• tara

Article V: Protecting the “General Liberty or Security of the People”

On or around this day in 1788, Alexander Hamilton was working on a paper that would defend the ability of STATES—not Congress—to begin the constitutional amendment process.[1] To date, this state-initiated process has never been used. Not even one time!

Perhaps a little background is in order.

Alexander Hamilton

Article V of the United States Constitution provides two methods by which it may be amended: The first option allows a supermajority of Congress to propose amendments to the states for their consideration. If 3/4 of the states ratify the proposal, then it is officially incorporated into the Constitution as an amendment.


We are used to this process, which has been successfully used 27 times. But there is another option, too.


The second option allows STATES to start the amendment process by submitting applications to Congress. If 2/3 of the states submit an application on a particular topic, then Congress MUST call a “Convention for proposing Amendments.” Any amendment proposed by the Convention becomes a part of our Constitution only when 3/4 of the states ratify the proposal.


This latter process has never been used, but many groups are lobbying their states to use it now. It is a process that scares some people. They fear that an Article V Convention will propose sweeping changes, destroying the unique nature of our Constitution. They fear a so-called “runaway convention.”


Such fears are understandable! But a study of our history and of the convention process itself reveals the many reasons that such an outcome is highly unlikely.


THE HISTORY OF CONVENTIONS


Perhaps the most important thing to remember is that the language in Article V was not adopted in a vacuum. The Founders lived in a time when conventions were commonly used for many purposes. When modern Americans think of the word “convention,” they most likely remember the Constitutional Convention—a big event that radically changed our world! By contrast, the Founders would have viewed conventions as a relatively common tool. Professor Robert Natelson counts at least 32 conventions that were used in the century before the Constitution was adopted.[2]


As Natelson recounts, the Founders thought of a convention as a “task force,” created to tackle and solve a particular problem.[3] The Founders’ language about conventions was very specific, but the definitions that they used have become muddled over time, leading to confusion and historically inaccurate understandings of the Article V process. For instance, when the Founders said “general convention,” they meant a convention to which all states were invited. A “partial” convention would have been attended by only a subset of states. Finally, a “plenipotentiary” convention was one that was unlimited in scope; delegates could discuss any topic. Today, we tend to use the word “general” in place of the word “plenipotentiary,” which undermines  our understanding of the process.[4]


Naturally, the scope of the convention could also be limited by the states. Different states might even give different grants of authority to their delegates. These delegates were expected to stick strictly to their instructions. People took this very seriously!

Mount Vernon with the Washington family on the terrace, by Benjamin Henry Latrobe

Consider what happened at the Mount Vernon Conference in 1785.[5] Maryland and Virginia sent delegates to meet and discuss certain navigation issues related to the Potomac River. Unfortunately, the instructions for the Virginia commissioners got lost. Thus, the Virginia delegates were in attendance, but they did not know how far their authority extended. They (erroneously) concluded that their authority extended as far as the Maryland commissioners’ authority. But it didn’t! One of these men, George Mason, later wrote that he would need to make amends for what the commissioners had done. Mason wrote Madison that he was heading to the state capital “to appologize for, & explain our Conduct.”[6]


In other words, he broke his commission, purely by accident, but still found the mistake to be embarrassing and horrible. He felt the need to make a trip to the capital to explain himself.