AMENDING THE CONSTITUTION THROUGH AN ARTICLE V CONVENTION
A Briefing by the League of Women Voters of Denver
Bonnie Clarke Mary Werner Peg Oldham
INTRODUCTION
During 2015, the LWVUS Constitutional Amendment Committee is conducting a study and
member consensus on amending our nation’s Constitution.
Article V of the Constitution provides two ways of amending the Constitution: (1) Congress,
by a 2/3 vote of both chambers, may propose amendments to the states for ratification, or
(2) 2/3 of the states may ask Congress to call a convention to propose amendments. This is
commonly known as an Article V Convention. In either case, proposed amendments must be
ratified by 3/4 of the states to become law.
This briefing paper has been compiled from readings suggested by LWVUS. The briefing
provides background information on the history of the amendment process, questions and
issues surrounding an Article V convention, and some principles for evaluating proposed
amendments.
Text of Article V
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 intents and purposes, as part of this Constitution, when ratified by the
legislatures of 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 its equal
suffrage in the Senate.
PART 1:
1A
HISTORY
EARLY CONVENTIONS AND TERMINOLOGY
Conventions and congresses - Gatherings of two or more sovereign entities to accomplish
governmental functions. They included colonies, French military (at least once), and tribes.
At least 20 occurred before the Declaration of Independence. After, there were 10 or more
prior to Philadelphia. There were four types depending on the convention’s scope (narrow or
broad) and powers (proposing - discussing and reporting back to states; or deciding - wherein
delegates could take action on behalf of the state or colony they represented). Conventions
did not legislate. Their protocols were based on international diplomacy.
Call - Invitation to a convention. There were various ways to do it, but they always included
date, place, topic and they never specified a particular result. This term corresponds to
“application” in Article V. Some calls recommended delegate selection procedures, which
were sometimes ignored. Some colonies, states, ignored calls because of distaste for the
topic specified, or practical complications.
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Commission, committee. Commission is the document of the state or colony appointing its
delegates to convention. It specified their powers, which were usually only to propose or
suggest. Some states made commissions narrower than what was in the call. Committee is
the group of delegates to which the state has “committed its diplomacy”.
Convention governance. Each adopted its rules and procedures, elected presiding officers,
kept minutes of its official actions.
The Philadelphia Convention 1787 wrote our constitution. It was called first by its
immediate predecessor the Annapolis Commercial Convention of 1786. In November 1786
Virginia and New Jersey legislatures joined the call, and commissioned delegates who had
power to bind their states, not just recommend. By February 1787 seven states had
authorized commissioners and had granted them broad power to propose reforms. Then a
committee of the Confederation Congress acted on the report of the Annapolis convention.
The initial proposal was very broad, describing a convention to make governmental structures
adequate. New York objected, and suggested narrow language about revising the Articles of
Confederation. The final resolution came from Massachusetts. It removed the strong
recommendation language, and said instead that in the opinion of Congress it was expedient
to have a meeting to revise the Articles of Confederation and then report back to Congress
and to the states. Was that the call, or were earlier state actions the call? Arguments about
a runaway convention start with one view or the other.
1B
RUNAWAY CONVENTIONS
Runaway conventions exceed the scope of the call, the document that initiated them. A
convention might act when it was only supposed to recommend, or it could consider more
topics than had been specified, or it could do both.
1C
AMENDMENTS THAT HAVE BEEN ADOPTED AND SOME THAT HAVE FAILED
Bill of
Rights
Congres Ratifi
s
ed
approv
ed
Count of
states
needed
1
Freedoms, Petitions, Assembly
1789
1791
9
2
Right to bear arms
1789
1791
9
3
Quartering of soldiers
1789
1791
9
4
Search and arrest
1789
1791
9
5
Rights in criminal cases
1789
1791
9
6
Right to a fair trial
1789
1791
9
7
Rights in civil cases
1789
1791
9
8
Bail, fines, punishment
1789
1791
9
9
Rights retained by the People
1789
1791
9
10
States' rights
1789
1791
9
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Colorad
o
ratificat
ion
Later
Amendme
nts
11
Lawsuits against states, limits
Supreme Court jurisdiction
1794
1795
12
12
Presidential elections. VP elected
separately, not as second place to
President
1803
1804
13
13
Abolition of slavery
1865
1865
27
14
Civil rights
1866
1868
28
15
Black suffrage
1869
1870
28
16
Income taxes
1909
1913
36
1911
17
Senatorial direct elections
1912
1913
36
1913
18
Prohibition of liquor
1917
1919
36
1919
19
Women's suffrage
1919
1920
36
1919
1932
1933
36
1933
20
Terms of office, start January not
March
21
Repeal of Prohibition
1933
1933
36
1933
22
Term Limits for the Presidency
1947
1951
36
1947
23
Washington, D.C. suffrage, votes in
electoral college
1960
1961
38
1961
24
Abolition of poll taxes
1962
1964
38
1963
25
Presidential & VP succession,
capacity for office
1965
1967
38
1966
26
18-year-old suffrage
1971
1971
38
1971
27
Congressional pay raises
1789
1992
38
1984
Never
Ratified
Deadline
Year
Pending
Count
Reapportionment (moot)
1789
none
Y, 11
Titles of nobility
1810
none
Y, 12
Slavery allowed, Corwin (moot)
1861
none
Y, 2
Child labor regulated
Fair Labor Standards Act replaced
1926
none
Y, 28
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1931
Equal rights
1972
1979,
82
N, 35
1972
DC voting rights
1978
1985
N, 16
No
Notable Applications for Conventions Time
frame
Senators direct election
1D
Count of
States
1893-19
12
25
State legislative apportionment
(counter
one man one vote)
1963 1970
33 - 4
rescinded
Balanced budget. Most applications
conditional, asking Congress to act
1975 now
some
1930s
Detailed
below
COUNT OF APPLICATIONS
Historically, no list of applications was kept by the federal government. Those sent to the
House or the Senate were mentioned in the Congressional Record, from which Friends of the
Article V Constitution (Friends5) compiled a list.
1 filed 1789
up to 1889, 23
1900 - 1999, 697 applications on 47 topics.
States applied for both general conventions and limited.
As of January 2015, the House is officially tabulating applications, per House Rules.
1E
PRODDING CAMPAIGNS
Prodding campaigns occur when states pass applications for a convention, and Congress
responds by approving an amendment and sending it to be ratified. An example is on electing
senators by popular vote instead of by state legislatures, Amendment 17. Deadlocked state
legislatures left Senate seats vacant. In 1894 an amendment for direct election passed the
House of Representatives and failed in Senate. Not until 1911 did an amendment pass both
chambers. It was promptly ratified.
1F
CONGRESSIONAL DISCUSSIONS IN RECENT DECADES
Congressional interest in creating a framework for Article V conventions has waxed and
waned. In 1967 Senator Irvin (NC) introduced a Constitutional Proceedings Act, which passed
the Senate but not the House. In the years 1973 - 1992, there were 22 resolutions or bills
introduced in the House and 19 in the Senate. Hearings were held, but nothing passed both
houses. These bills addressed applications, processing in Congress, delegate numbers and
apportionment, funding, convention procedures, etc. After 1992, there was little interest
until 2012 when the Congressional Research Service (CRS) was set to work. CRS did two
reports, in 2012 on history and in 2014 on current issues.
1G
PROPOSED BALANCED BUDGET AMENDMENTS AND CONGRESSIONAL RESPONSES
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Campaigns for a balanced budget amendment developed in the 1970s, were strong in the
1980s, and reappeared in recent years. Amendments have passed the House or the Senate,
but never both houses in a single session. Legislation to restrain or eliminate federal budget
deficits includes the Gramm Rudman Hollings Act of 1985. The threshold of 34 applications
may have been reached, although the point is subject to debate.
Applications for a balanced budget amendment
Year
Count
1975
4
1976
8
1977
5
1978
5
1979
8, total 30
1980 - 83
2, total 32
Seventeen rescissions, general or
specific
1988 - 2010
-17
GA, TN revoked prior rescissions
2014
2
OH, MI applied
2014
2, total 34?
or 19?
or ??
1H
ADVOCACY GROUPS
Many groups now advocate for a constitutional convention to address their particular issue,
and some promote a general convention. Others oppose because they fear a runaway
convention. Since 2000 Friends5 was formed, and the American Legislative Exchange Council
distributed a handbook on conventions to state legislators. Compact for America was
organized to promote a controversial “turnkey” process. Their idea is that states join an
interstate compact, and the exact language of a constitutional amendment is specified at
that time. By joining the compact the state is making an application to congress, and also
pledging it will vote for the amendment at convention and ratify it later. Also there have
been meetings of academics, political groups, and state legislators to attempt to write rules
that would govern a convention.
1I
COLORADO INVOLVEMENT IN ARTICLE V CONVENTION APPLICATIONS
1901,
1963,
1963,
1979,
if other
1992,
Direct election of senators
Proportional electoral college
Income tax limit
Balanced federal budget, resolution says application is automatically rescinded
subjects are added
Limit on federal funding mandates, same restriction
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PART 2: ISSUES ABOUT THE ARTICLE V CONVENTION
Is a convention the creature of Congress, the states or the “people”?
2A
STATES
To initiate an Article V Convention the legislatures of two thirds of the states (34 at present)
apply to Congress for a convention. The rules which would govern the Article V Convention
are not set out in the text in the Constitution.
This raises legal and political issues for the states.
Who receives applications for Congress? Applications received by Congress in the 70s
and 80s have gone either to the House or Senate Judiciary Committees, and have been
recorded in the Congressional Record.
What constitutes a valid application for a convention? Must they be a single subject or
can they be general?
What is the life-span of an application, limited or not?
May applications be conditional? Colorado’s 1979 and 1992 were conditional.
May applications be rescinded?
Must applications for the same subject be identical?
Must all states participate in the convention? If some do not, what are the effects?
2B
CONGRESS
Upon receipt of applications from legislatures of two thirds of the states (34 at present)
Congress “shall” (mandatory) call a convention for proposing amendments.
This raises, both legal and political issues for Congress.
What is the role of Congress with respect to calling a convention?
How quickly must Congress call the convention?
What process will Congress use to call a convention?
Does Congress choose the location for the convention?
Who pays convention expenses?
May Congress set a time limit for the convention?
Does Congress fulfill its constitutional duty under Article V, if after receipt of valid
applications from two thirds of the states, it proposes its own substitute amendment?
May a member of Congress be a delegate to a convention?
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May Congress set the number of votes required by the convention to propose an
amendment?
2C
CONVENTION ISSUES
Can or must a Constitutional convention be limited to a single subject?
If a convention may be limited, who may do the limiting? Congress? States? Or both?
Can a convention adjourn and reconvene?
Who decides voting rules and procedures? Do decisions by vote of delegates require a
simple majority or more?
If a Convention should go beyond a limitation imposed by Congress or the states (i.e. a
runaway convention) are there any remedies available? There are differences of
opinion on the likelihood of this happening.
If Congress specifies procedures and rules, can the convention change or ignore them?
How are delegates selected and by whom? Do delegates get formal commissions from
the states?
How is it determined how many votes a state has? For example, would representation
be the same as it is in Congress?
Is the Supreme Court the ultimate arbiter of disputes over the proper implementation
of
Article V?
2D
RATIFICATION PROCESS
How are results sent to the states by Congress?
What will be the mode of ratification in the states? A proposed amendment must be
ratified by three-fourths of the states. Article V states that Congress may propose that
either this be done by three-fourths of the state legislatures or by conventions in the
three-fourths of the states.
2E
PRECEDENTS THAT WOULD LIKELY BE FOLLOWED
Amendments would be included as supplements to the constitution.
A time limit on the ratification process may be set by Congress.
The President has no role.
PART 3: FOR WHAT REASONS SHOULD THE CONSTITUTION BE AMENDED?
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By intent, the founding fathers made the Constitution extremely difficult to amend. The
process requires extensive reflection and deliberation. Although more than 11,000
amendments have been proposed, only 33 have been approved by Congress and only 27 have
been ratified by the states. The Constitution has not been amended since 1992.
3A
REASONS FOR CURRENT 27 AMENDMENTS
In considering why the Constitution should be amended it is helpful to look at the reasons we
have amended in the past. The two major reasons for amending have been the protection
of individual liberties and extension of voting rights.
Protection of Individual Liberties: Amendments I – X (the Bill of Rights) ratified in 1791; XIII
abolished slavery (1865); XIV protects citizenship privileges (1868).
Extension/protection of voting rights: Amendment XV prohibits denial of voting rights based
on race, color or previous condition of servitude (1870); XIX extended voting rights to women
(1920); XXIII gives DC residents the right to vote for president (1961); XXIV prohibits poll
taxes in federal elections (1964); XXVI extended voting rights to 18 year olds; and, XVII
provides for the popular elections of Senators (1913). (Colorado note: called for an Article V
Convention on this issue.)
Four amendments were reactions to Supreme Court decisions:
XI (1798) prohibits suits in US courts against a state by citizens of another state. Response to
Chisolm v. Georgia, 1793.
XIV (1868) prohibits state abridgement of citizenship rights and provides equal protection
under the law. Response to Dred Scott v. Sanford, 1857
XVI (1913) allows Congress to levy an income tax. Response to Pollock v. Farmer’s Loan and
Trust, 1895. (Colorado note: this was the first amendment ratified by Colorado)
XXVI (1971) extends voting rights to 18 year olds. Response to Oregon v. Mitchell, 1970.
Only one amendment dealt with social/behavioral policy: – XVIII – Prohibition (1919) and
was overturned by the XXI Amendment (1933).
Five amendments altered government structure or procedure: XII – Separate electoral
college voting for president and vice-president (1804); XX – Presidential term set for Jan. 20
(1933); XXII – two term limit for presidency (1951); XXV – Procedure for presidential
succession (1967); and XXVII – Congressional compensation changes not to take effect until
after the next election. (Interestingly, this was first proposed in 1791 with the original
amendments, but was not ratified until 1992.)
3B
GUIDELINES FOR CONSIDERING AMENDMENTS
The Constitution sets up the framework of our government and establishes fundamental
political ideals of equality, representation, and individual liberties that place limits on what a
majority may do. To include details and specific directives in the Constitution could detract
from its original intent as our fundamental charter of government. On the other hand, the
Constitution is a living document that needs updating over time to reflect changes in national
circumstances and citizen values.
In recent decades a number of amendments have been proposed on issues such as flag
burning, victims’ rights, school prayer, a balanced budget, and campaign finance. Of these,
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Congress has come closest to passing a balanced budget proposal and it is possible that the 34
state threshold for calling an Article V Convention is close to being reached.
When considering the value of a particular amendment LWVUS has posed the following
questions to be considered.
a. Would the amendment make our system more democratic or protect individual rights?
The main thrust of the Constitution is to ensure that our political system is democratic; any
amendments should make the system more rather than less democratic.
Example: The 17 amendments that protect individual rights or extend the vote to new
groups of people.
b. Is the issue of abiding importance to future generations as well as our own? Or is it a
response to short term political pressures?
The Constitution should not be amended on the basis of short term political pressures.
Such amendments could become obsolete as social and political conditions change.
Example: Prohibition amendment
Increasingly, amendments are promoted by special interest groups, sometimes in reaction
to Supreme Court decisions. Care must be taken that such amendments do not conflict
with existing constitutional principles.
Examples: Calls for amendments on flag burning, school prayer, defining marriage,
campaign finance.
c. How would the amendment relate to the rest of the Constitution? Would it alter the
structure of government or affect the balance of powers?
The amendment should mesh with the rest of the Constitution. Amendments should be
focused on Constitutional principles rather than specific outcomes.
Examples: Flag burning amendment could conflict with the first amendment. A balanced
budget amendment might shift the power of the purse from the Legislative branch to the
Executive or Judicial branches.
d. Could the goals of the amendment be effectively achieved through legislation?
If possible, the first route to resolving problems is federal or state legislation rather than by
a constitutional amendment.
Example: During the 1970s there was demand for an Environmental Quality Amendment but
after extensive environmental legislation was passed, interest in the amendment waned.
When there are significant legal or practical obstacles to effective legislation, the
amendment process needs to be considered.
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Examples: Changing the election of the President from Electoral College to popular vote
would require an amendment. Perhaps there are sufficient legal and practical obstacles to
campaign finance reform to look at the amendment process.
e. How enforceable would the amendment be?
So far, the amendment process has avoided amendments which are purely aspirational.
Such provisions might be ignored if they become difficult to implement and could possibly
undermine the rule of law.
Example: In the case of enforcement of a balanced budget amendment, would the
President be required to impound funds? Would the courts be put in the position of
determining when outlays exceed receipts and devising an appropriate remedy?
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