Research Articles on the History of Article V

The actual text of Article V of the US Constitution:

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; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

 

The following articles address the background of Article V and the history of conventions of states/colonies.  The first dozen papers below (and many others on this site) were produced by Professor Rob Natelson of Denver’s Independence Institute.  This over-representation of one scholar’s work is because unlike most other Article V scholars, over the past several years Prof. Natelson has dedicated himself to deep research on the background and history of the Constitution’s fifth Article.

Timothy J. Dake, another respected author of Article V research describes Natelson as “probably the most prolific and detail oriented researcher on the subject of Article V conventions – ever.”

Conventions of states (or, before independence, of colonies) have been a recurrent feature in American life for more than three centuries.  When the Constitution was ratified, there already had been at least thirty such conventions.  Subsequent conventions of states met in 1814, 1850, 1861 (twice), 1889, and several times during the 1920s and 1930s.

 

Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments”

April 23, 2012  –  An overview of the Article V processes and background, by Prof. Natelson and published in the Florida Law Review (Vol. 65, 2013).

 

Yet Another Multi-State Convention Uncovered

March 11, 2015  –  For many years, opponents of a convention for proposing amendments argued that the law governing such a convention was unknowable because the only precedent for such a gathering was the Constitutional Convention of 1787.   This was always an inaccurate claim, since even high schoolers learn that Annapolis, Maryland hosted a “convention of states” the previous year.

 

Wisdom From A Framer on Federalism, Guns, and the Amendment Process

July 19, 2015  –  This article was first published on CNS News.  A speech by one of America’s Framers offers important clues to the Constitutional role of the states, of the right to keep and bear arms, and of the amendment process.

 

A Convention of States in “Gone With the Wind”

August 10, 2015  –  Margaret Mitchell, the author of the hugely popular novel Gone With the Wind, was a newspaper reporter and the daughter of a family that was steeped in history.  Her father, a prominent Georgia attorney, was one of the leading lights in the state historical society.  Her book has a plethora of references to historical events occurring during that era, including reference to the 1861 convention of states that sought to head off the civil war.

 

How A Famous English Convention Clarifies the Role of a Convention of States

September 27, 2015  –  In the Anglo-American constitutional tradition, a “convention” can mean a contract, but the word is more often applied to an assembly, other than a legislature, convened to address ad hoc political problems.  The “convention for proposing amendments” authorized by Article V of the Constitution is designed to be that kind of assembly.

 

It’s Been Done Before: A Convention of the States to Propose Constitutional Amendments

April 17, 2016  –  This paper discusses the convention of states held in 1861… a dry run for an Article V “convention for proposing amendments”.

 

What the 1777 Georgia Constitution Tells Us About the Article V Convention Process

June 17, 2016  –  When interpreting a legal document, you often can get clues from looking at any predecessors to the document.  Constitutional scholar Russell Caplan may have been the first modern writer to notice that the Article V convention process seems to be modeled on Article 63 of the then-prevailing Georgia state constitution.

 

More Founding-Era Evidence that Some State Functions Derive Only From the Constitution (With Some Comments on the Amendment Process)

August 12, 2016  –  A discussion of two key elements of constitutional law: 1. The Constitution grants some powers to persons and entities other than to the federal government, and 2. When states, state governors, and state legislatures act under those powers they perform (in the words of the Supreme Court) “federal functions” granted them by the Constitution.  They do not act by virtue of state powers reserved by the Tenth Amendment.

 

The 37th “Convention of States” Discovered!

August 21, 2016  –  Professor Natelson lists the many conventions of states/colonies, and adds one more… a 37th convention has surfaced: The Albany Council of 1684.

 

The Santa Fe Convention: A 20th Century Convention of States

August 21, 2016  –  Discussion of the 1922 Colorado River Compact participated in by seven southwestern states.  Although the assembly was called the Colorado River Compact Commission (CRCC), it was in all respects a convention of states, and it may be called the “Santa Fe Convention,” after the city where its most important sessions were held.

 

Newly Rediscovered: The 1889 St. Louis Convention of States

February 12, 2017  –  A report on the 1889 St. Louis Convention that was called for a Progressive purpose.  The interstate convention mechanism, like the right to vote, is the inheritance of all Americans, irrespective of their political views.

 

More 20th Century Conventions of States Discovered—Many More!

March 14, 2017  –  Rob Natelson’s summary of more than 20 inter-colonial conventions, 11 interstate conventions held between 1776 and 1787, 6 during the 19th century, and the Colorado River Compact Commission (CRCC) of 1922.  Most of these were regional meetings, but they also included seven “general” or national conclaves—held in 1754, 1765, 1774, 1780, 1786, 1787, and 1861.

 

A Modern Quasi-Convention of States

March 13, 2017 – A discussion of the Delaware River Basin Advisory Committee, a task force consisting of commissioners from four states (Delaware, Pennsylvania, New York, and New Jersey) and two cities (New York and Philadelphia). In 1959 and 1960, it negotiated the Delaware River Basin Compact. The author suggests that gathering might be considered a “quasi-convention of states”.

 

How James Madison Saved the Constitution by Writing the Bill of Rights 

December 2016 – by David Azerrad of the Heritage Foundation.
The author notes that shortly after the 1789 American Constitution was adopted, states were already clamoring for amendments.

 

A Founder Gives Us a Lesson on the Constitution’s Amendment Process

April 19, 2017 – by Rob Natelson – A review of what Founding Father Tench Coxe (writing under the name “The Federalist”) had to say about the Article V amendment process.

 

The Federalist Papers

These were the essays produced by key Americans campaigning for ratification of the recently drafted (1787) Constitution.  Click on the heading above to read those essays.  Look particularly at –

No. 39 by James Madison – The last two paragraphs deal with provisions in the proposed Constitution which provide for amending the document to make changes in the federal government

No. 40 by James Madison – He talks about the virtual impossibility of amending the then-existing Articles of Confederation vs. the proposed new Constitution.

No. 43 by James Madison – In promoting the worthiness of the proposed new Constitution he observes “That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”

No. 45 by James Madison – Madison explained the concept of federalism for the new American government when he wrote, “The powers delegated by the proposed Constitution to the federal government, are few and defined.  Those which are to remain in the State governments are numerous and indefinite.

No. 78 by Alexander Hamilton – an essay that, among other things, stresses the importance of the fifth Article in the proposed new Constitution.

No. 85 by Alexander Hamilton – As his concluding argument as to why the new Constitution should be ratified he issued this essay in which he says “By the fifth article of the plan, the Congress will be obliged ‘on the application of the legislatures of two thirds of the States … 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.  And of consequence, all the declamation about the disinclination to a change vanishes in air.  Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people.  We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.”