Article V Glossary
Convention: A convention is simply an official meeting of commissioned delegates appointed by, representing, and accountable to their respective state legislatures. A convention called under Article V authority exists for the sole function of proposing amendments. It cannot rewrite the Constitution, ratify amendments, or change the rules for ratification. The Uniform Law Commission and the Electoral College are current examples of states meeting in convention.
Commissioned Delegates: Commissioned delegates or commissioners are one or more persons who have been chosen by their state legislature or legislative leadership to represent their state at a convention. Their commission authorizes them to participate in the convention on behalf of their state and may include specific instructions regarding agenda items the state delegation is or is not to support. States may recall, replace, and, using the state’s criminal code, discipline commissioners who depart from the instructions in their commission.
Application: An application is a request notifying Congress and other states of a state’s desire to hold a convention to propose amendments. One state might see a particular need to address issue X, another issue Y, another issue Z, and so forth. The application is implemented as a joint resolution passed by both chambers of the state legislature and does not require the signature of the governor. If two-thirds of the state legislatures convey such a desire via an application, then Congress “shall call a convention for proposing amendments.” Once two-thirds of the states submit an application and Congress has called the Convention, all states are eligible to participate, even those states that did not submit an application. It is important to note that eleven of the twelve Article V applications passed between 1789 and 1899 contained no language limiting what kinds of amendments could be discussed at the Convention.
Aggregation: Aggregation is the process whereby Congress tracks and counts state requests for an Article V Convention. While counting to 34 (two-thirds of the states, as of this writing) may seem like a simple task, Congress has, until very recently, had no mechanism for carrying out this important responsibility. It has also become somewhat more complicated by the fact that states have, as of late, taken up the practice of attempting to tie the hands of not just their own delegations, but those of other states, as well, by including limiting language in their applications. States also have the right to rescind applications they have previously submitted to Congress, so subtracting as well as adding is sometimes necessary.
General Convention: At a General Convention, the agenda is determined by the commissioned delegates at the outset of the Convention. No amendment is declared off-limits in advance by language in the applications. The very first application for an Article V Convention was for a General Convention and was passed by the State of New York to press for the Bill of Rights in 1789. It remains in force to this day.
…in the fullest confidence of obtaining a revision of the said Constitution by a General Convention…we, the Legislature of the State of New York, do on behalf of our constituents, in the most earnest and solemn manner, make this application to the Congress, that a Convention of Deputies from the several States be called as early as possible, with full powers to take the said Constitution into their consideration, and to propose such amendments thereto, as they shall find best calculated to promote our common interests, and secure to ourselves and our latest posterity, the great and unalienable rights of mankind.
Limited Convention: A Limited Convention is commonly understood as one at which only certain amendments, as stipulated in the applications aggregated to trigger the call, may be discussed and passed to the states for ratification.
There is considerable divergence among constitutional scholars as to whether an Article V Convention may be limited in scope, and how such applications should be aggregated. Robert Natelson of the Independence Institute contends that an Article V Convention may be limited, and “Congress has no choice…but to group [applications] according to subject matter.” Former Solicitor General & Assistant Attorney General Walter E. Dellinger, on the other hand, describes the assumption that Congress can call a limited-subject convention “erroneous,” and argues that “such an application must be considered invalid.” Advocates of illimitability note that Congress, when in session, has no limitation on amendments it may consider under the authority granted to it under Article V. They argue that since the purpose of Article V is to give the states parity with Congress, no limitations may be placed upon the states at a Convention called under Article V. They further note that Article V makes no provision for limiting an Article V Convention. Constitutional historian and former Department of Justice attorney Russell Caplan notes that the illimitability theory “holds the edge among constitutional scholars.”
ACF expects Congress and others invested in maintaining the status quo to look for any possible excuse to avoid calling this Convention. In light of the historical record and a careful assessment of the full range of scholarly opinion, we have concluded that the most effective strategy to prevent Congress from evading its responsibility to call the Convention is to focus our efforts and attention exclusively on applications for a general convention.
For more information on the work of the Uniform Law Commission, visit their website at http://www.uniformlaws.org.
Ten were for general conventions (Virginia, 1789; New York, 1789; Georgia, 1833; South Carolina, 1833; Indiana, 1833; Kentucky, 1861; Ohio, 1861; New Jersey, 1861, Illinois, 1861; and Texas, 1899). One application was for tariffs and other issues (Alabama, 1833), but did not have exclusionary language. One application was for direct election of senators (Nebraska, 1893). Data are from the Article V Library, available at http://article5library.org/
Neale, Thomas, “The Article V Convention to Propose Constitutional Amendments: Current Developments,” CRS Report 7-5700: R44435; pp. 7, 12ff. available at https://fas.org/sgp/crs/misc/R44435.pdf; accessed 28 Nov 2018.
Article V application by the State of New York, H.R. Jour., 1st Cong., 1st Sess. 29-30 (May 6, 1789).
Natelson, Robert G., (2010, December), “Amending the Constitution by Convention: A more complete view of the Founders’ plan,” The Independence Institute, IP-7-2010, p. 16. Retrieved on May 6, 2018 from http://robnatelson.com/wp-content/uploads/2016/11/II-Paper-I-Founders-Plan-II-webversion.pdf.
Dellinger, Walter E. (1979), “The Recurring Question of the ‘Limited’ Constitutional Convention,” Yale Law Journal, 88, 1623-1640, p. 1640.
Caplan, Russell L., (1988), Constitutional Brinksmanship: Amending the Constitution by National Convention, (New York: Oxford University Press), p. 138.