How Article V Came to Be

Article V of the US Constitution defines the amendment process. The process itself has two stages: 1) proposal and 2) ratification. There are two variants of each stage.[1]

The first method of proposal occurs when 2/3 of both houses of the national legislature vote to send the proposal to the states for ratification. This is the only method that has been used; however, a second method exists whereby 2/3 of the states can petition for a convention of states. This convention is then empowered to propose amendments. No such empowered convention has ever been called. There is a lot of disinformation on such a convention, but that topic is beyond the scope of this article.

Ratification is a purely state function; however, the national legislature may propose whether the state determination is via the standing state legislatures or conventions called within each state. If ratification is to be by convention, each state determines how its convention is composed and its rules. This second method of ratification has only been done for the 21^st amendment. Congress proposed this method for that amendment because it repealed prohibition (18^th amendment), and it was believed that this method would get closer to the people than the standing state legislature.[2] It is worthy of note that the states can end run the national legislature recommendation for a convention by merely declaring its entire state legislature to be its convention. And that is exactly what New Mexico did for the 21^st amendment. It is also worthy of note that:

1. The national legislature is not required to propose a mode of ratification.
2. It is ambiguous whether the states are required to follow the proposal.

You may be familiar with the details of Article V as it exists, but do you know how it came to be? Understanding its evolution reveals much about the original intent of the Article.

To understand Article V’s evolution, we need to look to the predecessor of the Constitution – the Articles of Confederation. Article XIII of the Articles addresses amendment. It reads as follows:

Article XIII. Every State shall abide by the determination of the United States in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the United States, and be afterwards confirmed by the legislatures of every State.[3]

As can be seen, the Articles of Confederation ultimately required unanimous agreement among the states to alter it. The lack of Congress having the power of the purse is largely credited with abandoning the Articles in favor of the Constitution; however, one should not overlook the frustration of not being able to amend the Articles. The Constitution Convention was called as the direct consequence of the failure of the Annapolis Convention of 11 Sep 1786.[4] Only 5 states sent commissioners to address defects of the Federal Government. The main topic was to be trade and commerce; however, by Article XIII, addressing commerce required all 13 states to agree to any alterations to the Articles.

Fresh from the failure of the Annapolis Convention, the Virginia contingent to the Constitution Convention came with 15 “resolutions” that are known as The Virginia Plan. The junior commissioner of Virginia, Edmund Randolph presented the plan on 29 May 1787.[5] Resolution 13 presented the basis for what would become Article V:

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.

Clearly this resolution is abstract, but it defines two key requirements of a new amendment process:

1. Amendments should be made when necessary.
2. The National Legislature should not be able to prevent the states from altering the Constitution.

The commissioners addressed the Virginia Plan resolutions – in order. It was not unusual for a proposition to be postponed, but they were at least brought up in order. It is important to recognized that more discussion was spent on the earlier resolutions than the later ones. The very brief discussions of resolution 13 on 5 Jun and 11 Jun reveal that the Convention did not initially grasp the importance of the amendment process.[6] Madison notes that several members questioned its necessity. Elbridge Gerry favored it.[7] In particular, there were two key things that have largely escaped scrutiny:

1. On 5 Jun, Charles Pinckney “doubted the propriety or necessity of” resolution 13. This directly refutes Pinckney’s later claim of having proposed Article V almost verbatim. The main variance in his claim is that he claimed to require the subject to be in the applications. That was the case with Article LXII in the 1777 Georgia State Constitution, but it is not the case in Article V.
2. On 11 Jun, “and that the assent of the national legislature ought not to be required thereto” was postponed and never considered again. Most of the delegates did not consider it proper or necessary. Only Mason and Randolph championed the need to allow the states to bypass the national legislature during the amendment process. Even on the last day of debate (15 Sep), Madison did not see the importance of it right off the bat. It is therefore unlikely that Madison authored resolution 13 of the Virginia Plan. Mason and/or Randolph are/is the likely author(s). On the other hand, the unanimous concurrence on George Mason’s objection demonstrates that the Convention did understand the importance of it in the final analysis.

On 13 Jun 1787, the Amended Virginia Plan was presented. This actually represented the first pass of discussions on the whole set of resolutions. It was also the second edit to resolution 13:

• “and that the assent of the National Legislature ought not to be required thereto” was dropped.
• it was renumbered to 17.[8]

The next time the amendment process (now resolution 17) would be considered was 23 Jul 1787. It was unanimously agreed that the resolution should be observed – in other words no change.[9] It appears that the Convention was embracing the importance of amendment.

There is an often-overlooked comment in Judge Yates notes that are conspicuously absent from Madison’s on 29 Jun 1787. Madison’s notes stop at Abraham Baldwin’s statement before it.

Mr. Madison. … The Virginia state government was the first which was made, and though its defects are evident to every person, we cannot get it amended…

We can only speculate why Madison omitted this, but it may have been embarrassment. He was the architect of the existing Virginia Constitution, and he was indirectly admitting that he hadn’t considered an amendment process as important when that Constitution was crafted.

From 27 Jul to 6 Aug, the Committee of Detail went to work organizing all the determinations in the Convention to that point, as well as adding details for consideration by the whole. There were five members of this committee (Rutledge, Randolph, Gorham, Ellsworth, and Wilson). It appears that Edmund Randolph took the first cut at a new document[10], referred to by Farrand as Document IV.[11] For the first time, some detail is given for an amendment process rather than a simple statement of desire. Article XIX states[12]:

On the application of the Legislatures of two-thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a convention for that purpose.

If this looks familiar, it’s very similar to what we refer to as the “second method” of proposing an amendment. It addresses the requirements of resolution 13 of the Amended Virginia Plan. However, in opposition to the original resolution, the national legislature is required (by the shall) to call a convention of states for amendment. In principle, the Legislature has no power to filter the applications. In addition, the national Legislature has no power to even propose amendments itself.

A key difference from the existing Article V and Randolph’s resolution is the notion that the convention was intended to be plenipotentiary. That is, the convention could not only propose but ratify amendments as well. This is indeed the way that the delegates interpreted it during their discussions, and it alarmed Elbridge Gerry and Roger Sherman in particular. Whereas early discussions in the Convention had considered eliminating the states, Gerry and Sherman were firmly in the camp of retaining them. John Dickinson had seen the benefit of the federalism they enabled on 2 Jun 1787, and these men were staunch supporters of federalism.

Once again, as the 19^th of 23 Articles, it took a while to get to the amendment process again. On 30 Aug, Gouverneur Morris “suggested that the (national) Legislature should be left at liberty to call a Convention whenever they pleased”. This suggestion was ignored, and Article XIX was unanimously kept as it was.[13]

To this point, there have only been thee proposals for an amendment process:

1. The abstract resolution 13 of the Virginia Plan
2. The reduced resolution 17 of the amended Virginia Plan
3. Article XIX from the Committee of Detail

It wasn’t until 10 Sep 1787 (a week before the Constitution was engrossed) that some serious discussion on the amendment process occurred.[14] Elbridge Gerry (Massachusetts) started the discussion by making a motion to reconsider Article XIX because of concern that started with the new Constitution being “paramount” to State Constitutions. He was concerned that 2/3 of the states might subvert the State Constitutions of the other states.

Alexander Hamilton seconded Gerry’s motion, but provided a different view. He was not concerned about the scenario suggested by Gerry. He acknowledged that there was a strong desire to introduce amendments more easily than in the Articles of Confederation. His concern was that states would only apply for a convention to increase their own power. He argued that the national Legislature would be the first to perceive the need and that they should be empowered to call a convention for amendment.[15] Hamilton recognized the tug-of-war that is innate in federalism, and he wanted the top-down “General Government” to have a position on its end of the rope.

James Madison (Virginia) then raised a concern about the meaning of “call a Convention for the purpose”. Specifically, he was concerned about its composition and as to whether it really was to be plenipotentiary.

Gerry’s motion was then carried, and the debate to reword the article began.

Roger Sherman (Connecticut) moved to add “or the Legislature may propose amendments to the several States for their approbation; but no amendments shall be binding until consented to by the several States”. Gerry seconded the motion. James Wilson (Pennsylvania) moved to insert “two thirds of” before “several states”. That motion was defeated, but the subsequent motion by James Wilson to change the requirement to “three fourths of” was unanimously passed.

Madison then moved to postpone further discussion in order to take up the following:

“The Legislature of the United States, whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths, at least, of the Legislatures of the several States, or by conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the United States.”

Note that Madison satisfied his concerns by eliminating the convention altogether. There is a subtle detail to consider in this version of Article V. That is, how would the states have any input to the nature of any proposed amendments?

Hamilton seconded Madison’s motion. John Rutledge (South Carolina) objected to giving the states the power to alter the articles concerning slavery. “provided that no amendments, which may be made prior to the year 1808 shall in any manner affect the fourth and fifth sections of the seventh article” were added.

Scrutiny of this version of Article V reveals that either the national Congress or the states can petition for amendment, but ONLY the Congress can author amendments. This reveals Madison’s lack of appreciation for a key part of the original Virginia Plan’s resolution 13, “that the assent of the National Legislature ought not to be required thereto”. Neither Hamilton nor Madison, the two main authors of the Federalist Papers recognized the threat to self-governance posed by a system of amendment that always required the buy-in of the national government. Luckily that was not the case for Edmund Randolph or George Mason.

The Committee of Style presented its compilation of the document on 12 Sep 1787.[16] The final form of the Constitution is apparent. At this time, the new Article V read:

The Congress, whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose amendments to this Constitution; which shall be valid to all intents and purposes, as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures 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 1808 shall in any manner affect the — and — sections of the — article.

The final discussions about Article V occurred on 15 Sep 1787.[17] It started with details provided by the committee of style:

Article 5. “The Congress, whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose, amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures 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 1808 shall in any manner affect the first and fourth clauses in the ninth Section of Article 1.”

Roger Sherman raised the concern that ¾ of the states could do damage to other states, going so far as to perhaps abolish them. He wanted to insert a provision to protect the internal workings and existence of states.

George Mason (Virginia) then raised his famous objection to the current wording of Article V. Per Madison’s notes, he

thought the plan of amending the Constitution exceptionable and dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second ultimately, on Congress, no amendments of the proper kind, would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.

Gouverneur Morris (Pennsylvania) and Elbridge Gerry then moved to amend the Article to restore the convention as in Article XIX from the committee of detail, but it would only be able to propose amendments. There was no debate on the number of state applications required.

Madison’s notes then reveal that Col. Mason had caught the lack of appreciation by Madison for Randolph’s initial proposal (in keeping with resolution 13 in the original Virginia Plan) that “the assent of the National Legislature ought not to be required thereto”.  It reads

Mr. MADISON 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. He saw no objection, however, against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum, &c. which in constitutional regulations ought to be as much as possible avoided.

This answers the previous question on how states were to have input to amendments. It is apparent that Madison intended that the states would include their proposals for amendment within their applications, and that Congress would refine them and communicate them back to the states for consideration. However, it is equally apparent that he had no objection to a “convention for the purpose of amendments”. That is, he had no problem with the states meeting in convention to consider any number of amendments (plural). He was concerned about the administrative details. From colonial conventions, all the delegates were familiar with how they managed conventions. Madison wanted the new convention to be as unregulated as possible within the framework of the Constitution.

The Morris/Gerry motion was carried unanimously.

Roger Sherman then moved to reword the Article to allow states conventions to function as the Convention was presently functioning. This was defeated. This is an overlooked detail of the debate. Those who spread the notion of a “runaway convention” ignore the fact that the commissioners at the Constitutional Convention rejected a move to allow such a thing at this point. Sherman would remember this detail in the First Congress during the debates leading to the Bill of Rights.[18]

After Sherman’s motion was defeated, Elbridge Gerry then proposed removing ratification by ¾ of the state conventions – intended to restore the unanimous consent in the Articles of Confederation. This also was defeated.

Mr. Sherman then reiterated his desire to add a phrase that “that no State shall, without its consent, be affected in its internal police, or deprived of its equal suffrage in the Senate”. Madison objected. The motion was again rejected. Sherman then moved to strike Article V altogether. It was seconded by David Brearly of New Jersey. Thankfully, the motion was rejected, 8 to 3. Had this motion passed, it is very unlikely that the Constitution would have been ratified by the states.

Gouverneur Morris then moved that “that no State, without its consent, shall be deprived of its equal suffrage in the Senate” be added to the article. Madison’s notes then indicate that this was accepted without debate.

Roger Sherman and Elbridge Gerry had highlighted a main concerned about the whole amendment process – that small states were concerned that they might lose power or even existence by the amendment process. The states feared each other in the process more than they feared the new General Government.

So, ended the discussions on Article V during the Constitutional Convention. The final article reads as follows:

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.

Key observations about the evolution of Article V

1. Perhaps the biggest controversy among proponents of an Article V Convention is what goes into a state’s application and how it is counted. For those who insist that the subject must be put in the application, Madison’s verbiage of 10 Sep 1787 provides some evidence. It is apparent that the states could have only communicated their desires for the National Legislature’s amendments via their applications. On the other hand, when Madison states that he has no objection to a convention “for the purpose of amendments”, he is removing that implicit requirement completely. This opens up a number of questions:
   • For how long are applications valid?
   • Can a state withdraw its application(s)?
   • Can the national government “filter” the application by subject or are the subjects meaningless?
     • If the subjects are meaningless, there should have been a convention called a long time ago, and the ambiguity of Article V has enabled the national legislature to “pocket veto” the states’ desire to tug on their side of the rope.
     • If the subjects have meaning, what gives the national legislature the authority to “transmit” it back to the states during the call? This is where it gets interesting. In reality, the states are really giving the national legislature a de facto power to filter applications; however, that’s where it ends. The national legislature can only call a convention “for proposing amendments”. It has no power to further refine the subject. One can make the argument that the states would have bound themselves, but that does not give the national government the power to transfer the restriction. The bottom line is that an application that specifies a subject is nothing but trouble. There are just too many interpretive problems with them.

From the state perspective, they do nothing but give up control when they submit an application with a subject beyond that of Article V “for proposing amendments”. Conventions prior to the Constitution were initiated by either a prior convention or a state/colony. This is equivalent to what is referred to as a “broadcast topology” in computer networking. There is a potential for multiple initiators and resolving which one(s)’ subjects were to be addressed had to be resolve. As such, there was a need for the invitations that “called” the convention to contain a subject (as well as place and time). However, there are two important points:

1. • The invitations only allowed the responding states/colonies to know what authorizations they were to make their delegates. The resulting commissions were the real limits placed upon the delegates. The initiator(s) would create equivalent commissions for their own delegates. Madison was expanding the power of this step in his proposal of 10 Sep 1787.
   • The Constitution changed the topology to the equivalent of what would be called “point-to-point” in computer networking. A state only has to raise its hand to be counted. When the national legislature counts 2/3 of the states, it is to specify where and when a convention is to meet, and the states know they are to discuss amendments to the Constitutions. What restrictions each state gives its delegates is an internal piece of legislation that can be bound by the commissions. What if the states have restricted each other such that no amendments are permitted? That is a perfectly valid circumstance that should be embraced instead of rejected. With phones, the Internet, and the Internet of Things, such a circumstance would truly reflect a lack of consensus.
2. A complete reading of the notes reveals that the convention proceeded in order through the resolutions. The earlier resolutions got a lot more attention throughout the convention because of the natural tendency of human nature to perceive later bullet points as less important. The natural desire to finish a pass reinforced this behavior. They then iterated on a freshly ordered list after having gotten about half way through the resolutions where the same phenomenon reoccurred.
   • There was a desire to address the lack of an amendment process in the Articles of Confederation, but it was number 13 of the 15 resolutions in the Virginia Plan. This indicates that at least some Virginians did not recognize the lack of an amendment process as a main source of their frustrations by the fact that they placed it at the end of the plan. Likewise, it is obvious that the Convention as a whole had little appreciation for the importance of a good amendment process. In point of fact, the States had two fundamental models:
     • Pennsylvania set the first serious model. The New England states (and New York) adopted its periodic model where a council of censors would periodically be appointed to review the state constitution for amending. These councils were to sit for one year (normally) every 7. During that year, a 2/3 agreement to propose an amendment by the council would be presented to the citizens for ratification. As a bonus, they were to ensure that the Constitution was being followed and review Supreme Court decisions.
     • In 1777, Georgia adopted an aperiodic process where a majority of the people in half of the counties could petition the State Assembly for a convention of counties for amendments. The necessary petitions were received in the fall of 1786, but the convention was postponed, pending the Philadelphia Convention. Three conventions followed the Philadelphia Convention – one to ratify the US Constitution and two more to create a new State Constitution. It is worthy of note that the 1789 Georgia Constitution replaced the unicameral legislature with a bicameral one – AND it replaced the aperiodic amendment process with a periodic one. Unlike Article V, Article LXIII of the 1777 Georgia Constitution required the petitions to specify the subject(s). On the other hand, Article V specifies the subject as “shall propose, amendments to this Constitution”. There is no need for an application to contain the subject. The open question is what to do with application that do specify a subject…
3. One man, Edmund Randolph, appears to have taken the first step toward a real amendment process during the Committee of Detail. He appears to have borrowed from the 1777 Georgia State Constitution and the 1786 Vermont Constitution. What we call the second proposal method of amendment was really essentially the first one. The original authors of the Virginia Plan were concerned about letting the General government block the states from the amendment process. It appears that the defensive posture of the “small states” overshadowed the concern about growing national power.
4. In 1819, John Quincy Adams was preparing the Convention Journal for publication. Charles Pinckney had immediately proposed a counter-plan to the Virginia Plan at the Convention, but the “Pinckney Plan” was nowhere to be found. Pinckney was uncertain about which of his existing papers was the original, but he sent Adams what he claimed was the close to the original. Rufus King and James Madison were still alive and believed Pinckney had embellished the proposal. In his proposal, article 16 looks very similar to the final Article V. The Committee of Detail was known to have referenced the Pinckney Plan. Using a combination of sources, Adams (and others) concluded that this did not represent Pinckney’s original plan. By combining sources, the conclusion is that the original Pinckney Plan Article XIX called for using the problematic Article XIII from the Articles of Confederation rather than any resemblance to the final Article V.[19] The Convention notes from 5 Jun 1787 directly refute Pinckney’s claim of 1819. He did not value the amendment process at all.
5. Alexander Hamilton presented what we call the first proposal method on 10 Sep 1787. This opened the door to the phenomenon of amendment that we have seen for over 200 years – that the power of the national government grows. It could be reduced, but that would require the second method of proposal in Article V.
6. Like Hamilton, Madison failed to appreciate the importance of allowing the states to amend the Constitution without interference from the national government. From the notes, it is only clear that Mason and Randolph appreciated its importance.
7. The Convention (especially Gerry and Sherman) was more concerned about states using the amendment process to adversely affect other states than the growth of national power via amendment. This displaced the concern in the Virginia Plan about national power growth.
8. There is no evidence that there was ever any discussion about the requirement for 2/3 of the states to call for a Convention of States. The requirement appears to have been taken from 1786 Vermont State Constitution – which specified a periodic council of censors to reach a 2/3 agreement to propose amendments to the citizens at large. It is apparent that Hamilton saw the need for balance, but he saw it from his prism of wanting national power, not curbing it. Although it is obvious that Randolph and Mason realized the importance of the convention of states method to check national power, they didn’t realize the disadvantage of the states to reach the 2/3 threshold just to engage in debate. The standing Congress had no such threshold for debate. It is impossible to reach consensus unless the participants engage in debate. The states have effectively been prohibited from debating amendments by the 2/3 requirement.
9. The choice of the Georgia aperiodic-only amendment process is indeed unfortunate. The Pennsylvania periodic or a combination of the two, as most state constitutions today have, would have been superior. More than two hundred years without the states taken their position in the amendment tug-of-war has only allowed increased national power.

[1] https://www.usconstitution.net/xconst_A5.html

[2] It is also rumored that Congress really feared that the state legislature might not ratify the repeal…

[3] https://www.usconstitution.net/articles.html

[4] http://avalon.law.yale.edu/18th_century/annapoli.asp

[5] Farrand, notes from 29 May 1787

[6] Farrand, notes from 5 and 11 Jun 1787

[7] Farrand, notes from 5 Jun 1787

[8] Farrand, notes from 13 Jun 1787

[9] Farrand, notes from 23 Jul 1787

[10] It appears that Randolph used the active 1777 Georgia State Constitution (http://avalon.law.yale.edu/18th_century/ga02.asp) as the primary model – but used the 2/3 supermajority that was passed in adopting the 1786 Vermont Constitution (http://avalon.law.yale.edu/18th_century/vt02.asp) the year before.

[11] https://conservancy.umn.edu/bitstream/handle/11299/163466/1-Ewald-282-TheCommitteeofDetailAccepted.pdf?sequence=1

[12] http://teachingamericanhistory.org/convention/debates/0806-2/

[13] http://teachingamericanhistory.org/convention/debates/0830-2/

[14] http://teachingamericanhistory.org/convention/debates/0910-2/

[15] It is important to note that, as the only New York delegate still at the Convention, Hamilton could not vote; however, he could participate in the debates.

[16] http://teachingamericanhistory.org/convention/debates/0912-2/

[17][17] http://teachingamericanhistory.org/convention/debates/0915-2/

[18] Roger Sherman himself emphasized during the discussions of the Bill of Rights on 13 Aug 1789 that “All that is granted us by the 5th article is, that whenever we shall think it necessary, we may propose amendments to the constitution; not that we may propose to repeal the old, and substitute a new one. (Annals of Congress.” August 13, 1789)

[19] http://consource.org/document/the-pinckney-plan-1787/