Article V Legislative Compendium

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§ 3.2. Types of Conventions

For constitutional purposes, one can classify conventions sponsored by American governments in several different ways: in-state and multi-state; conventions to propose, conventions to ratify, and conventions with power to do both; and those that are plenipotentiary and those limited in their powers.

§ 3.2.1. In-State and Multi-State Conventions

An in-state convention is a meeting of delegates from a single state. An example is a state constitutional convention or a state ratifying convention of the kind that approved the Twenty-First Amendment. In such gatherings, delegates usually are popularly elected by, and represent, the people—although during the Founding Era there were some in-state conventions composed of delegations from towns or other local governments. The Constitution authorizes two kinds of in-state conventions: those authorized to ratify the Constitution and those authorized to ratify amendments.1) # U.S. Const. arts. V, VII.

By contrast, a multi-state, interstate, or federal convention is a gathering of representatives of the states or state legislatures.

§ 3.2.2. Proposing and Ratifying Conventions

A proposing convention is charged only with proposing solutions to prescribed problems. As its name suggests, the convention for proposing amendments is of this kind. Other illustrations include the 1787 Constitutional Convention and the 1861 Washington Conference Convention.

A ratifying convention is charged only with ratifying or rejecting specific proposals. Examples of ratifying conventions are the in-state assemblies that approved the Constitution2) # U.S. Const., art. VII. and those that approved the Twenty-First Amendment (repealing Prohibition).3) # On the latter, see Ratification of the Twenty-First Amendment to the Constitution of the United States: State Convention Records and Laws (Everett Somerville Brown ed., 1938). For a shorter treatment, see Everett Somerville Brown, The Ratification of the Twenty-First Amendment, 29 Am. Pol. Sci. Rev. 1005 (1935).

Some conventions possess power to propose and approve.4) # The division between proposal and decision was elucidated by the seventeenth century political author James Harrington in his Commonwealth of Oceana—a work hugely popular among the Founders. Harrington compared it to the common domestic situation in which one girl cuts a cake while the other gets to choose which piece is hers. He therefore referred to it as “dividing” and “choosing.” During the Revolutionary War, some in-state conventions enjoyed both proposing and ratifying power, particularly if the state's legislature was not functioning. By contrast, most multi-state conventions were authorized to propose only. However, the 1780 Philadelphia Price Convention was empowered to both propose and decide,5) # Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments,” 65 Fla. L. Rev. 615, 656 (2013), reprinted infra § 5.1. and an early draft of the Constitution would have granted an amendments convention authority to both propose and decide. Obviously, the Framers ultimately rejected that approach.6) # Id. at 621–22.

§ 3.2.3. Plenipotentiary and Limited Conventions

A plenipotentiary convention is one with an unlimited mandate, or at least a mandate that is very broad. The term comes from international diplomatic practice. During the Founding Era, the in-state conventions that managed their governments in absence of the legislature enjoyed plenipotentiary authority. However, the Constitution does not authorize any plenipotentiary conventions.

A limited convention is restricted to one or more topics. The most extreme example of a limited convention is a ratifying convention, whose only power is to approve or reject a preset proposal.

Multi-state proposing conventions invariably have been authorized to deliberate, debate, draft, and recommend solutions to prescribed problems. Sometimes the agenda handed to them has been very broad, as in the case of the First Continental Congress (1774). Sometimes the agenda has been very narrow, as in the case of the 1781 Providence Convention, which was confined to New England military supply issues for a single year. But in no case has a proposal convention been told merely to approve or disapprove language prescribed in advance. Such a procedure would inhibit the deliberative purpose of a proposal convention, and would ill-suit the dignity of an assembly of semi-sovereigns.

§ 3.2.4. Categorizing the Constitutional Convention and the Convention for Proposing Amendments

The Constitutional Convention

There is an oft-repeated claim that Congress called the 1787 Constitutional Convention and restricted it to amending the Articles, but that claim is simply erroneous.7) # After most of the states already had accepted the invitation to participate, Congress passed a weak resolution expressing the “opinion” that the convention be limited to amending the Articles. All but two states disregarded this “opinion,” but many writers have confused it with the convention call. Id., at 674–79.

What actually happened was that the 1786 Annapolis Convention issued a recommendation to its participating state governments (a resolution analogous to the application referred to in Article V). Pursuant to that resolution, two of the participating states, Virginia and New Jersey, called another federal convention for May of 1787. Neither the Annapolis resolution, nor the state calls, nor the convention itself occurred pursuant to the Articles of Confederation. They were exercises of the states' reserved powers. Nor was the convention limited to proposing amendments to the Articles. Instead, the call and the commissions issued by ten states empowered the convention to recommend any and all expedient changes to the “foederal constitution”8) # 3 The Records of the Federal Convention of 1787, at 559–86 (Max Farrand ed., 1939). —a phrase that in the language of the time referred to the entire political system.

The 1787 gathering in Philadelphia was obviously a multi-state or federal convention rather than one limited to a single state. Just as obviously, it was a proposing rather than a ratifying body. Although technically limited, the breadth of its charge caused it to lean toward the plenipotentiary side.

The Convention for Proposing Amendments

This also is a multi-state gathering or “convention of states.”9) # Some writers have depicted a convention for proposing amendments, as least potentially, as a popularly-elected gathering directly representing the people. However, the Supreme Court refers to it not as a “convention of the people” but as a “convention of the states,” Smith v. Union Bank, 30 U.S. 518, 528 (1831). The Court’s characterization is confirmed by a large body of uncontradicted Founding-Era evidence. This evidence includes, inter alia, contemporaneous convention practice and discussions of the procedure during the Constitutional Convention and during the ratification debates. Robert G. Natelson, Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693, 715–32 (2011), reprinted infra § 5.2. See generally Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments,” 65 Fla. L. Rev. 615 (2013), reprinted infra § 5.1. In addition, the Founding Generation often referred to an amendments convention as a “convention of the states.” This usage appears in contemporaneous legislative resolutions on the subject. See, for example: The first application for an Article V convention. 1 Annals of Congress 28–29 (1789) (Joseph Gales ed., 1834) (reproducing Virginia application of Nov. 14, 1788, calling an amendments convention “a convention of the states”). The Pennsylvania legislature’s resolution disapproving that application. Minutes of the Thirteenth General Assembly of the Commonwealth of Pennsylvania in Their Second Session 124–25 (Mar. 5, 1789) (calling an amendments convention “a convention of the states”). A letter from the Virginia legislature to the Governor of New York successfully urging New York to adopt its own application. Journal of the House of Assembly of the State of New-York 25 (Dec. 27, 1788) (calling an amendments convention “a Convention of the States”). A Rhode Island legislative resolution on the same subject. 10 Records of the State of Rhode Island 309–10 (John Russell Bartlett ed., 1865) (General Assembly resolution of Oct. 27, 1788) (calling an amendments convention a “general convention of the states”). Unlike the Constitutional Convention, which was called by the states in their sovereign capacity, a convention for proposing amendments is called pursuant to the Constitution. It draws its authority from the Constitution, to the extent permitted by the applications and calls. Its authority is therefore limited to the scope of those documents, and is necessarily narrower than the authority of a constitutional convention. On the other hand, the fact that it is a proposing body suggests that its discretion cannot be confined to approving or rejecting prescribed language, as in the case of ratifying convention.

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