framers adhered to the amendment procedure set out in the Articles
and in the statute, they faced a prospect o f failure. Because they greatly
feared the consequences o f failure,* they boldly chose to ignore the law .5
They drafted their new Constitution in secret session; and when they
emerged at the end o f the summer, they proposed that their plan should
take effect upon ratification, not by Congress or by the legislatures o f the
States, but by popular conventions in the States. Moreover, they proposed
that ratification by conventions in nine States would be “ sufficient for the
Establishment of this C onstitution between the States so ratifying the
Same. ” See C onstitution o f the United States, Article VII, Clause 1. [Em­
phasis added.] In a word, the Framers invited conventions in nine States to
abolish the Union.
   Congress received this plan and demurred, transmitting it to the States.
Conventions in 11 States approved it, and the plan went into effect. In
March, 1789, a new Congress (a Congress o f the eleven United States of
America) assembled in New York; and it was clear by then that a funda­
mental change had occurred. In accordance with the Framers’ design, under
the compulsion o f political necessity and in the face o f positive law to the
contrary, a confederation o f 13 States had been abolished by action o f a
dedicated majority; and a new government, resting on different principles,
had been established among 11 o f the former confederates.6


    ‘George W ashington, who was not given to overstatem ent, summarized the desperate con­
dition o f the Confederacy in the following way:
       T hat something is necessary, all will agree; for the situation of the General Govem m t. (if
       it can be called a govem m t.) is shaken to its foundation, and liable to be overset by every
       blast. In a w ord, it is at an end, and unless a remedy is soon applied, anarchy and confu­
       sion will inevitably ensue.
Letter to Thom as Jefferson, May 30, 1787, reprinted in 29 Writings o f Washington 224 (Fitz­
patrick ed., 1931).
    ’As Edm und Randolph put it, “ There are great seasons when persons with limited powers
are justified in exceeding them * * * .” 1 Max Farrand, The Records o f the Federal Con­
vention o f 1787, 262 (rev’d ed., 1966) (hereinafter, “ F arrand” ). George Mason agreed that
“ there were besides certain crises, in which all ordinary cautions yielded to public necessity.”
1 Farrand a t 338. A t another point in the debate Jam es Wilson declared that “ lt)he house on
fire must be extinguished, w ithout a scrupulous regard to ordinary rights.” 2 Farrand at 469.
   ‘The abolition o f the Articles o f C onfederation and the establishment o f the new C onstitu­
tion was a peaceful revolution. It was an act o f will that altered a frame o f government in a
way that was inconsistent with existing law governing how such alterations were to be made.
Madison himself adm itted th at this was the best legal argum ent against what the Framers had
done: Their proposal was defective because the new C onstitution was to be approved and
established in a way that was contrary to positive law. The Federalist, No. 40, at 263 (Cooke
e d ., 1961). Madison, a good lawyer, had no answer for that argum ent on the merits. There
was no answer. He could only say that if the proposal were carried into execution on the ap­
proval o f conventions in nine States, a justification could be found, not in positive law, but
in the fundam ental dem ocratic principles to which the Declaration o f Independence had re­
ferred—the “ Laws o f N ature and o f N ature’s G o d ” that conferred upon all men a right to
alter bad governments in the face o f existing legal forms. Id. at 265.

                                               392
   We have begun our discussion with this page o f history to illustrate two
points that have caused no little confusion in the traditional debate over
limited, in contrast to general, conventions. We want to put them behind
us.
   First, the Convention o f 1787 shows that law cannot execute itself. The
people and their officers execute the law; and when enough o f them
choose to disregard it, law is ineffective. Whatever Article V o f the C on­
stitution may require or permit in the way o f legal limitation on the proc­
ess o f amendm ent by convention, it can be no more effective than was its
predecessor, Article XIII o f the Articles o f C onfederation, if the citizens
and their representatives undertake to disregard it.
   The second point is related to the first. Some have argued that the C on­
vention o f 1787 demonstrates the illimitable nature o f the convention
process and the futility o f academic inquiries into the legal parameters o f
that process, whatever they may be. We do not share that view. It is true
that in revolutionary times, as in 1787, law may be disregarded and, in­
deed, overturned. But for 200 years this has been a Nation under law; and
because the history o f the Convention o f 1787 shows so clearly how the
observance and preservation o f law, even fundamental law, depends
ultimately on the consent o f the people and their representatives, it
demonstrates the importance and the urgency o f questions such as the one
you have raised. If it is for the people and their officers to execute Arti­
cle V, it is our duty to understand what Article V requires and what it
permits.


                 II.   The Procedural Nature o f Article V

   Article V contains two provisions that expressly limit the scope o f the
alterations that may be made in the C onstitution. The first—“ that no
Amendment which may be made prior to the Year One Thousand Eight
Hundred and Eight shall in any M anner affect the first and fourth Clauses
in the Ninth Section o f the First Article” —was legally and politically
significant when drafted, but it has no present force. The second—that
“ no State, without its Consent, shall be deprived o f its equal Suffrage in
the Senate” —establishes a constitutional principle o f fundamental
importance.
   These limitations on the amendability o f the C onstitution are significant
for our purposes because they are the only limitations on subject m atter
that are expressly set out in Article V. With regard to all possible am end­
ments, except those prohibited by these provisions, Article V is restrictive
only insofar as it restricts the procedures by which amendments may be
proposed and ratified. The question we must answer is whether there are
circumstances in which the procedures m andated by Article V may operate

                                     393
in such a way as to confine the constitutional power o f an Article V con­
vention to a given field.7
   We will state our conclusions in advance. First, we think that if a con­
vention for proposing amendm ents were called under Article V, the consti­
tutionally m andated procedures would operate to deprive the convention
o f power to make constitutionally viable proposals except with respect to
subjects within a predeterm ined field. That field, however broad or nar­
row, would be defined by the extraordinary legislative act that initiates the
convention process, the “ A pplication” o f the legislatures of the States.
We will explain that conclusion and the reasons for it in Sections III and
IV below.
   Second, we think that Article V gives Congress no power to provide for
the ratification o f any constitutional proposal that is not developed and
proposed in accordance with the procedures contem plated by Article V.
Just as Congress would have no power to submit one o f its own constitu­
tional proposals for ratification unless two-thirds o f the Members o f both
Houses were in accord that the proposal was necessary and desirable, C on:
gress would have no power to provide for the ratification o f any proposal
propounded by a constitutional convention unless that proposal were
responsive to the application that justified the gathering o f the convention
in the first instance. We will explain that conclusion and the reasons that
support it in Section IV.

                  III.   The Role o f the Legislatures o f the States

   O ur analysis is dictated by the form o f the procedure set out in the consti­
tutional text. T hat procedure involves at least five different acts or steps: an
initial “ A pplication” by two-thirds o f the legislatures o f the States; a “ call”
to convention issued by Congress; a parliamentary convocation—the con­
vention itself—attended by delegates selected and commissioned in a m an­
ner not specified by Article V; a designation by Congress o f a “ Mode o f
Ratification” for any proposal made by the convention; and ratification of
any such proposal by three-fourths o f the States in accordance with the
mode prescribed by Congress. For our purposes, the critical step in this
process is the first one, the “ A pplication” o f the legislatures o f the States.
W hat is this “ A pplication?” W hat part does it play in the convention
process? W hat power does it give to the legislatures o f the States?


   ’The notion that the C onstitution may give Congress power to impose adventitious subject
m atter restrictions on the convention process is one that finds no support in the text o f A rti­
cle V or in the drafting history. Congress, o f course, has power to m ake “ laws which shall be
necessary and proper for carrying into Execution” the powers conferred upon it by Article V;
but there is nothing in Article V that suggests that it would be necessary or proper for C on­
gress to create subject m atter restrictions that do not flow from the operation o f Article V
itself. Indeed, as we will discuss below, the history o f the clause suggests rather clearly that it
would be altogether unnecessary and im proper for Cohgress to do so. The Framers created the
convention procedure for the very purpose o f preventing Congress from blocking am end­
ments desired by the legislatures o f the States and the delegates o f the people in convention.

                                               394
   The participants in the traditional debate over limited in contrast to
general conventions have given widely, sometimes wildly, different
answers to these questions. Some have argued that the application can be
nothing more than a neutral request for a convocation, a request that a
forum be established in which constitutional questions may be debated
and proposals made. Even if the legislatures have a specific problem in
mind, even if they request a convention because they want the C onstitu­
tion to be changed in some particular way, they must leave it entirely to the
delegates to determine the course that the convention will take. Indeed, if
their application manifests anything other than an unqualified desire for a
convention with power to discuss and propose any amendm ent the
delegates may want to propose, it is void. It cannot provide a constitu­
tional basis for a convention under Article V.®
   At the other extreme, some have thought that the application process is
designed to give the legislatures plenary power to determine both the form
and the content o f the proposals that the convention may submit to the
States for ratification. Not only may the legislatures request that Congress
call a convention to consider a particular problem or a particular pro­
posal, they may frame am endments and dem and that the convention do
nothing more than vote on those amendm ents as framed. This view has
been espoused in one form or another by several scholars,9 and it lies at the
heart of some o f the applications'0 that have been submitted to Congress
by the States from time to time.
   We cannot adopt either o f these views—the view that the legislatures
have no power to determine what work the convention may or must do, or
the view that the legislatures have plenary power to propose amendm ents
and to require that the convention do nothing more than emit them or
quash them as it finds them good or bad. The first theory is mistaken. The
second is viable, if at all, only in the most limited circumstances. The cor­
rect interpretation, we believe, lies elsewhere. The textual and historical
reasons for that opinion are given in the paragraphs that follow.
   Text. “ Congress * * * on the Application o f two thirds o f the
Legislatures o f the States, shall call a Convention for proposing A m end­
ments * * * .” This language lends little support to the notion that the


   'See, e.g., Black, “ Am ending the C onstitution: A Letter to a Congressm an,” 82 Yale L .J.
189, 202-03 (1972).
   'See, e.g., Van Alstyne, “ Does Article V Restrict the States to Calling Unlimited C onven­
tions Only?—A Letter to a Colleague,” 1978 Duke L .J. 1295.
   l0The applications have come in a wide variety o f forms. The following passage from a re­
cent resolution adopted by the legislature o f the State o f Kansas (May 19, 1978) requests a
convention for the “ sole and exclusive” purpose o f proposing an am endm ent, the specific
terms of which are prescribed by the applicant:
      Be it further resolved: T hat alternatively, the Legislature o f the State o f Kansas hereby
      makes application to the Congress o f the United States to call a convention for the sole
     and exclusive purpose o f proposing an am endm ent to the Constitution o f the United
     States which would require that, in the absence o f a national emergency, the total o f all
     appropriations made by the Congress for a fiscal year shall not exceed the total o f all
     estimated federal revenues for such fiscal year.

                                              395
 legislatures o f the States may dem and that Congress call a constitutional
 convention for the sole purpose o f voting up or down on proposals that
 the legislatures themselves have brought forward. The Framers were good
 draftsmen. W hen they wanted to give one body o f government a veto over
 the proposals o f another, they were able to use words that clearly ex­
 pressed that purpose. In Article V itself they gave the States power to ap­
 prove or disapprove what a constitutional convention might propose; but
 the language o f Article V gives no indication that they intended this
 ratification process to be a second negative, a veto cast or withheld after
 the convention itself had voted up or down on someone else’s work. As
 portrayed in the text, the convention is a respondent, not a censor. It is a
 “ Convention for proposing A m endm ents.” It responds to an application
 and call by making proposals for constitutional change.
   W hat is the correct reading o f the text? The polar view—the view that
 every Article V convention must be a general convention—is sometimes
 defended on textual grounds. It is said that the text has a plain meaning;
that the legislatures are entitled to apply for a “ convention” and a “ con­
 vention” only and that this convention, being a “ Convention for propos­
 ing A m endm ents,” must be a convention for proposing amendments on
any subject the delegates think pro p er."
   This argument is unpersuasive. The text does not say that the
legislatures are to apply for a convention and a convention only. It says
th at they are to make an “ A pplication.” The text does not say that the
convention must be a convention for proposing amendments on any sub­
ject the delegates think proper. It says that the convention will be a “ C on­
vention for proposing A m endm ents.” These words are generic. They
could describe a process in which the legislatures request, and Congress
calls, a general convention, a convention for proposing amendments on
any subject whatever. They could describe a process in which the
legislatures request, and Congress calls, a convention for proposing
amendm ents to deal with some particular problem or constitutional issue.
There is little in the text that encourages us to prefer the one interpretation
to the other. There is nothing in the text that requires us to choose between
the two.
   W hen we turn from the text and consult the relevant historical
materials, the meaning o f the convention clause comes more clearly into
focus. We have outlined much o f the relevant history in detailed notes,
which are appended to this m em orandum. In the discussion that follows
we will describe the portions o f that history that have decisive bearing on
the question at hand.
   The Effort to Revise the Articles. A lthough the Articles o f Confeder­
ation allowed for amendm ent and specified that the unanim ous consent o f
the States and Congress would be necessary before any alteration could



  "See Black, supra, at 203.

                                     396
occur, they established no regular m ethod by which proposals for change
could be formulated and submitted to the States and Congress. Thus when
it became clear in the mid- 1780s that changes in the Articles were neces­
sary, the advocates o f change were obliged to fashion ad hoc, irregular
procedures in an effort to build consensus for the proposals they wished to
bring forward. They drew on recent experience. Extraordinary intercolo­
nial convocations had done much to spark and direct the rebellion against
Great Britain. An interstate convention, the Continental Congress, had
produced the Articles o f Confederation. Convention procedures had been
used or proposed in some States to make or alter fundamental law .12 With
these precedents in view, the activists set about to revise the Articles
through a convention process.
   Virginia took the lead. In 1786 it invited all the States to send delegates
to a convention at Annapolis “ to take into consideration the trade o f the
United States” and to propose a measure that would empower the na­
tional government to establish a uniform system o f trade regulation.13
Only five States accepted this invitation; and Hamilton and Madison, two
o f the youngest delegates, who had high hopes for a stronger union, were
able to persuade the others that little could be accomplished by so few.
Hamilton drafted a report that recommended that a second convention be
called. This convention would be attended by delegates from all the States
and it would have power to consider, not trade and commerce only, but



     ,JBy 1787, five State constitutions provided for amendm ent by way o f convention. Three
 o f these appear to have provided for a convention the powers o f which could be limited to a
 particular subject m atter. Georgia’s Constitution o f 1777 provided:
       No alteration shall be made in this constitution without petitions from a m ajority o f the
       counties, and the petitions from each county to be signed by a m ajority o f voters in each
       county within this State; at which time the assembly shall order a convention to be called
       for that purpose, specifying the alterations to be made, according to the petitions pre­
       ferred to the assembly by the m ajority o f the counties as aforesaid. [Emphasis added.]
 1 Poore, Federal and State Constitutions, Colonial Charters and other Organic Laws 383
(1872) (hereinafter “ Poore” ). Pennsylvania’s constitution o f 1776 provided:
       T he said council o f censors shall also have power to call a convention, to meet within
       two years after their sitting, if there appear to them an absolute necessity o f amending
       any article o f the constitution which may be defective, explaining such as may be
       thought not clearly express, and o f adding such as are necessary for the preservation o f
       the rights and happiness o f the people: But the articles to be am ended, and the am end­
       ments proposed, and such articles as are proposed to be added or abolished, shall be
       promulgated at least six m onths before the day appointed for the election o f such con­
       vention, for the previous consideration o f the people, that they may have an opportunity
       o f instructing their delegates on the subject. [2 Poore at 1548.]
The provision for am endm ent in Verm ont’s Constitution o f 1786 was almost identical to that
o f the quoted portion o f Pennsylvania’s C onstitution. Id. at 1874-75. The reference to
"am ending any article * * * which may be defective” and the requirement for prom ulgat­
ing the “ articles to be am ended, and the amendm ents proposed, and such articles as are pro­
posed to be added or abolished” indicates to us that the convention was to be limited to cer­
tain topics. The two other States—Massachusetts and New Ham pshire—had constitutions
that appear to have allowed the convention more latitude. See 1 Poore at 972 (Massachusetts
Constitution o f 1780); 2 Poore at 1293 (New Hampshire C onstitution o f 1784).
    "Com m ager, Documents o f American History 132 (9th ed., 1973).

                                              397
 any m atter that required constitutional correction. Ham ilton’s report was
 approved. W hen it was published, it became the “ direct occasion o f the
 gathering o f the convention in Philadelphia that framed the constitution
 o f the United States.” 14
    Before we describe the nature o f the proceedings in Philadelphia, we
 want to emphasize a legal point that is often overlooked in conventional
 accounts. The Annapolis Convention and its successor in Philadelphia
 dem onstrate clearly and concretely that under the Articles o f Confedera­
 tion a convention could be convened for the purpose o f considering con­
 stitutional problems and formulating proposals for change; and it could
 be given narrow or broad powers depending on the nature o f the task
 assigned to it. The Articles did not spell this out. They did not establish
procedures for the formulation o f constitutional proposals. But they were
permissive. They permitted the States and Congress to establish such pro­
cedures; and when the States and Congress exerted that power, the result
was first a limited convention in A nnapolis15 and then a general conven­
tion in Philadelphia one year later.
    In our view this is the most im portant single fact in the development of
Article V. W hen the Framers drafted Article V, they were not writing on a
clean slate. They had come together to rewrite a docum ent that had al­
ready permitted a creative convention process to go forward, first at An­
napolis and then at Philadelphia itself; and when we view their work from
that perspective, the question o f purposes and intents comes more sharply
into focus. The Framers “ constitutionalized” the convention process. Did
they mean to confirm and preserve the flexible procedure that was- per­
mitted under the Articles, or did they mean to replace it with a rigid new
system in which only one sort o f convention, a general convention, was
possible? As we review their work, we shall keep that question before us.
   The Proceedings o f the Convention of 1787. The delegates to the
Philadelphia Convention agreed rather early that they should create a
regular mechanism by which the new Constitution could be am ended.16 To



    '"Farrand, The Framing o f the Constitution (1932).
    "T he Annapolis Convention was clearly a convention with limited powers. The delegates
were so sensitive on that point that they felt there might be some question whether their
recom mendation o f a general convention was strictly within their commission, and they took
care to justify it. Ham ilton wrote:
       If in expressing this wish [for a general convention], or in intimating any other senti­
       m ent, your Commissioners should seem to exceed the strict bounds o f their appoint­
       m ent, they entertain a full confidence, that a conduct, dictated by an anxiety for the
       welfare o f the United States, will not fail to receive an indulgent construction. [Com-
       mager, Documents o f American History 133 (9th ed., 1973).]
M adison’s later comm ent that the A nnapolis Convention “ did not scruple to decline the
limited task assigned to it, and to recom mend to the States a Convention with powers ade­
quate to the occasion,” and that the public mind “ favored the idea there o f a Convention
with fuller powers for amending the C onfederacy,” recognized that a constitutional conven­
tio n ’s powers might vary according to its m andate. Preface to Debates in the Convention of
1787, 3 Farrand at 545, 546. [Emphasis added.]
   '•A complete account o f the proceedings relevant to Article V is set out in Appendix I.

                                             398
accommodate that agreement, the committee that had been assigned the
task o f preparing the first draft o f the Constitution, the Committee of
Detail, submitted a modest proposal that was accepted by the convention
after a brief debate. The form o f the proposal was predictable, given the
events o f the preceding few years:
      On the application o f the Legislatures o f two thirds o f the States
      in the Union, for an amendment o f this Constitution, the
      Legislature o f the United States shall call a Convention for that
      purpose. [2 Farrand at 188.]
We see, then, that when the Framers first undertook to fashion an am end­
ment mechanism, they borrowed on the procedure that the States them ­
selves had fashioned under the Articles. It was a mechanism that involved
an interstate convention, called on application o f the States. Two other
features o f this proposal deserve our attention. First, there was no require­
ment for ratification o f the convention’s action. Was such a requirement
implicit? Second, the subject o f the States’ application, the “ thing” for
which they were to apply, was “ an amendment o f” the Constitution.
What did the Framers mean by that language? Further proceedings would
clarify that point.
   Eleven days after the original proposal was accepted, it was recon­
sidered. There were objections. Elbridge Gerry noted that it contained no
requirement for ratification o f the mandatory action taken by the conven­
tion, and he feared that a majority o f the convention might therefore bind
the Union to innovations that would subvert the constitutions o f the
States.17 Alexander Hamilton noted that the provision gave the State
legislatures a right to “ apply for alterations” but gave no similar right to
the national legislature. This omission was problematical, because the na­
tional legislature would be the first to perceive the necessity o f am end­
ments, and the State legislatures would not apply for alterations “ but with
a view to increase their own power.” 18 Finally, James Madison, with his
usual foresight, objected that the convention process was vague and uncer­
tain: How was the convention to be formed? By what rule was it to decide
the questions before it? What would be the force o f its acts?”
   As a result o f these objections the proposal o f the Committee o f Detail
was replaced, after intervening changes, with a proposal drafted by
Madison:
     The Legislature of the U— S— whenever two thirds o f both
     Houses shall deem necessary, or on the application o f two thirds
     o f the Legislatures o f the several States, shall propose amendments
     to this Constitution, which shall be valid to all intents and pur­
     poses as part thereof, when the same shall have been ratified by
     three fourths thereof, as one or the other mode of ratification may
     be proposed by the Legislature of the U.S. [2 Farrand at 559.]


 "2 Farrand at 557-58.
 "2 Farrand at 558.
 "Id.

                                     399
This provision did three things: First, to satisfy Hamilton, it gave the na­
tional legislature power to propose am endments on its own motion when­
ever two-thirds o f both Houses thought it necessary to do so. Second, to
satisfy Madison, it eliminated the convention as a device for formulating
amendments and replaced it with a system in which the national legislature
would propose am endm ents on the application o f two-thirds o f the
legislatures o f the States. Finally, to satisfy Gerry, it provided that no
amendment would become effective unless it were ratified in final form by
three-fourths o f the States.
    M adison’s proposal was a significant one. It was a near predecessor o f
Article V, and it clarified the point that concerns us most. W hat role did
the Framers intend for the legislatures o f the States to play in the am end­
ment process? Given the terms o f M adison’s proposal, there were two
possibilities. It is conceivable that the legislatures were to apply to C on­
gress for some unspecified change, any change, in the hope that Congress
would propose am endm ents in the areas where they, the legislatures,
thought amendm ents were necessary. The other possibility was that they
were to apply to Congress for the changes that they, the legislatures,
favored. They were to apply for amendments to the Constitution and to
dem onstrate to Congress, through their applications, that there was con­
sensus among them as to the need for change in particular areas.
    It cannot be argued with any force that M adison’s proposal con­
templated the first procedure, the application for a pig in a poke. The
proposition was not that two-thirds o f the legislatures would bestow on
Congress, through their applications, a general commission to propose
whatever amendments it thought necessary. Under M adison’s system C on­
gress had that power already, whenever there was consensus among two-
thirds o f both Houses. Rather, as M adison himself later confirmed, the
legislatures were to apply to Congress for amendments to the C onstitu­
tion, amendments that they, the legislatures, favored; and whenever there
was consensus among two-thirds o f them as to the need for an amendment
or amendments, M adison’s proposal required Congress to make specific
proposals responsive to that consensus.
   Two days before they finished their work, just five days after M adison’s
proposal had been accepted, the Framers reviewed the amendment mech­
anism once again. Roger Sherman spoke first. He feared that three-
fourths o f the States (the num ber needed for ratification o f proposals in­
itiated either by Congress or by the State legislatures) might “ do things
fatal to particular States,” and he thought that the C onstitution should
therefore contain certain limitations on the kinds o f amendments that
could be made in it. In particular, he thought that no amendm ent should
be permitted that would affect a State in its “ internal police or deprive it o f
its equality in the Senate.” 20 He ultimately prevailed on the latter point.



  102 Farrand at 629.

                                      400
   Second, George Mason noted that Congress was the only agency that
was given power to propose amendments. He feared that Congress might
abuse that power by refusing to propose amendments that would be
beneficial to the people.21 G ouvem eur Morris and Elbridge Gerry then
suggested that instead o f giving Congress power to propose amendments
on the application o f the legislatures, the Constitution should require C on­
gress to call a convention on application o f the legislatures. This was the
critical stage in the development o f Article V. The Framers accepted the
suggestion that Morris and Gerry had brought forward, and the result was
the Convention Clause as we know it today. W hat was the purpose o f the
change?
   We must be clear on what was changed and what was not. There was
only a slight alteration in the text. It came in the words that described the
powers o f Congress: M adison’s language—“ Congress * * * on Applica­
tion * * * shall propose Amendments to this C onstitution” —became
“ Congress * * * on Application * * * shall call a Convention for pro­
posing Am endm ents.” There was no alteration in the description o f what
the legislatures were to do. They were to make an “ Application” in each
case. In procedural terms the change was equally modest. In both in­
stances the legislatures were to make an “ A pplication,” and a separate
body (Congress or the convention) was to propose amendments. The pro­
cedural change came with the introduction o f an intervening step, a “ call”
to convention. This change was necessary for the simple reason that the
convention, unlike Congress, is not a standing body. It must be called into
being before it can do its work.
   In substantive terms the change was dramatic. Morris and Gerry
stripped Congress o f power to propose amendments and relegated it to the
ministerial function o f calling a convention. The critical question is
whether they intended to do anything more than this. They intended to
alter the role o f Congress. Did they intend to alter the role o f the States?
The whole point o f the application process, under M adison’s approach,
was that it provided the legislatures o f the States with a means o f obtaining
proposals responsive to their own views concerning the need for constitu­
tional change. In relieving Congress o f power to make those proposals,
did Morris and Gerry intend as well to strip the legislatures o f power to
apply for favored amendments, or did they intend merely to replace one
proposing authority (Congress) with another (the convention)?
   Fortunately, the brief record o f the debate over Morris’ and Gerry’s pro­
posal gives us some insight into that question. As soon as the proposal was
made, James Madison rose to comment on it. He said he did not see why
Congress “ would not be as much bound to propose amendments applied
for by two thirds o f the States as to call a Convention on the like appli­
cation.” He saw no objection, however, against providing for a convention



  " Id.

                                     401
 “ for the purpose o f amendments, except only that difficulties might arise
as to the form, the quorum etc. which in Constitutional regulations ought
 to be as much as possible avoided.” 22
    M adison’s statement goes to the heart o f the question before us. It illus­
trates three points. First, it shows conclusively that under his proposal the
legislatures o f the States were entitled to apply for amendments to the
C onstitution, and that Congress was duty bound to make responsive pro­
posals whenever two-thirds o f them had done so: Congress was “ bound to
propose amendments applied for by two thirds o f the States.” Second, it
suggests rather strongly that the convention proposal was an attem pt to
diminish the power o f Congress over the process o f amendment initiated
by the applications o f the legislatures. That was how Madison interpreted
it. He was saying that although he had no substantial objection to the con­
vention device, he could see no real reason for it, given its purpose. It pro­
vided neither more nor less protection from congressional abuse than the
procedure he had fashioned, for “ Congress would be as much bound to
propose amendments applied for by two thirds o f the States as to call a
convention on the like application.”
    Finally, M adison’s statem ent tells us a good deal about the intended role
o f the legislatures o f the States. His statement is significant both for what
it says and for what it does not say. Remember that the purpose of
M adison’s application procedure was not to give Congress power to pro­
pose amendments. (Congress had that power already.) The purpose was to
give the State governments a right to apply for amendments. If Morris and
Gerry had intended to change all that, stripping the legislatures o f power
to dem and proposals responsive to their views, the mere substitution of
one proposing authority for another would have been the least significant
part o f their plan. M adison’s statem ent betrays no hint that such a radical
change was in the offing. Indeed, M adison’s statement suggests that the
role o f the legislatures would be unaltered under M orris’ and Gerry’s pro­
posal: Congress would call a convention for proposing amendments “ on
the like application.”
   The Ratification Debates. The notion that the amendment procedure
should make some provision for the regular governments o f the States and
should be responsive in part to their views concerning the need for con­
stitutional change was not a radical notion in 1787. In fact, as we have
seen, this was one o f the few propositions that was not debated in connec­
tion with the amendm ent question. The Framers had real doubts about the
role that the new national legislature should play in the am endment proc­
ess. They were also concerned that the C onstitution should not be so freely
amendable that a m ajority o f the States would be able to oppress the
others by altering the supreme law o f the land in some discriminatory way.
But if the Constitution were to be amended at all, there was not much



  ” 2 Farrand at 629-30.

                                     402
doubt that the States as States were proper parties to suggest where the
amendments should come and to dem and that proposals responsive to
their views be formulated.
   This should come as no surprise. Repeated assertions o f Federal power
have enhanced the role o f the Federal Government in our national life, but
in 1787 the State governments were the most im portant governments in the
Union. It was they who had created the Union; and when questions arose
concerning the adequacy o f the Articles, they were very much the parties
in interest. For that reason alone it was politic, and perhaps even necessary
from the standpoint o f securing ratification o f the new C onstitution, that
the States, acting through their regular governments, should have been
given a means o f obtaining viable proposals for change responsive to their
own views concerning the need for change. We have suggested that the
Framers intended to provide them with such a means; and when the
Framers published their work and undertook to defend it, they and their
allies took care to reassure the States on that point. A few o f the relevant
remarks, made during the critical m onths when ratification o f the new
Constitution was still in doubt, are set forth below.
   Many opponents o f the new C onstitution found it so objectionable that
they argued that the question o f revising the Articles should be subm itted
to a second general convention at which the imperfections in the docum ent
produced by the Framers could be eliminated. Alexander Hamilton, tak­
ing his cue from John Jay, argued forcefully in The Federalist that even if
the new C onstitution were thought to be imperfect, it would be far easier
to remove the imperfections by amending it after it had been adopted than
by convening a second general convention for that purpose prior to
ratification. His argument on that point is perhaps the clearest statem ent
by any o f the Framers concerning the nature and significance o f the
Convention Clause.”
   At a second general convention, Hamilton said, many questions would
arise; and “ [m]any o f those who form the majority on one question may
become the minority on a second, and an association dissimilar to either
may constitute the m ajority on a th ird .” 24 As a result, at a second general
convention there would be “ an immense multiplication o f difficulties and
casualties in obtaining the collective assent to the final ac t.” 25 By contrast,
under the new Constitution, if it were adopted, reformers would be able to
utilize the surgical amendment process set out in Article V. It would be un­
necessary to attem pt more than one improvement at a time. Proposed
amendments “ might be brought forward singly * * * . [T]he will o f the
requisite number would once bring the m atter to a decisive issue. And con­
sequently, whenever nine or rather ten States were united in the desire o f


  "See, The Federalist, No. 85, at 591-93 (Cooke ed., 1961).
  "Id. at 592.
 ” Id .


                                          403
a particular amendment, that amendment must infallibly take place * * * .
[T]wo-thirds [nine] may set on foot the measure, three-fourths [ten] must
ratify.” 26 Could the national legislature frustrate this process? It could not.
The national legislature controlled one o f the two amendment mechanisms,
but not the other. Congress would be obliged to call a convention on the ap­
plications o f two-thirds o f the States. Would the legislatures be able to
muster the necessary two-thirds? They would. “ However difficult it may be
supposed to unite two-thirds or three-fourths o f the state legislatures, in
amendments which may affect local interests, [there cannot] be any room to
apprehend any such difficulty in a Union on points which are merely relative
to the general liberty or security o f the people. We may safely rely on the
disposition o f the State legislatures to erect barriers against the encroach­
ments o f the national authority.” 27
   Hamilton was saying, in sum, th at if the State legislatures wanted to
perfect the new C onstitution or “ to erect barriers against the encroach­
ments o f the national authority,” they could utilize the convention pro­
cedure, they could bring measures forward with that end in mind, and they
could do this without submitting to the difficulties o f a “ general” conven­
tion in which disagreements over other points might prevent or impede
remedial action. The State legislatures could use the convention procedure
without hazarding a general convention.
   Madison made a related observation regarding the role o f the State gov­
ernments. He said that the Framers had foreseen “ that useful alterations
will be suggested by experience.” They had therefore created an am end­
ment mechanism that “ equally enables the general and the State govern­
ments to originate the am endm ent o f errors as they may be pointed out by
the experience on one side or on the o th er.” 28 Some have attem pted to cast
this statement in a different light, but we think that M adison’s meaning is
clear. The State governments, like the national government, would
discover faults or “ errors” in the Constitution from time to time; and the
State governments, like the Federal Government, had been given a
mechanism by which their views regarding the correction o f these faults
could be given constitutional effect. The State governments were entitled
to ask for the correction, not o f errors perceived by others, but o f errors
perceived by themselves. W hat gave them this right? It was the convention
procedure set out in Article V.
   O ther statements by the Framers bear this point out. W ashington, who
had presided over the Convention o f 1787, said flatly that the “ constitu­
tional door is open for such am endm ents as shall be thought necessary by
nine States.” 29 Nine, o f course, was the num ber required to originate the



  “•Id.
  “ Id. at 593.
  ‘'T he Federalist, No. 43, at 296 (Cooke e d ., 1961).
  " L e tte r to John A rm strong, April 25, 1788, reprinted in 29 Writings o f Washington 466
(Fitzpatrick e d ., 1939).

                                              404
amendment process. Judge Dana o f Massachusetts said that if specific
amendments were generally wished for, “ two thirds o f the several States
[could] apply for the call o f a convention to consider them .” 30 In Virginia,
Wilson Nicholas predicted that the convention procedure would prove to
be a convenient m ethod o f amendment because, among other things, “ the
conventions which shall be called will have their deliberations confined to
a few points, no local interests to divert their attention; nothing but the
necessary alterations.” 31 As against the critics o f the new Constitution
who thought that amendments should be obtained prior to ratification,
Madison answered that “ they cannot but see how easy it will be to obtain
subsequent amendments. They can be proposed when the legislatures of
two thirds o f the States shall make application for that purpose.” 32
   Hamilton, Madison, W ashington, and their allies were perhaps guilty o f
over-argument, but we cannot believe that they were dissembling. We
think their remarks about the ease and desirability o f introducing subse­
quent amendments to the Constitution through the convention process
show clearly that they envisioned that the States could use that process for
the purpose o f introducing into the Constitution particular amendments
deemed necessary by the States and that they could do this without reopen­
ing the constellation o f other issues that the delegates in Philadelphia had
so lately resolved. The legislatures could invoke the convention process for
a particular purpose without risking a general convention.33
   Summary. A fter reviewing the text in light o f the relevant historical
materials, we are inclined to think that the Convention Clause has been
misnamed. It should have been named the “ Application Clause,” because
its basic purpose was to provide the regular governments o f the States with


   102 Elliot at 138.
   >'3 Elliot at 102.
   “2 Elliot at 629-30.
   ’’The Federalists’ praise o f the convention procedure as a convenient device for introduc­
ing postratification am endm ents died out rather quickly after the ratifying convention in
New York, the last key State to ratify the Constitution, narrowly gave its approval and then
immediately circulated a letter urging the States to petition for a second general convention
to redo what the Framers had done. The Virginia Assembly followed with a slightly narrower
petition for a convention to consider the defects that had been suggested in the various State
ratifying conventions. The Federalists vigorously opposed the drive for a second general con­
vention, perceiving correctly that it would work to the advantage o f the anti-Federalists,
reopening divisive issues. Juxtaposed to their arguments in support o f Article V, their o p ­
position to the initiative o f New York and Virginia lends further support to the view that the
convention process was thought to be a flexible procedure could be used broadly (as New
York proposed), or narrowly (as Ham ilton suggested), depending on the nature o f the con­
sensus am ong the originating States. See Appendix III.
   For some o f the pertinent original sources, see M adison, Letter to George Eve, January 2,
1789, 11 Papers o f James Madison 405 (Rutland ed., 1977); 3 Elliot at 630; 5 Writings o f
James Madison 299, 311-12 (Gaillard H unt ed., 1904). See also M adison, Letter to G. L.
Turberville, November 2, 1788, 5 Writings o f James Madison 299-300 (Gaillard H unt ed.,
1904); Madison, “ General Remarks on the C onvention,” 3 Farrand at 455; Jefferson, Letter
to William Short, December 8, 1788, 14 Papers o f Thomas Jefferson 344 (Boyd ed., 1958);
Jefferson, Letter to William Carmichael, December 25, 1788, 14 Papers o f Thomas Jefferson
385 (Boyd ed., 1958).

                                             405
a means o f applying for amendm ents to the Constitution; and the conven­
tion procedure was simply a device, one o f two devices considered by the
Framers during the evolution o f the clause, through which the demands of
 13 contentious States were to be reconciled. As described by the Framers
and invoked by the States, the process was a flexible one, much like the
nonconstitutional process that had been worked out by the States
themselves under the Articles. The legislatures could use Article V to
gather a general convention to build consensus for an integrated, com ­
prehensive revision o f the Constitution or for multiple amendments. New
York and the anti-Federalists pressed for such a convention in 1788 and
1789. On the other hand, if the legislatures feared the divisiveness o f a
general convention (as did Madison and his allies), yet were in substantial
agreement regarding some particular problem or issue, they could, as
Hamilton suggested, generate specific proposals through the convention
procedure without risking a general convention.

      IV.    Legal Aspects o f a Limited Application by the Legislatures

    If we had been able to conclude that the legislatures o f the States are en­
titled to apply for one thing and one thing only—a general conven­
tion—our inquiry would be at an end. Because we have concluded that the
legislatures may invoke the convention process for different purposes and
with limited objects in view, we must consider two additional questions.
First, if different legislatures apply for different kinds o f conventions,
how does Congress respond? Faced with applications at variance with
each other, how does Congress judge whether the legislatures have made
the sort o f application that can provide a basis for a call to convention?
Second, if Congress does call a convention on the basis o f an application
for something other than a general convention, what power does the con­
vention have? Does it have power to go beyond the application and make
ratifiable proposals that are not in accord with the tenor o f the application
and call?
   The answer to each o f these questions follows rather clearly and easily
from what we have already said about the role o f the legislatures o f the
States and the function o f the application procedure. When we have
established this connection—the connection between the role o f the
legislatures, the function o f the application procedure, the role o f C on­
gress in determining whether a convention should be called, and the power
o f the convention itself—the political and legal logic o f the Convention
Clause will come sharply into focus.
   Counting Application. If one-half o f the legislatures apply for a con­
vention for proposing am endm ents on the subject o f reapportionm ent and
the other half apply for a convention for proposing amendments to
abolish the electoral college, how should Congress respond?34 Article V


   J,The historical response o f Congress to the problem presented by applications for conven­
tion is described in some detail in Appendix II. The nature o f some o f the early applications
and their bearing on the interpretation o f Article V are described in Appendix III.

                                             406
says that Congress must call a convention whenever two-thirds o f the
legislatures have made an “ A pplication.” If two-thirds or more o f them
have applied for a convention, does it m atter that they are divided among
themselves regarding the work that the convention should do?
   The historical materials that we have already discussed suggest that it
matters very much indeed. The States cannot launch an amendment unless
there is a consensus among two-thirds o f them that will provide a political
basis for the proposal. Recall Ham ilton’s argument in The Federalist—if
the new C onstitution were adopted, the States would be able to obtain
amendments that would curb the powers of the central government, but it
would take two-thirds o f them to float any given proposal—two-thirds to
set the measure on foot. Washington said much the same thing. M adison’s
analysis was the most revealing o f all. Madison said that Article V “ equal­
ly enables” Congress and the legislatures o f the States to originate the
“ amendment o f errors” perceived at one level o f government or the other.
 In other words, the power o f the legislatures to initiate the amendment
process is equal to that o f Congress. When can Congress originate “ the
amendment o f errors” ? Congress can propose a constitutional am end­
ment if, but only if, there is an extraordinary agreement among two-thirds
o f the Members o f both Houses that an am endment is necessary. If one-
half o f the Members favor an am endment on the electoral college, C on­
gress has no power to propose an amendment on either subject. Do the
States have greater power? We are willing to take Madison at his word.
Their power is equal to that o f Congress, not greater. Unless there is
general agreement among two-thirds o f the legislatures over the nature of
the change, or the area where change is needed (be it a general revision o f
the Constitution or a change in some specific area), the am endment proc­
ess cannot go forward via the convention route.
   When we view the application process in that light, we begin to under­
stand the political wisdom o f Article V. The Framers wanted to make the
Constitution amendable, but they understood the traum a o f the am end­
ment process. They had experienced it themselves. Through a great exer­
tion, they had established a new frame o f government, and they did not
want additional proposals for change to be loosed on the young republic
unless there were a firm basis for believing that the process would be worth
the political cost. To provide a guarantee o f that sort, they established an
exclusive two-track system for formulating viable, ratifiable constitutional
proposals. Under that system no proposal for change can be issued by any
authority unless there is a preexisting consensus supportive o f change
among an extraordinary majority at one level o f the government or the
other.
   How, then, does Congress determine when to call a convention? If the
foregoing analysis is correct, Congress must answer two questions o f fact.
What do the legislatures want? How many o f them want it? The Constitu­
tion does not simplify the task. It does not specify a form o f words or a
style o f application through which the wishes of the legislatures are to be

                                    407
 transmitted to Congress. It permits them to apply for different things in dif­
 ferent ways. But in the end Congress’ job is straightforward and unmysteri-
 ous. Congress must simply assess the applications that are made, determine
 whether there is common ground among them, and call a convention when­
 ever two-thirds of the applications exhibit a consensus supportive o f some
 particular constitutional change.
    This view o f the role o f Congress in counting divergent applications has
 been advocated by a substantial number o f commentators. See Appen­
 dix II, note 3. It has also played an important role in the arguments o f some
 of the dissenters, who object at the threshold to the very idea of applications
 o f limited subject. The argument is this: If applications o f limited subject
 were permitted, Congress would be obliged to respond to them. It would be
obliged to review them for content and make judgments from time to time
about the nature of the consensus they express, if any. Moreover, if Con­
gress were ever to call a convention on the basis o f limited applications of
 limited subject, it might even be required or empowered to take legislative
action in connection with the call that would limit the power o f the conven­
tion in accordance with the tenor o f the applications. But the drafting
history o f the Convention Clause shows that the Framers did not want the
national legislature to interfere with the convention process. They did not
want Congress to make substantive judgments that could block or channel
the development of constitutional proposals via the convention route. Ac­
cordingly, the State legislatures cannot be permitted to file applications of
limited subject in the first place. They must file uniform applications for a
convention process that are neutral with respect to subject. Only then—only
when the task o f Congress is limited to that o f counting uniform applica­
tions for a convention with general powers—can the possibility o f imper­
missible congressional intervention be eliminated.
    We agree with the foundations o f this argument, but the conclusions are
flawed, in our view. It is perfectly clear that the Framers intended that the
national legislature would have no independent power to determine what a
constitutional convention may or may not do; but it stands history on its
head to argue that the Framers must therefore have intended to deny that
power to the State legislatures and to abandon the question of constitutional
change to a transient majority o f delegates at a convention with general
powers. Conscientious scholars may differ over these points; but as we have
stated above, we think the relevant historical materials demonstrate that the
application procedure was designed to give the regular governments of the
States an opportunity to apply for amendments favored by them, that the
two-thirds requirement, which is present in both amendment mechanisms,
was designed to ensure that no ratifiable constitutional proposal could ever
be floated unless it were responsive to a preexisting consensus among an ex­
traordinary majority at the one level o f government or the other, and that
the Framers inserted the convention device into the application process, not
to frustrate either of these, purposes, but to guarantee that an entity other
than Congress would be charged with the duty o f responding substantively
to the applications o f the States.

                                     408
   Aside from the historical considerations, there is another difficulty
here. The basic constitutional choice is between a flexible application pro­
cedure and a rigid application procedure—between a procedure in which
the legislatures are free to apply for what they want, and a procedure in
which they may apply for a general convention only. The choice between
these two procedures simply cannot be made on the ground that the one
gives Congress power to frustrate the desires of the other participants in
the convention process, whereas the other does not. U nder the flexible
procedure the legislatures are free to do precisely what they are entitled to
do under the rigid one, and Congress is empowered to do neither more nor
less. Under the flexible procedure the legislatures are free to apply for a
general convention, if two-thirds o f them are willing to solicit and enter­
tain proposals on any subject; and Congress must respond whenever two-
thirds o f them have done so. The real difference between the two pro­
cedures lies, not in the way they allocate power between Congress and the
legislatures, but in the way they allocate power between the legislatures
and the convention itself. Under the rigid procedure the role of the con­
vention is to follow wherever its delegates lead; and the convention is in­
variably empowered to do so, whatever the desires o f the legislatures may
be. Under the flexible procedure the convention is the servant o f the
legislatures. Its function is to respond to the extraordinary consensus that
was the predicate for the call. For all the reasons given above, we think the
latter conception is the one to be preferred. It is the more defensible o f the
two, given the history and logic o f Article V.
   Before passing to the final question, the question o f the power o f the
convention, we want to say a word about a point raised at the beginning o f
o u r discussion. How does'Congress treat an application that requests, not
only that a convention be called to consider a particular problem or pro­
posal, but that the convention do nothing more than approve and issue a
specific amendment containing terms that have been drafted by the appli­
cant? At the outset we stated that applications of this kind, which on their
face appear to foreclose any possibility o f adjustm ent or compromise, are
viable only in very limited circumstances. We are now in a position to see
why that is so. If a legislature demands that a convention do nothing more
than accept a predetermined draft, it drastically reduces the potential for
agreement between its application and the applications o f other States.
Even among applications directed at the same general problem, an appli­
cation that affirmatively excludes any approach but its own adds little if
anything to the consensus required for the call to convention. We must
take “ application” at face value. If the applicant wants a convention for
the sole and exclusive purpose o f issuing its own proposal and none other,
there can be no common ground between its views and the views o f any
other applicant unless the other is willing to forego everything else and
acquiesce in the narrow demand. The other is, o f course, free to acquiesce
by modifying its application. But if its application remains at variance
with the one, there is grave doubt that Congress could find, on the face o f
the applications, any zone o f actual agreement between the two.

                                     409
    The Power of the Convention. If our conclusions regarding the role of
 the legislatures and the function o f the two-thirds requirement are correct,
 the ultimate question—the question o f the convention’s power—almost
 answers itself. We need to make only one additional analytical point.
    Anyone is free to make constitutional proposals, but no proposal can be
 accepted by the States and become part o f the C onstitution unless it is
 formulated in accordance with the procedures set out in Article V. The
 Department o f Justice or the State o f Michigan can make constitutional
 proposals; but these proposals however, meritorious or inviting, cannot
 be ratified by the States. Congress itself can make proposals, but it can
 submit them for ratification only if it has complied with the constitutional
 procedures governing the formulation o f proposals for change. Congress
 can submit proposals for ratification only if two-thirds o f the Members of
 both Houses find them necessary.
    As we have suggested in the preceding discussion, the meaning o f the
 Convention Clause is simple and clear. A constitutional convention con­
 venes, if at all, to make proposals responsive to a substantive consensus
 among the legislatures o f the States. The consensus may be general or nar­
 row. It may call for a general reexamination o f the C onstitution, or it may
 be a relatively specific agreement among the legislatures about the
desirability o f a particular change. In any case, the function o f the two-
thirds requirement in the application process is to ensure that no conven­
tion will be convened and no proposal made unless there is an agreement
among an extraordinary m ajority o f the governments o f the States that
would justify a responsive proposal and the ratification effort. As
Hamilton put it, it takes two-thirds to set the measure on foot. That being
so, it is unim portant that the delegates to a constitutional convention may
have a moral or legal duty to respect the tenor o f the application and call
that brought them there. They may well have such a duty or duties, but the
im portant point is that they have, in our view, no power to issue ratifiable
proposals except to the extent that they honor their commission. They
have no more power to go beyond the consensus that summoned them to
convention than does Congress to propose amendments that are not
responsive to a consensus am ong two-thirds o f its Members.
   We have one final word. Congress has been given power to specify a
mode o f ratification for constitutional proposals that have developed in
accordance with Article V. It has no power to provide for the ratification
o f any constitutional proposal except those that have, been formulated in
accordance with Article V. Congress could not, for example, provide for
the ratification o f a constitutional proposal submitted for ratification by a
bare majority o f its Members. Likewise, it could not provide for the
ratification o f a proposal emitted by a constitutional convention for which
less than two-thirds o f the States have applied.

                                          John M . H armon
                                    Assistant A ttorney General
                                                  Office o f Legal Counsel

                                    410
                                   A PPEN D IX      I

                       Proceedings o f the Convention o f 1787

   When the delegates met in Philadelphia, their discussion first centered
on a plan o f the union submitted by Edm und Randolph on behalf o f the
Virginia delegation. The 13th resolution o f that plan dealt with the ques­
tion o f amendment:
    . Resd. that provision ought to be made for the am endm ent o f the
      Articles o f Union whensoever it shall seem necessary, and that
      the assent o f the National Legislature ought not to be required
      th ereto .1
This resolution, in a slightly modified form (“ that provision ought to be
made for [hereafter] amending the system now to be established, without
requiring the assent o f the National Legislature),2 was first debated on
June 5. Although Pinckney “ doubted the propriety or necessity o f it,” 3
Elbridge Gerry favored the provision:
         The novelty & difficulty o f the experiment requires periodical
         revision. The prospect o f such a revision would also give inter­
         mediate stability to the Govt. Nothing had yet happened in the
         States where this provision existed to proves [sic] its im propriety.4
The convention then postponed further deliberation on the provision.5
  The provision “ for amending the national Constitution hereafter
without consent o f National Legislature” was next discussed on June l l . 6
Several members “ did not see the necessity o f the [resolution] at all, nor
the propriety o f making the consent o f the National Legislature unneces­
sary.” 7 George M ason, however, urged that the provision was necessary:
         The plan now to be formed will certainly be defective, as the
         Confederation has been found on trial to be. Am endm ents there­
         fore will be necessary, and it will be better to provide for them , in
         an easy, regular and Constitutional way than to trust to chance
         and violence. It would be improper to require the consent o f the
         Natl. Legislature, because they may abuse their power, and
         refuse their consent on that very account. The opportunity for
         such an abuse may be the fault o f the C onstitution calling for
         am endm ent.8


 11 Farrand at 22.
 M Farrand at 121.
 ‘Id.
 M Farrand at 122.
 ’Id .
 ‘ 1 Farrand at 202.
 ‘Id.
 *1 Farrand at 202-03.

                                          411
Edm und Randolph supported M ason’s arguments. The convention, how­
ever, postponed action on the words “ without requiring the consent o f the
national Legislature.” The other portion o f the clause (“ provision ought
to be made for the am endm ent o f the Articles o f Union whensoever it shall
seem necessary” ) was passed without dissent.9
   The provision as passed was then referred, to the Committee o f Detail.
T hat committee fashioned the first draft o f the C onstitution and sub­
mitted it to the convention on August 6. Article XIX o f that draft provid­
ed for am endm ent as follows:
      On the application o f the Legislatures o f two thirds o f the States
      in the Union, for an am endm ent o f this C onstitution, the
      Legislature o f the United States shall call a Convention for that
      p urpose.10
This provision was considered on August 30. Gouverneur Morris sug­
gested that “ the Legislature should be left at liberty to call a Convention,
whenever they please.” " Notwithstanding this suggestion, the provision
was agreed to without dissent.
   On September 10 Gerry moved to reconsider Article XIX. Since the
C onstitution was “ to be param ount to the State C onstitution,” he feared
that “ two thirds o f the States may obtain a C onvention, a majority o f
which can bind the Union to innovations that may subvert the State C on­
stitutions altogether.” 12 Alexander Hamilton seconded G erry’s motion.
He did not object to the consequences feared by Gerry, for “ there was no
greater evil in subjecting the people o f the U.S. to the m ajor voice than the
people o f a particular S tate.” 13 Rather, Hamilton argued:
      It had been wished by many and was much to have been desired
      that an easier mode for introducing am endments had been pro­
      vided by the Articles o f C onfederation. It was equally desirable
      now that an easy mode should be established for supplying
      defects which will probably appear in the new System. The mode
      proposed was not adequate. The State Legislatures.will not apply
      for alterations but with a view to increase their own powers—The
      National Legislature will be the first to perceive and will be most
      sensible to the necessity o f am endm ents, and ought also to be
      empowered, whenever two thirds o f each branch should concur
      to call a Convention—There could be no danger in giving this
      power, as the people would finally decide in the case.14



 *1 Farrand at 203.
 I02 Farrand at 188.
 "2 Farrand at 468.
 "2 Farrand at 557-58.
 112 Farrand at 558.
  ‘•Id.

                                      412
Madison “ remarked on the vagueness o f the terms, ‘call a Convention for
the purpose,’ as sufficient reason for reconsidering the article.” 15
Specifically, Madison raised the questions, “ How was a Convention to be
formed? by what rule decide? what the force o f its acts?” 16 A fter this
debate, Gerry’s m otion to reconsider carried.17
   Roger Sherman then moved that the following language be inserted into
the Article: “ or the Legislature may propose amendments to the several
States for their approbation, but no amendments shall be binding until
consented to by the several States.” 18 James Wilson moved that the ap­
proval o f only two-thirds o f the States should be necessary, but this m o­
tion was defeated.19 Wilson then moved to require the approval o f three-
fourths o f the States, and this m otion was approved with dissent.20
   Madison then moved, and Hamilton seconded, that the convention
postpone consideration o f the amended proposition and that it take up the
following:
        The Legislature o f the U — S— whenever two thirds o f both
     Houses shall deem necessary, or on the application o f two thirds
     o f the Legislatures o f the several States, shall propose amendments
     to this Constitution, which shall be valid to all intents and pur­
     poses as part thereof, when the same shall have been ratified by
     three fourths at least o f the Legislatures o f the several States, or by
     Conventions in three fourths thereof, as one or the other mode of
     ratification may be proposed by the Legislature o f the U .S.21
Rutledge objected, on the ground that “ he could never agree to give a
power by which the articles relating to slaves might be altered by the States
not interested in that property and prejudiced against it.” 22 In order to ob­
viate his objection, it was agreed to add to M adison’s proposition the pro­
viso “ that no amendm ents which may be made prior to the year 1808 shall
in any manner affect the 4 and 5 sections o f the VII article.” 23 As
amended, M adison’s proposition was adopted.24
   The Committee o f Style made minor changes in M adison’s amended
proposition and reported it as Article V to the convention.25 On Septem­
ber 15, Sherman initiated debate on this provision by expressing his fears
that
     three fourths o f the States might be brought to do things fatal to
     particular States, as abolishing them altogether or depriving them



  "Id.
  '‘id.
  "id.
  "Id.
  "2 Farrand at 558-59.
  ” 2 Farrand at 559.
  “Id.
  "Id.
  "Id.
  "Id.
  "2 Farrand at 602.

                                     413
      of their equality in the Senate. He thought it reasonable that the
      proviso in favor of the States importing slaves should be ex­
      tended so as to provide that no State should be affected in its in­
      ternal police, or deprived of its equality in the Senate.26
George Mason also objected to the provision, for he
      thought the plan of amending the Constitution exceptionable &
      dangerous. As the proposing of amendments is in both the
      modes to depend, in the first immediately, and in the second, ul­
      timately, 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 would be the case.27
Morris and Gerry then moved to amend the provision “ so as to require a
Convention on application of two-thirds of the states.” 21 Madison
responded that he
      did not see why Congress would not be as much bound to pro­
      pose amendments applied for by two thirds of the States as to
      call a Convention on the like application. He saw no objection
      however against providing for a Convention for the purpose of
      amendments, except only that difficulties might arise as to the
      form, the quorum &c. which in Constitutional regulations ought
      to be as much as possible avoided.29
The Convention thereupon agreed to Morris’ and Gerry’s proposal.30
   Sherman then moved to strike the requirement of three-fourths for
ratification, in order to leave “ future Conventions to act in this matter,
like the present Conventions according to circumstances.” 31 This motion
failed, as did Gerry’s motion to eliminate ratification by convention.32
Sherman then moved to add a further proviso “ that no State shall without-
its consent be affected in its internal police, or deprived of its equal suf­
frage in this Senate.” 33 Madison objected, on the ground that incorpora­
tion of “ special provisos” would lead every State to “ insist on them, for
their boundaries, exports, etc.” 34 The motion was defeated; so too was
Sherman’s next motion to strike out Article V altogether.35 Morris then
moved to add the single proviso “ that no State, without its consent shall
be deprived of its equal suffrage in the Senate.” According to Madison,
this motion was “ dictated by the circulating murmurs of the small States”
and was thus agreed to .36 This completed deliberations on Article V.


  "2 Farrand at 629.
  17Id.
 "Id .
 ” 2 Farrand at 629-30.
 !02 Farrand at 630.
 "Id .
 "Id .
 s,Id.
 14I d   .

 ” 2 Farrand at 630-31.
 3,2 Farrand at 631.

                                    414
                                                 A PPEN D IX        n

                  Congressional Handling of Convention Applications

   The States have filed more than 350 applications for conventions.1
These applications have been on a wide variety of subjects; and as we have
suggested, most authorities are of the view that applications on different
subjects should not be aggregated for the purpose of determining whether
a sufficient number of States has applied for a convention.2 Congress has
traditionally been of that view, for it has never, despite the large number
of applications, called a convention.
   On two occasions the Senate has approved legislation to establish con­
vention machinery. In 1971 and 1973 the Senate passed identical bills writ­
ten by Senator Ervin that were premised on the proposition that a conven­
tion might be called to consider a particular subject. The bills provided
that any call to convention would “ set forth the nature of the amendment
or amendments for the consideration of which the convention is called.”
To enforce this restriction, they provided that each convention delegate
would take an oath committing himself not to propose or vote for any pro­
posed amendment not relating to the subject described in the call. The bills
also allowed Congress to disapprove the submission of any proposed
amendment to the States if Congress found that the proposal related to or
included a subject that differed from the one specified by Congress.3
These provisions were founded on the conclusion of the Senate Judiciary
Committee that “ the bill properly limits the scope of the convention to the
subject or subjects” that caused the States to seek constitutional amend­
ment in the first instance.4




  1125 C o n g r e s s i o n a l   R eco rd   (daily ed., January 15, 1979) (remarks o f Senator Helms).
  ‘See, e.g., Bonfield, “ The Dirksen A m endm ent and the Article V Convention Process,”
66 Mich. L. Rev. 949, 970 and n. 85 (1968). The opposite view is advanced by a few com m en­
tators who reason that even disparate dem ands show a widespread desire for constitutional
changes. See, e.g., Orfield, Amending the Federal Constitution, 42 (1942). It is generally
agreed, however, that applications on different subjects cannot be taken as an indication of
general dissatisfaction with the entire C onstitution. See, e.g., N ote, 70 Harv. L. Rev. 1067,
1072 (1957).
   !S. 215, 92d Cong., 1st sess. §§ 6(a), 8(a), 11(b)(1), 117 C o n g r e s s i o n a l R e c o r d 36805
(1971); S. 1272, 93d Cong., 1st sess., 119 C o n g r e s s i o n a l R e c o r d 22731-37 (1973).
   4S. Rept. 336, 92d Cong., 1st sess. 10(1971).

                                                         415
                                   A P P E N D IX    ID

                       The Early Applications of the States

   The States made few applications for conventions during the first
 100 years after the Constitution was ratified. A majority of these early ap­
plications were for general conventions.1 It has been argued that the States
must therefore have thought themselves empowered to ask for general
conventions only, and that this in itself is evidence that an Article V con­
vention may not be called for a limited purpose.2 We do not accept this
view.
   The earliest applications were made by Virginia in 1788 and by New
York in 1789. The Virginia application referred to the numerous objec­
tions that had been made to the new Constitution:
     We do, therefore, in behalf of our constituents, in the most
     earnest and solemn manner, make this application to Congress,
     that a convention be immediately called, of deputies from the
     several States, with fu ll pow er to take into their consideration the
      defects o f this constitution that have been suggested by the State
      Conventions, and report such amendments thereto as they shall
    find best suited to promote our common interests, and secure to
    ourselves and our latest posterity the great and unalienable rights
    of mankind.3 [Emphasis added.]
The New York application voiced a similar sentiment:
    The People of the State of New York having ratified the Con­
    stitution agreed to on the seventeenth day of September, in the
    year of our Lord one thousand seven hundred and eighty-seven,
    by the Convention then assembled at Philadelphia, in the State
    of Pennsylvania, as explained by the said ratification, in the
    fullest confidence of obtaining a revision of the said Constitution
    by a General Convention; and in confidence that certain powers
    in and by the said Constitution granted, would not be exercised,
    until a Convention should have been called and convened for
    proposing amendments to the said Constitution: In compliance,
    therefore, with the unanimous sense o f the Convention of this
    State, who all united in opinion that such a revision was
    necessary to recommend the said Constitution to the approba­
    tion and support of a numerous body of their constituents;


   'Brickfield, “ Problem s Relating to a Federal Constitutional C onvention,” 85-88, House
o f Representatives Judiciary Com m ittee Print, 85th C ong., 1st sess. (1957). See also
American Bar Association, Amendm ent o f the Constitution by the Convention Method
Under Article V, 59-72 (1974).
   ’Black, “ Amending the Constitution: A Letter to a Congressm an,” 82 Yale L .J. 189,
201-03 (1972).
   *1 A n n a l s o f C o n g r e s s 248-49 (Gales & Seaton, eds. 1789).

                                           416
      and a majority of the members of which conceived several ar­
      ticles of the Constitution so exceptionable, that nothing but such
      confidence, and an invincible reluctance to separate from our
      sister States, could have prevailed upon a sufficient number to
      assent to it, without stipulating for previous amendments: And
      from a conviction that the apprehensions and discontents which
      those articles occasion, cannot be removed or allayed, unless an
      act to revise the said Constitution be among the first that shall be
      passed by the new Congress; we, the Legislature of the State of
      New York, do, in behalf of our constituents, in the most earnest
      and solemn manner, make this application to the Congress, that
      a Convention of Deputies from the several States be called as
      early as possible, with fu ll powers to take the said Constitution
      into their consideration, and to propose such amendments
      thereto, as they shall fin d best calculated to prom ote our com ­
      mon interests, and secure to ourselves and our latest posterity,
      the great and unalienable rights o f m a n k i n d [Emphasis added.]
Because both Virginia and New York expressed a general concern over the
adequacy of the Constitution, it is not surprising that they applied for a
general convention. These applications do not support the contention that
the applicants believed that they could ask for a general convention only.
Indeed, the inclusion in these applications of language specifying that the
requested convention should have “ full” or “ general” powers suggests
rather clearly that the powers of an Article V convention were not thought
to be invariably general but were thought to be dependent on the terms of
the applications of the States. It is unnecessary to request that a conven­
tion have full or general powers if full or general powers are the only kind
of powers that a convention can have.
   Applications for conventions were made at two other points during the
first 100 years. During the nullification controversy three States filed ap­
plications. South Carolina resolved that “ it be expedient that a convention
of the States be called as early as practicable to consider and determine
such questions of disputed power as have arisen between the States of this
confederacy and the General Government.” 5 Alabama “ recommended”
to Congress “ the call of a Federal Convention to propose such amend­
ments to the constitution as may be proper to restrain Congress from
exerting the taxing power for the substantive protection of domestic
manufactures.” 6 Georgia applied to Congress to call a convention, to the
end, among others, “ that the principle informed in a Tariff for the direct
protection of domestic industry may be settled” and “ a system of Federal


 ‘H   o use   Journal     29-30 (1789); 1 A n n a l s o f C o n g r e s s 271 (1789).
  ’Sen a te J o u rn al    83, 22d C o n g ., 2d se ss. (1833).
 ‘Id. at 194-95.

                                                       417
taxation may be established, which shall be equal in its operation upon the
whole people * * * .” 7 In our view, these resolutions make no applica­
tion for a convention with unlimited powers; rather, they request a con­
vention for the purpose of addressing problems broadly identified in the
applications themselves.
   Some States applied for conventions during the period just preceding
the Civil War. President Buchanan had recommended that the Congress
or the State legislatures might originate “ an explanatory amendment of
the Constitution on the subject of slavery.’” President Lincoln, while
refraining from any “ recommendation of amendments,” had opined that
“ the convention mode seems preferable, in that it allows amendments to
originate with the people themselves.” 9 In accordance with that sentiment,
several States—New Jersey, Indiana, Kentucky, Illinois, and
Ohio—adopted resolutions applying to Congress for a convention. These
resolutions were general in nature. Typically, they called for a “ conven­
tion for proposing amendments.” 10 One can argue that they indicate that
the applicants believed their only recourse under Article V was to apply for
a general convention, but one can argue with equal force that the form of
these applications was dictated by the desire for a convention with
unlimited power to avert the impending crisis.




   'T he Georgia application actually presented to the Senate contained an enum eration of
“ particulars” more extensive than those cited in the text. Senate Journal 65-66, 22d Cong.,
2d sess. (1833). However, the one authority known to us to have studied this m atter exten­
sively states that the Georgia H ouse resolution, containing this larger enum eration, had been
substantially narrowed by the Georgia Senate to the form quoted in the text, but the G ov­
ernor’s Office mistakenly transm itted the House resolution to the Congress. See Pullen,
supra (note 2) at 42-44.
   •55 C o n g r e s s i o n a l G l o b e , 36th C ong., 2d sess., app. 4 (1860).
   ’4 Collected Works o f Abraham Lincoln, 269-70 (Basler ed. 1953).
   '"See the resolutions cited in Pullen, supra (note 2), at 79-85.

                                             418
