By David Dietrich
Part 5: Congress versus a ConventionIn Part 4 of our series we anticipated addressing the arguments of the nay-sayers and demonstrating why they are wrong to suggest, in effect, that we ignore this vital part of our Constitution. While we intend to present that essay shortly, we decided to take a slight detour at this time, instead making clear the distinction between the Article V authorities of Congress and a Convention.
In our friendly debate on the Article V question on 22 December on WFYL Radio, Pastor David Whitney, Senior Instructor at the Institute on the Constitution, insisted that an Article V Convention will become a “plenipotentiary convention” empowered to not just amend the Constitution but replace it as well; ostensibly following the precedent set by the 1787 Philadelphia convention. Does this charge stand up to logic and reason? Let’s see.
We all know the familiar story: in 1787, in the waning days of the convention, it was noted that only Congress had been given the authority to propose amendments to the Constitution. George Mason, of “let’s have a Bill of Rights” fame, pointed out the possibility that Congress might refuse to draft and forward amendments that were truly needed. What then? There should be a way for the states to also propose amendments. As resolved by Edmund Randolph (13), “provision ought to be made for the amendment of the Articles of Union, whensoever it shall seem necessary; and that the assent of the National Legislature ought not to be required thereto.” Thus was born the “Article V Convention.”
It should be clear from the outset that this second method of proposing amendments was intended to be equivalent to the power given Congress; a single method could result in a bottleneck; a second, equivalent method could bypass the bottleneck. As regards the proposing of amendments, neither Congress nor the states were intended to have more power than the other. There were two exceptions: Congress was given responsibility to call a convention and it was given authority to propose the method by which an amendment was to be ratified, whether by the state legislatures or by conventions in the several states convened for that purpose. But in all other respects, the two methods of proposing amendments were to be equivalent, a conclusion reached not only from the words of Article V, but also from the plain reading of the historical record. With that in mind, let’s first examine the way Congress employs this power.
Every day Congress is in session, any Senator or Representative may propose a constitutional amendment, and they have done so many times over the years. To prepare for this eventuality, rules for the handling of proposed amendments have been established by each house of Congress. The proposed amendment will be sent to a committee, normally the chamber’s Judiciary Committee, for initial consideration. The committee chair will then determine if and when the measure should be placed on the committee’s calendar for discussion. If the committee chair deems the amendment to be necessary and timely, it will receive a hearing, perhaps with outside experts or even the public testifying in support of or in opposition to the proposed amendment. The committee members will then vote on whether to send the proposed amendment to a floor vote of the entire chamber. If the proposed amendment receives the support of 2/3 of the members of each house, the amendment will be sent to the states for ratification, whereupon it must receive support of ¾ of the states to become part of the Constitution.
It is important to note that Article V provides Congress the power to sit, daily, as an “amendments convention.” Any legislative day, amendments may be proposed, discussed, put to a vote, and sent to the states for ratification. But the words in Article V also define the limits of Congress’ authority over the Constitution; Congress has no authority to even propose a new Constitution, let alone put one into effect.
In any discussion of Article V authorities, broader constitutional authorities must also be considered. First, regarding Congress, internal guidance (i.e., non-legislative, administrative) is found in Article I, Section 5, Paragraph 2: “Each House may determine the rules of its proceedings.” This means that Congress is authorized to establish rules necessary to propose (within Congress) and process internally proposed Amendments at any time.
In addition, Article I, Section 8, Last Clause, establishes external authority (i.e., legislative) in United States Code: “To make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” However, since proposing Amendments is not a legislative act, the “Necessary and Proper Clause” does not apply to Article V action. Therefore, this also precludes the President’s (or governors’, for that matter) involvement in the process. This means that with respect to Article V, Congress has only ministerial power over its authorities to “propose Amendments,” and “propose mode of ratification.”
With respect to an Article V Convention, a similar process will occur. As does Congress, the Convention will set its own rules of procedure. A Convention is not empowered to set rules for Congress, any more than Congress is empowered to set rules for the convention. Although Congress “calls” the convention, it is staffed by and operates as an extension of the states. Contrary to what opponents of this option claim, Congress’ “calling a Convention” is merely a formality, an obligation, a duty. It is mandated, as any definition of “shall” indicates, and includes no further authority or action. Congress must simply do this and no more.At the Convention, constitutional amendments will be proposed by delegates and/or sub-committees and sent to a committee for consideration. Amendments receiving majority support of the committee will be sent to the chairman of the convention to be voted on by the entire convention. Those amendments receiving majority support of the convention (supported by at least 26 of the 50 states) will be sent to Congress to allow that body to propose the ratification method, should they so choose (proposing the ratification method is optional: Congress “may” do so. If Congress chooses not to exercise this option, the choice of ratification method would be left to the states).
Congressmen may propose whatever amendments they feel are necessary; they operate under no constraints in that regard. They take an oath to preserve, protect, and defend the Constitution, to be sure, but this oath in no way limits the number or scope of amendments a Congressman may propose or vote upon. Not so with delegates to a convention. Delegates represent their state legislatures, the citizens of the state only indirectly. State legislatures will empower their delegates, as was done in every interstate convention during the founding period, with commissions that the delegate will submit for inspection upon arrival at the convention.
Commissions serve two purposes: they first authenticate that the delegate represents a certain state, and second, they are used to limit the authority under which the delegate operates. For example, commissions may limit the delegate to considering only a single amendment, a range of amendments, or they may place no limits on the delegate, however the state legislature chooses. Delegates will generally be required to take an oath to operate only within the authority of their commissions. To illustrate this point, in 1945 and 1956, Virginia held conventions to consider single amendments to the state constitution. In both cases the conventions delivered the single amendment authorized.
Any discussion of Article V should not ignore how the third branch of the federal government, the Supreme Court, asserts its power. According to their own website:
The Court is the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.
What does this mean? First, it means that the Supreme Court both produces and “ratifies” its own laws, with little to no recourse by the People. And the term, “ratifies,” was not chosen here lightly. Every new Supreme Court decision is, in effect, another Amendment to the Constitution. This is why a new Congressman, wishing to know the meaning of a clause in the Constitution, is instructed to consult the U.S. Constitution, Analysis and Interpretation, aka Constitution Annotated. If nothing else, it means that any serious Amendment V jurisdictional dispute will be considered by the Court.
So what has the Supreme Court said with respect to Article V? As can be seen in the Constitution Annotated, there is really only one case to date that brings a “ruling” into consideration. In Dillon v. Gloss, the Court upheld Congress’s power to prescribe time limitations for state ratifications. Nowhere in Article V, or elsewhere, is Congress provided this authority; in effect, the Court amended Article V to include this authority. No other definitive authority has been established by the Supreme Court with respect to Article V. As it turns out, Article V is one of the least adjudicated Articles of the U.S. Constitution.
In summary, a plain reading of the historical record indicates that the 1787 Convention intended to establish two roughly equivalent processes for proposing constitutional amendments: one for Congress and one for the States in Convention. To suggest that either body will enjoy significantly more power than the other distorts the historical record. Neither Congress nor a Convention is empowered by Article V to change the Constitution or propose an entirely new Constitution.To be sure, The People may at any time call for a true Constitutional Convention for the purposes of drafting a new Constitution. Both Amendment X and the Declaration of Independence confirm the natural right of the people “to alter or to abolish [their Government], and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” But to suggest that a “Convention for proposing Amendments” convened under Article V will somehow turn itself into a “Convention for drafting a new Constitution” is to suggest that Congress may similarly convene itself, tomorrow, to propose a new Constitution. The People, therefore, have delegated such power to neither Congress nor an Article V Convention.
At this point, naysayers point to the 1787 Convention, which proceeded to draft an entirely new Constitution instead of merely revising the Articles of Confederation. There are significant differences between 1787 and today. The 1787 convention was not convened under the authority of Article V (since it did not exist); instead, it was convened under the residual sovereign authority of the states themselves, with Congress’ belated endorsement.
In 1787, the first seven states followed the example set by Virginia in authorizing their delegates to “render the Foederal Constitution adequate to the exigencies (needs) of the Union.” Even Congress adopted a slightly modified version of this wording in their endorsement, in addition to expressing their desire that the Articles only be revised. The diametrically opposed responses of the New York and Massachusetts delegations, when it became clear that the convention had embraced replacement instead of revision of the Articles, reveals that the wording of the commissions could be interpreted to both prohibit (New York’s interpretation) or allow (Massachusetts’ interpretation) the action the convention took, which demonstrates the importance of precisely worded commissions. In today’s hyper-sensitive atmosphere that the “longest continuously-operating Constitution in the world” should be retained, tomorrow’s delegate commissions are certain to be carefully worded.
We have heard no one express fear that Congress is about to propose an entirely new Constitution for the United States or force such into operation without the consent of the American people. In the same light, we should not yield to those who try to spread fear that an Article V Convention presents more risk than does Congress, daily, to the United States Constitution, “the most wonderful work ever struck off at a given time by the brain and purpose of man.” Let us reject hysteria and settle down to the hard work of reversing the federal overreach we all know threatens our constitutional republic. We must accept the entire Constitution as written, and leverage its every provision to complete the hard task ahead. We should not limit the tools at our disposal based on unwarranted fear.
 James Madison’s notes, Article V Committee, 29 May 1787: http://www.nhccs.org/dfc-0529.txt
 US Constitution, Article I, Section 5: https://usconstitution.net/xconst_A1Sec5.html
 US Constitution, Article I, Section 8: https://usconstitution.net/xconst_A1Sec8.html
 As this Congressional Research Service Report notes, Congress has indeed tried on several occasions to establish rules for a convention (this would not be the first time Congress has exceeded its enumerated powers), but each time the measure failed, often accompanied by charges of unconstitutionality. For more reasons why the Necessary and Proper Clause does not empower Congress to set rules for a Convention, see here.
 US Supreme Court and Constitutional Interpretation: https://www.supremecourt.gov/about/constitutional.aspx
 Constitution of the United States of America: Analysis and Interpretation: https://www.congress.gov/constitution-annotated
 Dillon v. Gloss: https://cases.laws.com/dillon-v-gloss
 US Constitution, Amendment X: https://usconstitution.net/xconst_Am10.html
 Declaration of Independence: https://www.archives.gov/founding-docs/declaration-transcript
 British statesman William Gladstone, Meaning of the Constitution: http://www.heritage.org/constitution#!/introessays/1
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.