Amendments—Convention Proposal Clause

The Congress . . . on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, . . .

—Robert G. Natelson

Introduction

The Convention Proposal Clause provides an alternative route for proposing constitutional amendments for state consideration. Two-thirds of the state legislatures must submit an “Application” to Congress “call[ing for] a Convention for proposing Amendments.” In its Founding-era sense, the word “Application” means merely a communication. It does not imply, as modern sense suggests, that an inferior entity is applying to a superior one. It is thus misleading to refer to an Article V application as a petition. Applications on the same topic or topics from two-thirds of the state legislatures trigger a mandatory duty on the part of Congress. Each application is really an order contingent on the two-thirds threshold being reached. A convention for proposing amendments has never been called.

History Before 1787

For more than a century before independence, Great Britain’s North American colonies had a rich convention tradition.¹ The colonists sometimes met in conclaves called “conventions of the people,” where they undertook such tasks as the dissolution of King Charles I’s “Dominion of New England.” Each convention of the people was held within the political boundaries of a single colony, and delegates were elected directly by the voters from towns, counties, and other districts.

Americans also held conventions among the several colonies. These conventions addressed such common issues as defense and relations with the Indian tribes. Among the most famous were the Albany Congress of 1754 and the Stamp Act Congress of 1764. (At the time, “congress” was a synonym for an intergovernmental convention.)

After 1776, the new states continued these traditions. They held conventions of the people to draft state constitutions and to govern states pending adoption of those constitutions. They also held interstate conventions, commonly called “conventions of the states,” “conventions of states,” or “conventions of delegates from the states.” These temporary, ad hoc task forces originated with the issuance of a call, usually from a state legislature but sometimes from the Continental Congress or a prior convention. The call was an invitation to meet at a particular time and place to discuss prescribed topics. State legislatures then decided whether to participate. If the decision was affirmative, each state legislature determined the size of its delegation of “commissioners” and how they were to be chosen and instructed.

At the designated time, the commissioners assembled at the designated place. Once a quorum of states was achieved, the convention elected its officers and, if the convention was large enough, adopted formal rules and formed committees. Each state invariably had one vote. The commissioners then turned to the assigned agenda and continued to work until they either finished or were permanently deadlocked. At that point, they adjourned sine die (indefinitely).

The Second Continental Congress (1775–1781) called several conventions of states. For example, the 1777 Yorktown Convention was called to consider common responses to monetary inflation, but it deadlocked and adjourned without proposing a solution. Moreover, the narrow scope of congressional power induced individual states to call most conventions on their own. Most of these were regional (“partial”), but some, such as the 1780 Philadelphia Price Convention, were national (“general”). With varying success, these meetings addressed such issues as price inflation, Revolutionary War defense, and interstate trade.

In 1786, Virginia called a general convention of states to meet in Annapolis, Maryland, to discuss trade issues. The convention recommended to the legislatures of the five states that sent delegates that they invite all states to meet in Philadelphia the following May to discuss ways to strengthen the Union. In response to this recommendation, the Virginia legislature—not Congress, as commonly believed²—called the Constitutional Convention.

The Constitutional Convention

The Constitutional Convention was itself a convention of states and frequently referred to as such.³ (See Essay No. 148.) Both the Virginia Plan of May 29, 1787, and the draft Constitution reported by the Committee of Detail on August 6, contemplated that federal conventions would prepare and adopt all amendments. On September 10, the Convention agreed that amendments would be proposed by Congress, either on its own initiative or on demand by two-thirds of the states, and that amendments would be subject to state ratification.⁴

The Committee of Style included this scheme in its penultimate draft of the Constitution. This provoked a strong response from George Mason of Virginia, who “thought the [Committee’s] plan of amending the Constitution [was] exceptionable & dangerous.”⁵ Mason contended that “the proposing of amendments” would “depend . . . on Congress,” as “no amendments of the proper kind would ever be obtained by the people.”⁶ Elbridge Gerry of Massachusetts and Gouverneur Morris of Pennsylvania, who served on the Committee, “moved to amend the article so as to require a Convention on application of 2/3 of the” states at which the states could propose amendments.⁷

James Madison of Virginia “did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a Convention on the like application.”⁸ In other words, Madison thought that Congress would be bound to propose the specific amendments put forward by two-thirds of the state legislatures. Madison “saw no objection however against providing for a Convention for the purpose of amendments” but acknowledged “that difficulties might arise as to the form, the quorum” and other particular issues, which should be avoided “as much as possible” in a Constitution.⁹ Despite Madison’s doubts, the Morris–Gerry motion was approved unanimously, and the proposing convention was reinserted into the draft Constitution.¹⁰

Some scholars have claimed that the nature and composition of an amendments convention are mysteries.¹¹ However, there is no real doubt that the Founders understood an amendments convention to be a convention of the states. This is well established by contemporaneous official and unofficial records from the Founding Era.¹²

The Framers’ importation of the “convention of states” mechanism into the Constitution enabled states to participate in the amendment proposal process. The procedure was a familiar one, because there had been at least twenty conventions of colonies between 1677 and 1776 and ten conventions of states between 1776 and 1787.¹³ Moreover, convention protocols were well understood. In fact, at least thirteen of the Constitution’s fifty-five Framers had served as commissioners at such gatherings, and several had served on multiple occasions.¹⁴ Other Framers had been members of state legislatures that had called conventions or commissioned and instructed commissioners.

The Constitution’s Framers also borrowed the in-state “convention of the people” mechanism for ratifying the Constitution and constitutional amendments.

The Ratification Debates

Advocates of the Constitution assured the ratifying public that if amendments should prove necessary, the state legislatures could obtain them readily. They relied heavily on the Convention Proposal Clause and the general understanding that an amendments convention was a convention of the states. For example, in Federalist No. 85, Alexander Hamilton remarked that “whenever nine, or rather ten states, were united in the desire of a particular amendment, that amendment must infallibly take place.” At the time, nine out of the thirteen states would meet the two-thirds threshold for calling a convention of the states to propose amendments.

The Constitution’s advocates also emphasized that if a sufficient number of states applied, Congress would have no choice but to call a convention. “The words of this article are peremptory,” noted Hamilton. “The Congress ‘shall call a convention.’ Nothing in this particular is left to the discretion of that body.”

Another advocate of the Constitution, Tench Coxe, had been Pennsylvania’s delegate to the Annapolis Convention. Coxe’s published writings were more accessible and perhaps more popular than the Federalist Papers.¹⁵ Yet, his crucial role in ratification debates is often overlooked.¹⁶ Coxe repeatedly resorted to the Convention Proposal Clause to calm public concern. He explained that “two thirds of the states can always procure a general convention for the purpose of amending the constitution.” Moreover, “three fourths of them can introduce those amendments into the constitution” even when “the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them.” Coxe echoed Mason’s argument: The convention procedure was a way to obtain amendments while bypassing any meaningful interference from Congress.

Participants in the ratification debates assumed that most or all amendments conventions would be limited to considering amendments of the kind designated in the state legislative applications. In Federalist No. 85, for example, Hamilton wrote that “every amendment to the constitution, if once established, would be a single proposition, and might be brought forward singly.”¹⁷ In modern times, some academics have doubted whether an application or convention can be limited,¹⁸ but there is no record of any such doubt among the Framers or ratifiers.

Applications by States for Conventions

The Constitution was ratified on June 21, 1788, when New Hampshire became the ninth of the original thirteen states to ratify it. The first Article V legislative application was issued by the Virginia legislature on November 14, 1788. It demanded a “convention of the states” to consider “the defects of this Constitution that have been suggested by the State [ratifying] Conventions.”¹⁹ On February 5, 1789, New York applied for a convention in even broader terms.²⁰ Because of the expectation that Congress would propose amendments on its own, no other states similarly applied. And the First Congress would propose what would become the first ten amendments.

There were many more legislative applications during the nineteenth and early twentieth centuries. The states sought amendments on subjects as disparate as slavery and polygamy.²¹ The applications indifferently referred to an amendments convention as a “convention of the states” or as a convention for proposing amendments. In Smith v. Union Bank (1831), the U.S. Supreme Court employed the former term.²²

The first application campaign that came close to the two-thirds threshold needed to trigger a convention was for direct election of Senators. When Congress finally proposed the Seventeenth Amendment in 1912, twenty-nine of the then-necessary thirty-two applications had been submitted. The twentieth century saw a plethora of state applications on such subjects as congressional term limits, a balanced budget amendment, limiting the scope of the federal government, campaign finance reform, and presidential term limits. The last one resulted in the congressional proposal of the Twenty-Second Amendment.

There also has been a series of non–Article V conventions of states on a range of subjects. The most significant was the February 1861 general convention in Washington, D.C., which was called by Virginia to propose to Congress a constitutional amendment in an attempt to head off civil war.²³ Former President John Tyler presided. The convention produced an amendment, but Congress did not act on it. During the twentieth century, a series of smaller interstate conventions (called “commissions”) met to negotiate Western water compacts, the best known of which was the 1922 Colorado River Commission.²⁴ In 2017, yet another convention of states met in Phoenix, Arizona, and drafted rules for a future Article V convention.²⁵ In general, all of these meetings followed standard interstate convention protocols.

Mechanics of a Convention of the States

Article V case law clearly and consistently relies on historical practice.²⁶ Some Article V cases have arisen under the Convention Proposal Clause, but even the cases that have not have effectively settled many questions about the clause. Combining judicial and historical precedent produces several conclusions.

First, when a state legislature applies for a convention, as when any assembly exercises an Article V function, it operates independently of state constitutional and legal standards. The legislature may follow its usual rules, but it may also craft rules for the occasion. An application may be limited to specific subjects. An application may also be plenary—that is, unlimited as to any subject.²⁷ Applications probably do not expire with the passage of time, but a legislature may impose a termination date or rescind it.

Second, Congress is not obliged to call the convention until two-thirds of state legislatures have applied on the same general topic. Then Congress must issue the call, inviting all states and specifying the time, the place, and the subject matter designated by the conforming applications. Historical application and call practice suggests that loose agreement on the subject matter also is sufficient to trigger a call. Sometimes, however, while overlapping in subject matter, applications feature significant variation. This results in what is called the “aggregation problem.” Despite Hamilton’s assurance that Congress has no discretion in calling a convention, Congress may have to exercise some threshold discretion on whether the subject matters are generally the same.²⁸

Third, each state legislature designates the number of commissioners in its delegation and the mode of selecting them. It also formally instructs them on how to vote. When the convention meets, it elects its own officers and adopts its own rules. Each state presumptively receives one vote, although the convention, by a majority of states present and voting, may alter this formula. The convention is limited to the agenda defined by the legislative applications and the congressional call. Such a limit is uniform practice for conventions of states. In 1933, the North Carolina Supreme Court observed that “those calling an Article V ratifying convention may limit its authority.”²⁹

Fourth, if the convention decides that additional amendments within the prescribed scope of the application are warranted, it may draft them and vote to propose them. In keeping with parliamentary common law, an amendment is adopted if there is a majority of states present and voting. Recommendations outside the convention’s prescribed scope are ultra vires and not duly proposed amendments. Congress therefore may not designate a mode of ratification for them.

Finally, once the convention’s assigned business is complete, it adjourns sine die.

Open Questions

• Can a “plenary” (open subject) application be aggregated with a single-subject application to trigger a call for a single-subject convention?
• Recent commentators generally agree that applications may limit the convention’s subject matter, but can an application bind the convention to consider only specific amendment language? Your author thinks that such an application would be invalid. Other scholars argue that specific-language applications are valid and binding on the convention.³⁰

1. Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments”, 65 Fla. L. Rev. 615 (2013); Robert G. Natelson, Is the Constitution’s Convention for Proposing Amendments a “Mystery”? Overlooked Evidence in the Narrative of Uncertainty, 104 Marquette L. Rev. 1 (2020). ↩︎
2. Michael Farris, Defying Conventional Wisdom: The Constitution Was Not the Product of a Runaway Convention, 40 Harv. J.L. & Pub. Pol. 61 (2017). ↩︎
3. Natelson, Mystery, supra at 34–35. ↩︎
4. 2 Farrand’s 559. ↩︎
5. Id. at 629. ↩︎
6. Id. ↩︎
7. Id. ↩︎
8. Id. at 629–30. ↩︎
9. Id. ↩︎
10. Id. ↩︎
11. Natelson, Mystery, supra at 6–11. ↩︎
12. Id.; Robert G. Natelson, List of Additional Founding-era Descriptions of an Article V Convention as a “Convention of States”, Article V Information Center (Feb. 16, 2025), https://perma.cc/LA8H-Q6FL. ↩︎
13. Robert G. Natelson, List of Conventions of States and Colonies in American History, Article V Information Center (Aug. 10, 2017), https://perma.cc/N8CW-9LXD. ↩︎
14. Natelson, Founding-Era Conventions, supra at 691–710. ↩︎
15. Tench Coxe, A Friend of Society and Liberty, Pa. Gazette (July 23, 1788), reprinted in 18 DHRC 277, 283–84; Tench Coxe, A Pennsylvanian to the New York Convention, Pa. Gazette (June 11, 1788), reprinted in 20 DHRC 1139, 1142. ↩︎
16. Jacob E. Cooke, Tench Coxe and the Early Republic (1978). ↩︎
17. Robert G. Natelson, Proposing Constitutional Amendments by Convention: Rules Governing the Process, 76 Tenn. L. Rev. 793, 723–34 (2011). ↩︎
18. Natelson, Mystery, supra at 5. ↩︎
19. 1 Annals of Cong. 258–59 (1788). ↩︎
20. Id. at 29–30. ↩︎
21. Article V Library, https://perma.cc/5TC6-L5MW. ↩︎
22. 30 U.S. 518 (1831). ↩︎
23. Robert Gray Gunderson, Old Gentlemen’s Convention: The Washington Peace Conference of 1861 (1961); L.E. Chittenden, A Report of the Debates and Proceedings in the Secret Sessions of the Conference Convention, for Proposing Amendments to the Constitution of the United States, Held at Washington, D.C., in February, A.D. 1861 (1864), https://bit.ly/3H2zKTU. ↩︎
24. Minutes and Record of the First Eighteen Sessions of the Colorado River Commission Negotiating the Colorado River Compact of 1922, https://perma.cc/3ZT6-MYB4. ↩︎
25. Journal of the Balanced Budget Planning Convention, Phoenix, Arizona, September 12, 2017–September 15, 2017, https://perma.cc/63DX-TMKA. ↩︎
26. Robert G. Natelson, The Law of Article V: State Initiation of Constitutional Amendments (2d ed., 2020). ↩︎
27. Opinion of the Justices to the Senate, 366 N.E.2d 1226 (Mass. 1977). ↩︎
28. Robert G. Natelson, Counting to Two Thirds: How Close Are We to a Convention for Proposing Amendments to the Constitution?, 19 Fed. Soc’y Rev. 94 (2018). ↩︎
29. Opinion of the Justices, 172 S.E. 474 (N.C. 1933). ↩︎
30. Michael B. Rappaport, The Constitutionality of a Limited Convention: An Originalist Analysis, 28 Const. Comment. 53, 89 (2012); Michael Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765 (2011). ↩︎