NOTE

THEOTHERWAYTOAMENDTHECONSTITUTION:
THEARTICLEVCONSTITUTIONALCONVENTION
AMENDMENTPROCESS

I. INTRODUCTION

The Constitution specifies two different ways for amend

ments to the Constitution to be proposed. The first method
allowsCongresstoproposeamendmentswhensuchamend
ments are approved by at least a twothirds vote in both
houses.1 The States can then ratify the proposed amend
ments.Thesecondmethodislessfamiliartomostpeople,as
it has never been used. This method requires Congress to
call a constitutional convention to propose amendments
when twothirds of the States apply for such a convention.2
Manyquestionsexistabouttheuseofthisamendmentproc
ess.Maytheconventionsscopebelimitedtocertainsubject
matters?If so,whomaylimitit? Howarestateapplications
to be talliedseparately by subject matter or cumulatively,
regardless of their subject matter? What is the relevance of
the convention method of proposing amendments? Why
shoulditeverbeused?Someoftheseuncertaintiesaboutthe
conventionhavemostlikelycontributedtostatesreluctance
to use the method. Yet, as of 1993, almost 400 convention
applications had been submitted to Congress by the States
since 1789.3 This Note will attempt to explore the history of
the Convention Clause in Article V and answer some of the
questionsaboutitsuse.

1.U.S.CONST.art.V.
2.Id.
3.Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Les
sonsoftheTwentyseventhAmendment,103YALEL.J.677,764(1993).
1006 HarvardJournalofLaw&PublicPolicy [Vol.30

II. HISTORY

A. TheConstitutionalConvention
Much of the confusion about Article V comes from its am
biguouslanguage.Thisambiguityistheresultofcompromises
at the Philadelphia Convention of 1787 between groups that
wantedtoexcludethenationallegislaturefromparticipatingin
the amendment process and groups that wanted to grant the
national legislature the sole authority to amend.4 The earliest
proposal for an amendment provision, contained in the Vir
ginia Plan, stated that the assent of the National Legislature
oughtnottoberequiredtoamendtheConstitution.5Conven
tiondelegatesprivatelycirculatedaproposedconstitutionau
thoredbyAlexanderHamilton6thatgavethepowertoamend
the Constitution to the national legislature and the power of
ratification to legislatures or conventions in the States.7 The
Conventions first official action regarding the method for
amendingtheConstitutionwastoadoptResolution17,which
stated that the Constitution should contain some means for
amendment, but did not specify the particular process to be
used.8
The first reference to the use of a convention requested by
the States is found in drafts of the Constitution kept by the
CommitteeofDetail.9Afterseveralrevisions,theCommittees
final statement stated that [t]his Constitution ought to be
amendedwheneversuchAmendmentshallbecomenecessary;
andontheApplicationoftheLegislaturesoftwothirdsofthe
States in the Union, the Legislature of the United States shall
callaConventionforthatPurpose.10Hamiltonandothersar
guedthatinadditiontoStatelegislatures,Congressshouldalso
have the power to propose amendments, and the Convention
approvedtheadditionoflanguagegivingCongressthepower

4.SeeBruceM.VanSickle&LynnM.Boughey,ALawfulandPeacefulRevolution:
ArticleVandCongressPresentDutytoCallaConventionforProposingAmendments,
14HAMLINEL.REV.1,10(1990).
5.1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 22 (Max Farrand
ed.,1937)(hereinafterRECORDSOFTHEFEDERALCONVENTION).
6.3RECORDSOFTHEFEDERALCONVENTION,supranote5,at617.
7.Id.at630.
8.2RECORDSOFTHEFEDERALCONVENTION,supranote5,at84.
9.VanSickle&Boughey,supranote4,at1617.
10.2RECORDSOFTHEFEDERALCONVENTION,supranote5,at159.
No.3] ConstitutionalConventionAmendmentProcess 1007

to propose amendments.11 James Madison proposed new lan

guagethatremovedreferencetoaconventionandgavethena
tionallegislaturesoleauthoritytoproposeamendmentswhen
ever it would deem necessary, or on the application of two
thirdsoftheLegislaturesoftheseveralStates.12Thislanguage
wasadoptedbytheConvention,withnodiscussionaboutthe
eliminationofthereferencestotheuseofconventions.13
OnSeptember15,astheConventionwasreviewingtherevi
sionsmadebytheCommitteeofStyle,GeorgeMasonexpressed
opposition to the provisions limiting the power to propose
amendmentstoCongress.AccordingtotheConventionrecords,
Masonthoughtthatnoamendmentsoftheproperkindwould
ever be obtained by the people, if the Government should be
come oppressive,ashe verily believedwouldbethecase.14In
response, Gouverneur Morris and Elbridge Gerry made a mo
tiontoamendthearticletoreintroducelanguagerequiringthat
aconventionbecalledwhentwothirdsoftheStatesappliedfor
an amendment.15 Madison stated that he did not object to the
convention method, but in expressing what proved to be pro
phetic concerns, he pointed out that difficulties might arise as
to the form the convention would take.16 Morris and Gerrys
motion was unanimously adopted.17 After Roger Sherman ex
pressedconcernthattheConstitutioncouldbeamendedtotake
power away from smaller states,18 the clause stating that no
State,withoutitsconsentcouldbedeprivedofequalsuffrage
in the Senate was added.19 No further changes were made to
the text of Article V, and the final version of the Constitution
wasadopted.20ThefinaltextofArticleVreads:
The Congress, whenever two thirds of both Houses shall
deem it necessary, shall propose Amendments to this Con
stitution, or, on the Application of the Legislatures of two

11.Id.at555,55759.
12.Id.at555,559.
13.VanSickle&Boughey,supranote4,at20.
14.2RECORDSOFTHEFEDERALCONVENTION,supranote5,at629.
15.Id.
16.Seeid.at62930.
17.Id.at630.
18.Seeid.
19.Id.at631;seealsoU.S.CONST.art.V.
20.2 RECORDS OF THE FEDERAL CONVENTION, supra note 5, at 63334, 66263.
ForamoredetailedaccountofthedraftingofArticleVattheConstitutionalCon
vention,seeVanSickle&Boughey,supranote4,at724.
1008 HarvardJournalofLaw&PublicPolicy [Vol.30

thirds of the several States, shall call a Convention for pro

posingAmendments,which,ineitherCase,shallbevalidto
all Intents and Purposes, as Part of this Constitution, when
ratified by the Legislatures of three fourths of the several
States,orbyConventionsinthreefourthsthereof,astheone
or the other Mode of Ratification may be proposed by the
Congress; Provided that no Amendment which may be
made prior to the Year One thousand eight hundred and
eightshallinanyManneraffectthefirstandfourthClauses
in the Ninth Section of the first Article; and that no State,
without its Consent, shall be deprived of its equal Suffrage
intheSenate.21

B. AttemptstoUsetheConventionMethod
Althoughtheconventionmethodforproposingamendments
hasneverbeenused,thethreatofaconventionhassometimes
spurredCongresstoaction.DuringdebatesovertheConstitu
tionsratification,thethreatofasecondconstitutionalconven
tionwasakeyfactorinCongressproposingtheBillofRights.22
There have been several occasions where the number of state
applications for a convention was close to reaching the re
quired twothirds; at least once during the course of events
leading to the adoption of the Seventeenth Amendment, the
threat of a constitutional convention may have spurred Con
gress to act preemptively to propose the desired amendment
itself.23 The prospect of a convention may also have played a
role in leading Congress to propose the Twentyfirst, Twenty
second,andTwentyfifthAmendments.24

21.U.S.CONST.art.V.
22.SeeRUSSELL L. CAPLAN,CONSTITUTIONAL BRINKSMANSHIP: AMENDING THE
CONSTITUTION BY NATIONAL CONVENTION 3240, 16568 (1988) (observing that
VirginiaandNewYorksubmittedpetitionsrequestingsuchaconventionin1788
and1789,respectively).
23.SeeDwightW.Connely,AmendingtheConstitution:IsThisAnyWaytoCallfor
a Constitutional Convention?, 22 ARIZ. L. REV. 1011, 1015, 1016 n. 49 (1980); Van
Sickle & Boughey, supra note 4, at 37. But see CAPLAN, supra note 22, at 65
([T]hereremainsnoevidencethattheconventionthreatbyitselfforcedtheSen
ate to approve the [Seventeenth A]mendment. At least as influential was the
growingquotaofsenatorschosenbypopularvote.);KrisW.Kobach,Rethinking
ArticleV:TermLimitsandtheSeventeenthandNineteenthAmendments,103YALE L.J.
1971,197680(1994)(arguingthatthegrowingproportionofsenatorselectedby
popular vote was the most influential [factor] in finally winning a formal
amendmenttotheU.S.Constitution).
24.Connely,supranote23,at1016n.49.
No.3] ConstitutionalConventionAmendmentProcess 1009

In the last four decades, there have been two nearly

successfulattemptsbytheStatestocallaconvention,eachat
tempt needing applications from only one or two additional
states to reach the twothirds requirement. The first attempt
was a reaction to two Supreme Court decisions, Wesberry v.
Sanders25 and Reynolds v. Sims,26 which dealt with the appor
tionmentofvotesandvotingdistricts.Statelegislaturesbegan
to file applications with Congress requesting a convention to
address the issue of these reapportionment decisions, and the
Council of State Governments officially endorsed such an
amendment.27By1969,thirtythreestateshadsubmittedappli
cations calling for a convention to address the apportionment
issue,oneshortofthethirtyfourneeded.28Shortlyafterwards,
however, several states rescinded their applications, and the
momentum for a constitutional amendment to overturn these
SupremeCourtdecisionsdeclined.29Thereweretwolikelyrea
sonsforthefailureofthisattempttocallaconvention.First,as
the number of states that had applied approached thirtyfour,
wellpublicizedspeculationthattheconvention,oncecalledby
Congress,couldnotbelimitedtoasingleissuespreadfearof
an uncontrollable convention. Second, as states reapportioned
theirdistrictstocomplywiththeSupremeCourtdecisions,op
ponents of reapportionment realized that it did not threaten
ruralinterests,astheyhadpreviouslyfeared.30
The second nearlysuccessful attempt to call a convention
aroseoutofthestatelegislaturesdesireforabalancedbudget
amendmentinthelate1970sandearly1980s.Aswasthecase
with the Seventeenth Amendment,pressure from applications
requesting a convention led the Republicancontrolled Senate
toapproveabalancedbudgetamendmentin1982byamargin
of 69 to 31.31 The amendment, however, did not have enough
supporttopassintheDemocratcontrolledHouseofRepresen

25.376U.S.1(1964)(upholdingtheprincipleofoneperson,onevoteandstat
ing that the Constitutions main objective [is] making equal representation for
equalnumbersofpeoplethefundamentalgoaloftheHouseofRepresentatives).
26.377U.S.533(1964)(requiringequalapportionmentofseatsinstatelegisla
turessothatdifferentdistrictshaveroughlyequalpopulations).
27.CAPLAN,supranote22,at7475.
28.Seeid.at76.
29.Seeid.
30.Seeid.at7576.
31.SeeS.J.Res.58,97thCong.,128CONG.REC.19,169,19,22930(1982).
1010 HarvardJournalofLaw&PublicPolicy [Vol.30

tatives.32 The States were unable to provoke a response from

Congress as they had been able to with the Seventeenth
Amendment.
Thefirststateapplicationforabalancedbudgetamendment
wasmadebyNorthDakotain1975,andthethirtysecondwas
madebyMissouriin1983.33Thedrivetorequestaconvention
then lost momentum.34 Among the reasons for this slowdown
were,once again,fearsthataconventioncould notbelimited
to a single subject, a decrease in the number of Republicans
(whotendedtosupporttheamendmentmorethanDemocrats)
in state legislatures, and concern in the Northeast about the
loss of federal grants if the budget were balanced.35 Another
significantreasonforthelossofmomentumwasthepassagein
CongressoftheBalancedBudgetandEmergencyDeficitCon
trol Act, known as the GrammRudmanHollings Act, which
requiredthatthebudgetbebalancedby1991.36

III. UNANSWEREDQUESTIONSABOUTAMENDINGTHE
CONSTITUTIONTHROUGHACONVENTION

Aspreviouslydiscussed,muchoftheoppositiontorecentat
tempts to propose amendments through a convention comes
fromconcernsthatitcouldbecomearunawayconvention.37
The fear is that a convention would exceed its mandate and
radically alter the Constitution, or at least propose amend
mentsbeyondthescopeoftheoriginallyintendedsubjectmat
ter.38 There are two perspectives on this issue: some believe
Congress has broad power to limit the scope of a convention
and to impose rules and procedures for its operation through

32.SeeH.R.J.Res.350,97thCong.,128CONG. REC. 27,172, 27,255 (1982). Thefi

nalvotewas236to187,54votesshortoftherequiredtwothirdsmajority.
33.CAPLAN,supranote22,at79,83.
34.Id.at83.
35.Id.at84.
36.BalancedBudgetandEmergencyDeficitControlActof1985,Pub.L.No.99
177, 99 Stat. 1038, invalidated by Bowsher v. Synar, 478 U.S. 714 (1986); see also
CAPLAN,supranote22,at8485;VanSickle&Boughey,supranote4,at3738.
37.Arthur J. Goldberg, The Proposed Constitutional Convention, 11 HASTINGS
CONST.L.Q.1,2(1983).
38.CharlesL.Black,Jr.,AmendingtheConstitution:ALettertoaCongressman,82
YALE L.J. 189,198200(1972);GeraldGunther,TheConventionMethodofAmending
theUnitedStatesConstitution,14GA.L.REV.1,411(1979).
No.3] ConstitutionalConventionAmendmentProcess 1011

thepoliticalquestiondoctrine;39othersbelievethat,basedon
theoriginaltext,meaning,andpurposeofArticleV,thescope
of a convention cannot be limited.40 A related question is
whether applications for a convention limited to a particular
subjectmattershouldbeconsideredseparately,therebyensur
ingthataconventionisheldonlywhentwothirdsoftheStates
haverequestedaconventionforthesamesubjectmatter,orif
allapplicationsshouldbeconsideredjointly,sothataconven
tionisrequiredwhentwothirdsoftheStateshaveappliedfor
aconventionforanypurpose.
BecausetheUnitedStateshasneverusedanArticleVconsti
tutional convention to propose amendments, these questions
haveneverreceiveddefinitiveanswers.ThisArticlesposition
isthatCongressdoesnothavethepowertolimitaconvention.
ThetextandhistoryofArticleVindicatethatCongresssrolein
callingaconventionismerelyministerial.Theoriginalpurpose
ofArticleVwastogiveStatesthepowertocircumventarecal
citrant or corrupt Congress. It thus makes little sense for it to
giveCongressbroadpowertocontrolaconvention.Inlightof
thetextofArticleVanditspurposetoempowerStates,States
should have the powerto limit thescope of a convention and
to limit their applications validity to only a certain topic. The
originalpurposeofArticleValsoindicatesthatStatesapplica
tionsshouldbegroupedandcountedbysubjectmatter.

A. ThePoliticalQuestionDoctrineandCongresss
PowerOveraConvention
ProponentsoftheviewthatCongresshasbroaddiscretionto
controlthesubjectsdiscussedat,andtheproceduresusedin,a
constitutional convention primarily base their arguments on
the political question doctrine.41 The Supreme Court first for
mulatedthepoliticalquestiondoctrine,asappliedtoArticleV,

39.Sam J. Ervin, Jr., Proposed Legislation to Implement the Convention Method of

AmendingtheConstitution,66MICH.L.REV.875,87980(1968);PaulG.Kauper,The
Alternative Amendment Process: Some Observations, 66 MICH. L. REV. 903, 90708
(1968); cf. ABA SPECIAL CONSTITUTIONAL CONVENTION STUDY COMM.,
AMENDMENT OF THE CONSTITUTION BY THE CONVENTION METHOD UNDER
ARTICLE V 3132 (1974) (stating that under the political question doctrine, Con
gresshastheauthoritytodeterminethetimelinessofstateapplicationsforacon
vention).
40.Black,supranote38;WalterE.Dellinger,TheRecurringQuestionoftheLim
itedConstitutionalConvention,88YALEL.J.1623,163336(1979).
41.Seesupranote39andaccompanyingtext.
1012 HarvardJournalofLaw&PublicPolicy [Vol.30

in Coleman v. Miller.42 Coleman involved a question about the

validityoftheKansaslegislaturesratificationoftheChildLa
borAmendment.TheKansaslegislatureoriginallyrejectedthe
proposed amendment in 1924, but reversed itself in 1937 and
ratifiedtheamendment.43TheKansasstatesenatorswhovoted
against ratification in 1937 sued, arguing that by reason of
[Kansass previous] rejection and the failure of ratification
withinareasonabletimetheproposedamendmenthadlostits
vitalityandthatthesecondratificationvotein1937wasinva
lid.44TheCourtheldthatCongress,nottheCourt,hadthefinal
authoritytodeterminethevalidityofanamendmentsratifica
tion.45Inreachingthisconclusion,theCourtstatedthattheis
sue should be regarded as a political question pertaining to
the political departments, with the ultimate authority in the
Congressintheexerciseofitscontroloverthepromulgationof
theadoptionoftheamendment.46
TheCourtbaseditsconclusiononthehistoricprecedentof
theauthorityCongressexercisedindeterminingthevalidityof
the States ratifications of the Fourteenth Amendment.47 There
was uncertainty regarding the ratification of the Fourteenth
Amendment because Ohio and New Jersey first ratified the
amendment and then later rescinded their ratification. Con
gress requested that the Secretary of State provide a list of
states that had ratified the amendment. Secretary Seward is
sued a report noting Ohio and New Jerseys attempted rescis
sionandconcludedthatiftheiroriginalratificationswerestill
inforce,theamendmenthadalreadybeenratifiedandhadbe
come part of the Constitution.48 Congress responded the next
day by passing a resolution declaring the Fourteenth Amend
menttobepartoftheConstitution,therebyrefusingtorecog
nizetherescissions.49TheCourtalsonotedthatGeorgia,North
Carolina, and South Carolina rejected the amendment, and it
was ratified in those states only after Congress directed that

42.307 U.S. 433 (1939).For a criticism ofColeman, see Paulsen, supra note 3,at
70721.
43.Coleman,307U.S.at43536.
44.Id.at436.
45.Id.at458.
46.Id.at450.
47.Id.at44850.
48.Coleman,307U.S.at449.
49.Id.at44849.
No.3] ConstitutionalConventionAmendmentProcess 1013

new state governments be established in those states.50 The

Courtdeclaredthatinspiteoftheseirregularitiesintheratifi
cation process, [t]his decision by the political departments of
theGovernmentastothevalidityoftheadoptionoftheFour
teenthAmendmenthasbeenaccepted.51
Inaconcurringopinionjoinedbythreejustices,JusticeBlack
stated that control of [the amending] process has been given
by [Article V] exclusively and completely to Congress. The
processitselfispoliticalinitsentirety,fromsubmissionuntil
an amendment becomes part of the Constitution, and is not
subject to judicial guidance, control or interference at any
point.52Thus,wheneveranissuefallsunderthepoliticalques
tiondoctrine,itisnonjusticiableintheeyesofthecourts.The
issues before the Court in Coleman, however, dealt only with
thevalidityoftheratifications,andtheCourtbaseditsholding
onCongresssArticleVpoweroverratification.53
As the political question doctrine developed, the Court
seemstohaveestablishedathreeparttesttodeterminewhenit
shouldapply.54First,theCourtasksiftherehasbeenatextu
ally demonstrable constitutional commitment of the issue to a
coordinate political department.55 Second, the Court asks if
there are a lack of judicially discoverable and manageable
standards for resolving the question.56 Third, the Court con
sidersfactorsdealingwithdeferencetothepoliticalbranches
andavoidanceofjudicialpolicymaking.57
A discussion of the criticisms of Coleman and the political
questiondoctrineisbeyondthescopeofthisArticle.Even as
sumingthevalidityofthepoliticalquestiondoctrine,however,
Congressstilllacksauthorityovertheconventionprocess.Asis

50.Id.at448.
51.Id. at 44950. But see Dyett v. Turner, 439 P.2d 266, 27374 (Utah 1968);
Douglas H. Bryant, Unorthodox and Paradox: Revisiting the Ratification of the Four
teenth Amendment, 53 ALA. L. REV. 555 (2002); cf. AKHIL REED AMAR, AMERICAS
CONSTITUTION:ABIOGRAPHY36465(2005).
52.Coleman,307U.S.at459(Black,J.,concurring).Thethreejusticeswhojoined
JusticeBlacksopinionwereJusticesRoberts,Frankfurter,andDouglas.
53.Article V states that ratification can be accomplished either through the
statelegislatures or by ratification conventions in each state and that the one or
the other Mode of Ratification may be proposed by the Congress. U.S. CONST.
art.V.
54.SeePaulsen,supranote3,at713.
55.Id.(internalquotationomitted).
56.Id.(internalquotationomitted).
57.Id.(internalquotationomitted).
1014 HarvardJournalofLaw&PublicPolicy [Vol.30

explainedbelow,thetextandhistoryoftheConventionClause
demonstrate that Congress is obligated to call a convention
whentwothirdsoftheStateshaveappliedforone,andhasno
discretion in the matter. Thus, the political question doctrine
does not apply to congressional control of a convention be
causeitfailsthefirstpartofthetest:theissuehasnotbeencon
stitutionally committed to Congress (except for a ministerial
duty),buttotheStates.

1. TheStatesPowerovertheConventionProcess
Exclusiveandcompletecontroloftheconventionprocessby
Congress would be contrary to the language and purpose of
theConventionClauseofArticleV.TheclearmeaningofArti
cleVrequiresStatecontroloftheconventionprocess.
Article V states that Congress, on the Application of the
LegislaturesoftwothirdsoftheseveralStates,shallcallaCon
vention for proposing Amendments.58 The use of the word
shallindicatesthatCongresshasnodiscretioninthematter
andisobligatedtocallaconvention.59Severalcommentsmade
bythoseinvolvedinthedraftingandratificationoftheConsti
tutionconfirmthisview.InTheFederalist,AlexanderHamilton
statedthat,upontheapplicationoftwothirdsoftheStatesfor
aconvention,Congresswasobligedtocallaconventionand
that[t]hewordsofthisarticlearepreemptory....Nothingin
thisparticularislefttodiscretion.60Similarly,duringtherati
ficationdebatesinNorthCarolina,JamesIredell,wholaterbe
cameoneoftheoriginaljusticesoftheUnitedStatesSupreme
Court,statedthatwhenevertwothirdsoftheStatesapplyfora
convention, Congress is under the necessity of convening
oneandthattheyhavenooption.61

58.U.S.CONST.art.V(emphasisadded).
59.SeeDouglasG.Voegler,AmendingtheConstitutionbytheArticleVConvention
Method,55N.D.L.REV.355,36769(1979)(arguingthatArticleVplacesaman
datory duty upon Congress to call a convention, when properly petitioned);
LaurenceH.Tribe,IssuesRaisedbyRequestingCongresstoCallaConstitutionalCon
ventiontoProposeaBalancedBudgetAmendment,10PAC. L.J.627,634(1979)(Nei
therthetextnorthehistoryofArticleVleavesanyreasonabledoubt....Inthis
context shall clearly means must. (internal citations omitted)); Van Sickle &
Boughey, supranote4,at 4142 (stating thatCongresss role in callinga conven
tionshouldbemerelymechanicalorministerial,ratherthandiscretionary.).
60.THE FEDERALIST NO.85,at45657(AlexanderHamilton)(GeorgeW.Carey
&JamesMcClellaneds.,2001).
61.4THE DEBATES OF THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF
THEFEDERALCONSTITUTION17778(JonathanEllioted.,1937).
No.3] ConstitutionalConventionAmendmentProcess 1015

The purpose of the Convention Clause strengthens the ar

gument that Article V gives control of the convention process
to the States. The records of the Constitutional Convention
clearlyshowthatthepurposeoftheConventionClausewasto
protecttheStatesagainstarecalcitrantorcorruptCongress.In
thefaceofcongressionalinaction,theStatescouldcircumvent
the national legislature to propose needed amendments.62 If
Congresshadbroaddiscretionarypowerovertheconventions,
it could potentially prevent or obstruct a convention that was
desiredbytwothirdsoftheStates,therebydefeatingthepur
poseoftheconventionmethodofamendingtheConstitution.
IfCongressdoesnothavepoweroveraconstitutionalconven
tion, there still remains a vexing question: who determines the
proceduresfortheconvention,suchasvotingrulesandselection
of delegates? There are no clear answers, but some guidance
maybegleanedfromthecountrysonlyexperiencewithacon
stitutional convention: the Philadelphia Convention of 1787. In
thatconvention,statelegislatureschosedelegates,andthecon
vention adopted its own voting and procedural rules.63 A con
vention to amend the Constitution could follow a similar path,
with the process for selection of delegates from each state de
termined by the state legislatures. The convention would then
determine its own voting rules and procedures when the dele
gates from the States convene. Admittedly, this is not an ideal
solution because such a system could lead to much confusion
andpossiblyinequitablevotingrulesattheconvention.Theonly
definitivewaytoeliminatethispossibleconfusionandinequity
would be to amend the Constitution with more specific proce
duresanddetailsfortheoperationoftheconvention.

B. DoestheOriginalMeaningofArticleV
PreventaLimitedConvention?
Congresss inability to limit the scope of a convention sug
geststhatalimitedconvention,evenifrequestedbytheStates
isnotpermissible.IftheStates,however,werepreventedfrom
limiting a convention, the purpose of empowering them to
bringaboutdesiredconstitutionalchangeinthefaceofarecal

62.1 RECORDS OF THE FEDERAL CONVENTION, supra note 5, at 20203; 2

RECORDS OF THE FEDERAL CONVENTION, supra note 5, at 629; 4 RECORDS OF THE
FEDERALCONVENTION,supranote5,at61.
63.Jon Elster, Arguing and Bargaining in Two Constituent Assemblies, 2 U. PA. J.
CONST.L.345,35869(1999).
1016 HarvardJournalofLaw&PublicPolicy [Vol.30

citrant Congress would be significantly curtailed. It is neces

sary, therefore, to take a middle road when interpreting the
Convention Clause. While the States may not have direct au
thority to limit a constitutional convention, they do have the
abilitytoindirectlydosobyapplyingforaconventionlimited
toaspecificsubjectmatter.Congresssministerialdutytocalla
conventionwouldrequirethatitcallthelimitedconventionthe
Statesrequested.
Two arguments are typically presented to support the view
thattheStatesareunabletolimitthescopeofaconstitutional
convention.First,commentatorssuggestthatthetextofArticle
V precludes the States from limiting a convention.64 Second,
somehavearguedthattheStateshavenoconstitutionalgrant
ofpowerbeyondinitiatingaconvention;thus,onceaconven
tion has been called, it is a federal proceeding beyond their
control.65ThetextualargumentagainstthepoweroftheStates
to limit a convention is based on revisions of the word
amendment, changing it from singular to plural, in early
draftsoftheConstitutionatthePhiladelphiaConvention,with
the final text allowing states to apply for a Convention for
proposing Amendments.66 It is inferred that this change was
intended to preclude the States from limiting a convention to
the discussion of a single issue or amendment, meaning that
theStatescouldcallonlyageneralconvention.67Thisargument
fails, however, because the same plural is used to specify the
methodforCongresstoproposeamendments:Congressshall
propose Amendments.68 The change from amendment to
amendments in the Convention Clause was made after the
plural usage for congressionally proposed amendments was
added.69 The two clauses have similar language, stating that
CongressshallproposeamendmentsandthattheStatesmay
apply for a Convention for proposing amendments.70 The
commonpracticeforCongresstolimititselftoproposingsingle
amendmentsonsingleissuesatatimehasneverbeforeraised
any constitutional issues. It therefore makes more sense to in

64.SeeVanSickle&Boughey,supranote4,at2728,4546.
65.SeeConnely,supranote23,at1021.
66.U.S.CONST.art.V.
67.VanSickle&Boughey,supranote4,at2728,4546.
68.U.S.CONST.art.V.
69.2RECORDSOFTHEFEDERALCONVENTION,supranote5,at555,602,62930.
70.U.S.CONST.art.V.
No.3] ConstitutionalConventionAmendmentProcess 1017

terpretthechangeofthewordamendmenttoapluralform
tomeanthataconventionhasthesamepowerasCongressto
propose amendments, rather than being limited to proposing
single amendments. Thus, a convention may propose multiple
amendmentsjustasCongresscan,butitmayalsoproposesin
gle amendments. This language should be read as expanding
thepossiblerolesofaconvention,ratherthanlimitingthem.A
conventioncanconsidermultipleissuesandproposemultiple
amendmentsorbelimitedtoasingleissue.
The history of the drafting of the Convention Clause at the
Philadelphia Convention shows that the Clauses accepted
meaningatthetimewasthattheapplications bytheStatesto
Congresscouldbelimitedandcouldthuslimitthesubjectmat
ter of a convention. At one point in the drafting process, the
ConventionremovedthelanguagegrantingStatesthepowerto
applyforaconventionandinsteadgaveCongressthepowerto
propose amendments whenever it would deem necessary, or
ontheapplicationoftwothirdsoftheLegislaturesofthesev
eral states....71 This language is nearly identical to the Con
ventionClauselanguageinArticleVthatrequiresCongressto
callaconventionontheApplicationoftheLegislaturesoftwo
thirdsoftheseveralstates.72Thedraftlanguagesurelymeant
thattheStatescouldmakeapplicationstoCongresstopropose
amendmentsonspecificissues.Ifthedraftlanguagemeantthat
the States could make only a general application to Congress
for amendments, presumably the applications would not be
permittedtogivenoticetoCongressofthespecificsubjectmat
ters that the States desired be addressed in the amendments.
The clause would serve little purpose beyond notifying Con
gressthattwothirdsoftheStatesthoughtthatsomeunknown
changes to the Constitution were desirable. Moreover, there
wouldbenopointinallowingthestatestomakeageneralap
plication in this context, because Congress would have the
general authority to propose amendments regardless of
whether twothirds of the States had made applications. The
similarlanguageinthefinalversionofArticleVtotheearlier
draft language should thus be interpreted to have the same
meaning:theStatesmaymakelimitedapplications.

71.2RECORDS OF THEFEDERALCONVENTION,supranote5,at555,559;seesupra
PartII.A.
72.U.S.CONST.art.V.
1018 HarvardJournalofLaw&PublicPolicy [Vol.30

ThesecondargumentthattheStateshavenopowerbeyond
initiating a conventionis partially correct. They do, however,
haveindirectauthoritytolimittheconvention.Congresssobli
gationtocallaconventionupontheapplicationoftwothirdsof
the States is mandatory, so it must call the convention that the
Stateshaverequested.Thus,Congressmaynotimposeitsown
will on the convention. As argued above, the purpose of the
ConventionClauseistoallowtheStatestocircumventarecalci
trant Congress. The Convention Clause, therefore, must allow
theStatestolimitaconventioninordertoaccomplishthispur
pose.Theprospectofageneralconventionwouldraisethespec
terofdrasticchangeandupheavalinourconstitutionalsystem.
State legislatures would likely never apply for a convention in
thefaceofsuchuncertaintiesabout itsresults,especiallyinthe
faceofahostilenationallegislature.73Statesarefarmorelikelyto
bemotivatedtocallaconventiontoaddressparticularissues.If
the States were unable to limit the scope of a convention, and
thereforeneverappliedforone,thepurposeoftheConvention
Clausewouldbefrustrated.
ArelatedconcerniswhetherStatesapplicationsthatarelim
itedtoaparticularsubjectshouldbeconsideredjointlyregard
less of subject or tallied separately by subject matter to reach
thetwothirdsthresholdnecessaryforthecallingofaconven
tion.74Thisisanimportantquestionbecauseifallapplications
are considered jointly regardless of subject matter, Congress
mayhavethedutytocallaconventionimmediatelybasedon
the number of presently outstanding applications from states
on single issues.75 If the above arguments about the States
power to limit a convention are valid, however, then applica
tionsforaconventionfordifferentsubjectsshouldbecounted
separately.ThiswouldensurethattheintentoftheStatesap
plicationsisgivenpropereffect.Anapplicationforanamend
mentaddressingaparticularissue,therefore,couldnotbeused
to call a convention that ends up proposing an amendment
aboutasubjectmatterthestatedidnotrequestbeaddressed.76

73.Thesefears,however,aremitigatedbytheStatesownpowersoverratifica
tion.SeeinfraPartIII.C.
74.Paulsen,supranote3,at73743.
75.Id.at764.Paulsencountsfortyfivevalidapplicationsasof1993.
76.If it were established that applications on different topics are considered
jointly when determining if the twothirds threshold has been reached, states
wouldalmostcertainlyrescindtheiroutstandingapplicationstopreventageneral

No.3] ConstitutionalConventionAmendmentProcess 1019

ItfollowsfromthisargumentthatCongresssministerialduty
to call a convention also includes the duty to group applica
tions according to subject matter. Once a sufficient number of
applications have been reached, Congress must call a conven
tionlimitedinscopetowhattheStateshaverequested.

C. CanaConstitutionalConventionExceeditsScope?
The United States last experience with a constitutional con
ventionwasthePhiladelphiaConventionof1787,whichplainly
exceededitsmandateofrevisingtheArticlesofConfederation.77
Thus,therearewellfoundedconcernsaboutwhetheramodern
convention with a limited mandate would exceed its original
scope and radically alter the Constitution, adopt undesirable
amendments, or lead to constitutional upheaval.78 It would be
difficult for any governmental body to enforce a limitation on
theconvention,especiallygiventhataconstitutionalconvention,
oncecreated,couldconceivablyclaimindependentauthorityas
aseparateconstitutionallyauthorizedbody.79Thereislittlerea
sontoworry,however,becauseevenifaconventionattempted
toexceeditsscope,orifitwereacceptedthatitsscopecouldnot
be limited by the States or by Congress, the convention is only
the first step in the amendment process. The proposed amend
mentsmuststillberatifiedbythreefourthsoftheStates,which
isanevengreaternumberthantheproportionrequiredtocalla
conventioninthefirstplace.
Theratificationprocessitselfisthemeansofenforcingasub
jectmatter limit on a convention. If the convention proposes

constitutionalconvention.Somestateshavealreadyactedbasedonfearsofagen
eral convention. For example, in 1999 the Idaho legislature adopted a resolution
rescinding all of its outstanding applications for a constitutional convention.
S.C.R. 129, 1999 Leg. (Idaho 1999). Georgia passed a similar resolution in 2004.
H.R. 1343, Gen. Assemb. 2004 (Ga. 2004). Both resolutions were motivated by a
fear that a convention could exceed its scope and propose sweeping changes to
theConstitution.
77.See Shawn Gunnarson, Comment, Using History to Reshape the Discussion of
JudicialReview,1994 BYU L. REV.151,162(1994);seealsoBruceAckerman&Neal
Katyal,OurUnconventionalFounding,62U.CHI.L.REV.475,48083(1995)(stating
that,althoughthedelegationsfromseveralstateswerespecificallylimitedtoonly
revising the Articles of Confederation, others were given broader mandates to
make other constitutional proposals, but that even these states delegates ex
ceeded their broad mandate by proposing new means of ratifying the Constitu
tionratherthanusingexistinginstitutionsandprocedures).
78.Seesupranote38andaccompanyingtext.
79.VanSickle&Boughey,supranote4,at42.
1020 HarvardJournalofLaw&PublicPolicy [Vol.30

extra amendments, they would only be adopted if the legisla

turesorratifyingconventionsinthirtyeightstatesagree.Ifan
amendmentreceivessuchwidespreadsupport,thereshouldbe
little reason to worry; ratification in thirtyeight states would
have proven its popularity. Most of the States that originally
requestedtheconventionwouldhavetoratifyanextraamend
ment for it to become part of the Constitution, thereby legiti
mizing the conventions actions. The ratification process itself
isthustheStatesmeansofenforcingasubjectmatterlimitona
convention. If the States determine that the convention ex
ceeded its scope, they can refuse to ratify the proposed
amendments.

IV. THEMODERNSIGNIFICANCE
OFTHECONVENTIONCLAUSE

One may question the Convention Clauses significance,

since it has never been used to amend the Constitution. The
Convention Clause has played an important role, however, in
spurring Congress to amend the Constitution.80 Over the last
fortyyears,stateeffortstocallaconstitutionalconventionhave
come within one or two additional states of success.81 More
over,aconstitutionalconventionhastremendouspotentialasa
way of proposing amendments that would enjoy significant
popularsupportbutthathavenotbeenproposedinCongress.
A national survey conducted by Harris Interactive in 2005
measuredsupportfordifferenthypotheticalamendments.The
survey showed that seven potential amendments received the
supportofsixtyfourpercentorgreaterofthepopulation.82The
three most popular proposed amendments were a balanced
budgetamendment,anamendmentrequiringthatjudgesonly
interpretandnotmakethelaw,andacongressionaltermlimits
amendment.TheresultsaresummarizedbelowinTable1.
Fourofthesevenpopularlysupportedamendmentsarguably
share a common characteristic: they would adversely affect the
powerorinterestsofmembersofCongress.83Thehighpercent

80.SeesupraPartII.B.
81.Id.
82.ArthurH.Taylor,FearofanArticleVConvention,20BYUJ. PUB. L.101,124
31(2006).
83.A balanced budget amendment would make it more difficult for members
ofCongresstousegovernmentspendingtobenefittheirconstituentsinexchange

No.3] ConstitutionalConventionAmendmentProcess 1021

ageofsupportthattheseamendmentsenjoyshowsthatthecon
vention method for amending the Constitution is still relevant.
There are issues that enjoy widespread popular support in the
country,butonwhichCongresshasfailedtoact.Twothirdsof
Congress is unlikely to approve amendments that significantly
limit the power of its members, such as a balanced budget or
termlimitamendment.TheConventionClauseprovidesanim
portant means to adoptor force Congress to adopt
amendmentsthatareperceivedtobeinthenationalinterestby
significantpercentagesoftheAmericanpopulation,butthatare
detrimentaltotheinterestsofmembersofCongress.

Table1:PercentageSupportforDifferentProposed
AmendmentstotheConstitution

Percent Percent
SubjectMatter Supporting Opposing
Balancedbudgetamendment 76% 18%
Requirethatjudgesinterpretthelawsandnot 74% 20%
writethem
TermlimitsonSenatorsorRepresentatives 71% 23%
ProhibitCongressfrompassinglawsaffecting 69% 22%
stategovernmentsunlessCongressgivesthe
fundingneededtopayforthoselaws
Permitprayeratschoolmeetingsorceremonies 67% 29%
AllowCongresstoregulatetheamountof 65% 29%
personalfundsacandidatemayspendina
campaign
Definemarriageinallstatesastheunionofa 64% 32%
manandawoman

V. CONCLUSION

ThehistoryoftheconventionmethodofamendingtheConsti
tutionisfilledwithmuchconfusionanddebateaboutitsmean
ing, proper application, and scope. One of the major reasons it
has never been used is the prevalence of doubts and concerns
aboutthelimitationsthatcouldbeplacedonaconvention.The
conventionmethodofproposingamendmentsmayneverrealize

forpoliticalsupport.TermlimitswouldlimitthetenureofmembersofCongress
andforcemanyofthemoutofoffice.Anamendmentprohibitingunfundedman
dates that affect the States would limit Congresss power to control the States.
Regulation of personal funds spent during a campaign would interfere with the
campaignsofwealthymembersofCongress.
1022 HarvardJournalofLaw&PublicPolicy [Vol.30

its potential so long as such confusion exists. Much of the fear

surrounding a convention is unfounded. The Convention
Clauses text and history indicate that it grants power to the
Statestolimitthescopeofanysuchconvention.Inaddition,the
Stateshavetheabilitytorejectanyamendmentsproposedbya
conventionthroughtheratificationprocess.
A possible solution to clarify the Convention Clause power
wouldbefortheStatestopetitionfor,orforCongresstopro
pose,anamendmenttoArticleVitself.Itcouldbeamendedto
clarify the constitutional convention amendment process so
thatthepurposesoftheConventionClausecanbegiveneffect.
SuchanamendmentcouldexplicitlystatethatCongresscannot
limit or control a constitutional convention but that the States
mayexercisesuchcontrol,thatspecificapplicationscanbelim
ited to single issues, and that the resulting convention may
onlyconsiderthoseissues.Theamendmentcouldalsoinclude
basicproceduresanddetailsforhowaconventionwouldoper
atetoensureitsindependencefromCongress,anditcouldex
plicitly answer questions about the funding of a convention,
theselectionofdelegatesandalocation,andotherprocedural
and logistical questions. Article V could also be amended to
decreaseCongressspowerovertheconventionprocesstofur
thertheConventionClausespurposeofallowingtheStatesto
circumvent a corrupt or unresponsive Congress. An amend
mentcouldempoweranewindependentbody,perhapsmade
up of the governor of each state, or the chief justice of each
states supreme court, to call a convention when a sufficient
number of states have applied, to oversee the convention, to
ensure it does not exceed its scope, and to make it clear that
Congressdoesnothaveconventionoversightpowers.

JamesKennethRogers