Part 3: How and Why a Convention Will Work: the Application and the Call.
In Part 1 of this series (here) we explained why the Constitution must be amended to bring the federal government back towards the Framers’ plan of government, back towards the limited and enumerated powers the Framers intended. In Part 2 (here) we examined alternatives to amendment that have been proposed as a means of reining in government and why these alternatives, while very important, are not underway as part of a coherent plan or project; neither do they address the root problem. We also discussed why it is unlikely that Congress will propose amendments which serve to reduce the near plenary power provided them by Supreme Court interpretations of the Constitution. In this and subsequent essays we will outline the process for a “convention for proposing amendments” and why we believe it will produce exactly what we expect and so greatly need. An excellent compilation of information on the convention process and related information can be found here.
First, we should recognize that there are both general and specific ideas of how an Article V convention would be triggered and how it would function. In general, as specified in Article V, at least 2/3 of the states must apply to Congress for a convention. If this threshold is reached, Congress is required by Article V to call the convention. Delegates sent by the attending states would convene, draft and vote on proposed amendments, sending those which receive majority support of the convention either to Congress or directly to the states (or both). Congress is given the optional authority to order that either state legislature be the ratifying body or that conventions be held in each state to consider ratification, as were used to ratify the 21st Amendment. Either way, note that the Peoples’ representatives are involved in the ratifying process. Let’s examine each step in the aforementioned process and discuss one specific plan for a convention: the only specific plan we believe will work and thus the only plan we endorse.
The Application. The process begins by having the states apply to Congress for a convention. The Constitution does not specify what information a convention application must contain. Neither does it specify whether the state can request a convention unlimited in its scope, one limited to a single amendment or to certain amendments. Thus the applications, or “memorials,” as Congress calls them, have over the years varied widely in format and verbiage. While most state applications have specified what amendment or amendments were desired, such as a balanced budget amendment, some have merely stated displeasure with certain federal policy. Some memorials proposed the exact wording of the amendment itself.
Congress maintains no official tally of the applications received although it appears that each memorial was recorded in the Congressional Record upon receipt. As Friends of the Article V Convention (FOAVC) notes: “Congress has failed miserably (most likely by design) at its duty to track and keep a count of all Article V Convention applications.” Perhaps in response, the House of Representatives Judiciary Committee began posting memorials dating back to 1960; this is a start. FOAVC has searched the 200+ years of the Congressional Record and compiled evidence that more than 500 applications for Article V conventions have been received by the Congress; Hawaii’s application earlier this year (regarding overturning Citizens United) makes it at least one from every state, yet Congress has never called for a convention. Why?
The leadership of the Convention of States Project (COSP), an initiative of Citizens for Self-Governance, believes that no convention has yet been called because Congress believes the applications so far received are so varied in scope that it can be claimed they have not received applications for the same convention from the requisite 2/3 of the states. COSP proposes a remedy for this, which we will discuss in a moment.
If you examine the list of applications compiled by FOAVC, sorted by subject of the application, one thing stands out: the states have indeed requested a wide variety of amendments, and even within a single subject area, a Balanced Budget Amendment for instance, wording of the applications has varied widely.It is important to note that on more than one occasion in our history, as the number of received applications neared the threshold that would have required a convention be called, Congress instead drafted and sent to the states for ratification the particular amendment that had been requested. Examples include an amendment to change the selection process for Senators, which became the 17th Amendment, and an amendment to lower the national voting age to 18, which became the 26th Amendment. While Congress has never explained why they forwarded the requested amendment instead of waiting for the threshold for a convention to be reached, the reason should be obvious: amendments which would serve to reduce the enormous power enjoyed by Congress are likely to be proposed in convention, and almost surely to be ratified.
To force Congress to act, COSP began an initiative to have at least 34 state legislatures apply for a convention using precisely the same language; not requesting a convention for drafting a specific amendment, but rather for the purpose of drafting amendments which satisfy at least one of three different criteria. Their model application reads:
The legislature of the State of______ hereby applies to Congress, under the provisions of Article V of the Constitution of the United States, for the calling of a convention of the states limited to proposing amendments to the Constitution of the United States that impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.
If Congress were to receive 33 identically-worded applications following the COSP example, with a 34th not far off, what amendment could Congress draft and send to the states that would satisfy the intent of the applications and forestall a convention? Since no specific amendment is requested in such an application, no specific amendment could satisfy the request. Besides, is Congress likely to actually propose an amendment that reduces its power? Congress has not proposed an amendment since 1971. Waiting on Congress is like waiting for Godot.
The potential for Congress to refuse to issue a call for the convention presents us with a constitutional “decision point.” If Congress refuses to call a Convention after receiving 34 identical applications, what next? Either the states would sue Congress in order to get a federal court, perhaps the Supreme Court to order Congressional action, or the states could convene on their own initiative using their residual sovereign authority (see Amendment X). As of this writing, twelve of the required 34 states have submitted a COSP-compliant application and other state legislatures are considering doing so.
Applications for an amendment convention (in addition to a new constitutional convention) began soon after the first Congress took its seats, with Virginia being the first to apply, on May 5th, 1789. Although an insufficient number of states joined Virginia to require a convention, Congress reluctantly agreed to Representative James Madison’s suggestion for amendments that would eventually become our Bill of Rights.
Madison had been rightfully concerned at the idea of a second constitutional convention so soon after the “Grand Convention.” Such a convention would serve to undermine confidence in the new document before it could even prove itself: “Those who have opposed the Constitution” he wrote Jefferson in December 1788,”are … zealous for a second Convention …” The prior month he had told George Turberville that he “should tremble for the result of” another “general Convention, as suggested by New York”(emphasis added). Madison feared a new general convention would “be composed of men [referring to ardent Anti-federalists] who will essentially mutilate the system.”Madison’s reluctance to support a second convention so soon after the first is often cited by opponents of an Article V Convention, but without the context that Madison was responding to New York’s request for a general convention to rewrite the entire document. It is also routinely omitted (and found in the same letter) that Madison believed the Constitution was “not a faultless work,” that “there are amendments wch. I wished it to have received before it issued.” Yes, the Constitution needed fixing, but better at that time to let Congress do the work, which Madison proceeded to do amid much opposition.
The Call. Once Congress receives 34 identical applications, the Constitution requires they issue a call for the convention. As with the application, the Constitution provides no guidance on what constitutes a “call.” Using the founding period as the example, Congress would invite the states to send representatives to a convention that would meet on a certain date at a certain location. That is all that is “necessary and proper” in a call for a convention.
Speaking of “necessary and proper,” opponents of a convention insist that Congress will attempt to control other aspects of the convention beyond setting the time and place, such as who shall attend and how the convention will operate, including what method will be used for voting on proposed amendments. They believe Congress will justify this action with the Necessary and Proper Clause. Indeed, as this Congressional Research Service Report points out, bills purporting to control these and other aspects of a convention have been introduced 41 times in Congress and have 41 times failed, almost always dying in committee. Federal Courts have ruled that the Necessary and Proper clause applies to Congress’ legislative powers. Calling a convention is not a legislative (i.e., a law making) act but rather an administrative or ministerial one.
Were the call of a convention a legislative action of the Congress, the call would have to be forwarded to the President for approval or veto. Neither Article V nor Article II provides the President any role whatsoever in the amendment process, certainly not the opportunity to veto either a proposed amendment or a convention call.
Of course, knowledge of the Constitution has never been Congress’ strong suit, so it is not surprising that, over the years, some in Congress have attempted, unsuccessfully, to control something they have no authority to control. Congress’ authority is analogous to the relationship between a corporate executive and his secretary. While the latter has authority to manage the calendar, only the former can make business decisions. In this case, the states are the executive, while Congress acts as the secretary.
The threat of Congress imposing proportional voting on a convention has also been used to invoke fear that liberals will somehow overwhelm conservatives in a convention and propose progressive amendments. We will deal with this threat in the next essay. For a more detailed explanation of why the Necessary and Proper Clause is not pertinent to a convention call see here. Of course, we should consider the possibility that Congress might somehow gather enough support to pass a resolution which places arduous restrictions on a convention. That threat will also be discussed in the next essay.
In sum, the states apply for “a convention for proposing amendments,” as the Constitution calls it. Congress must call such a convention when they receive 34 state applications. They have never done so despite receiving well in excess of the minimum number of applications. So to provide Congress with no alibi, COSP proposes presenting them with 34 identically-worded applications. Calling a convention would necessarily and properly require setting the time and place; that’s all that is required. The rest, as we shall see in the next essay, is up to the states.
 The Constitution is silent on this point, but precedent would suggest that the convention send proposed amendments to Congress so that Congress, in forwarding them to the states, may exercise its option of choosing the mode of ratification.
 For what claims to be as complete as list as is possible under the circumstances, gleaned from the Congressional Record, see http://www.foavc.org/01page/Amendments/index.htm.
 There seems to be evidence that, In the case of the 17th Amendment, applications were indeed received from 2/3 of the states, which should have resulted in a convention call.
 New York had requested a second convention in February 1789.
Editor’s Note. An Article V Convention has strong proponents and opponents locally and across America, including within conservative circles. Smart, well-intentioned people disagree on such a convention. The Fairfax Free Citizen welcomes both pro and con articles and comments about it. An open and insightful exchange of ideas about a possible Article V Convention will help inform readers and may contribute to building a consensus on this controversial subject.