By Chuck Michaelis

Vice-chairman Institute for Principled Policy

We often get inquiries asking for a defense or explanation of one argument or another we have made. Sometimes they are important enough questions to warrant a more lengthy written response. We recently received an inquiry with this level of importance-

Mr. Michaelis,

I just watched your 39-minute presentation against an Article V Convention (available HERE).

Therefore, in your opinion, how did the Framers mean for the States to do such a meeting of the States as they created in Article V?

Thanks much!

The question is important because of a number of presuppositions contained within it which must be answered to understand why we cannot support a new constitutional convention. Whether it is called a “Convention Of States,” a convention of deputies of the several states, an amendments convention or any other name matters little; these things are synonymous as we have demonstrated in earlier writings.

We need to look at the question in pieces in order to address it properly. The first piece of the question asks about the “Framers.” The capitalization points us to the 55 men who attended the Philadelphia Convention of 1787 (also called the “Constitutional Convention,” a “convention of the delegates of the several states,” an “amendments convention,” a “general convention,” a “national convention,” etc. by the various state and federal resolutions and commentators). More to the point, it refers to the 39 signatories to the resultant new Constitution as well as the 16 who left the convention early and/or refused to sign it or signed and later repudiated it. There seems to be an assumption in the question that these “Framers” were monolithic in their views regarding what type of government they were laboring to create and how the individual parts of it were to operate. Nothing could be further from the truth and it goes to the heart of the question.

There were 2 factions at the Philadelphia Convention. The first faction favored the creation of a centralized national government with the reduction or elimination of the sovereignty of the states as anything but administrative districts with administrators chosen by the new federal government. They assigned themselves the title “Federalists.” The Federalists worked diligently to create articles, sections, and clauses in the new constitution which, if not directly destructive of state sovereignty, then at least capable of being reinterpreted to give a strong central government a superior role. The other faction, which wanted to maintain a federated government with strong state sovereignty were given, in a brilliant propaganda coup, the title “Anti-federalists.” This faction worked diligently to keep the balance of power in the new government with the states, delegating authority to the central government in very specific areas with closely limited powers. Clearly, this was not a monolithic body.

The question, then, is whether or not these deep divisions left a mark on the Constitution itself and specifically on Article V and if so how it affects us today. The answer is in the history of the creation of Article V. On May 29, 1787 a plan of government was submitted for consideration by Charles Pinckney a South Carolina delegate (not to be confused with Charles Cotesworth Pinckney, also a South Carolina delegate and the uncle of Charles Pinckney. Charles Cotesworth Pinckney is usually referred to as “Gen. Pinckney” in Madison’s notes. Charles Pinckney is usually referred to as “C. Pinckney”). The actual language of Pinckney’s plan seems in serious doubt¹ and some iterations of it appear to bear an uncanny resemblance to the final draft of the Constitution.² Some think too close. Pinckney’s original plan is not among the papers of any of the note takers at the Convention nor is it contained in the papers accompanying the journal of the convention. Copies of Pinckney’s plan seem to have been submitted to some editors of notes on the Constitutional Convention as late as 1818. Max Farrand has used other records to reconstruct Pinckney’s original proposal and the uncannily similar language to Article V is not in sight.³ Then why mention it? Because Pinckney’s claim is highly illustrative of the point in question. Pinckney claims to have been the virtual author of Article V but the few examples of his speaking on it at the convention seem to indicate that he thought either that a constitutional mechanism for calling a convention was either not necessary or that calling one without agreement of the national legislature was neither proper nor necessary.

A series of resolutions were offered to the convention just prior to Pinckney’s plan by Edmund Randolph of Virginia. The relevant section, resolution 13 read-

13. Resd. 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. (emphasis added)⁴

You can see an embryonic reference to providing for a method to call a constitutional convention and the idea that the consent of the national legislature wasn’t necessary. But what you can’t see here is that Randolph’s proposal virtually eliminated the state governments as Robert Yates of New York points out in his notes for May 29

-He candidly confessed that they were not intended for a federal government — he meant a strong consolidated union, in which the idea of states should be nearly annihilated.⁵

Furthermore Yates, a staunch Anti-Federalist, comments on the Pinckney plan in the same passage

Mr. C. Pinkney, a member from South-Carolina, then added, that he had reduced his ideas of a new government to a system, which he read, and confessed that it was grounded on the same principle as of the above [Randolph’s] resolutions.

Pinckney was a committed Federalist. Randolph is one of the 3 delegates who refused to sign the new Constitution, but he is difficult to label as either Federalist or Anti-Federalist. The historical record shows that the earliest mention of a mechanism for calling a new convention was contained in Randolph’s resolutions. Pinckney’s claim to have offered the main sections of the Article V language is dubious at best. Resolution 13 did not elicit much excitement. It was not discussed until June 6 and then Madison only reports two comments- Charles Pinckney’s and Elbridge Gerry’s. Pinckney’s remarks demonstrate a disdain for permitting the states the power to call a convention-

Mr. PINCKNEY doubted the propriety or necessity of it⁶

Gerry, an Anti-Federalist and another one of the 3 delegates who refused to sign the new Constitution, supported the measure, according to James Madison

Mr. GERRY favored it. The novelty and difficulty of the experiment requires periodical revision. The prospect of such a revision would also give intermediate stability to the government. Nothing had yet happened in the States where this provision existed to prove its impropriety.⁷

Resolution 13 was discussed by the Committee of the Whole (hereafter CW) on June 11. According to Madison’s notes

(Resolution 13.) for amending the national Constitution hereafter without consent of Natl. Legislature (being) considered, several members did not see the necessity of the (Resolution) at all, nor the propriety of making the consent of the Natl. Legisl. unnecessary. Col. Mason urged the necessity of such a provision. The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence. It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account. The opportunity for such an abuse, may be the fault of the Constitution calling for amendmt. Mr. Randolph (enforced) these arguments. The words, “without requiring the consent of the Natl. Legislature” were postponed. The other provision in the clause passed nem. con. (i.e. without dissent- CM)⁸

This resolution reported out of the CW on June 13 where it had been altered after the vote of June 11 and assigned a new designation – Resolution 17 which read

17. Resd. that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary.⁹

The resolution was sent to a Committee of Detail (hereafter CD) which took the resolutions passed by the CW and created the language to be further debated by the convention. A report was issued by the CD to the convention on July 26. This is the language that the committee worked out for amending the proposed constitution

This Constitution ought to be amended whenever such amendment shall become necessary; and on the Application of (two thirds) the Legislatures of two thirds of the States of the Union, the Legislature of the United States shall call a Convention for that Purpose.¹⁰

Obviously, the language is ambiguous regarding a number of key questions. It merely states that a convention will be called by Congress (the Legislature) upon the application of 2/3 of the states. The only real authority conveyed here is to the Federal Legislature as the use of the words “application” and “call” make clear. The questions regarding who will be the delegates to such a convention, or more importantly who will choose them are not addressed. This left each side of the convention with the belief that they were pounding out a procedure that would serve their purposes.

And that’s about the extent of the “debate” of the proposal to create a constitutional mechanism to call a new convention. Note that the clause which allowed for invoking a convention without federal consent has been eliminated. Also note that Federalists either did not want to provide a constitutional mechanism for calling a new convention or at least did not want the states to call one without federal consent, or in other words at the will of the federal legislature. Anti-Federalists like Gerry and George Mason, another delegate who refused to sign the new Constitution, strongly supported not only a constitutional mechanism for a new convention but one which could be called without federal legislative approval, that is, at the will of state governments.

And this is the great divide which affected what the Federalist and Anti-Federalist “Framers” each believed that they had created in Article V. And that brings us back around to the original question. Now on to the second part of the question that needs to be answered. The question implies that the Framers designed a mechanism for the “States to do a meeting of the States” and that they created this mechanism in Article V. To answer that question we’ll be looking at the actual final language of Article V to see if the presuppositions stated in the question are valid. The relevant section of Article V states

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;

The language of Article V seems prescriptive. The use of the word “shall” in the second clause makes it look like there is an imperative to call a convention whenever 2/3 of the state legislatures apply to them for one. But let’s examine the problem in detail. The word “Application” implies that the controlling body is Congress, not the states. The same can be said of the word “call” which means “To convoke; to summon; to direct or order to meet; to assemble by order or public notice;” according to Webster’s 1828 dictionary. So, again, the key words are “Application” and “call.” Furthermore “Application” is capitalized in the text of Article V meaning that the word was being given special emphasis by the convention. The word “Application” creates a hierarchy in the process. It places Congress squarely in control of the convention process. Congress controls the compilation of applications. Congress controls the criteria for compiling the applications. Congress counts the applications and sets the criteria for whether or not the applications have been submitted properly by the states. Congress controls this mechanism and not the states.

Perhaps more importantly, the question arises regarding what a new convention would be, exactly. The implication of the question we are working to answer is that the states would be in charge of a number of key details of the convention including delegate selection, agenda of the meeting, location of the meeting, length of the meeting, etc. If this is the case then why was this not specifically stipulated in the text of Article V? That is the “what” question. The “who,” “where,” “when,” “why,” and “how” questions are not specifically answered in the text of the article. But in a report issued by Thomas H. Neale of the Congressional Research Service, a body employed by Congress to advise it of its powers, rights and responsibilities, the role of Congress in the convention was strongly asserted

…while the Constitution is silent on the mechanics of an Article V convention, Congress has traditionally laid claim to broad responsibilities in connection with a convention, including (1) receiving, judging, and recording procedures state applications; (2) establishing procedures to summon a convention; (3) setting the amount of time allotted to its deliberations; (4) determining the number and selection process for its delegates; (5) setting internal convention procedures, including formulae for allocation of votes among the states; and (6) arranging for the formal transmission of any proposed amendments to the states.¹¹

It cannot be too strongly stated that the real issue then is the ambiguous language of Article V agreed to by both the advocates of State sovereignty and the advocates of Federal hegemony at the convention. The Federalists assumed that the Federal legislature was in control of any amendment convention process. The Anti-Federalists assumed that the state legislatures were in control of any amendment process. And on those assumptions and that ambiguous language pivot the modern notions of who will call and control a convention and, more importantly, who will be the delegates. So did the “Framers” create a “meeting of the States?” If they did then they did not say so in Article V and that leaves the question of how will the meeting be done up to the body which the language of Article V hands power to- Congress.

But how did the current Federal hegemony way of thinking about Article V happen? The way it happened was the same way that state sovereignty has eroded; slowly and steadily until 1860 and then explosively after 1865 through Federal encroachment on State sovereignty via all 3 federal branches of government, especially the executive and judicial. Advocates of a new convention have made bold but completely unsupportable claims about what Article V actually says. They say it is a way to “bypass the Federal government” or that all the states must do is notify Congress with a “strongly worded” shackling resolution and then hold a “convention of the states” or an “amendments convention” to take back State sovereignty. There is no language that either directly states or even weakly implies any of this in the text of Article V. There is no language that directly states or even weakly implies that the states will have any say in who delegates will be to a convention or how they will be chosen, what the agenda will be, where it will meet, how long it will meet, who will bear the expense of it and so on. In fact, with the erosion of State sovereignty it is nothing more or less than a naïve excursion into the land of wishful thinking to believe that any portion of the Federal government (especially the Congress or the courts) will quietly acquiesce to a state controlled constitutional convention which will strip them of the power they have been usurping from State governments for more than 150 years.

Conclusion

The Framers were not of one mind about what they were creating in the Constitution in general or in Article V specifically. The Federalists intended to create an amendment process in the control of the Federal government. The Anti-Federalists intended to create an amendment process in the control of State legislatures. Both believed the ambiguity of the language was in their favor due to popular will while appeasing the other side. In the early part of the republic the Anti-Federalists were correct in their assumptions and the state legislatures were the winners. In modern times the idea of State sovereignty is considered a dangerous and anachronistic anomaly of history which a strong Federal government has made obsolete and so Congress is the winner.

Therefore, it can be confidently stated that the answer to the question “How did the Framers mean for the States to do such a meeting of the States as they created in Article V?” absolutely depends on which of the governing philosophies of the 2 factions of “Framers” holds sway today. The answer then is that the Congress will exercise the power to decide how it will be done because Article V gives them the authority to do so.

---

1. Farrand, Max, ed., The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1911) Vol. 3 pp 601-604
2. Farrand, Vol. 3 p 601
3. Farrand, Vol. 3 pp 604-609
4. Farrand, Vol. 1 p 22
5. Farrand, Vol. 1 P 24
6. James Madison (2011-02-09 19:52:55.620000-05:00). Journal of the Federal convention (Kindle Location 1342). Albert, Scott & co. Kindle Edition.
7. James Madison (2011-02-09 19:52:55.620000-05:00). Journal of the Federal convention (Kindle Locations 1343-1345). Albert, Scott & co. Kindle Edition.
8. Farrand, Vol. 1, pp 202-203
9. Farrand, Vol . 1, p 237
10. Farrand, Vol. 2, p 174
11. Neale, Thomas H. (2012-07-09). The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress (Kindle Locations 143-147). Congressional Research Service. Kindle Edition.

©2015 The Institute for Principled Policy. All rights reserved. May not be copied or quoted without express written consent of the author.