The Convention Route

In one line

Article V lets two thirds of the State legislatures force Congress to call a convention to propose amendments, and it has never happened because nobody knows what such a convention could do.

In the wording a student can write in an exam: the convention route is the second method of proposing amendments under Article V, by which Congress, on the application of the legislatures of two thirds of the several States, shall call a convention for proposing amendments; it has never been used, and the unanswered questions about its scope, composition and control are why.

The text

On the application of the legislatures of two thirds of the several States, Congress shall call a convention for proposing amendments.

That is the whole of it. Two thirds is thirty four of fifty.

The five unanswered questions

One: may the convention be limited to a subject? States have applied for a convention on a balanced budget amendment, on term limits and on other single subjects. Whether Congress may call a convention limited to the subject of the applications, or whether any convention once called may propose anything, is unresolved. The precedent that alarms everybody is the Philadelphia Convention of 1787, which was called to revise the Articles of Confederation and instead proposed a new constitution with a different ratification rule in Article VII.

Two: must the applications be contemporaneous and identical? Applications have been made over two centuries and in different terms, and whether they aggregate is unknown.

Three: may a State rescind its application? Several have purported to. Nobody knows whether they may.

Four: who controls the convention? Article V says Congress shall call it. It says nothing about how delegates are chosen, how they vote, whether the States vote equally, who presides, or what rules of procedure apply.

Five: who decides all this? Coleman v. Miller, 307 U.S. 433 (1939), suggests that questions about the amending process are political and belong to Congress, which means the body whose failure to act prompted the applications would decide the terms on which it is bypassed.

Why it matters anyway

Because it is a pressure device. The threat of a convention has twice produced congressional action: the Seventeenth Amendment, providing for the direct election of senators, was proposed by Congress in 1912 when applications for a convention were close to the required number.

So a route that has never been used has produced at least one amendment, which is a lesson about how constitutional mechanisms work.

The Swiss comparison

Switzerland has a route that looks similar and works completely differently.

Article 138. A hundred thousand persons eligible to vote may within eighteen months of the official publication of their initiative propose a total revision of the Federal Constitution. The proposal must be submitted to a vote of the people.