Article V Legislative Compendium

Article V provides that “The Congress . . . on the Application of the Legislatures of two thirds of the several states, shall call a Convention for proposing Amendments. . . .” This Section 3.9 and its subsections discuss what it means for Congress to “call” a convention, the content of a call, the powers Congress enjoys as incidental to calling, and when Congress must issue a call.

The courts tell us that the terms of Article V are defined by historical usage.¹⁾ That usage enables us to determine what it means for Congress to “call” a convention of the states.²⁾

Between 1689 and Independence in 1776, American colonies met in convention twenty times. From 1776 through 1787, the newly independent states met in convention eleven times, including general conventions³⁾ in Philadelphia in 1780 and 1787. Precipitating each gathering was an invitation to meet. Some invitations were issued by the Continental Congress or by prior conventions, but most came from individual states seeking to meet with other states. For example, the Constitutional Convention was not, as commonly believed, the product of a congressional resolution, but the result of invitations extended in November 1786 by Virginia and New Jersey.⁴⁾

The usual word for such an invitation was “call,” although sometimes the word “application” served the same purpose. In 1785, however, Massachusetts unsuccessfully asked Congress to issue a call, and it referred to its own request as an “application.”⁵⁾ As noted earlier, in framing Article V the drafters resolved issues that prior practice left unclear,⁶⁾ and in this instance they adopted the terminology and procedure employed in 1785 by Massachusetts. Thus, the triggering petitions were to be “applications,” the invitation was to be the “call,” the submission of applications from two thirds of the states would render the call mandatory, and the calling entity was to be Congress.