The Other Way to Amend the Constitution: The Article V. Constitutional Convention Amendment Process

I. INTRODUCTION The Constitution specifies two different ways for amendments to Constitution to be proposed. The first method allows Congress to propose amendments when such amendments are approved by at least a two-thirds vote in both houses. (1) The States can then ratify proposed amendments. The second method is less familiar to most people, as it has never been used. This method requires Congress to call a constitutional convention to propose amendments when two-thirds of States apply for such a convention. (2) Many questions exist about use of this amendment process. May convention's scope be limited to certain subject matters? If so, who may limit it? How are state applications to be tallied--separately by subject matter or cumulatively, regardless of their subject matter? What is relevance of convention method of proposing amendments? Why should it ever be used? Some of these uncertainties about convention have most likely contributed to states' reluctance to use method. Yet, as of 1993, almost 400 convention applications had been submitted to Congress by States since 1789. (3) This Note will attempt to explore history of Convention Clause in Article V and answer some of questions about its use. II. HISTORY A. The Constitutional Convention Much of confusion about Article V comes from its ambiguous language. This ambiguity is result of compromises at Philadelphia Convention of 1787 between groups that wanted to exclude national legislature from participating in amendment process and groups that wanted to grant national legislature sole authority to amend. (4) The earliest proposal for an amendment provision, contained in Virginia Plan, stated that the assent of National Legislature ought not to be required to amend Constitution. (5) Convention delegates privately circulated a proposed constitution authored by Alexander Hamilton (6) that gave power to amend Constitution to national legislature and power of ratification to legislatures or conventions in (7) The Convention's first official action regarding method for amending Constitution was to adopt Resolution 17, which stated that Constitution should contain some means for amendment, but did not specify particular process to be used. (8) The first reference to use of a convention requested by States is found in drafts of Constitution kept by Committee of Detail. (9) After several revisions, Committee's final statement stated that [t]his Constitution ought to be amended whenever such Amendment shall become necessary; and on Application of Legislatures of two thirds of States in Union, Legislature of United States shall call a Convention for that Purpose.' (10) Hamilton and others argued that in addition to State legislatures, Congress should also have power to propose amendments, and Convention approved addition of language giving Congress power to propose amendments. (11) James Madison proposed new language that removed reference to a convention and gave national legislature sole authority to propose amendments whenever it would deem necessary, or on application of two thirds of Legislatures of several States. (12) This language was adopted by Convention, with discussion about elimination of references to use of conventions. (13) On September 15, as Convention was reviewing revisions made by Committee of Style, George Mason expressed opposition to provisions limiting power to propose amendments to Congress. According to Convention records, Mason thought that no amendments of proper kind would ever be obtained by people, if Government should become oppressive, as he verily believed would be case. (14) In response, Gouverneur Morris and Elbridge Gerry made a motion to amend article to reintroduce language requiring that a convention be called when two-thirds of States applied for an amendment. …