In Article V, the United States Constitution provides two methods for amendment: the first method, and the one used for every single amendment thus far, requires that a proposed amendment be passed by two thirds of each house, and then be ratified by three quarters of the states. This method ensures that any change to the fundamental law of our land is accepted by a super-majority of the country. There is just one problem: why would Congress ever propose an amendment that would curtail its power?
The Founders thus provided a second method of amendments, one that circumvents Congress and goes directly to the States and the people. The relevant clause reads: “Congress … on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments…”. The language is unambiguous. Once two thirds of the several states have applied, Congress is to call a convention.
What exactly constitutes an application? Some hold that any application has to state the proposed amendments, and that all applications from states proposing a certain amendment must be in substantial agreement, before they are counted toward the two thirds requirement. This is the current position of the Congress.
Is this what the Founders intended? After all, the language of Article V is fairly clear: the convention, once called, is where the amendments are proposed. Look at the language: “… Call a convention for proposing amendments…”.
One can look at how the First Congress handled such applications. Immediately after the ratification of the Constitution, several states submitted applications to Congress requesting an Article V convention. What did the founding Congress do? It held that under Article V, the only role it had was hold applications until the total reached two thirds of the states, and then call the convention. It had no power under the Constitution to determine if a “valid” application had been submitted; if a sovereign state said it submitted an application, the application was valid. The First Congress also held that it had no power to determine or dictate any method or requirement for an application. Their only role was to count the applications and call an amendment convention.
The Founders themselves held this view. Hamilton wrote in Federalist 85 that “…the Congress will be obliged ‘on the application of the legislatures of two thirds of the States [which at present amount to nine], to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof.’ 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.” So we know how the Founders and the First Congress intended Article V to work, as far as an amendment convention is concerned. Why haven’t the states ever called for such a convention?
Ah, but they have. Congress just refuses to call the convention. That is a topic for another post.