Law Liberty recently featured an excellent exchange between John Grove and Mark Pulliam on state nullification as a way to respond to federal overreach and infringements on liberty.

　　There is, however, an alternative. The Constitution’s Article V permits constitutional amendments through a state-based process of proposal and ratification. The Framers designed this procedure to enable the states to bypass Congress while correcting or curbing a dysfunctional or abusive federal government.

　　State legislatures have initiated the procedure on many occasions. In 1788 and 1789, the legislatures of Virginia and New York initiated it to induce Congress to propose the Bill of Rights. Early in the twentieth century, a majority of states employed it to persuade the Senate to agree to the Seventeenth Amendment (direct election of senators). After World War II, states employed it to convince Congress to propose the Twenty-Second Amendment (presidential term limits).

　　Since that time, however, the federal government has become more dysfunctional and Congress more resistant to reform. Yet the states have never carried through the amendment process to completion.

　　In 2009, when I began to investigate this procedure, I started with the following hypotheses: that the 1787 Philadelphia convention was the only federal convention ever held; that Congress called it for the sole purpose of amending the Articles of Confederation; that by proposing a new Constitution, the convention “ran away”—i.e., exceeded its power; that an Article V “Convention for proposing Amendments” would be a constitutional convention untethered to the scope of its call; that its composition and protocols are unknown; and that courts rarely, if ever, had adjudicated Article V issues—if they were justiciable at all.

　　All of these hypotheses turned out to be glaringly false, and the evidence forced me to reject all of them.

　　The Rationale and Structure of Article V

　　In 1776, South Carolina adopted a state constitution with no provision for amendment. It had to be entirely replaced two years later. Influenced by experiences like these, the Framers of the US Constitution recognized that an amendment procedure was necessary. They also understood that Congress must not be able to obstruct the process. For example, the Virginia Plan provided “that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto.”

　　When the Committee of Style produced a draft that seemed to allow only Congress to propose amendments, the delegates promptly altered it to empower a convention representing the state legislatures to propose as well. George Mason of Virginia pointed out that without a way to bypass an abusive Congress, “no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive.”

　　Article V includes two methods of proposing amendments and two methods of ratifying them. The proposal alternatives are (1) by two-thirds of each house of Congress and (2) by a “Convention for proposing Amendments” called on application of two-thirds of the state legislatures. The ratification alternatives are (1) approval by three-fourths of state conventions and (2) three-fourths of state legislatures.

　　The History Behind Article V’s “Convention for Proposing Amendments”

　　Commentators sometimes complain that the convention portion of Article V is too scantily written—that it leaves important questions, such as the convention’s composition and protocols, unanswered. Of course, one might complain similarly about the Constitution’s requirement that criminal cases be tried “by Jury.” The document says nothing of the composition or protocols governing juries.

　　Both complaints are without merit, and for the same reason. The Framers wrote the Constitution on the parchment of contemporaneous understandings. Just as prior history tells us the composition and protocols of juries, it also tells us the composition and protocols of the “Convention for proposing Amendments.”

　　The British North American colonies had sent “commissioners” to common meetings regularly since 1677. These meetings were referred to as “conventions” or “congresses.” By the time of Independence, there had been at least 20 of these gatherings. After Independence, the states continued the practice. The Constitutional Convention—far from being unique, as often claimed—was the eleventh interstate convention held since 1776. Many of the delegates were veterans of these prior meetings.

　　Founding-era “conventions of the states” were diplomatic meetings among sovereigns modeled in international practice. As a result of a century of experience, their protocols were well established.

　　Here’s how the process worked:

　　First, a state legislature (or occasionally Congress or a prior convention) would issue a “call” (invitation) to all or some other states to meet at a particular time and place to discuss particular subjects.

　　Second: The legislatures of the invited states would decide whether to participate. Some proposed conventions, such as one to consider navigation of the Delaware River and the Chesapeake Bay, never met.

　　Third: If the invited states decided to participate, they selected, commissioned, and instructed their commissioners to meet at the time and place designated in the call. Like other agents, the commissioners were bound by their instructions.

　　Fourth: Upon gathering, the group would adopt rules, elect officers, and proceed to business. Since these were meetings among sovereignties, each state delegation cast one vote.

　　Fifth: The gathering considered whether to make proposals to the legislatures that had sent them. Some conventions, such as the one in York Town in 1777, reached no conclusion. But most negotiated and issued specific proposals.

　　Article V at the Constitutional Convention and After

　　There is a persistent story that Congress called the Constitutional Convention and limited its authority to proposing amendments to the Articles of Confederation. The story is untrue. In fact, the convention was called by Virginia, using procedures fairly similar to those followed by other conventions of the states, and the call was for a gathering to propose a general revision of the political system. In this post, I outlined the details and provided links to relevant documents. Here is what actually happened:

　　In September, 1786, an interstate convention met in Annapolis to discuss issues of trade. Commissioners from the five states present decided that their representation was not sufficient to take up that issue, so they recommended to the states sending them that they attend a wider convention in May of the following year. This wider convention would “take into consideration the situation of the United States, to devise such further provisions ​… to render the constitution of the Federal Government adequate to the exigencies of the Union.” Note that under the dominant usage of the time (reflected in the Declaration of Independence as well), the term “constitution” referred to the entire political system, not to any particular document.

　　On November 24, 1786, New Jersey appointed a slate of commissioners. Then on December 1, Virginia appointed commissioners and directed the governor to send the resolution to other states. This served as the formal convention call. The scope of the call was to meet for “devising and discussing all such Alterations and farther Provisions as may be necessary to render the Federal Constitution adequate to the Exigencies of the Union.”

　　The congressional resolution often mistaken for a call was not adopted until February 21, 1787. As its wording shows, it made no pretense of calling the convention. It merely stated its “opinion” that the convention was a good idea, but that it should be limited to proposing amendments to the Articles. The congressional records show that Congress clearly understood that its desire was narrower than the actual call. However, Congress limited itself to expressing an “opinion” (after having rejected the stronger word “recommendation”) because it had no authority to impose limits. Moreover, by that time most states already had agreed to participate on the terms in the Virginia call. Ultimately, only New York and Massachusetts adopted the restriction favored by Congress—which helps explain why most of the delegates from those states did not sign or support the Constitution.

　　Arguments against conventions of the states render many state lawmakers overly cautious, effectively disabling one of the Constitution’s key checks and balances.

　　Contemporaries did not use the term “constitutional convention” to describe the gathering in Philadelphia. Rather, they employed phrases such as “convention of the states,” “federal convention,” and “convention of deputies from the several states.”

　　During the 1787–90 ratification debates, opponents predicted that the new government would prove overreaching and abusive. However, the state-based amendment procedure gave the Federalists a very useful response. As Tench Coxe, a widely-read Federalist essayist, observed:

　　The sovereign power of altering and amending the constitution … does not lie with this foederal legislature. … That power … is vested in the several legislatures and [ratifying] conventions of the states, chosen by the people respectively within them. … If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.

　　Incidentally, notwithstanding modern claims that amendments conventions must be unlimited as to subject, Coxe, like other Founders who addressed the issue, assumed that they would be limited to one or more specific subjects.

　　Since ratification, there have been about 50 reported court cases construing Article V. The first was the US Supreme Court’s decision in Hollingsworth v. Virginia (1798). The two most recent were state court decisions in 2016 and 2018. In 1981, a federal judge observed that the courts already had “dealt with virtually all the significant portions of” Article V.

　　The principles and rules underlying these cases are gratifyingly consistent. For example:

　　An amendments convention is a “convention of the states.” (Both the historical record and the courts are exceedingly clear on this point.) Article V questions are governed by historical practice. Conventions and legislatures operating under Article V derive their power solely from the Constitution and are subject only to constitutional limits. A legislature or convention operating under Article V must (within the scope of its call) be allowed deliberative freedom. The president and state governors have no role in the process. For example, a congressional proposal need not be signed by the president and a legislative application or ratification need not be signed by the governor. Unless the Constitution or a convention rule prescribes otherwise, the rule of decision is a majority of states present and voting.

　　The Rules Governing Article V Conventions

　　The combination of constitutional text, history, and case law clarifies the composition and protocols of a “Convention for proposing Amendments.” Here are some more details:

　　To trigger the procedure, a state legislature transmits to Congress a contingent demand (called an “application”) for a convention on one or more subjects. This demand is conditional on two-thirds of all the state legislatures submitting applications on matching topics. If two-thirds of the state legislatures apply on matching topics, Congress must call a convention limited to those topics. We know that the call is mandatory from the wording of Article V (“shall call”) and from ratification-era commentary, such as Federalist #85: “The words of this article are peremptory.The Congress ‘shall call a convention.’ Nothing in this particular is left to the discretion of that body.” And we know the topics must be matching, both from controlling historical practice and from other ratification-era commentary.

　　The membership of a convention for proposing amendments consists of delegations of commissioners from each state, selected in such manner as each state legislature determines. Each state delegation has one vote, and commissioners are subject to state instruction and recall.

　　The convention elects its own officers and establishes its own rules, then turns to the business entrusted to it.

　　If the convention so decides, it drafts and proposes one or more amendments and informs Congress. Proposed changes must be “Amendments to this Constitution.” There is no provision for writing a new document. After either proposing or failing to propose, the convention adjourns sine die.

　　If an amendment has been proposed, Congress prescribes a “Mode of Ratification”—i.e., by state legislatures or state conventions. Proposals outside the scope of the call are ultra vires. In other words, they are merely un-ratifiable suggestions. Proposals within the scope of the call have legal effect only if ratified by legislatures or conventions of three-fourths of the states.

　　Fostering Disinformation and Correcting the Record

　　After the Constitution was adopted, limited-subject conventions of states (both national and regional) continued to be held: at Hartford in 1814, Nashville in 1850, Montgomery, Alabama and Washington, DC in 1861, and St. Louis in 1889. (The Washington, DC gathering was functionally an amendments convention in every detail except constitutional power.) During the nineteenth century, no one seems to have doubted that an amendments convention was a gathering of the same general kind as these.

　　After 1900, state legislatures applied en masse to Congress for a convention to propose direct election of US Senators. Opponents charged that an amendments convention would be a “constitutional convention” and thus have unbridled power. (In fact, not even most constitutional conventions have unbridled power.) This argument did not gain much traction. By the time Congress proposed the Seventeenth Amendment, 31 states had joined the application campaign.

　　Then throughout the1960s and 1970s, Supreme Court activism provoked application campaigns for amendments overturning some of the court’s rulings. By that time, however, defenders of federal (including Supreme Court) prerogatives enjoyed privileged access to the national media, which they used very effectively. Led by a handful of liberal law professors, they flooded public discourse with charges that the convention process was dangerous, that the gathering was a “constitutional convention” whose composition and protocols were a “mystery,” and which might “run away,” with dire consequences.

　　For example, Yale law professor Charles Black wrote that an amendments convention “could change the presidency to a committee of three, hobble the treaty power, make the federal judiciary elective, repeal the fourth amendment, make Catholics ineligible for public office, and move the national capital to Topeka.” Liberal publicist Richard Rovere claimed that a convention “might reinstate segregation, and even slavery; throw out all or much of the Bill of Rights[,] ​… eliminate the Fourteenth Amendment’s due process clause and reverse any Supreme Court decision the members didn’t like ​… and perhaps for good measure, eliminate the Supreme Court itself.” Neither Black nor Rovere explained how 38 states could be induced to ratify such proposals.

　　In years since, this hysteria has been thoroughly debunked by scholars such as Russell Caplan, Michael Rappaport, Michael Stern, Michael Farris, Roman Hoyos, Tomasz Wieciech, John G. Malcolm, and myself. Moreover, states have continued to meet in convention—particularly to negotiate water compacts and, in 2017, to propose rules for a future amendments convention.

　　Yet in state legislatures and newspaper op-eds, anti-convention lobbyists continue to repeat their talking points, just as if the new scholarship never existed. This renders many state lawmakers overly cautious, and has effectively disabled one of the Constitution’s key checks and balances.

　　Thus, predictions made during the 1787–90 ratification debates have been vindicated in both a positive and a negative way. As foretold by the Federalists, constitutional amendments have been of value in protecting liberty from government abuse—the Bill of Rights and Reconstruction Amendments are prime examples. But as implicitly foretold by the Anti-Federalists, the de facto absence of the state-based convention procedure has produced just the kind of results they feared.