:;::
,~
:""'!!:~]::~:'
,
),'c,,:,
..
HAMLIN E
LAW REVIEW
-,'
.
,:.;,
:'',.."',
.. ". ' ::;!..~::,"
'c"... ,..
.
..
\
,
~
..
,.
'".oj
,
. '" :. :c.
'
.
,
.I
.
':~:;:_;-..':'
'..'
I
~ {;,.
;
i.;:".'
~~.'~':::
-;,.
;; 1:- -
.. "-"
"..
,
. ,c' '
..
::;~
,.
-... .-:,:;;--~"""-~f:.'::,'.'...
'J.
~.;;::
;';"
'
,
, ,
,
'
LAWFUL
:ARTICLE
'c""'-""V
',c
,
:'~
':,
AND 'PEACEFUL
AND
CONGRESS
-
:
-
;
co
,REVOLUTION:
-"""0',:::::::,'".'.
,PRESENT
DUTY.
C,;,;;;},;;;~
'
,'.
,'"
..:';
..
..
..
,- r.,-'.
~
'.,
;1
VOLUME 14
FALL 1990
NUMBER 1
A ,LAWFUL AND PEACEFUL REVOLUTION: ARTICLE
,V AND CONGRESS' PRESENT DUTY TO CALL A
CONVENTION FqR PROPOSING A~ENDMENTSt
,
,,'
.'
t
,
The Constitution of ahy government which cannot be regularly
amended when its defects are experienced.reduces the people to
t c 1990BruceM. Van Sickleand Lynn M. Boughey.All rights reserved.The authorswish
to gratefully acknowledgethe assi~tanceof. Brad Peterson,ProfessorBarry Vickrey, Marcella
Kramer, Allan Grinburg, and HelenMonteith. The authorsalsowish to speciallyacknowledge
the
extensiveeditorial assistance
,and critical analysisprovidedby ReaganPufall.
,,'
.
.'Judge
BruceM. Van Sickleis a SeniorUnitedStatesDistrictCourtJudgefor the Dis-
trictof North Dakota~Ju~geVan Sickle r~iv~ hjs B.S.L...(1939)andL.L.B. (1941) from the
University Qf,Minnesota.'.foUowing~emce
in:tlie~acific:cJuringWorld War II, he practicedlaw
,~t Minot, North Dakota (1947~71),and servedin the 1957and 1959North Dakota Legislative
Sessions.JudgeVan Siclde was appointedas a federaljudge in 197i, and begansenior~tatusin
:';.1986.
;
\
""')'
':'
'""
.. Lynn M. Bougheyis an attorney practicing law i~ Minot, North Dakota. Lynn is a
Truman Scholar (1977). He receivedhis B.~. from Grinnell College(1979) and his J.D. with
honorsfrom Hamline University Schoolof Law (1983), wherehe servedas Articles and Managing Editor of the Hamline Law Review.Followinglaw school,he clerkedlor Judge Van Sickle
(1983-85)and the HonorableGerald VandeWalle,Justice,North Dakota SupremeCourt (198586). From 1986to 1989,he wasin privatepracticeat the law firm of Pringle & Herigstad,Minot,
North Dakota, specializingin litigation. From 1989to 1990,Lynn servedas Deputy Insurance
Commissionerfor the State of North Dakota.
this dilemma-they musteithersubmitto its oppressions,
or bring
.
about amendments,more or less, by a civil war. Happy this, the
country we live in! The Constitution beforeus, if it be adopted,can
be altered with as much regularity, and as little confusion,as any
act of Assembly; not, indeed,quite so easily, which would be extremely impolitic; but it is a most happy circumstance,that there is
a remedy in the systemitself for its ownfallibility, so that altera;'
.
.
,
'
c.o
'
'
Jameslredell .
,
,.'
J .'.{~Ri~.\J'Ii'
,
-
tions
without difficulty be "made,
agreeableto the generalsense
of thecan
people.
,
:
,
ii
'
,C
fi:orth Ca~oli;.4~'Ratifying Conve~(iol:lof.1787!J:.,QV
" :
;
f
.,.
,
',..,'
",
' '
,'.
..
:~..;..."
. ;:;;
:":
'
~i::'N
'
~'" ,
.
I.
THE FIRST CONSTITUTIONAL' CONVENTION 'AND ,: THE
PASSAGE OF ARTICLE
V
.
Introductlon"."".:.'..;...""";..."i~..'~""...
A.
'
'
,
B.
5
5
"."..,
./
The Beginning of ,t~e,(:onvention ,and,the_Great'
Compromise.,.~...,:,;.c..;:'."".:".:"""'.';.'.'.:~'::,";',:
6
The Amendatory Provision: All Introduction'..":::;.'::'~,;7
The Amendatory Prqyision:,' The ~ccord , . . . . ~ .
9
1. May 29 -,Junec11..~, The ~Virginia' Plan '. .," .
9
2. June 29 -:- July' 23: Miscellaneous Concerns 12
3; July 26 -..,..., A~~st 6: Committeeof Dttail ..'i
14
4. August; 30 ~September 10: Article XIX,. .'.
17
5. Septembern..;..- September17: ArticleV. .'.
20
C.
D.
~
...
,
E.
'
Summaryof RecordR:egardingPrimary Is,sues
1. Need'for an AmendmentProcessand ihe
25
,
'Convention
2.
Method
,
25
,
Role pfthe ,States and Ct;>ngressin Proposing
Amendments.
. . .. . . . , . . . , . . . . . . . . . . . , . . ,
25
3. Ratification: Method and Number of States
Required"
F.
II.
Ill.
,
""."
26
4. Amendment (Singular) vs. Amendments
(Plural)
27
Post-Convent.ionDiscussion,of Article V. . . . . . . . 29
AMENDING THE CONSTITUTION BY THE CONVENTION
METHOD ...,
37
CONGRESS"LIMITED ROLE IN CALLING A CONVENTION
FOR PROPOSINGAMENDMENTS. . . .. . .
..........
38
.
,
.
1.
4 ELUOT'S DEBATES176-77 (1937).
,,'"
I,
J
. %
--
?
c"
,
1]
ARTIC~
A.
'.,
,
that Attempt
to Limit"
38
40
V. COUNTING THE PENDING ApPLICATIONS. . . . .-. . .. . . ..
46
VI.
THE ApPLICATIONS
VII.
VIII.
;
Proposals
3
Article
V:
;.:
B.
Limited Power Granted to Congress by Article
V
THE INABILITY OF STAT~~ TO LIMIT ,AN ARTICLE V
CONVENTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
IV.
f
Congressional
V CONVENTION
45
49
:..'..."
CONGRESS'FAILURE TO CALL A CONVENTION.
. . .. . . .
-
60
CONCLUSION
63
PREPARINGFORTHE CONVENTION. . . . . . . . . . . . . .. ...
IX.
62
ApPENDIX A: The Applications ApPENDIX B: The Applications -
By Date.
By State.
.." ....
........
71
84
ApPENDIX
By Topic.
. . . . . . ..
100
C: The Applications
-
Preface
A lawful and peaceful revolution: that, and no less, is within the
contemplation
Article
V of the United States
The. Article is short. It ofreads
as follows:
' " ,Constitution.
,
The Congress~whenever two thirds of both Houses shall deem it
necessary,shall proposeAmendments to this Constitution, or, on the
Application of the Legislaturesof two thirds of the severalStates,
i
shall call a Convention for proposing Amendments, which, in either
Case, shall be valid to alll.ntents and Purposes,as Part of this Constitutjon, when ratified by the Legislatures of three fourths of the
severai States, or by Conventions ip three fourths thereof, as the one
or~he_other
Mode of Ratificauon maybe
proposed by. the Congress;
-;'.
'.'.
.'
Provided that no Amendment which may be'ma:deprior -to the Year
.:
One thousandeight,hundred and eight shall In- any Manner affect
",;1', j the first and fourth Clauses ih the Ninth Section' of the first Article;
;;1',1::
;~and that no State, without: its Consent;:'shall be:deprived of it's [sic]
, ':; ,-.I
,.,..c".'!'.
equal ' Suffrage l' n the Senate J
~t':':"
'
;'
:~ .
..
.',~
",
,'",
.,
...,..'"
."
,,1,.
"~!..
,".'
,~r;. "ArticleY.'p:roVides'.for~two'metnOQs-.'of,'pro~sirtg
.~\o'-_."'-"."'-;)'."C'\."'1",..,-.
CoristiiutiQn:)
.
"..anational
-
,
-.
.. -,
",
'
'to the
'C'"
convention called pu'rsuant to petitions by
"
.
.,
, ,-
."
two-.thil:'~s;'~,.of:"the"states to propose amendments.
:
"amendments
Otie'metnoo'allows' the Congress to propose amendments.
The other .'allows
.'
"',,'
,:".,;:,.,:::\;'
".,(:rj,.r':""""""""".I'-i.;
'::' ;"i j' :::.' '-' .
, '.' ' ;
'.
'"
,
-.
An amendment
': "
pio-
. "..' ,
.
2. US: CONST. art. V. reprinted in 2 M. FARRAND. THE RECORDSOF THE FEDERALCONVENTIONOF 1787 662-63 (191 I) [hereinafter 1.2.3. or 4 FARRAND]; see also 4M. FARRAND,THE
RECORDS OF THE FEDERAL CONVENTION OF 1787 (rev. ed. 1937)(containing
-
more detailed
index).
The authors
are unable to determine
corrections
why the possessive "its"
and a
a~ the end of
Article V is spelled "it's" while the immediately preceding "its" is spelled correctly. However,
upon review of the folio of the Constitution. it is clear that Professor Farrand's text is accurate.
..
'i1i'~
,-
4
HAMLINE
LAWRE;;~;;--81111
[Vol. 14
posedby either method becomesa part of the Constitution when threefourths of the legislatures of the several states, or three-fourths of the
states in separate ratifying conventions,ratify it. Congressis given the
duty of selecting which of these two modesof ratification shall be used,
regardless of how the amendment was proposed.
Our special interest in this article is the provision for "a Convention for proposing Amendments."3 On that point, Article v provides
that "[t]he Congress. . . on the Application of the Legislatures of two
.
thirds of the several States, shall call a Convention for proposing
A
d
"4
men ments . . . .
This article focuses on the proper interpretation of Article y.. In
Part I of this article, we review the history of Article V at the constitutional convention of 1787, and the subsequentdiscussionsconcerning
the Article during the debates on the ratification of the Constitution.
This historical information sheds light on the proper interpretation of
the convention method for proposing amendments. Part II contains a
brief review of the role that the convention method of Article V has
played in our political history, despite the fact that no convention has
ever been called. Part III contains criticism of proposedfederallegislation that would improperly assert sweeping congressionalcontrol over
Article V conventions, and effectively emasculate the. convention
method of proposing amendments.In this regard, we analyze the scope
of authority granted to Congressin the calling of an Article V convention, concluding, in light of the history of Article V presentedin Part I,
that Congress'authority is extremely narrow. In Part IV we discussthe
similar constraints on the states' ability to limit Article V and any convention called pursuant to that Article. In Part V we set forth the principles which apply to the counting of the applications submitted by the
states for an Article V convention. Part VI contains a summary of the
applications that the states have made for a convention for proposing
amendmentsto the Constitution. In Part VII we reach the startling but
unavoidable conclusion, basedon the previous sections,that Congressis
constitutionally obligated to call a convention at this time. Finally, Part
VIII contains our suggestionson what preparations can be made by the
states for the pending convention in order to avoid confusion and conflict, and promote the successfu1..operation
of this little-understood constitutional institution.
;
3. u.s. CaNST.
art. V.
4. [d.
.,'
.
,..
-
"
c
.I-;t"
.
~
1]
I.
.
ARTICLE
V CONVENTION
.
5
THE FIRST CONSTITUTIONAL CONVENTION AND THE PASSAGE OF
ARTICLE V
A. Introduction
The Articles of Confederationand PerpetualUnion, drafted by
John Dickinsonand alteredby the ContinentalCongress,wereadopted
in November 1777.&Under them each state had one vote in the nationallegislature, and nine of the thirteen had to agreeon suchimportant matters as the declarationof war, the conclusionof treaties,and
the borrowingof money.sThe Articles providedfor a Committeeof the
Statesto act betweensessions
of Congress,exercisingall powersexcept
thoserequiring agreementby nine of the thirteen states.7The Articles
did outline a federalsystem,but it wasa systemhopelesslycrippledby
a lack of federal power.8By 1786,national leaders,including George
Washington and John Adams, had concludedthat the union of the
statescould not endure unlessthe Articles were extensivelyrevised.9
The thirteen stateswere suffering under a depressionno state could
handlealone;Great Britain had refusedto negotiatewith the Confederation becauseof the United States' impotenceinternationally,IOand
Shay's rebellion had demonstratedits impotenceinternally.II
Meanwhile, becausethe states were quarreling over matters of
commerce,Virginia invited the statesto senddelegatesto a convention
at Annapolis to "take into considerationthe trade of the United
States."12The conventionmet in September1786,but only five states
sent delegates.13
They were too few to reach meaningfuldecisions,so
the convention,underthe leadershipof AlexanderHamilton, adopteda
report proposingthat all thirteen statessenddelegatesto a convention
"to devisesuch further provisionsas shall appearto them necessaryto
render the constitutionof the federal governmentadequateto the exigenciesof the Union."I.
:
.
..
J
~
t
.
S
5.
'1
e
s. MORISON.H. COMMAGER& W. LEUCHTENBURG.
A CONCISEHISTORYOF THE AMERI-
CAN REPUBLIC 107 (2d ed. 1983).
6. Id.
7. Id. at 107-08.
l-
8. Seeid. at 108.
9. [d. at 114.
10. Id.
11. Id.
12. [d.
1:
i"
13. Id.
14. Id.
IIIIII
6
HAMUNE LAW REVIEW ~~
[Vol. 14 c".-;
','(
B.
The Beginning of the Convention and the Great Compromise
c.
Although the convention was supposedto begin on May 14, 1.787,
a majority of states did not arrive until May 25.1~Twelve states, all 'but
Rhode Island, sent a total of fifty-five delegate&to the convention.1s
Following the election of George Washington as presiding officer and
the appointment of a rules committee,17the work of the convention began. As a starting point for engenderingdiscussion,on May 29 Governor Edmund Randolph of Virginia submitted-a set of resolutions generally describing the principles upon which, the: Virginia delegation
believed the n~w government should be based}8 This set of fifteen res~
lutions is known as the Virginia Plan.1t
';..
J...'
The Virginia Plan, which was generally supported by the .-large
states, contained the basic framework of our Constitution as' finally
adopted,2Oincluding provisions for. a national legislature ,of two
branches,with members of both housesapportioned according to population, a national executive, and a national judiciary.21 New Jersey led
the resistanceto the Virginia plan with its own plan which largely followed the existing Articles of Confederation.22The two groups deadlocked on the issue of the representation of the states in the national
legislature.23
In July
deadlock
was broken
by a suggestion
from
Connecticutthat
one the
house
of ' the national
legislature
b~ apportioned
according to population, and the other house, the Senate, provide an
equal vote for each state.2' This was the "Great Compromise" so often
referred to in the histories of the Constitution. The importance of the
compromiseis demonstrated by the last clause in Article V, which provides "that no State, without its Consent, shall be deprived of its equal
,
15. 1 FARRAND,
supra note 2, at 1. For the convenienceof the reader who may only have
accessto someother compilation of the various notesof the Convention,referenceto the date of
the entry and author, when appropriate,is supplied parentheticallyat each citation to Professor
Farrand's comprehensivework. Becausethe conventionwas held entirely during 1787, the date
listed does not include referenceto the year. Where a date is not given in a listing of several
sources,referenceis implicitly made to the immediately precedingdate.
16. Id.
17. 1 FARRAND,
supra note 2, at 2 (Journal-May 25).
18. Id. at 16 (Journal-May 29), 20 (Madison), 23 (Yates), 27 (McHenry), 27
(Patterson).
19. Id. at 20-22 (Madison-May 29); 3 id. at 593.
20. Seegenerally So-MORISON.
H. COMMAGER
& W. LEUCHTENBURG.
A CONCISE
HISTORY
OFTHEAMERICAN
REPUBUC115 (2d ed. 1983).
21. See generally id.
22. See generally id. at 115-16.
23. See generally id. at 116.
24. See generally id.
l
]
. ,.:
S
~
c
i:
t
I
'~'
"A
.
IS
se
Is
~c
In
ke
m
RE
Ea)
R
~~
d
an
-
1]
ARTICLE V CONVENTION
7
Suffragein the Senate."11This language,placedas it is in Article V,
seeksto ensurethat the resultsof the "Great Compromise"will never
be disturbed.
C. The AmendatoryProvision:An Introduction
One topic of discussionand concern ~as the matter of future
amendmentsto the constitutiQnthat wasbeingdrafted. A commentator
has noted that "[t]he idea of amendingthe organic instrument of a
state is peculiarly American."26The conceptwas not new to the delegatesin Philadelphia.Severalof the state constitutionsincludedproceduresfor amendments.27
The Articles of Confederationhad its amending provisionin paragraphXIII, which requiredproposalsto be agreed
to in Congressand ratified by all the states:
)
And the Articles of this confederation shall be inviolably observed
1
-
by everystate,and the unionshall be perpetual;nor shall any alteration at any time hereafterbe madein any of them;unlesssuchalteration be agreedto in a congressof the united states,and be afterwardsconfirmedby the legislaturesof everystate.sa
1
n
d
n
n
le
)al
,
r
-
According to conventiondelegateCharlesPinckneyof South Carolina,
"[i]t is to this unanimousconsent,the depressed
situation of the Union
is undoubtedlyowing."29Nothing better ~emonstratedthe futility of
seekingan amendmentunder sucha provisionthan the fact that Rhode
Island did not evensenda delegateto the Philadelphiaconvention.SO
A realistic, rather than idealistic, approachwas followed by the
delegatesin hammeringout the terms of the new Constitution,including the developmentof its amendatoryarticle. Dickinsonhad struck the
keynoteof the entire conventionwith his statementthat "[e]xperience
lve
must be o~r only guide. Reason may mislead US."Sl
of
sor
ate
:ral
27
,'..-
"
25. U.S. CONST.art. V.
26. Voegler, Amending the Constitution by the Article V ConventionMethod, 55 N.D.L.
REV. 355, 359 (1979)[hereinafter Voegler] (quoting L. ORFJELD.
THE AMENDINGOFTHEFEDERALCONSTITUTION
1 (1942».
27. See generally id. at 359-60.
28. Martig, Amending the Constitution. Article J":.The Keystoneof the Arch, 35 MICH.L.
REV. 1253, 1255 (1937) (citing
ORY
i
DOCUMENTS ILLUSTRATIVE OF THE FORMATION OF THE UNION OF
THEAMERICAN
STATES,
H.R. Doc. No. 398, 69th Cong., 1st SesS.35 (1927».
29. 3 FARRAND,
supra note 2, at 120.
30. See 4 id. at 18-20.
31. 2 id. at 278. A more extensivequotation of Dickinson'scommentsis both appropriate
and enlightening:
Experiencemust be our only guide. Reasonmay mislead us. It was not Reasonthat
discoveredthe singular & admirable mechanismof the English Constitution. It was not
8
HAMUNE' LAW REVIEW 1-
[Vol. 14
~
The final version of Article V of the new Constitution differs in
two basic respectsfrom ,theold Article XIII of the Articles of Confederation.s2First, a poweris reservedin the statesto call a conventionfor
proposing amendments,in addition to Congress'power to propose
amendments.The delegateswanted to retain in the severalstatesthe
powerto circumventa recalcitrant or abusiveCongressby initiating a
constitutional convention~
ss reflecting the opinion that "the assentof
the National Legislatureought not to be required" ~oan amendmentto
the Constitution.s4The seconddifferencefrom Article,XIII is that pro- ...:':
posedamendmentsdo no~require unanimousapproval.~y the .separate
states.As the Pinckneycommentillustr~tes,the dismal,economiccondition of the United Stateswasattributed to the unanimousrati~c~t~Qn
provisionof the Articles of Confederation.s6
Thus, th~ adoptiono,f,an
amendingprocesswhich did not require unanimousapproval bYcthe
stateswas almost inevitable.
,
In reachingthis final result, there was substantialdiscussionas to
whetherthe assentof the national legislatureto amendmentsought to
be required. The final versiondoesallow Congressto proposeamendments, but any proposedamendmentstill has to be ratified by the
states,and only by the states.That is, under both the Articles of Confederation and the Constitution, Congresshas never been given the
powerto proposeand ratify amendments.
c
Reasonthat discoveredor ever could havediscoveredthe odd & in the eyeof thosewho
are governedby reason,the absurd modeof trial by Jury. Accidentsprobably produced
these discoveries,and experiencehas give [sic] a sanction to them. ~his then is our
guide.
Id. In his famous quotation, Dickinson was apparently alluding to one of David Hume's essays,
entitled "The rise of arts and sciences,"wherein Hume stated the following:
To balance a large state or society (says he), whether monarchial or republican, on
general laws, is a work of so great difficulty, that no human genius,howevercomprehensive,is able, by the mere dint of reasonand reflection,to effect it. The judgmentsof
many must unite in the work; EXPERIENCE must guide their labour; TIME must
bring it to perfection, and the FEELING of inconveniences
must correct the mistakes
which they inevitably fall into in their first trials and experiments.
I HUME'SEssAYS,quoted in THE FEDERALIST
No. 85 (A. Hamilton) (emphasisadded).
32. CompareU.S. CONST.art. V, supra text accompanyingnote 2 with Articles of Confederation art. XIII, supra text accompanyingnote 28.
33. 1 FARRAND,
supra note 2, at 203 (Madison-June 11)(Mason'scomments);2 id. at 629
(Madison-Sept. 15)(Mason's comments);see also 3 id. at 127 (Randolph's commentsto the
Virginia House of Delegates),367-68 (Mason's account as told to Thomas Jefferson),575 n.6
(Letter from GeorgeRead to John Dickinson of Jan. 17, 1787); 4 id. at 61 (Mason's notes).
34. 1 id. at 22 (quoting Resolution 13 of the Virginia Plan).
35. See supra text accompanyingnotes28-29.
"",,
~
1]
ARTICLE V CONVENTION
D.
1. May 29
-
9
The Amendatory Provision: The Record
June 11: The Virginia Plan
As noted above, The Virginia .Plan served as.the starting point for
discussion at the convention.s6This plan described, in a general manner, the principles upon which the Virginia delegation believed the new
government should be based.s7Resolution 13 addressedthe issue of future amendments to the new Constitution:
:
13.Resd.that provisionoughtto be madefor the amendmentof the
Articles of Union whensoever
it shall seemnecessary,
and that the
assentof the National Legislatureoughtnot to be requiredthereto.s8
\
This earlystatementdemonstrates
that a majorpurposeof the amend-
1
e
atory articl~ was to provide a means for amending the Constitution despite congressionalinaction or opposition. This fact holds special signif-
0
0
1Ie
1le
icance becausemuch of the final text of the Constitution was derived
from the principles enunciated in the Virginia Plan.s9
Upon receipt by the convention of the Virginia Plan, Charles
Pinckney of South Carolina submitted a proposedconstitution which he
had prepared,"o a copy of which no longer exists."! As far as can be
determined, the Pinckney Plan provided little direction on the amendment process:
[XVI] The assentof the Legislatureof Statesshall be sufficientto
-
invest future additional Powersin U. S. in C. ass.and shall bind the
-
36. 1 FARRAND,supra note 2, at 16 (Journal-May
(McHenry), 27 (Patterson).
lYS,
I
"
29), 20 (Madison), 23 (Yates), 27
37. [d.
38. [d. at 22 (Madison-May 29).
,:
39. 3 id. at 593.
40. 1 id. at 16 (Journal-May 29), 23 (Madison), 24 (Yates).
41. 3 id. at 595. Great confusionhas beencausedby the lack of a correct copy of the socalled PinCckney
Plan. See generally id. at 595, 601-04. In 1818 Secretaryof State John Quincy
Adams was given the task of organizing and printing the public Journal of the convention.Becausehe could not locate the original PinckneyPlan in the official documentsof the conventionor
among JamesMadison's papers,Adams askedPinckneyto send him a copy of the original plan
submitted to the convention.See id. at 426-27. Pinckney found severalrough drafts of what he
-
-
1fed-
claimed
his original plan
"although they
differed
in all
some
"measurefrom
other
wordingwas
& arrangement
of the articles
yet they
were
substantially
the each
same.
. . in
." the
[d.
t 629
Pinckney went on to tell Adams that his plan "was substantially adopted." [d. at 426-28. However, in light of thorough research by numerous individuals and Madison's clear rejection of
0 the
5 n.6
s).
Pickney'sassertionas to the original plan Pinckney submitted before the convention,it is clear
that the copy sent to Adams was not the sameas the original Pinckney Plan submitted at the
convention.See id. 501-15, 531, 534-37, 595-609. In order to clear up the mystery, Professor
Farrand combinedall of the sourcesof information available in 1911and reconstructedwhat he
believedto be the Pinckney Plan in its original form. See id. at 604.
...,
10
HAMLINE LAW REVIEW
[Vol. 14
wholeconfederacy.42
Although Pinckney later asserted that his plan envisioned Congres~:as,
the
proponent
of
amendments,4S
there
is
nothing
in
the
text
.9(
.
io..~
, ..,
amendatory provision to indicate how amendments were
proposed.,
his
.
" ':"",
,
.
,'..~
""
...
While Resolutjon 13 of the Virginia Plan made it clear that Con~
gress was not to have any po~er. t9,lpterfere,with the amendm,e,~t'pio~'
cess, Alexander Hamilton's pro'posed draft of the new ~'nsijiuiion~
which was distributed to several members of the convention!b'1i(never
formally bef~re the convention,4.' delegatec;i,,~the
ability tp'pi~~~~
.~.:
.
amendments to'the national legislature:.'
""\i";:' ~;.~;:"
,
.
This Constitutionmay receivesuch alterationsand amendments':as.,;rll:~
may be proposedby the Legislatureof the United States,'with the'-
of two thirds
of both
Houses,chosen
and rati- concurrence
fled by the Legislatures
of,oforthe
bymembers
Conventions
of deputies
by
the people in, t~o thirds of the States composing the Union.41
,,"
Not surprisingly, the tension between those delegates that desired to
exclude Congress from the amendment process (as demonstrated in
Resolution 13 of the Virginia Plan) and those delegatesthat, wanted all
amendments to originate from Congress (as exemplified in Haniilt.on's
version of the amendatory provision) created substantial discussionand
occasional animosity; but as is often the case in politics, it was this
same tension that served as a catalyst to the compromise that resulted
in the final language adopted by the convention.
The convention delegates began their discussionson May ,3D by
focusing on the resolutions presentedin the Virginia Plan.4eIt was not
until June 5 that the discussionreached Resolution 13, Virginia's proposal regarding the amendment process.47
As stated above,the Virginia
Plan provided that a "provision ought to be made for amendment of
the Article of Union whensoeverit shall seemnecessary,and the assent
of the National Legislature ought not to be required thereto."4s
42. [d. at 609. The words "in C. ass." apparently stand for "in Congress assembled."
43. [d. at 120.
44. [d. at 617.
45. [d. at 630.
46. 1 id. at 30 (Journal-May
30), 33 (Madison), 38 (Yates), 40 (McHenry).
47. [d. at 117 (Journal-June 5), 121 (Madison), 126 (Yates).
48. [d. at 22 (Madison-May
29). Although Madison's notes of June 5 show a slightly
different
wording
of Resolution
13, it is apparent
-
by the return to the original
language of the
Resolution when quoted later in the Journal and by Madison - that Madison was paraphrasing
the content of the resolution in his June 5 notes. See id. at 22 (Madison-May
29), 121
,,~'o.-~=c
c,;;;rij
..-
1
~
f
1]
ARTICLE V CONVENTION
11
Charles Pinckney first spoke on the issue, stating quite simply that he
"doubted the propriety or necessity of it."49 Elbridge Gerry, on the
other hand, was in favor of the resolution, stating as follows: "The novelty & difficulty of the experimen.t requires periodical revision. The
prospect of such a revision would also give intermediate stability to the
Govt. Nothing, had yet happenedin the States where this provision existed to proves [sis;] its impropriety."6o The delegates thereupon postponed the matter for further consideration.61
About a week later, on June 11th, the delegates again discussed
Resolution 13.62According to Madison's notes, "several members did
not see the necessity of the [Resolution] at all, nor the propriety of
making the consentof the Natl. Legisl. unnecessary."63Colonel Mason,
however, "urged the necessityof such a provision"64stating as follows:
The plan now to be formed will certainly be defective,as the Confederationhas beenfound on trial to be. Amendmentsthereforewill
be necessary,and it will be better to providefor them, in an easy,
regularand Constitutionalway than to trust to chanceand violence.
0
It wouldbeimproperto requiretheconsent
of theNatl. Legislature,
n
11
becausethey may abuse.thei! power, and refusetheir consenton
that very account.T~e opportunityfor such an abuse,may be the
,
fault of the Constitutioncallingfor amendmt.55
s
d
is
:d
Governor Randolph "enforced" Colonel Mason's arguments.66The delegates then unanimously agreed to the portion of Resolution 13 that
stated that "provision ought to be made for the amendment of the Arti-
>Y
at
cles of Union whensoeverit shall seemnecessary,"67but postponedthe
decision on whether the assentof the' national legislature would be required.68Thus, when Governor Randolph reported on the state of the
0.
'
lla
0f
:nt
'48
-
~htly
f the
Ising
121
-. -
(Madison-June
5), and 194 (Journal-June
1.1),227 (Journal-June
13), 231 (Journal-June'
13), 237 (Madison-June 13); 2 id. at 84 (JournaI--July 23), 133 (Comm.
of Detail, Doc. I).
49. 1 id. at 121 (Madison-June 5).
'
50. ld. at 122 (Madison-June 5).
51. ld. at 117 (Journal-June 5), 122 (Madison), 126 (Yates).
52. ld. at 194 (Journal-June 11), 202-03 (Madison), 206 (Yates).
53. [d. at 202 (Madison-June 11). Madison doesnot state which membersof the convention spokeagainst the resolution.Basedon the commentsmade regarding this provisionat other
points in the convention,the most likely opponent to speak against Resolution 13 would be
Charles Pinckney.See id. at 121 (Madison-June 5).
54. [d. at 202 (Madison-June 11).
55. [d. at 202-03.
56. [d. at 203.
57. [d. at 194 (Journal-June 11), 203 (Madison), 206 (Yates); id. at 22 (Madison-text
of resolution).
58. [d. at 194 (Journal-June 11),203 (Madison), 206 (Yates).
12
IIIIIIII
HAMUNE LAWREYIEW
~
[VOI.14.
~
resolutionsseveraldays later, the text of the resolutionconcerningthe
amendmentprocess(now numberedas Resolution17) was as follows:
"Resolvedthat provisionought to be made for the amendmentof the
articles of union whensoeverit shall seemnecessary."69
2. June29 - July 23: Miscellaneous
Concerns
'.."
On June 29, the issueof the appropriateamendmentprocesswas
i
discussedduring the debate on whether each state should have;a~cequal
i
vote
inOliver
the second
house
the Senate).60
While
discussing
thisbe
issue,
Judge
Ellsworth
of(i.e.,
Connecticut
stated
that he
wouldnot
sur- ..:.:
;'
prisedif the new Constitutionshouldrequire amendmentin the future,
eventhough "we madethe generalgovernmentthe most perfectin our
opinion. . . ."61 "Let a strong Executive,a Judiciary & Legislative
powerbe created" JudgeEllsworth argued,"but Let not too much be
attempted;by which all may be lost."63Elsworth went on to describe
himself as "not in generala half-way man, yet [I] prefer[] doing half
the goodwe could,rather than do nothingat all. The other half may be
added,when the necessityshall be more fully experienced."6s
In responseto JudgeEllsworth'scomments,JamesMadisonspoke
about the needto continueto strive to createthe best plan of government possibleand the difficulty other governmentshaveexperiencedin
changingtheir form of governmentonce it is in place:
.
I would alwaysexcludeinconsistentprinciplesin framing a system
of government.The difficulty of getting its defectsamendedare
great and sometimesinsurmountable.
The Virginia stategovernment
wasthe first which was made,and thoughits defectsare evidentto
everyperson,we cannotget it amended.The Dutch havemadefour
severalattemptsto amendtheir systemwithout success.
The few alterationsmadein it wereby tumult and faction,and for the worse.e.
.
Another delegaterecordedMadison'scommentsas demonstrating
a concern about the potential dangerousness
of relying on future
59. [d. at 227 (Journal-June 13), 231 (Journal-slight changesin punctuationand capitalization), 237 (same). It is at this point in the conventionthat the committee that had been
working on the resolutionsrose,with the resolutionsnow beingconsideredby the entire convention
sitting as a committee of the whole House. [d. at 224 (Journal-June 13), 241 (Journal-June
15).
60.
61.
62.
63.
64.
[d.
[d.
[d.
[d.
[d.
at 469 (Madison-June 29), 474-75 (Yates), 478 (King).
at 475 (Yates-June 29).
at 469 (Madison-June 29).
at 475-76 (Yates-June 29).
,
,
4
1]
ARTICLE V CONVENTION
13
e
):
le
amendments, arguing that the delegates should continue to struggle to
create the best possible structure of government:
The Gentleman from Connecticut has proposeddoing as much at
this Time as is prudent, and leavg. future amendmentsto posterity
- this a dangerousDoctrine - the Defects of the Amphictionick
:
'
League were have
acknowledged,
but they
never
cd. to
be amend
reformed.
U
Netherlands
attempted four
several
Times
theirThe
Con-
federation, but have failed in each Attempt - The fear of Innovation, and the Hue & Cry in favor of the Liberty of the people will
prevent the necessaryReforms _[.]86
as,
al:
le,
lr-
re
Resolution 17 -
"That provision ought to be made for the amend-
ment of the articles of union, whensoever it shall seem necessary"66-
)u;
ive
be
ibe
lalf
be
oke
:rnj in
i
'
was consideredby the entire delegationof the conventionfor the first
time on July 23.67The Resolutionwas passedunanimously,apparently
without any discussion.68
Resolution17 was discussed,however,in relation to anotherresolution that "the legislative,Executive,and Judiciary Powerswithin the
severalStates,and of the nationalGovernment,ought to be boundby
oath to support the articles of union."89In this discussion,JamesWilson of Pennsylvaniastatedthat "he was neverfond of oaths" and that
"[h]e was afraid they might too much trammel the the [sic] Members
of the Existing Govt in casefuture alterationsshouldbe necessary;
and
prove an obstacle
to to
Resol:
17.how
justthe
agd.
to."70
Gorham
of
Massachusetts
failed
discern
taking
ofNathaniel
an oath would
hinder
future changesto the Constitution:
Mr. Ghorum [sic] did not know that oathswould be of much use;
but could seeno inconsistency
betweenthem and the 17. Resol:or
any regularamendt.of the Constitution.The oath couldonly require
fidelity to the existingConstitution.A constitutionalalterationof the
Constitution,
could,
be regarded
tion,
or of any
oathnever
to support
it.71 as a breachof the Constitu-
lting
1t u r e
~-~.-':"-.
-
65. [d.at 478 (King-June
d capid been
vention
-June
.
,
:
-
29). Unfortunatefy Madison did not record his own version of
his comments,apparentlydue to the adjournmentof the conventionfor the day immediatelyafter
Madison spoke.[d. at 476 (Yates-June 29).
66. 2 id. at 84 (Journal-July 23), 87 (Madison).
67. [d.
;1
68. 2 id. at 84 (Journal-July 23), 87 (Madison).
69. 2 id. at 84 (Journal-July 23); 1 id. at 227 (Journal-June 13)(original text of resolution), 231 (Journal)(changesin capitalization),237 (Journal)(changesin capitalizationand abbreviations); 2 id. at 87 -(Madison-July 23)(changesin capitalization and abbreviations).
70. 2 id. at 87 (Madison-July 23).
71. 2 [d. at 87-88 (Madison-July 23). It is unclear why Madison consistentlywrote
14
HAMLINE LAW REVIEW
[Vol. 14
Elbridge Gerry of Massachusettsagreed with Gorham, and added that
he consideredoaths as having value by impressing upon the officers of
the new government the fact that the state and federal governments
were not distinct governmentsbut were instead componentsof a general system, thereby preventing the preference that existed in favor of
the state governments!2 The resolution relating to oaths was then
passedwithout objection.73
.
;
3. July 26 -
,
August 6: Committee of Detail
'~NJ~'
On July 26, the resolutions were submitted to the Committee of
Detail,74consisting of John Rutledge of South Carolina, Edmund Randolph of Virginia, Nathaniel Gorham of Massachusetts,'Oliver Elsworth of Connecticut, and James Wilson of Pennsylvania.75The committee
spent approximately
one week transforming
the principles
set
out in the resolutions that had been adopted by the convention into a
detailed and workable constitution.76During that week, the committee
had before it numerous proposalsrelating to the amendment process,77
including the proposalscontained in the Virginia Plan78and the Pinckney Plan.79
"Ghorum" instead of "Gorham" during the first few monthsof the convention.See 1 id. at 10
(May 28), 215, 219 (June 12),372,375 (June 22), 404,405,408 (June 25), 421 (June 26); 2 id.
at 15, 17 (July 16),41,42,43,44,46,48 (July 18),73,79 (July 21), 87, 90, 94 (July 23), 106
(July 24), 122, 125, 127 (July 26),196, 198 (Aug. 7),215,221,224 (Aug. 8),240 (Aug. 9), 251,
255 (Aug. 10),270 (Aug. 13),293 (Aug. 14),297,300 (Aug. 15),309 (Aug. 16),314 (Aug. 17),
329 (Aug. 18), 357 (Aug. 21). On August 22, Madison finally employed"Gorham" as the spelling, id. at 374, but he then revertedback to "Ghorum." [d. at 392, 293 (Aug. 23), 401, 402 (Aug.
24), 415, 416, 418 (Aug. 25), 439 (Aug. 28). During August 29 and September8, Madison
alternated between "Ghorum" and "Gorham." [d. at 447 (Aug. 29-Ghorum), 448 (Aug.
29-Gorham), 453 (Aug. 29-Gorham), 476 (Aug. 31-Ghorum), 480 (Aug. 31-Gorham), 499
(Sept. 4-Gorham) , 526 (Sept. 6-Gorham), 540 (Sept. 7-Gorham), 549 (Sept. 8-Ghorum).
Finally, beginningon September10, Madisonused"Gorham" throughoutthe rest of his notes.[d.
at 560 (Sept. 10),587 (Sept. 12),589 (Sept. 12),614 (Sept. 14),628 (Sept. 15),643 (Sept. 17).
In addition, when Madison went back to amend his completedJournal, he inserted Gorham's
correct spelling. 1 id. at 335 (June 20); seeid. at xix. Seegenerally id. at xvi-xix.
72. 2 id. at 88 (Madison-July 23).
73. [d.; seealso id. at 84 (Journal-July 23).
74. [d. at 117 (Journal-July 26).
75. [d. at 97 (Journal-July 24), 106 (Madison).
76. See generally id. at 117 (Journal-July 26), 175 (McHenry-Aug. 4), 176 (Journal-Aug. 6).
77. See generally id. at 133, 136; 148, 152, 159, 174; 3 id. at 609.
78. 2 id. at 133 (Comm. of Detail, Doc. I).
79. [d. at 136 (Comm. of Detail, Doc. III); seealso id. at 98 (Journal-July 24); 3 id. at
609 (Pinckney Plan). The New JerseyPlan, also known as the PattersonProposals,2 id. at 98
(Journal-July 24), was also before the committee.[d. at 98, 134 n. 3 (Comm. of Detail, Doc.
III). However,the New JerseyPlan did not contain a provisionfor future amendmentsto the
1!i
!ti
"~-;
",""""
,~"""
tc'",,",;;,;.
"""
I
~
1
1
(
(
J
r
1
F
rl
tt
C
C
e~
pn
13
(Jc
(M
03
23)
CO
rev(
l. 14
1]
that
's of
ents
gen)r of
then
~);a~
:1
!3),106
9),251,
hUeg~::I~~
)2(Aug.
Madison
The language of the Virginia amendatory proposal remained the
same as its May 29 introductory version, which was as follows: "Resolved That Provision ought to be made for the Amendment ~f the Articles of Union, whensoeverit shall seem neces~ary."soOf course, the
original Virginia proposal ended the above-quotedlanguage with the
proviso "that the assent of the National Legislature ought not to be
required thereto."sl As discussedabove, the first part of the Virginia
Resolution was adoptedS2but the discussionon the secondpart of the
Resolution was postponed.s3
Professor Farrand, in his attempt to reconstruct the Pinckney
Plan, determined that the following is most probably the original text
of the Pinckney amendatory provision: "The assent of the Legislature
of States shall be sufficient to invest future additional Powersin the U.
S. in C. ass. and shall bind the whole confederacy."S4.
Unfortunately,
the only surviving document of the portion of the Pinckney Plan before
the Committee of Detail is an outline of that Plan,s6which contains
only the following reference to future amendments:"24. The Articles
of Confederation shall be inviolably observed,x and the Union shall be
perpetual; x unless altered as before directed."s6It is unclear what was
meant by the language "unless altered as before directed," although it
is reasonable to assume from this language that the version of the
Pinckney Plan used by the Committee of Detail included some other
reference to the amendment process.
The next relevant document extant in the records of the Committee of Detail is a draft copy of portions of the constitution before the
Committee. Substantial information on the thought processesof the
Committee is revealed by the editing contained on the document itself,
~m~~::9
especially editing related to the introduction of the idea of a convention
~e of
Ranr EIcom:s set
nto a
1ittee
:ess77
'indk-
ARTICLE V CONVENTION
15
rhorum).
1otes.[d.
.ept. 17).
}orham's
76 (Jour-
); 3 id. at
id. at 98
~tail, Doc.
nts to the
proposedconstitution.See 1 id. at 242-45(Madison-June 15), 247 (King); seea/so 3 id. at 61113,615-16.
80. 2 id. at 133 (Comm. of Detail, Doc. I); seea/so 1 id. at 22 (Madison-May 29), 194
(Journal-June 11), 203 (Madison-June II), 227, 231 (Journal-June 13); 237
(Madison-June 13); 2 id. at 84 (Journal-July 23), 87 (Madison-July 23).
81. 1 id. at 22 (Madison-May 29),121 (Madison-June 5),194 (Journal-June 11),20203 (Madison-June 11).
82. [d. at 194 (Journal-June 11), 203 (Madison), 206 (Yates); 2 id. at 84 (Journal-July
23), 87 (Madison).
83. 1 id. at 194 (Journal-':'-June11),203 (Madison).
84. 3 id. at 609.
85. 2 id. at 129, 134 (Comm. of Detail, Doc. III); seegenerally 3 id. at 595, 601-09.
86. 2 id. at 136 (Comm. of Detail, Doc. 1II)(footnotes omitted). ProfessorFarrand has
concludedthat "[t]he crossesare evidentlyintendedto indicatethat the last two clausesshouldbe
reversed."[d. n.5.
.1111
-
16
11111111 HAMUNE LAW REVIEW
[Vol. 14.
for the purposeof proposingamendmentsto the Constitution. Referencesto theseearly drafts also demonstratethe thought processes
surrounding whether the changesto the Constitution by the amendment
processwould be made only one at a time.
The documentinitially providedthe following handwriting of Edmund Randolph: "An alteration may be effected in the articles of
union, on the applicationof two thirds of the statelegislatures."87
Randolph subsequentlystruck out the words "two thirds" and replaced
them with the word "nine,"88and then apparentlyallowedJohn Rutledgeto make suggestionsand changeson the document.Rutledgere~
turned the languageto two thirds of the state legislatures:and then~
significantly,addedthe first referenceto the useof a conventionas part
of the amendmentprocess.89
Rutledge'snew version read as follows:
"An alteration may be effectedin the articles of union, on the application of 2/Jdof the state legislaturesby a Convn."90
Rutledgenext crossedout the entire languagequotedimmediately
above,and replacedit with the following: "on appln. of 2/3dsof the
State Legislaturesto the Natl. Leg. they call a Convn.to reviseor alter
ye. Articles of Union."91Thus, in this documentwe observethe origin
of the conceptof proposingamendmentsto the Constitutionby a convention,as well as the suggestionthat the applicationsfor sucha conventionwould be directedto the national legislature,which would then
call the convention.
Rutledge's suggestedchangeswere included in the subsequent
drafts (now in Wilson's handwriting) createdby the Committeeof Detail, but with an important addition: "This Constitution ought to be
amendedwheneversuch Amendmentshall becomenecessary;and on
Application of the Legislaturesof two thirds of the Statesof the Union,
the Legislatureof the United States shall call a Conventionfor that
Purpose."92Wilson's expandedversionof the amendatoryarticle implied that amendmentsto the Constitution were to be made singly
whenever"such Amendment" (singular) shall becomenecessary,
a convention would be called "for that Purpose."
On August 6 the first draft of the Constitution was submittedto
87.
88.
89.
90.
91.
92.
similarly
[d. at 137 n.6, 148 (Comm. of Detail, Doc. IV)(emphasisadded).
[d.
[d.
[d. (emphasisadded).
[d.
[d. at 152 n.14, 159 & n.16 (Comm. of Detail, Doc. VIII)(emphasis added), 174 (a
worded draft proposedby the Committee of Detail).
~
1]
ARTICLE V CONVENTION
17
the conventionby the Committee of Detail.93Article XIX of the draft
provided the following: "On the application of the Legislaturesof two
thirds of the States in the Union, for an amendmentof this Constitution, the Legislature of the United States shall call a Conventionfor
that purpose."9' Once again, referencewas made to "an amendment"
and a convention"for that purpose."
4. August 30 -
1
,
t
.:
-
Article XIX was taken up by the convention on August 30.95
There was little discussionon the proposal,with just GouverneurMorris of Pennsylvaniasuggesting"that the Legislature should be left at
liberty to call a Convention,wheneverthey please."96Despitethis suggestion, the proposalwas passedas submitted without objection.97As
passed,the amendatory article allowed only the states to initiate 'the
amendmentprocess,and the representativesof the statesto draft the
amendmenton that issueat a convention.The terms of the August 30
version left Congresswithout the ability to proposeamendments;instead,Congresswas given the merely ministerial duty to call a convention upon the request of two-thirds of the state legislatures.It is also
interesting to note that Article XIX did not explicitly require ratification of the proposedamendment.
On September10, Elbridge Gerry of Massachusettsmovedto reconsiderArticle XIX.98 Gerry was concernedthat a majority of States
could, through the conventionprocess,"bind the Union to innovations
that may subvert the State-Constitutions altogether."99 Alexander
Hamiltonconcerns
of New .but
Yorkasserting
seconded
theCongress
motion to,should
reconsider,
Tejecting
Gerry's
that
also have
the
y
e
:r
n
11:n
r1t
eDe
m
In,
September10: Article XIX
;
at
n~ly
ill-,
power to call a convention:
[Hamilton] did not object to the consequencesstated by Mr.
Gerry-There wasno greaterevil in subjectingthe peopleof the U.
S. to the major voice than the peopleof a particular State-It had
beenwished by many and was much to have beendesiredthat an
easiermodefor introducing amendmentshad beenprovidedby the
articles of Confederation.It was equally desirablenow that an easy
to
-
4 (a
93.
94.
95.
96.
97.
98.
[d.
[d.
[d.
[d.
Id.
[d.
at 176 (Journal-August 6), 177 (Madison), 190 (McHenry).
at 188 (Madison-Aug. 6)(emphasisadded).
at 461 (Journal-Aug. 30), 467-68 (Madison).
at 468 (Madison-Aug. 30).
at
a~ 461
555 (Journal-Aug.
(Journal-Sept. 30),
10), 468
557 (Madison-Aug.
(Madison-Sept. 30).
10).
99. [d. at 557-58 (Madison-Sept. 10).
18
HAMLINE
LAW REVIEW
[Vol. 14
mode should be establishedfor supplying defects which will probably
(
appearin the new System.The mode proposedwas not adequate.
The
State Legislatures
will not The
apply
for alterations
but with
to increase
their own powersNational
Legislature
will abeview
the
first to perceiveand will be most sensibleto the necessityof amendments,and ought alsoto be empowered,
whenevertwo thirds of each
branchshouldconcurto call a Convention- Therecould be no dan-'
ger in giving this power,as the peoplewould finally decidein the"
case.loo
..
1
1
1
~
~,;;.
"
,..-
I
.
,
.ff
James Madison next spoke on the issue, stating his concerns on the
lack of specificity in the terms employedIn Article XIX: ."Mr .~Madison
remarked ontheyagueriess of the terms, 'call a~onventionfor the purpose'as sufficientreasonfor recpnsideririgthe article. How'was i' Convention to be formed? by what rule decide? what the force' of its
acts?"101
.
The convention then voted to reconsider the amendatory provision.lo2Many of the delegateshad been persuadedby Alexander Hamilton's arguments,that the national legislature should be able to propose
amendments directly, without the need for calling a convention to proposeamendments.loaRoger Sherman of Connecticut then moved to add
the following italicized words to Article XIX:
On the applicationof the Legislaturesof two thirds of the Statesof
the Union, for an amendmentof this Constitution,the Legislatureof
(
1
c
r
t
e
II
the United States shall call a Conventionfor that purposeor the
Legislaturemay proposeamendments
to the severalStatesfor their
approbation,but no amendments
shall be bindinguntil consentedto
by the severalStates.1O4
By this addition, the statescontinuedto have the right to apply for a
conventionfor proposing"an amendment"to the Constitution,but now
Congresswould be given the power to directly propose"amendments"
to the states for ratification. Sherman'smotion was secondedby £1bridge Gerry of Massachusetts.lo~
The delegatesquickly perceivedthat this addition would result in
a return to the requirementcontainedin the Articles of Confederation
1
g
t]
C
100. [d. at 558 (Madison-Sept. 10).
101. [d.
102. [d. at 555 (Journal), 558 (Madison-Sept. 10).
103. [d. at 558-59 (Madison-Sept. 10).
104. [d. at 555 (Journal-Sept. 10), 558 (Madison-Sept. 10), 188 (Madison-Aug.
6)(previous text of art. XIX)(emphasis added).
105. [d. at 558 (Madison-Sept. 10).
.
-
I(
14
,
1]
ARTICLE V CONVENTION
19
of unanimous approval of the States in order to effectuate a change in
the new Constitution. James Wilson therefore immediately moved for
the insertion of the words '~two thirds," so that the amendmentswould
be binding upon the consent of two -thirds of the several states.loeWilson's motion was narrowly defeated (by a vote of five in favor, six opposed).lo7Wilson then moved to alter the Resolution by inserting the
words "three-fourths" of the several states, which was passedwithout
objection.lo8
Thus, Article XIX now read as follows:
the
'son
1
On
the application
of the Legislatures
of two thirds
ofLegislature
the Statesof
in
the Union,
for an amendment
of this Constitution,
the
£ur~o.nf Its
the United States shall call a Conventionfor that purposeor the
Legislaturemay proposeamendmentsto the severalStatesfor their
approbation,but no amendmentsshall be binding until consentedto
.
by three fourths of the several States.loe
rOVl-
[ampose
proadd
I
for a
now
~nts"
y EllIt in
ation
-Aug.
Under this new version, either the nationall~gislature or a convention
could propose amendments to the Constitution, with all such amendments having to be approved by three fourths of the states.
James Madison next took the lead on the content of the amendatory provision, moving to postpone consider~tion of the Article presently before the convention as amended and to instead take up the following proposal:
The Legislature of the US-- whenevertwo thirds of both
Housesshall deemnecessary,
or on the applicationof two thirds of
the Legislaturesof the severalStates,shall proposeamendmentsto
this Constitutionwhich sh~ll be valid to all intents and purposesas
part thereof,whenthe sameshall havebeenratified by threefourths
at least of the Legislaturesoithe severalStates,or by Conventions
in three fourths thereof,as oneor the othermode;ofratification may
'be proposedby the Legislatureof the U. S[,]ll~"
Th "
ks h fi
f h
..
. ConIS versIon mar t erst appearance0 t e provIsIon chargmg
gress with the-duty .to choosebetween the two methods of ratification,
that is by\~threefourths of the state legis1.atur~sor by three fourths of
conventions hel~ in each state for that purpose. Of greater significance,
106. [d.
107. [d. at 558-59.
108. [d. at 555 (Journal-Sept. 10), 559.
109. [d. at 188 (Madison-Aug. 6)(previous text of art. 19), 555 (Journal-Sept.
10)(addedlanguage),558-59 (Madison-Sept. 10)(same)(emphasis
added).
110. [d. at 555 (Journal-Sept. 10), 559 (Madison-Sept. 10)(emphasisadded).
20
HAMLINE LAW REVIEW
[Vol. 14
however, is the fact that Madison's new version deleted all reference to
a convention for proposing "an amendment," making it necessary..,forc:c
all proposals for "amendments" to come from the national legislature..
The fact that there was apparently no discussion on this signifi~ant
change is surprising, especially in light of the s,econdclause of the Vir,: .
ginia Plan - "the assent of the National Legislature ought not to be.
required"lll - which h~d been repeatedly postponed,112
and Colonel
Mason's previous statements opposing the requirement of the consent.
of the nationallegislature.i18
.
. ; ~ ~:.
1
J
(
F
S
I
t:
The discussion in~te:adcentered.on an entirely different ~~4~r.
After receiving a sec,ondto't,hemoiio~ from Alexan.d~rHamil,ton,:)ohn
,
c...
. , ..,
Rutledge of South Carolina objected to giving a majot;ityof s~te§;the
ability to amendthe Constitutionon the topic of slavery.
~14,Madis.on
acceded to Rutledge's suggestionto add a proviso which provideq that
"no amendments which may be made prior to the year 1808. shall. in
any manner affect the 4 & 5 sections of the VII article(.]"115 ':'
The fourth and fifth sections of Article 7 contained the r~uirement that no prohibition would be allowed "on the migration ahd:lmportation of such persons as the several States shall think prope~ to
admit," that such migration and importation shall not be pr<;>hiblted,
and that no per capita tax would be levied except in proP9rtion. to. the .
Census,which counted .blacks as three-fifths their number.118With the
addition of the proviso ensuring the continuation of the slave trade'"until at least 1808, the revised amendatory article was passed.117
5. September 12 -
September 17: Article V,"
;
1
f(
r~
.
1
r~
A
w
':.. .C~.."'.'
,
As the convention was in the processof completing it~ consideration of the few remaining proposals submitted by the Committee of
Detail, the task of pulling together the completed work of the convention into a coherent draft constitution fell on the Committee of Style
(also known as the Committee of Revision),118consisting of William
Ill.
1 id.atat117
22 (Madison-May
29).122 (M.adison-June 5), 126 (Yates-June 5), 194
112. [d.
(Journal-June 5),
(Journal-June 11), 194 (Madison-June 11).
113. [d. at 202-03 (Madison-June 11).
114. "Mr. Rutledgesaid he nevercould agreeto give a powerby which the articles relating
to slavesmight be altered by the Statesnot interestedin that property and prejudicedagainstit."
2 id. at 559 (Madison-Sept. 10).
115. [d. at 555 (Journal-Sept. 10), 559 (Madison-Sept. 10).
116. [d. at 182-83(Madison-Aug. 6).
117. [d. at 555-56 (Journal-Sept. 10), 559 (Madison- Sept. 10).
118. [d. at 582 (Journal-Sept. 12).
-
(C
14
1]
ARTICLE V CONVENTION
to
'or
reo
nt
irbe
leI
Johnson of Connecticut, Alexander Hamilton of New York,
GouverneurMorris of Pennsylvania,JamesMadison of Virginia, and
Rufus King of Massachusetts.lllOn September12, the Committeeof
Style deliveredits report of the Constitutionas revisedand arranged.12O
It was at this point that the amendatoryprovisionwas renumberedArticle V.12lThe revisedArticle read as follows:
. tV.
,n
21
The Congress,whenevertwo-thirds of both housesshall deem
necessary,or on the applicationof two-thirds of the legislaturesof
~
er.
,hn
~he
;on
hat
in
the several states, shall propose amendments to this constitution,
re-
which shall be valid to all intents and purposes,as part thereof,
when the sameshall have beenratified by three-fourthsat least of
the legislaturesof the severalstates,or by conventionsin threefourths thereof,as the one or the other modeof ratification may be
proposedby the Congress:Provided,that no amendmentwhich may
be madeprior to the year 1808shall in any manneraffect the and
.
f
. I . . .122
sections0 artIce.
The Committee had made minor stylistic changes, but had otherwise
l~~
d
followed the l~st version approved by the delegates.lls This new version
required all amendments to be proposed by Congress.
~h~
the
un-
,,
;
.
.
On September1~, the conventionreachedArticle V a~terd~scuss-
m~ the. first fo~r artIcles.ll. Roger Sherman ~e~an the dIScussIon by
reIteratIng Elbndge Gerry's126 fear that a majorIty of states may use
Article V to the detriment of other states that are in the minority and
which object to the amendment:
~ra-
Mr. Shermanexpressedhis fears that three fourths of the States
might be brought to do things fatal to particular States,as abolishing them altogetheror deprivingthem of their equality in the Sen-
~ of
ate.He thoughtit reasonable
that the provisoin favorof the State
lentyle
iam
importing slave~shouldbe extendedso as to providethat no States
shouldbe affectedin its internal police,or deprived.ofits equalityin
the Senate.lie
-
.
ColonelMason alsospokeagainstthe amendatoryarticle, focusing
,194
lating
st it."
119. [d. at 547 (Journal-Sept. 8), 553 (Madison-Sept. 8).
120. [d. at 582 (Journal-Sept. 12), 585 (Madison-Sept. 12).
121. [d. at 602 (Comm. on Style).
122. [d. (footnotesomitted)(emphasisadded).
123. Compare id. at 555 (Journal-Sept. 10), 559 (Madison-Sept. 10) with id. at 602
(Comm. on Style).
124. [d. at 629 (Madison-Sept. 15).
125. [d. at 557;;58 (Madison-Sept. 10), 629 (Madison- Sept. 15).
126. [d. at 629 (Madison-Sept. 15).
22
HAMLINE
LAW REVIEW
[Vol. 14
1]
especiallyon his concernthat Congresscould preventthe proposingof
amendments.On the back of his copy of the draft Constitution,Mason
i
wrote the following:
Article 5th. By this Article Congressonly have the Power of proposing Amendments at any future time to this Constitution, & shou'd it
prove ever so oppressive,the whole peopleof America can't make, or
even propose Alterations to .it; a Doctrine utterly subsersiveof the
fundamental Principles of the Rights & Liberties of the people[.]lI7
Mason's notes served as the basis fot'the comments he gave
on the
,
convention floor, which were recorded by Madison:"
,
..
"
'
,
Col: Mason thought. the plan of amending the Constitution exce~i"
tionable & dangerous. As the proposing of amendments is in both
the modes to depend, in the first immediately, and in the second,
ultimat~.lY, on Congress,no amendments of the proper kind would
ever be obtained by the people, if the Government should become.'
oppressive,as he verily believed would be the case.l28
As a result of theseconcerns,GouverneurMortis of Pennsylvania
and Elbridge Gerry of Massachusetts"moved to amendthe article so
as to require a Convention on application of 2/Jof th~ 'Sts . . ."129
..
\
Ac
eve
Co
wa:
of
the
I
cor
J ames Madison rose to address the motion:
tu t.
Mr. Madison did not seewhy Congresswould not be as much bound
to proposeamendmentsapplied for by two thirds of the States as to
call a Convention on the like application. He saw no objection how-
ag~
an'
ever against providing for a Convention for the purpose of amendments, except only that dIfficulties might arise as to the form, the
C~t
a (
quorum &c. which in Constitutional regulations ought to be as much
as possible avoided.lso
wo
The convention thereupon unanimously agreed to the motion of Morris
and Gerry,1S1 thus acceding to Mason's request to re-insert the convention method of amending the Constitution into Article V.
Of special interest in this regard is Thomas Jefferson's account of
this matter, as told to him years later by George Mason, which tells of
the nefarious attempt by some delegates to delete reference to the con-
vention processin the new constitution:
127. 4 idoat 59 n.l, 61; 2 ido at 637 no21 (stating that the quotcdlanguage "was written by
Mason on the blank pagesof his copy of the draft of September12").
128. 2 id. at 629 (Madison-Sept. 15).
129. [d.
130. [d. at 629-30.
131. [d. at 630.
.-
~~
eve
Thl
Shl
stri
-
)1. 14
1]
19 of
ARTICLE V CONVENTION
Anecdote. the constn as agreed at first was that amendmentsmight
[ason
,.
be proposedeither by Congr. or the legislaturesa commeewas ap-
7
pointed to digest & redraw. Gov. Morris & King were of the commee. one morng. Gov. M. moved an instrn for certain alterns (not l/2
the members yet come in) in a hurry & without understanding it
was agreed to. the Commee reported so that Congr. shd have the
exclusive. power of proposg. amendmts. G. Mason observd it on the
report & opposedit. King denied the constrn. Mason demonstrated
it, & asked the Commee by what authority they had varied what
rl the
had
been
G. Morris
impudently
gotinstruction
up & saidbeforeby authority
of agreed.
the convention
& then
produced
the blind
-
mentd.which wasunknownby l/2of the house& not till then understopdby the other..they then restoredit as it stoodoriginally.132
.
t
r
~
t1
l,
:i
e
vania
~le so
23,
.
According to Jefferson's retelling of Mason's recollection of these
events, a minority of delegates almost succeededin deleting from the
Constitution all reference to the convention method, but their attempt
was defeated by the vigilance of several delegateswho feared the power
of Congressas an instrument to thwart changesthat may be neededin
the future. In any event, the portion of Article V which contained the
d
conventionmethodof amendmentwas reinsertedinto the draft constitution on September15.
As he had done some five days earlier,1SS Roger Shermanonce
again attemptedto require the unanimousconsentof all the states~o
0
any amendments, and once again his proposal was turned down by the
~~
convent~on.1s.Elbridge Gerry then moved to strike the language that
~'12t
Ie
h
tforris
mvenunt of
ells of
e con-
ritten by
allowedratification to occur by ~onvention~e~hod,which alsofailed.ls5
R~ger Sherman then moved to prohIbIt any amendmentthat
would affect the internal police of a state or would deprivea state "its
equal suffragein the Senate."lS6JamesMadison speakingagainst the
motion cautionedthe following: "Begin with thesespecialprovisos,and
every State will insist on them, for their boundaries,exports &C."lS7
The membersof the conventionagreed with Madison, voting down
SherIIian's'motionthree statesto eight.1s8
Shermanthereuponmovedto
strike Article V altogether,but this motion failed also.1St Nonetheless,
132.
133.
134.
135.
136.
137.
138.
139.
3 id. at 367-68 (footnote omitted).
2 id. at 555 (Journal-Sept. 10), 558 (Madison-Sept. 10).
2 id. at 630 (Madison-Sept. 15).
[d.
[d.
[d.
[d.
[d. at 630-31.
24
HAML/NE LAW REVIEW
[Vol. 14
Sherman's point on the need to keep the suffrage of the Senate equal
started to gather adherents among the small states. Gouverneur Morris
of Pennsylvania (a state which had previously voted against Sherman's
two motions)14.0then moved "to annex a further proviso - 'that no
State, without J~s ~nsent shall be d.epriveg,of its equal su~rage in the
Senate.' "14.1The,ffi~tion, acciJ~ding~o.Madison, had beeD;,"dictatedby
the cir~ulating murmurs of the small ,States . . .' ."14.2As a-.resuJt,the
motion
agreed
to without".debate,
questiQn.,"was
saying
~0~:~.~4~,~'
;::
l:t~'..i",.'.' no one opposing i~. ::or~iri;,the
, "~;);c;4\::.,.
The debate on'theCQnstitution:ended on September 15~at,which
time the Constitution as amended was agreed.to unanimo1,lsly.~~.irhe
convention ordered that the Constitution be engrossed,14.6
and two days
later, on September 17, the engrossed Constitution was read.I4..~nd
signed.14."The final version of Article V read as follows:
,:
(,.,~:$,';:::;_.;,
i.
,
;
;
I
ARTICLE .
v.
Senate.14.&
141. [d, at 631.
142. [d.
143. [d. at,631,634 (McHenry-Sept. 15).
144. 2 id. at 633 (Madison-Sept. 15), 634 (McHenry-Sept. 15).
145. [d.
146. [d. at 641 (Madison-Sept. 17), 649 (McHenry).
147. [d. at 648-49 (Madison-Sept. 17),649 (McHenry).
148. [d. at 662-63.
i
I
I
i
I
.,",'r~,;)
'"':'
'.."
c'.'Co
The Congress, whenever two thirds. of both Houses shall deem it
necessary, shall propose Amendments to this Constitution, or, ;on the
Application of the Legislatures of two thirds of the several States, shall
call a Convention for proposing,Amendments, which, in either Case,
shall be valid to all Intentf;~d PUrp()ses,as Part of this Constitution,
when ratified by the Legis1iliureso~ three fourths of the several States,
or by Conventions in three fourths thereof, as the one 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 eight shall in any Manner affect the first and fourth
Clauses in the Ninth Section of the first Article; and that no State,
without its Consent, shall be deprived of it's [sic] equal Suffrage in the
140. [d. at 630.
I
,,"
1]
ARTICLE V CONVENTION
E.
25
Summary of Record Regarding Primary Issues
1. Need for an Amendment Process and the Convention Method
Some delegates of the constitutional convention"questioned the
need for providing a procedure for amending the new Constitution.148
Indeed, a few delegates asserted that the proposed amending provision
could be used as a means by which the rights of some states could be
subverted by a majority of the other states.1GO
However, most of the
delegates realized that the plan of government created by the convention would not be perfect and would, at some point in time, need to be
amended.1GlSeveral delegates, especially Colonel Mason, strongly believed that the amendment processwas absolutely necessary,not only
to correct defects in the new system,lG2but also to protect the people
and the states from an abusive or oppressivenationallegislature.1G3In
responseto these fears, the convention accededto the request to create
a processof proposing amendments by a convention method.1G4
2. Role of the States and Congress in Proposing Amendments
The Virginia "Plan did not specify whether the states or the national legislature would propose amendments.1GG
The Pinckney Plan
and the Hamilton Plan, on the other hand, both envisionedthe national
legislature as the initiator of proposed amendments.1G6When the
amendatory provision emerged from the Committee of Detail, it provided that the state legislatures could request the national legislature to
call a convention for proposing amendments,and that the national legislature would then be required to call a convention for that purpose.1G7
The provision was later amended to also allow the national legislature
to propose amendments,lG8and then subsequently revised further to
provide that the states could apply to the national legislature for
amendments they desired, rather than for a convention, with the national legislature then being required to actually propose the desired
149.
150.
151.
152.
153.
154.
155.
156.
157.
158.
See supra text
See supra text
See supra text
See supra text
See supra text
See supra text
See supra text
See supra text
See supra text
See supra text
accompanyingnotes 49, 53, 99, 126-28, 138.
accompanyingnotes 99, 126-28.
accompanyingnotes 50, 55-56, 61, 100.
accompanyingnotes 38, 42, 50, 54-57, and 61.
accompanyingnotes 55-56, 128-27.
accompanyingnotes 129-31.
accompanyingnotes 37-38.
accompanyingnotes42, 45.
accompanyingnote 94.
accompanyingnote 104.
26
HAMLINE LAW REVIEW
[Vol. 14
amendments.IG9Accordingly, the reference to the national legislature
calling a convention upon the application of two-thirds of the states was
dropped.16OThus, when the amendatory provision surfaced from the
Committee of Style, only the national legislature was authorized to
propose amendments.161When this change was discovered, the provision was amended a final time, permitting either, the national legislature or a convention called by two-thirds of tbe - states to propose
amendments.
162
1
This series of amendments and revisions was the product of the
disputebetweenthose'whobelieved
the federalgovernment
wouldbeIn
the best position to perceive the need for particular amendments, and
those who believed that the amending provision should provide a mechanism fof. thwarting an abusive or unresponsive national legislature.
The dispute also can be seenas a demonstration of the tension between
those delegates who desired a powerful national body, and those delegates that feared such a result. In any event, the final terms of the
provision regarding how amendments would be proposed embodied a
compromise
that gaveboth factionswhat theysought:the nationallegislaturecouldproposeamendments
it thoughtwereneeded,andthe nationallegislature could be circumvented by the states through the convention processwhen the state legislatures consideredit necessaryto do
so. It must be emphasized that the reason the convention alternative
was included into Article V was to provide a means for proposing
amendments despite the opposition .or inaction of the national legislature. Thus, the terms of Article V cannot be construed to defeat that
purpose by granting Congressany authority to limit or prevent the calling or operation of such a convention.
3. Ratification: Method and Number of States Required
Under the Articles of Confederation, the state legislatures were
empowered to ratify amendments proposed by the national legislature.163The Pinckney Plan followed this approach,164while the Hamilton Plan included ratification by conventions held in each state.16G
There was little concern for the details of ratification until near the end
159.
160.
161.
162.
163.
164.
165.
See supra text
See supra text
See supra text
See supra text
See supra text
See supra text
See supra text
accompanyingnotes 110, 117.
accompanyingnotes 11O,117.
accompanyingnote 122.
accompanyingnotes 129, 148.
accompanyingnote 28.
accompanyingnote 42.
accompanyingnote 45.
~
'
!
:
"
1]
ARTICLE V CONVENTION
27
of the convention.'When Madison proposedhis revision of the amendatory provision - ,which left it to the national legislatpre to actually
propose all amendments - he resurrected Hamilton's suggestion that
ratification could be either by the consent of sta~e legislatures or by
stateconventions
calledfor that purpose.
lee This changewascarried
forward into the final version of Article V.le7
Hamilton's initial plan also envisioned ratification by two-thirds of
the states.lea Although there were occasional attempts to revert back to
the requirement of unanimity found in the Articles of Confederation,le9
the real question was whether ratification would Occurupon the consent
of two-thirds or three-fourths of the states. When the matter came to a
vote before the convention, ratification by two-thirds of the states was
narrowly defeated,17Oand the delegates then agreed to ratification
three-fourths of the states.17l
by
4. Amendment (Singular) vs. Amendments (Plural)
The Articles of Confederation only allowed amendmentsto be proposed one at a'time, referring to "any alteration" and requiring ratification by the states of "such alteration."172Although the Virginia Plan
did not specify the details of the amendment process,173
the Hamilton
Plan allowed for more than one amendment to be proposed at a time,
providing that the constitution "may receive such alterations and
amendments" as may be proposed by the states and agreed to-.by both
housesof the nationallegislature.174.Nonetheless,when the amendatory
provision emerged from the Committee of Detail, it provided that the
states could apply for "an amendment" to the constitution, and that the
national legislature would call a convention "for that purpose."175
Roger Sherman's subsequentamendmcnt to Article XIX retained
the language for a single amendment when proposed by a convention,
but then added that t~e national'-legislature could "propose amendments," and that "no amendments" could be bindin,g u!lt,il consentedto
.
\~
-:.-
1~6. Seesupratextaccompanying
note110.,
167: See supra text accompanyingnote 148.
168. See supra text accompanyingnote 45.
169. See supra text accompanyingnotes 104. 134.
170. See supra text accompanying notes 106-07.
171. Seesupratext accompanying
note 108.
,.."
.
,
-""
,
: ..
,~
172. See supra text accompanyingnote 28.
173. See supra text accompanyingnotes 37-38."
174.
See
supra
text
accompanying
note
48.
175.
See
supra
text
accompanying
note
94.
.
,~"i.
1]
ARTICLE V CONVENTION
27
of the convention.'When Madison proposedhis revision of the amendatory provision - ,which left it to the national legislat:ure to actually
propose all amendments - he resurrected Hamilton's suggestion that
ratification could be either by the consent of sta~e legislatures or by
state conventions called for that purpose.166This change was carried
forward into the final version of Article V.167
Hamilton's initial plan also envisioned ratification by two-thirds of
the states.168
Although there were occasional attempts to revert back to
the requirement of unanimity found in the Articles of Confederation,169
the real question was whether ratification would OCcurupon the consent
of two-thirds or three-fourths of the states. When the matter came to a
vote before the convention, ratification by two-thirds of the states was
narrowly defeated,17O
and the delegates then agreed to ratification by
three-fourths of the states.17l
4. Amendment (Singular) Ys. Amendments (Plural)
The Articles of Confederation only allowed amendmentsto be proposed one at a'time, referring to "any alteration" and requiring ratification by the states of "such alteration."172Although the Virginia Plan
did not specify the details of the amendment process,173
the Hamilton
Plan allowed for more than one amendment to be proposed at a time,
providing that the constitution "may receive such alterations and
amendments" as may be proposed by the states and agreed tocby both
housesof the nationallegislature.174.Nonetheless,when the amendatory
provision emerged from the Committee of Detail, it provided that the
states could apply for "an amendment" to the constitution, and that the
national legislature would call a convention "for that purpose."17G
Roger Sherman's subsequentamendmcnt to Article XIX retained
the language for a single amendment when proposed by a convention,
but then added that t~e national'-legislature could "propose amendments," and that "no amendments" could be binding until consentedto
'.
,
"'0
\
1~6.
167:
168.
169.
170.
171.
172.
173.
174.
175.
See supra text accompanyingnot~ 110. ,
See supra text accompanyingnote 148.
See supra text accompanyingnote 45.
See supra text accompanyingnotes 104, 134.
See supra text accompanyingnotes 106-07.
See supra text accompanyingnote 108.
See supra text accompanyingnote 28.
See supra text accompanyingnotes 37-38.
See supra text accompanyingnote 48.
See supra text accompanyingnote 94.
,
"
"
.
:
:.
, 1,
28
HAMLINE LAW REVIEW
[Vol. 14
by the states.176Shortly after the adoption of Sherman's amendment,
Madison succeeded in having the delegates delete reference to the
states proposing single (or any) amendmentsby the convention method,
leaving the amended version of Article XIX to refer solely to the national legislature being able to "propose amendments."177The idea of
single amendmentsnever surfacedagain. When the proponentsof the
conventionmethod succeededin reinsertingthe conventionmethod of
proposing amendments,the drafters continued to follow Madison's
multiple amendmentslanguage,allowing the national legislature to
"proposeamendments"(plural) or the statesto demanda convention
"for proposingAmendments"(plural).178
Thus, the plain languageof the Article itself is clear and decisive;
Congressshall call a "Convention for proposingAmendments,"not a
conventionfor proposingan amendment.It is therefore clear that an
Article V conventionhas the power to considervarious issues(plural)
and to submit various amendments(plural) to the states,just as Congresshas donein the past.179
In addition, Article V doesnot authorize
the statesto apply for an amendment,rather it authorizesthe statesto
apply for a conventionfor proposingamendments.The focus is clearly
on the ability of the states to demanda convention,and not on the
topics to be consideredby such a convention.Similarly, Article V does
not require Congressto call a conventionwhen two-thirds of the states
176. See supra text accompanyingnote 104. Thus, from approximatelyJuly 26 until September 10, proposalswere before the conventionthat envisionedsingle amendmentsproposedto
the states.Seesupra text accompanyingnotes87, 90, 92, 94, 104. On September10, the convention delegatesaccepteda proposalthat allowedthe national legislatureto proposemultiple amendments to the states.See supra text accompanyingnote 104.
177. See supra text accompanyingnotes 110, 117.
178. See supra text accompanyingnotes 129, 131, 148.
179. See S. & H.R.J. Res. 3, 1st Cong.,lst Sess.,1 Stat. 97-98 (1789). In submitting the
first set of proposedarticles, Congressforwardedtwelve proposedarticles to the statesfor ratification. Id. Of those twelve, ten were adopted (now known as the Bill of Rights) and two were
rejected. The text of the two rejected articles is as follows:
Art. I. After the first enumerationrequired by the first article of the Constitution,
there shall be one Representativefor every thirty thousand, until the number shall
amount to one hundred, after which the proportion shall be so regulated by Congress,
that there shall be not lessthan one hundred Representatives,nor lessthan one Representative for every forty thousandpersons,until the number of Representativesshall
amount to two hundred; after which the proportion shall be so regulated by Congress,
that there shall not be lessthan two hundred Representatives,nor more than one Representativefor every fifty thousandpersons.
Art. II. No law varying the compensationfor the servicesof the Senatorsand
Representativesshall take effect, until an election of Representativesshall have
intervened.
Id.
j
j
!
I
1]
ARTICLE V CONVENTION
29
call for the sameamendment,rather it requiresCongressto call a conventionwhen two-thirds of the statescall for a convention.The significance of these points will be discussedbelow in relation to whether
Congressor the stateshavethe power~o limit a conventionfor proposing amendmentsto a single issue.
F. Post-ConventionDiscussionof Article V
.,
Although some delegateshad stated during the conventionthat
they saw little needfor an amendatoryarticle,18O
the fact that the proposedConstitution was subject to amendmentbecamean important
point in support of the adoptionof the Constitution.181
The public debate
on the ratification
ofthe
thetext
proposed
beganas became
soonas
the convention
closedand
of the Constitution
proposedConstitution
public.182
180. 1 FARRAND,supra note 2, at 121 (Madison-June 5), 202 (Madison-June
11).
181. S. MORISON. H. COMMAGER& W. LEUCHTENBURG.A CONCISE HISTORY OF THE
AMERICANREPUBUC 121 (2d ed. 1983).
182. W. PETERS.A MORE PERFECTUNION: THE MAKING OF THE UNITED STATESCONSTI-
TUTION219-20 (1987). On ~tober 10, 1787,Edmund Randolph presentedat length his viewson
the proposedConstitution in a letter to the Speakerof the .virginia Houseof Delegates.3 FARRAND,supra note 2, at 123. Randolph specificallydiscussedhis preferencethat the statesshould
have beenallowed to proposeamendmentsto the proposedConstitution, as opposedto either accepting it in its entirety or rejecting it in its entirety:
I was afraid that if the constitution was to be submitted to the people,to be wholly
adopted or wholly rejected by them, they would not only reject it, but bid a lasting
farewell to the union. This formidable eventI wishedto avert, by keepingmyself free to
proposeamendments,and thus, if possible,to remove the obstaclesto an effectual
government.
/d. at 126. In defending his view, Randolph describedwhy the amendmentprocesscontainedin
the proposedConstitution was not sufficient to alle.viatehis concerns:
Again, may I be asked, why the mode pointed out in the constitutionfor its amend.,
ments,may ~ot be a sufficient security against its im~rfections, without now arresting
it in its progress? My answers are
;
-
1. That it ~ better to amend, while we have the
constitution in our power,while the passionsof designingmen are not yet enlisted,and
while a bare majority of the States may amendthan to wait for the uncertain assentof
thr~ fourths of the States. 2. That a bad feature in government,becomesmore and
more fixed every day. 3. .That frequent changesof a constitution, even if practicable,
ought not to be wished, but avoided as much as possible.A~d 4. That in the present
case,it may be questionable,whether, after the particular advantagesof its o~ration
shall be discerned,three fourthS of the States can be induced to amend.
/d. at 126-27.Two days later, the fourth installment of the Federal Farmer was published,criticizing the proposedconstitution and particularly focusingon the amendatoryprovision:
It may also be worthy our examination,how far the provision for amendingthis plan,
when it shall be adopted, is of any importance. No measurescan be taken towards
amendments,unlesstwo-thirds of the congress,or two.,thirdsof the legislaturesof the
severalstatesshall agree. . . . Every man of reflection must see,that the changenow
proposed,is a transfer of power from the many to the few, and the probability is, the
30
HAMLINE LAW REVIEW
[Vol. 14
On October 27, 1787, several writers using the pseudonym "Publius" began publishing arguments in favor of the Constitution, which
were later republished as THE FEDERALIST
.183 JamesMadison focused
particularly on Article V in THE FEDERALIST
No. 43. He noted the
great value of allowing both Congress and. the states to propose
changes in the Constitution.
.
'[t]o providefor amendmentsto be ratified by three-:fourthsof the
States,under two exceptionsonly.' That useful alterationswill be
suggestedby experience,.
could not but be foreseen.It was requisite.
thereforethat a modefor introducingthem shouldbe provided.The
modepreferredby the Conventionseemsto be stampedwith every
m~rk of propriety~It guards equally against that extremefacility
which would renderthe Constitutiontoo mutable;and that extreme
difficulty which might perpetuateIts discoveredfaults. It moreover
equally enablesthe generaland the state governmentsto originate
the amendment01 errors as they may bepointed out by the experienceon one side or on the other.1M
artful and ever active aristocracy,will preventall peaceablemeasuresfor changes,unlesswhen they shall discoversomefavourablemomentto increasetheir own influence.I
am sensible,thousandsof men in the United Statesare disposed.to adopt the proposed
constitution, though they perceive.it to be essentiallydefective, under an idea that
amendmentof it, may be obtained when necessary.This is a perniciousidea. . . "
THE FEDERALIST
FARMER
No.4, Storing 2.8.58 (Oct. 12, 1787).
183. THE FEDERALIST
No.1 (A. Hamilton). See generally S. MORISON.
H. COMMAGER
&
W. LEUCHTENBURG.
A CONCISE
HISTORYOFTHEAMERICANREPUBLIC121 (2d ed. 1983). On
January 16, 1788, JamesMadison, in THE FEDERAUST
No. 39, argued that the plan of government reported by the Convention,including the method of amendingthe proposedConstitution,
had the characterof being federal as opposedto national, but that the amendatoryprovisionwas a
combination of both:
If we try the Constitution by its last relation to the authority by which amendmentsare
to be made, we find it neither wholly national, nor wholly federal. Were it wholly national, the supremeand ultimate authority would residein the majority of the peopleof
the Union; and this authority would be competentat all times, like that of a majority of
every national society to alter or abolish its establishedgovernment.Were it wholly
federal, on the otherh~nd, the concurrenceof eachState in the Union would be essential to every al.terationthat would be binding on all. The mode providedby the plan of
the conventionis not founded on either of these principles. In requiring more than a
majority, and particularly, in computing the proportion by States, not by citizens, it
departsfrom the national and advancestowardsthe federal character;in renderingthe
concurrenceof less than the whole number of States sufficient, it losesagain the federal, and partakesof the natio,-,alcharacter.
THE FEDERALIST
No. 39 (J. Madison)(Jan. 16, 1788)(emphasisadded and in original).
184. THE FEDERALIST
No. 43 (J. Madison)(emphasisadded). Madison then went on to
state the basis for the two exceptionscontained in Article V relating to equal suffrage in the
senateand slavery:
The exceptionin favour of the equality of suffragein the Senatewas probably meant as
a palladium to the residuary sovereigntyof the States, implied and securedby that
J
1]
ARTICLE V CONVENTION
31
In THE FEDERALISTNo. 49, Madison discussed whether the people should be called upon to resolve conflicts between the various
branchesof government,or to correct breachesof one branch of government against the other branc~es of government.18G
Although
Madison concludedthat he did not prefer "the proposedrecurrenceto
the people,as a provisionin all casesfor keepingthe severaldepartmentsof powerwithin their constitutionallimits," Madisonnonetheless
statedthat "a constitutionalroad to the decisionof the people,ought to
be marked out, and kept open,for certain great and extraordinaryoccasions."186
The proposedArticle V would servethis important task.
i
:
,
.\
!
principle of representationin one branch of the legislature; and was probably insisted
on by the States particularly attachedto that equality. The other exceptionmust have
beenadmitted on the sameconsiderationswhich producedthe privilege defendedby it.
Id. One week later, on January 30, the delegatesto the MassachusettsRatifying ConventiondiscussedArticle V of the proposedconstitution. 2 ELLIOT'SDEBATES
116 (1937). Rufus King began
the discussionby respondingto the opponentsto the new constitution, stating that "many of the
argumentsof [the] gentlemenwere foundedon the idea of future amendmentsbeing impracticable." Id. No other national constitution, King opined, "had so fair an opportunity to correct any
abusewhich might take place in the future administration of the governmentunder it." Id.
A Dr. Jarvis next spokeon the value of the amendatoryprovision:
Whatever may have been my private opinion of any other part, or whatever faults or
imperfectionsI haveremarked,or fancied I haveseen,in any other instance,here,sir, I
have found completesatisfaction:this has beena resting place,or which I havereposed
myself in the fullest security, whenevera doubt has occurred,in consideringany other
passagein the proposedConstitution.
Id. Dr. Jarvis especiallynoted the fact that Article V createdan opportunity for peacefulchange:
In other countries,sir,-unhappily for mankind,-the history of their respectiverevolutions has been written in blood. . . . When we shalt have adopted the Constitution
before us, we shall have in this article an adequateprovision for all the purposesof
political reformation. If, in the courseof its operation,this governm~ntshall appearto
be too severe,here are the meansby which this severitymay be assuagedand corrected.
If, on the other hand, it shall becometoo languid in its movem~nts,here, again, we
have a method designated,by which a new portion of health and spirit may be infused
into the Constitution.
Id. at 116-17.Noting the weaknessof the Massachusettsown amendatoryprovision,which limited the operation of the article for alteration to a given time, Dr. Jarvis stated that "in the
presentConstitution, the article is perfectly at large, unconfinedto any period, and may admit of
measuresbeing taken in any moment after it is adopted." Id. at 117.Dr. Jarvis then concludedhis
argument in favor of the proposedconstitution by assertingthe following:
[A]s it is clearly more difficult for twelvestatesto agreeto anotherconvention,than for
nine to unite in favor of amendments,so it is certainly better to receive the present
Constitution, in the hope of its being amended,than it would be to reject it altogether,
with, perhaps, the vain expectation of obtaining another more agreeable than the
present.
Id. The MassachusettsRatifying Conventionratified the proposednational constitution on February 6,
1788.
Id. FEDERALIST
at 162, 181.No. 49 (J. Madison)(Feb. 2, 1788).
185.
THE
186. Id.
""""""""'"
"""""""~
~
-"",
~'c'c
-
"7'
document.187
ii
! 1'1 I
:l
[
i
f
:-
i
i
~emarks are co.nsidered in their. context, that interpreta!ion
!
Incorrect..HamIlton's commentsdo not addressthe que~tIonof whether
a conventionwould b~ limited to a singlesubject.Hamilton, in arguing
,
!
stitution from scratch and place the whole of its work beforethe state
legislatures),was pointing out that any defectsin the proposedconstitution could be cured by post-ratification amendmentstargeted at
'
i
:
:\
~
, tl.! 11
I
is clearly
againsta secondconventionthat would be called prior to the adoption
of the proposedconstitution(a conventionwhich would rewrite th~ con-
::
I
[Vol. 14
stitutional amendmentsmust be limited to a ~ingieissueoften'refer to
this passageas supportingtheir position.18a
When, however"Hamilton's
'
.1
-
The proponents of the view that arty convention for proposing con-
!
i
HAMUNE LAW REVIEW
On May 28, in THE FEDERALIST
No. 85, AlexanderHamilton argued against the immediate calling of a secondconventionto amend
the proposedConstitution. Hamilton believedthat numerousproblems
would result from attemptsto amendthe proposedConstitutionprior to
its adoption.He thereforepreferredto correctfaults in the Constitution
through the amendment process already' .provided within the
!
\,
.il
32
the proposedamendmentsone.at a tIme. HamIlton dId not state that
the scopeof the subjectsconsideredby a conventioncalled for proposing amendmentswould be limited to a single Issue. Rather, he was
merely stating that once Congressor the conventionfor proposing
amendmentsdeterminedwhat amendmentsshouldbe madeto the Constitution, every proposedamendment"would be a single proposition,
and might be brought forward singly."188By such a method, each
amendmentwould be consideredby the statessingly and without the
turmoil associatedwith the rewriting and adoptingof a completeconstitution. This method would also prevent the "all or nothing" result
that would occur if a block of amendmentswere presentedas one unit.
;
!
I
!
~
j
1
:
I
!
187. Hamiltonstated:
[E]veryamendment
to the constitution,if onceestablished,
wouldbe a singleproposition, and might be broughtforwardsingly.Therewouldthenbe no necessity
for man-
I
agementor compromise,in relation to any other point, no giving nor taking. The will of
the requisite number would at once bring the matter to a decisiveissue.And consequently whenevernine or rather ten states, were united in the desire of a particular
amendment,that amendment must infallibly take place. There can therefore be no
comparisonbetweenthe facility of effecting an amendment,and that of establishingin
the first instancea completeconstitution.
THE FEDERAUST
No. 85 (A. Hamilton){May 28, 1788).
188. [d.
189. [d.
I
I
1]
ARTICLE V CONVENTION
33
"
It must be rememberedthat Hamilton was addressingthe idea of
amendment~generally,and that his remarkswere not addressedspecifically to the conventionmethod of proposingamendments.It is only
commonsenseto assumethat amendmentsproposedby either Congress
or a conventionwould be submittedto the statesas individual proposals. Congress,after all, submittedthe Bill of Rights to the statesas a
packageof twelve separateproposals,of which ten were ratified.19O
Similarly, a conventionfor proposingamendmentscould draft and proposeseveralamendmentson different topics,which the statescould ratify or reject eachon its own merits. Hamilton wasonly pointing out the
f~
preferability of this approachto starting over again with another preratification convention.
~fi
This view especially makes sense when one considers Hamilton's
concern,which he had just previouslydiscussedin his text, that a sec-
!,
ond convention for the purpose of adding amendments to the proposed
constitution would doubtlessly not succeed because of "the necessity of
moulding and arranging all the particulars which are to compose the
whole in such a manner as to satisfy all the parties to the compact; and
hence also an immense multiplication of difficulties and casualties in
obtaining the collective assent to a final act."191 Thus, any assertion
based upon Hamilton's words that a convention for proposing amendments to the constitution is limited to a single issue is without merit.
Hamilton next addressed the assertion that the national government would be able to block the amendment process:
In opposition to the probability of subsequentamendments, it has
been urged, that the personsdelegated to the administration of the
national government, will always be disinclined to yield up any portion of the authority of which they were once possessed.For my own
part I acknowledge a thorough conviction that any amendments
which may; upon mature consideration, be thought useful, will be
applicable to the organization of the government, not to the massof
its powers; and on this account alone, I think there is no weight in
the observationjust stated. I also think there is little weight i? it on
another account. The intrinsic difficulty of governing THIRTEEN
STATES at any rate, independentof calculations upon an ordinary
degree of public spirit and integrity, will, in my opinion, constantly
impose on the national rulers the necessityof a spirit of accommodation
the reasonable
expectations
their beyond
constituents.
But there of
is
yet atofurther
consideration,
which of
proves
the possibility
.
;;
190. 4 FARRAND,
supra note 2, at 93 n.3.
191. THE FEDERALIST
No. 85, supra note 187 (A. Hamilton).
,i~~I'~'~~-'cr'
L'
-
'~IIIIII"
34
-
HAMLINE LAW REVIEW
-.
[Vol. 14
doubt, that the ~bservationis' futile..It is this, tha~the nationalrul-
}
~
ers, whenever nIne states concur, wIll have no optIon upon the sub-
ject. By the fifth article of the plan the congresswill be obliged,'on
the applicationof the legislaturesof two-thirdsof the states,(which
at present amounts to nine) to call a c.onventionfor proposing
amendments,which shall be valid to aI'
intents and purposes,
as
.
"
part of the cons~itution,w~en ratified 'bY.,~he
legislatur,eS
of thl:ee~ .'"
fourths
of the state$',.or
in three-fourths
thereof.'The~:~
.
. by conventions
~ '.
'- -
:
,:1
words or-this article~re ~reIJiptory; The CongreSs'sJia//cal'a.;oon~J' ~ '
vention,' Nothing' in /-this partic#)ar is l~fi't~ the.dls~retion' Qt,'that,;C';::-.r'
bOdy.Andbf consequenceaUthe declamation 'aboiit;their disinclina':" v.;
.
~,"!:i
.
tion to a change,vanishesin air. Nor howeverdifficult it may be ;' ';
supposed
to unite two-thirdsor three-fourthsof the statelegislatures, j;.
in amendments
whichmay affectlocal interests,can therebe any
roomto apprehendany suchdifficulty in a union on pointswhich are
merely relative to the generalliberty or securityof the people.We
may safely rely on the dispositionof the state.legislaturesto erect
barriers againstthe encroachmentsof the national authority.leI
It is clear from this'language that Hamilton believedthat once the
minimum number of statesapplied for a constitutionalconventionfor
proposingamendments,Congresswas r~uired to call such a convention. It is also clear that evenHamilton, the preeminentproponentof
national power,believedthat Congress'role in calling a conventionwas
:1\.:i
Ii ;
extre~ely~imited,as shownby his comment,"[n)othing .
the dIscretIonof that body."198
. . is left to
i
192. Id.
193. Id. On June 5 the delegatesof the Virginia Ratifying Conventionbegan discussing
Article V of the proposedconstitution. Concernedthat the method of amending the proposed
constitution would prove too difficult, Patrick Henry stated:
The way to amendmentis, in my conception,shut. . . . Howeveruncharitable it may
appear, yet I must tell my opinion
-
that the most unworthy characters may get into
power, and prevent the introduction of amendments.Let us suppose- for the caseis
supposable,possible,and probable- that you happento deal thosepowersto unworthy
hands;will they relinquish powersalready in their possession,
or agreeto amendments?
Two-thirds of the Congress,or of the state legislatures,are necessaryeven to propose
amendments.If one-third of thesebe unworthy men, they may prevent the application
for amendments;but what is destructiveand mischievous,is, that three-fourthsof the
state legislatures,or of the state conventions,must concur in the amendmentswhen
proposed!In such numerousbodies,there must necessarilybe somedesigning,bad men.
To supPosethat so large a number as three-fourthsof the stateswill concur, is to supposethat they will possessgenius,intelligence, and integrity, approachingto miraculous. It would indeed be miraculous that they should concur in the sameamendments
3 ELUOT'SDEBATES
49 (1937). According to Patrick Henry, "a most despicableminority" could
prevent amendmentif the governmentshould prove to be oppressive.Id. at 55.
j
1]
ARTICLE V CONVENTION
~~~
~'4),:~j~~
35
;,:'~
In the North Carolina Ratifying Convention,James Iredell dis-
;~~~
cussed the manner in which amendments could be proposed, specifically referring to the ability of the states to demand change through
the convention method of proposing amendments. Iredell stated:
Let us attend to the manner in which amendmentsmay be made.
The propositionfor' amendmentsmay arise from Congressitself,
when two thirds of both housesshall deem it necessary.If they
shouldnot, and yet amendmentsbe generallywishedfor by the people, two thirds of the legislaturesof the different statesmay require
a generalconventionfor the purpose,in which caseCongressare
under the necessityof conveningone.1e.
l
The next day, JamesMadison respondedto Patrick Henry's concerns.Madison arguedthat it
was better to adopt a constitution that allows amendmentby three fourths of the states rather
than to continue with the unanimity requirement contained in the Articles of Confederation.
Madison stated:
He [Patrick Henry] complainsof this Constitution, becauseit requiresthe consentof at
least three-fourths of the states to introduce'amendmentswhich shall be necessaryfor
the happinessof the people.The assentof so many he urgesas too great an obstacleto
the admissionof salutary amendments,which, he strongly insists,ought to be at the will
of a bare majority. . . . Does not the thirt~nth article of the Confederationexpressly
require that no alteration shall be made without the unanimous consentof all the
states?!
. . . Would
the honorable gentleman agree to continue the most radical defects
in the old system,becausethe petty state of Rhode Island would not agree to remove
them?
[d. at 88-89. Wilson Nicholas also respondedto the assertionthat it would be difficult to obtain
amendmentsto the new constitution. Nicholas referred directly to the alternative of conventions
for proposingamendments:
The worthy member [Patrick Henry] has exclaimed, with uncommon vehemence,
against the mode providedfor securingamendments.He thinks amendmentscan never
be obtained,becauseso great a number is required to concur. Had it restedsolely with
Congress,there might have been danger. The committee will seethat there is another
mode provided, besidesthat which originates with Congress.On the application of the
legislaturesof two thirds of the severalstates,a conventionis to be called to propose
amendments,which shall be part of the Constitution when ratified by the legislaturesof
three fourths of the severalstates,or by conventionsin three fourths thereof. It is natural to cqncludethat thosestateswho will apply for calling the conventionwill concur in
the ratification of the proposedamendments.
[d. at 101-02.Nicholas added that the state ratifying conventionswould be even more likely to
agreeto the proposedamendmentsbecausethe proposalswould be presentedto the statessingly.
Nicholas stated:
There are strong and cogent reasonsoperating on my mind, that the amendments,
which shall be agreed to by those states, will be soonerratified by the rest than any
other that can be proposed.The conventionswhich shall be so called will have their
deliberationsconfinedto a few points; no local interest to divert their attention; nothing
but the necessaryalterations.They will havemany advantagesover the last Convention.
No experimentsto devise;the general and fundamental regulationsbeing already laid
down.
[d. at 102. Virginia ratified the Constitution on June 25, 1788. [d. at 627, 654-55.
194. 4 ELLIOT'SDEBATES
177 (1937). Earlier during his speech,Iredell spokeout on the
i,
r