How past American conventions inspired the Constitution’s ‘Convention for proposing Amendments’
My own assessment is that there is a significant chance that an amendments convention will meet within the next few years. I am not alone in so concluding: Many political leaders agree. In fact, several organizations of state lawmakers are actively planning for a convention.
Because such a “Convention for proposing Amendments” has never been held, many writers have posed questions about its composition, how its members would be selected, what its procedures would be and how much power it would have. This series of postings answers those questions and several others as well.
There are six installments in the series. This Part I thumbnails the historical background against which the framers drafted Article V. Part II examines the drafting and ratification of Article V’s convention language. Part III surveys its history from the time of the founding to the middle of the 19th and 20th centuries. Part IV summarizes the main holdings of Article V case law. Part V addresses misconceptions about the convention process that have entered popular mythology. Part VI predicts how the process will unfold when the first set of state applications passes the critical threshold.
Article V of the Constitution delineates the amendment process. To become part of the Constitution, an amendment must be ratified by legislatures or by conventions in three-fourths of the states — that is, by 38 of 50. Congress chooses whether ratification will be by state conventions, as in the case of the 21st Amendment (repealing Prohibition), or by state legislatures (as in the case of all other amendments).
Before being considered for ratification, the amendment first must be proposed. There are only two vehicles for proposing: (1) Congress and (2) a “Convention for proposing Amendments.” To date, all proposed amendments have come from Congress. As noted above, that may change within the next few years.
In traditional Anglo-American political usage, a “convention” is an assembly, other than a legislature, convened to address short-term political problems. The assembly that restored the English monarchy after a failed experiment in republicanism was styled a “convention parliament” (1660). So also was the assembly that invited William of Orange and his wife, Mary Stuart, to assume the throne after the ouster of James II (1688-89).
In America, conventions traditionally fall into one of two categories. The first category consists of those that address issues within particular polities — that is, within individual colonies or states. Their membership generally is elected directly by the people or by subdivisions within the polity, such as towns or counties. Immediately preceding the Revolutionary War, such conventions assumed the governance of the colonies and some of them wrote new state constitutions. Other specimens within this category are the state conventions that ratified the Constitution and the 21st Amendment as well as modern state constitutional conventions.
The second category of American conventions consists of multi-government gatherings charged with addressing interstate issues. Before the creation of the Second Continental Congress, this kind of meeting was referred to by the word “congress” as well as “convention.” After “congress” became associated with the national legislature, interstate gatherings usually were called committees of states or conventions of states. The founders envisioned the “Convention for proposing Amendments” as one kind of convention of states.
A convention of states is a diplomatic meeting among equal semi-sovereigns. If the states invited are all in one region of the country, the gathering is a partial or regional convention. If states are invited from all regions, it is a general convention. Regional and general conventions traditionally have followed the same protocols, originally based on international practice.
The first American convention met in 1689 to oversee dissolution of James II’s hated “Dominion of New England.” Multi-government conventions soon became popular for addressing inter-colonial problems: Between 1689 and 1776, there were at least 20 of them. Benjamin Franklin represented Pennsylvania at one, and in his capacity as a printer he reproduced the minutes of several.
Before independence, the usual reasons for a multi-colony convention were to coordinate continental defense or to negotiate treaties with Indian tribes. Perhaps the most famous example before the Revolutionary Era was the Albany Congress of 1754, a general convention attended by seven or eight colonies (depending on how one counts) and by the Iroquois nations.
In 1765, the nine-colony convention known as the Stamp Act Congress convened, and in 1774 the 12-colony First Continental Congress met, both to coordinate common responses to British policy.
After independence, resort to the convention device accelerated. At least 11 met between 1776 and 1787. Their agendas included military supply and strategy, price inflation, trade and constitutional reform.
These conclaves included regional gatherings in Providence, R.I. (twice); Hartford, Conn. (twice); New Haven, Conn.; Yorktown, Pa.; and Springfield and Boston, Mass. They also included a general convention in Annapolis and two in Philadelphia. In addition, there were several unsuccessful calls: The Continental Congress called for conventions in Fredericksburg, Va., and Charleston, S.C. Massachusetts called for a meeting of New York and the New England states in Hartford. In 1786, the Chesapeake Bay states agreed to meet, but events outstripped their agenda.
In all, the century before adoption of the Constitution witnessed at least 30 multi-government conventions — an average of better than one every four years. Today some people assume the Constitutional Convention was a unique event. But it had at least 30 predecessors. Many of the Constitution’s framers were veterans of prior interstate gatherings. For Roger Sherman of Connecticut, the Constitutional Convention was his fifth time around.
By 1787, the protocols for interstate conventions had become standardized and generally accepted and understood. The procedure began when Congress, a prior convention, or (most commonly) a state drafted a document referred to as a “call” or “application.” This document specified the time and place of initial meeting and the subject matter. The sponsor directed the call or application to the states it wished to invite. The scope of the call might be, although usually was not, the subject of preliminary negotiation among the states concerned.
The legislature of each invited state determined whether to participate. If it decided to do so, the legislature determined how its representatives (“commissioners”) were to be appointed. Usually, the legislature elected them itself, and they were commissioned according to local state norms. The legislature or its designee also instructed them.
Upon convening, the group elected officers and adopted rules. Although participants occasionally flirted with other suffrage schemes, ultimately every convention seems to have retained the rule of “one state/one vote.” This formula reflected the participating governments’ status as co-equal semi-sovereignties.
Today we might call a multi-state convention a “task force” — a group assigned one or more problems and commissioned to find solutions. In convention practice, the problems are identified in the call. During the Founding Era, the call could invite the states to proceed by “pledging their faith,” by which all states agreed to be bound by the convention’s resolutions. More often, the call asked only for recommendations subject to state approval.
The authority of a convention of states (or colonies) always has been limited to the scope of the call. State instructions to commissioners might effectively circumscribe it further. When the 1754 Albany Congress arguably exceeded its call by proposing a continental “Plan of Union,” most colonies rejected the plan without considering its merits. For reasons I have explained elsewhere, the common claim that the 1787 Constitutional Convention exceeded its call is substantially erroneous.
How the Founders inserted the amendments convention into the Constitution
The Constitution’s first draft, reported to the convention by the Committee of Detail on August 6, 1787, specified that amendments would be proposed, and presumably ratified, by a convention called by Congress on the application of two-thirds of the states. Thus, in the framers’ deliberations, proposal by interstate convention preceded the decision to allow proposal by Congress.
During the ensuing discussion, the convention accepted a motion by Elbridge Gerry that amendments be subject to state ratification and a suggestion by Alexander Hamilton that Congress be allowed to propose. The result was a draft that (1) omitted the convention, (2) allowed Congress to propose sua sponte, and (3) required Congress to draft an amendment demanded by two-thirds of the states.
George Mason of Virginia was dissatisfied. He argued that the draft’s language would enable Congress to block any amendment to correct federal abuse. Without dissent the convention altered the language to provide that a convention rather than Congress draft state-initiated amendments.
Article V does not expressly define the composition of an amendments convention. James Madison (whose draft of Article V Mason’s motion altered) initially questioned how it would be constituted. This has led some to suggest that its composition is a mystery or that the Constitution leaves the composition for Congress to determine.
No one who fairly examines the historical record can doubt, however, that the final understanding was that an amendments convention would be constituted as a convention of the states. This is nearly as clear as anything in history ever is. There are several reasons for so concluding.
First, the only model of an interstate convention known to the Founders was the “convention of the states” model. Second, statements made during the ratification debates — by, among others, Hamilton, Tench Coxe, George Washington and Madison himself — reveal the assumption that the convention was to be a creature of the states. Third, the initial Article V application, submitted by Virginia in 1788, explicitly identified the gathering as a “convention of the states.” Fourth, various legislative resolutions and other legislative documents issued during the Founding Era in New York, Pennsylvania and Rhode Island specifically referred to an amendments convention as a convention of the states. A few decades later, the Supreme Court confirmed this designation.
So why did Article V not specify the convention’s composition? Because there was no need to. The framers’ method was not to recite in the Constitution matters that everyone knew. Their method was to focus on issues that might otherwise be in doubt. Everyone knew that an interstate convention was made up of commissioners in delegations (“committees”) from the several states; that the states were equal with respect to suffrage; that state legislatures determined how commissioners were selected and instructed them; that the call could be broad or narrow; and that the convention’s authority was limited to the scope of the call.
Article V did, however, address issues that existing practice had not resolved or could not resolve. They were as follows:
- What was an “application,” and what was a “call?” During the Founding Era, either of those terms could designate the formal invitation to meet. Article V determined that the former referred to a state legislature’s demand for a convention and the latter to the formal invitation.
- When would a call issue? Article V required a call when two-thirds of the states applied for (demanded) it.
- What was the calling agency? During the Founding Era, interstate meetings could be called by Congress, by prior conventions or by individual states. Article V determined that the calling agency for an amendments convention would be Congress.
- Could this convention adopt amendments, or would it merely propose? Article V determined that this convention would propose only, and that proposals would be subject to state ratification or rejection.
One way the balance was achieved was allowing both the national legislature and the states (by convention) to propose amendments. Another was by offsetting supermajority requirements. For example, the states may consider an amendment informally at any time, but they may not initiate official consideration unless two-thirds agree. Congress, on the other hand, may consider an amendment by a simple majority, or merely by a member introducing a resolution. Offsetting this seeming asymmetry is another: A convention of the states may propose by a simple majority, but Congress may do so only with the agreement of two-thirds.
Article V’s convention language was discussed during the ratification debates. When the Constitution’s opponents argued that the new federal government might overreach or abuse its powers, its advocates countered that the states could respond by adopting appropriate amendments. New York lawmaker and ratifier Samuel Jones pointed out that:
[It] could not be known to the framers of the constitution, whether there was too much power given by it or too little; they therefore prescribed a mode by which Congress might procure more, if in the operation of the government it was found necessary; and they prescribed for the states a mode of restraining the powers of the government, if upon trial it should be found they had given too much.Similarly, Tench Coxe reassured his wide readership that
two thirds of the states can always procure a general convention for the purpose of amending the constitution, and that three fourths of them can introduce those amendments into the constitution, although the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them.Without the reassuring effect of the Article V convention process, ratification might not have occurred.
How the states have used conventions and the amendment process to promote reform
In 1788 and 1789, Virginia and New York filed applications for a convention to consider amendments to the new Constitution. Those applications enabled congressional advocates of a bill of rights to argue that if Congress did not propose a bill, the states might call a proposing convention.
Efforts by some Southern states to force a convention during the nullification controversy (1828-33) never gained much traction. Similarly, a convention of the New England states in Hartford (1814) and one of the Southern states in Nashville (1850) had little effect other than keeping the convention tradition alive. But a coordinated application campaign beginning at the end of the 19th century for an amendment transferring election of U.S. senators from the state legislatures to the people was much more successful. The campaign was only one or two states short when, in 1912, the formerly recalcitrant Senate, faced with the prospect of a federal convention, agreed with the House to propose the 17th amendment.
Early in the 20th century, Western states watered by the Colorado River became alarmed that Congress might impose water use rules on the stream. Accordingly, in 1922 they met in convention (although the gathering was called a “commission”) to negotiate their own settlement. The result of the meetings, most of which were held in Santa Fe, N.M., was the Colorado River Compact.
The 20th century witnessed other interstate meetings that, while not rising to the level of formal conventions, shared certain commonalities with them. In mid-century, an application campaign begun by Montana and some Midwestern states encouraged Congress to propose the 22nd amendment, which limited the president to two terms.
Perhaps the most instructive proceedings during the century and a half after the Constitution’s ratification were those involving the Washington Conference Convention of 1861 — informally known as the Washington Peace Conference. This conclave arose out of concerns that extremists on both sides were pushing the nation toward Civil War. Moderates thought the constitutional amendment process might be used to reconcile North and South. Among them was Sen. John J. Crittenden of Kentucky, who drafted a compromise that would have reassured the South by protecting slavery where it existed and allowing a limited expansion, while reassuring the North by barring “the peculiar institution” from most U.S. territories.
There was, however, no hope of the highly polarized Congress adopting such a proposal. Accordingly, in late 1860 and early 1861, both the outgoing president, James Buchanan, and his successor, Abraham Lincoln, urged the states to apply for an Article V convention. Some states applied, but progress was too slow. In January 1861, therefore, in a last-ditch effort to save the union, the Commonwealth of Virginia called a convention of states for Feb. 4 in Washington to consider an amendment similar to that advanced by Crittenden. The urgency was heightened when on the same date six Southern states also convened in Montgomery, Ala., to finalize plans for a new Confederacy. The Montgomery convention, soon joined by a seventh state, Texas, followed all the traditional protocols for meetings of that type.
The promoters of the Washington conclave recognized that it would not have Article V powers, but they hoped that if it did reach agreement, the political pressure on Congress would be sufficient to induce it to respond in kind.
The Washington Conference Convention met for three weeks. Its attendance of 21 states represented the overwhelming majority of non-seceding states and marks it as the largest general convention in American history. It elected former president John Tyler of Virginia as its presiding officer, and like the assembly at Montgomery, adhered closely to the traditional protocols. It adopted a set of rules similar to those that had governed the Constitutional Convention.
The Washington Convention had been called on very short notice, and bitter national divisions rendered the sessions very hard-fought. Nevertheless, by time of adjournment the assembly had recommended an amendment that looked much like the one proposed by Crittenden. That amendment, if adopted, may well have prevented the Civil War; and because it limited the expansion of slavery to territories not well suited for it, the amendment may have placed the “peculiar institution” on track toward extinction.
Congress did not act on the recommendation of the Washington Convention, so that recommendation did not abort the Civil War. When considered as an independent proceeding, however, the convention was a success. Despite almost insuperable difficulties, it did not deadlock or shatter in acrimony, but produced a workable compromise. Furthermore, the Washington Conference Convention served as a rehearsal for an Article V convention.
How the judiciary’s decisions shed light on the federal amendments convention
Within this nook of constitutional law, the courts have followed certain rules and principles with remarkable consistency. Thus, even though no judicial decision has arisen out of an actual amendments convention, the case law offers useful guidance as to the nature of such a convention and its protocols. This post draws on my treatise, “State Initiation of Constitutional Amendments: A Guide for Lawyers and Legislative Drafters,” in summarizing this case law.
Perhaps the most important lesson from the accumulated cases is that when interpreting the language of Article V, the courts follow historical practices and understandings. The words of Article V are to be construed as the Founders understood them. Moreover, procedures employed in adopting earlier amendments are followed for later amendments.
The courts construe Article V as a list of enumerated powers. Article V confers these powers on named assemblies, both pre-existing and ad hoc. They include Congress, the state legislatures, proposal conventions and ratifying conventions. No assembly has any power over the amendment process except that granted, expressly or impliedly, by the Constitution. The 10th Amendment’s recognition of reserved state powers is inapplicable to Article V.
Article V bestows its authority on named assemblies per se, not on any government or branch of government. Thus, the Supreme Court has held that Article V grants power to propose amendments to the assembly called “Congress,” not to the federal government or the national legislature as such. Similarly, Article V grants power to apply and ratify to state legislatures as independent assemblies, not to state governments or to the state legislative authorities. Article V further bestows power on ad hoc bodies (conventions) that are not departments of any government. When an assembly wields authority derived from Article V, it is said to exercise a “federal function.”
There are analogues elsewhere in the Constitution. Article II confers a federal function to the Electoral College, an entity the Supreme Court has held is not a branch of government. The Guarantee Clause of Article IV devolves federal functions on state legislatures and governors. Article I similarly devolves federal functions on state legislatures and officials, sometimes as governmental entities and sometimes not.
Each entity empowered by Article V is, of course, subject to the express limitations in the Constitution. For example, a federal amendments convention is limited to “proposing” and may not change the ratification rules or ratify its own proposals. Judicial respect for historical practice provides other guidance. For example, conventions of states always have been subject to the limits imposed by their calls and by legislative authority, so it follows that a convention may not propose amendments outside the scope of the state applications and congressional call.
Within its prescribed scope, each assembly is free to exercise the discretion an assembly of that kind historically has enjoyed. Hence, the courts hold that it is improper for a voter initiative to attempt to force a member of Congress to propose a particular amendment or a state legislature to apply or to ratify. Similarly, it would be improper for an applying state legislature to try to turn a proposing convention into a ratifying convention by limiting it to an up-or-down vote on predetermined wording. (This last conclusion is controversial in some quarters, but I believe it is unavoidable.)
Because legislatures operating under Article V act only as resolving assemblies and not as lawmakers per se, executive participation (signing or vetoing) is not appropriate.
As noted in Part I, the Supreme Court has recognized (in accordance with nearly unanimous Founding-Era authority) that a convention for proposing amendments is a “convention of the states.” As also explained in Part I, “convention of the states” is a term with clear and longstanding content. Several rules follow:
- A convention for proposing amendments is a diplomatic meeting among “committees” of state “commissioners” on the basis of semi-sovereign equality, with an initial one state/one vote suffrage rule.
- Each state committee is selected and commissioned as its state legislature determines — probably by legislative resolution rather than by pre-existing state law. State legislatures usually reserve the right to select their own commissioners, but they may delegate it to the governor or to the electorate, or they may adopt a nomination-and-confirmation approach.
- Each state committee, no matter how selected, is subject to legislative instruction. Although the state legislature may not, in its applying capacity, attempt to micromanage the convention, in its supervisory capacity it may instruct its own committee. The difference can be justified in this way: The convention should arrive at its conclusions through negotiation. To lay down immutable conditions on the call is to forestall negotiations. However, instructions issued after the call are alterable. In practice, they assure that negotiations include the authorities back home and that the state legislatures enjoy a co-equal position with Congress in the proposal procedure.
- The scope of the congressional call is limited to the traditional incidents of calls for interstate conventions. It may set the initial time and location and specify the applied-for subject matter; but may not dictate selection procedures, or convention rules or other matters to the states or to the convention.
- The Necessary and Proper Clause does not empower Congress to regulate the convention. There are several reasons for so concluding: (1) Allowing Congress to do so would be inconsistent with the Constitution’s goal of providing a way to bypass Congress; (2) the Necessary and Proper Clause is but a statement of incidental powers, which in a call for an interstate convention are limited to time, place and subject; and (3) the Necessary and Proper Clause, by its terms, applies only to “foregoing Powers” and those vested either in the U.S. “Government” and in “any Department or Officer thereof” — a description that does not pertain to assemblies acting under Article V.
- The convention drafts its own rules and elects its own officers.
As a general proposition, the congressional duty to call is ministerial in nature: The Constitution provides that when 34 states have demanded a convention on a particular topic, Congress “shall call” it. In the 1960s, some members of Congress stated flatly that, despite what the Constitution said, they would never vote to call a convention. Other opponents, such as Professor Charles Black, contended that Congress should load the call with controlling terms and conditions. History and precedent suggests that the courts will not respond favorably to such tactics.
However, even ministerial duties may require a threshold exercise of discretion. For example, some applications, especially older ones, purport to restrict the convention to an amendment with prescribed wording. Congress will have to determine whether those applications are void or, if valid, the extent to which they can be aggregated with more inclusive applications covering the same general subject. Although the judiciary has firmly rejected suggestions that Congress is omnipotent in regulating the amendment process, the courts likely will defer to reasonable, good-faith exercises of discretion.
How the ‘Convention for proposing Amendments’ became the subject of popular mythology
By the mid-20th century, this understanding had been lost. A succession of authors, some otherwise quite distinguished, publicly displayed their unfamiliarity with the subject.
During the 1960s, the Council of State Governments, unhappy with the legislative reapportionment decisions of the Earl Warren Supreme Court, promoted a trio of corrective amendments. More than 30 states adopted applications for one or more of them. During the 1970s, concern about federal spending induced many state legislatures to apply for a convention to consider a balanced-budget amendment. Many scholars, politicians and activists on the liberal side of the political spectrum opposed all of these amendments.
Representative of their responses were articles published in 1963 and 1972 by Yale Law Professor Charles Black, a leading liberal constitutional scholar. In those articles, he excoriated the proposed amendments and a pro-convention congressional bill as a “threatened disaster” and candidly advocated a course of legal obstruction.
Black didn’t find it necessary to do much research before promoting his ideas. He apparently was unaware of the nature of the convention as a gathering of the states. He suggested that Congress disqualify any application limited to a particular subject, even though interstate conventions nearly always had been limited in scope. He argued that a limited amendments convention was unconstitutional because the Founders had referred to amendments conventions as “general” — a term that actually referred to the number of states invited, not to the subject matter. Black urged Congress to use its purported powers under the Necessary and Proper Clause to control the composition and rules, without, apparently, studying the language of the Necessary and Proper Clause. Beginning in his second article, Black labeled an amendments convention a “constitutional convention,” presumably because the latter term implied that the gathering could roam at will.
Other writers and opinion molders followed Black’s lead. Among them was Sen. Robert F. Kennedy (D.-N.Y.), who brought with him others in the Kennedy circle, such as speechwriter Theodore Sorensen and former labor secretary Arthur Goldberg. One Kennedy admirer, Richard Rovere, warned readers of the New Yorker magazine that a convention could “reinstate segregation, and even slavery; throw out all or much of the Bill of Rights . . . eliminate the Fourteenth Amendment’s due process clause and reverse any Supreme Court decision the members didn’t like, including the one-man-one-vote rule; and perhaps for good measure, eliminate the Supreme Court itself.”
These assertions are obviously untenable in light of Article V case law and precedent, but writers on the subject had not looked for much Article V law or precedent. Even friends of the process accepted some of their opponents’ claims. Sen. Sam Ervin (D.-N.C.), for example, introduced congressional legislation to curb the supposed threat of a “runaway” convention.
There were a few efforts to learn more about the process, such as an investigation commissioned by the American Bar Association. But they were under-researched, and their conclusions were unreliable. The ABA study, for example, apparently rested heavily on research by two law students.
More thorough researchers eventually began to sort things out. The work began with an opinion written by John Harmon of the U.S. Office of Legal Counsel (1979), followed nearly a decade later with Russell Caplan’s Oxford University Press book, “Constitutional Brinksmanship” (1988). Only since 2010, however, have investigations by this writer and by other scholars effectively recaptured the meaning of, and rules behind, the state application and convention process.
In the interim, notions that an Article V gathering is a “constitutional convention,” that it is inherently uncontrollable or that it could be controlled by Congress had entered popular mythology. Such views are still promoted, both by liberals who oppose restrictions on federal power and by paleo-conservatives who worry that any convention would be hijacked by the political left and would completely rewrite the Constitution.
How the procedures for a modern Amendments Convention may unfold
The subject matter for amendments submitted to a convention will depend on which of several application drives induces Congress to issue the first call.
The possibilities are complicated by the fact that some applications are vulnerable legally. For example, convention opponents have argued that applications that are “too old” are invalid or “stale” on that account. This argument was significantly weakened by adoption of the 27th amendment, in which unrepealed ratifications two centuries old were accepted as valid. More serious is the fact that many extant applications purport to limit the convention to considering only an amendment with prescribed wording. That may render them inherently invalid or inaggregable with more general applications.
The number of unrepealed applications is in the hundreds, although no one subject has attained the threshold of 34. Some are from now-abandoned campaigns, such as those for banning polygamy and repealing the 16th amendment (which dropped the apportionment requirement for the income tax). The application totals are at the website of the Article V Library.
Among the currently active campaigns, the frontrunner is the Balanced Budget Amendment Task Force, which claims applications from 27 states.
In 2014, Citzens for Self-Governance began its “Convention of States” project. Relying on grass-roots enthusiasm, it has won the endorsement of four state legislatures. All four applications closely track the form recommended by “Convention of States” activists: They would empower the convention to consider fiscal restraints on the federal government, term limits and reductions in federal power.
Also enjoying the endorsement of four states is the Wolf PAC movement, which seeks campaign finance reform. Realistically, Wolf PAC is unlikely to reach the threshold of 34. This is partly because of the conservative political composition of most state legislatures and partly because not all of its applications are fully consistent. In addition, while the general idea of campaign finance reform enjoys strong public support, most specific proposals involve granting more power to Congress. This is a tough sell at a time when the electorate is deeply dissatisfied with Congress.
Other Article V campaigns include those aiming to impose a single subject rule on Congress, a revived push for congressional term limits and the Act 2 Movement, which promotes term limits, fiscal restraints, campaign finance reform and creation of a fourth branch of government to enforce the law against the other three.
Once a campaign claims to have reached the 34-state minimum, Congress will have to determine whether the applications truly “aggregate” with each other. If the campaign is for a balanced-budget amendment, Congress may have to exercise some discretion. Although most balanced-budget applications simply demand a convention to consider the subject, three purport to limit the convention to prescribed language. Congress may have to determine whether to aggregate the two sets. Congressional discretion also may be necessary to decide whether applications that demand an unlimited convention should be included in the total.
How Congress reacts will, of course, be influenced by the then-current political environment. I have stressed to state legislators the need to communicate forcefully both to Congress and the general public the conditions under which Congress must call and the proper limits of a call. State legislative planners have responded well to this advice.
Interstate conventions held earlier in our history included commissioners who had attended prior interstate conventions. Because that sort of experience is lacking today, state legislative planning groups have sprung up to prepare: the State Legislators Article V Caucus, the Assembly of State Legislatures and the Convention of States Caucus. In addition, two trade organizations of state lawmakers, the National Conference of State Legislatures and the American Legislative Exchange Council, have presented programs on convention issues.
Necessarily, there have been some mistakes. Recently the executive committee of the Assembly of State Legislatures recommended to the general membership an impractical system of convention rules mandating supermajorities and weighted voting, and even co-presidents and co-committee chairs from opposite parties. The general membership’s firm rejection of those rules suggests that wisdom is likely to prevail over the long term, and that when a convention does meet it will have the benefit of a viable procedural template.
Earlier this year, I undertook a study of prior convention rules to ascertain their modern applicability. Here are some of my conclusions:
- Most of the rules applied at 18th- and 19th-century conventions are still viable. In fact, some these rules are echoed in modern legislative practice.
- Any set of convention rules must be supplemented by default rules. For this purpose, I recommended “Mason’s Manual,” by far the most commonly used rulebook in American state legislatures. Both the Assembly of State Legislatures and the Convention of States project have adopted this recommendation.
- The principles of one state/one vote and decision-by-simple-majority sometimes have been challenged, but ultimately every convention has retained or returned to them for most purposes.
- Although in theory a bare majority of low-population states could cause the convention to propose an unpopular amendment, modern political conditions render this highly improbable.
- Ratification is quite a different process from proposal. A proposal’s margin of victory at the convention is probably not a strong predictor of whether or not it is ratified.
- Some traditional rules will have to be modified. For example, rules barring commissioners from access to written materials will yield to the world of electronic hand-held devices. Traditional rules of secrecy will yield to modern values of transparency.
- In prior conventions, the distances between the state capital and the convention site required most legislatures to rely heavily on their commissioners’ discretion once those commissioners had received their initial instructions. Modern communications will enable commissioning authorities to exercise more influence on their representatives. On balance, this is probably a good development, since it reduces the chance of commissioners exceeding their authority, and it involves a wider group in the negotiating process.
- A modern 50-state convention probably will consist of between 200 and 250 commissioners. Some states may appoint alternates as well. Each state legislature is free to fix the size of its own “committee,” but at my suggestion most planners are contemplating convention rules that limit the number of commissioners on the floor from any state at any one time. This will reduce the incentives for states to flood the assembly, as Tennessee did at the 1850 Nashville convention.
- Some states may boycott, as Rhode Island boycotted the Constitutional Convention. Over the three-plus centuries of American multi-government conventions, none has ever attained 100 percent participation.
- Whether or not a modern convention actually proposes an amendment, and whether any such amendment is ratified, the event will provoke new public interest in our constitutional system. It may also revivify awareness of the role of the states in American federalism.
