How to Count to 34: Paulsen on the Article V Convention

In the debate over the “runaway convention,” Professor Michael Stokes Paulsen occupies an unusual, and perhaps unique, position. In a seminal 1993 article, Paulsen argued that an Article V convention could not be limited, but that this wasn’t something that people should be worried about. He observed: “The power of the convention delegates to limit their own agenda at the convention (a power over which the applying states might well exercise considerable control by selecting delegates committed to enforcing a limitation on the agenda), combined with the power of the states to decline to ratify any unwanted amendment the convention proposes, should be regarded as a complete answer to fears that the convention wil generate popularly unacceptable results.” M. Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L.J. 677, 760 (1993).

Recently Paulsen has rejoined the Article V debate with an article entitled “How to Count to Thirty-Four: The Constitutional Case for a Constitutional Convention,” published in the Summer 2011 issue of the Harvard Journal of Law & Public Policy. In this article Paulsen revises and extends his previous remarks regarding the Article V convention. Although much of the article reiterates points he has made before, it is well worth reading (and quite a bit shorter than the 1993 article).

Paulsen argues that the Article V convention was not intended to be a limited one, at least in the sense of a formal limitation to its overall authority. He says that “[r]epresentatives or delegates to such a convention might well operate to some extent pursuant to the ‘instructions’ of the people thus represented, but a convention was not a pass-through or a cipher, but rather an agency- a deliberative political body.”

In this sentence Paulsen makes two assertions about the nature of an Article V convention. The first relates to the role of instructions in an Article V convention. The second relates to the nature of a “convention” as a deliberative body. I will address the second point in this post.

As Paulsen acknowledges, “[t]he text of Article V is not a knockout argument” with regard to the scope of deliberation in an Article V convention. In fact, Article V says nothing about the convention’s proceedings at all; it merely states that, upon receiving the required applications, Congress shall call a convention for proposing amendments. To the extent that this language says anything about the deliberative nature of the convention, it must be inferred from the Framers’ understanding of what a “convention” is.

Paulsen makes a number of historical and structural arguments as to why a “convention” should be understood as embracing a body with an unlimited (or nearly unlimited) deliberative scope. Most of these arguments he has made before, and my responses can be found here. Today I will respond to a couple of new points that he raises.

As a structural matter, Paulsen argues that the Framers must not have intended for the states to call a convention for purposes of considering a single amendment. If that were the case, he asks, why would the Framers have bothered with a convention at all? “Why not, in that case, just make an amendment valid upon the proposal of an agreed-upon text by three-fourths of the states?”

The structural answer to Paulsen’s question is clear (there is another response which I will get to a little later). Article V allows Congress to choose the method of ratifying an amendment- it can choose ratification “by the Legislatures of three fourths of the several States” or “by Conventions in three fourths thereof.” Thus, if Congress believes that the state legislatures are pushing an amendment that lacks broad popular support, it can require ratification by conventions, rather than by the state legislatures. This means that a single amendment convention under Article V is significantly different from a hypothetical process in which three fourths of the state legislatures could simply agree on an amendment.

It is also worth noting that Article V uses the term “convention” both to describe the national body for proposing amendments and the state bodies for ratifying amendments. Article VII also specifies that the Constitution itself would be ratified by “Conventions” in the several states. This seems to refute any implication that the term “convention” implies a broad deliberative scope, as opposed to a simple binary decision (for or against ratification).

Paulsen also argues that the Framers must have intended the Article V convention to be a independent body with full deliberative authority, rather than a mere “pass- through” or “cipher,” because “the latter approach was considered and not adopted in the text of Article V.” He alludes here to Madison’s proposal that would have required Congress, upon application of two-thirds of the state legislatures, to propose amendments to the Constitution (which would then be subject to ratification by three-fourths of either state legislatures or conventions in the same manner as ultimately provided by Article V). As Paulsen evidently realizes, in Madison’s proposal Congress was clearly intended to act as a mere pass-through or cipher.

But the records of the Philadelphia Convention do not suggest that Madison’s proposal (which at one point was approved by a vote of 9 votes in favor, 1 opposed and 1 divided) was ultimately discarded because of a desire to have amendments proposed by an independent body. To the contrary, the records show that the substitution of the Article V convention for Congress occurred because of the objection by George Mason that Congress could not be trusted to act as a faithful pass-through, but instead would fail to propose amendments “of the proper kind” (i.e., that would reduce federal or congressional power) even if requested to do so by the states. See 2 Records of the Federal Convention of 1787 629-30.The Article V convention was substituted for Congress in order to solve this problem.

Note that the Madison proposal refutes Paulsen’s argument that there would be no reason for the Framers to use a pass-through, rather than simply permitting three-quarters of the states to agree on the text of any amendment. More importantly, it shows that that the Framers did not object to using a pass-through for proposing amendments; instead, they wanted to ensure that the proposing body would act as a faithful agent of the state legislatures.  Indeed, both Madison and Hamilton, in Federalist Nos. 43 and 85, discussed the Article V convention as if it were a mere pass-through for the state legislatures.

It is doubtless true, as Paulsen notes, that the Framers did not anticipate that the states would be able to agree on the specific text of an amendment before holding a physical convention. He therefore argues: “We could do such yammering and hammering today, without physically meeting as such—by conference call, email, or Twitter—but we should not anachronistically project onto the Framers’ eighteenth century world an understanding of possibilities that they would not have considered practicable, and use the modern understanding to undermine historical evidence of the understanding the Framers actually did have at the time as to the meaning of the provision we are interpreting.”

This strikes me as a peculiar argument. If a single-amendment convention is consistent with both the text and purpose of Article V (as it appears to be), what is the relevance of the fact that the Framers did not know of the technology that makes such a convention practicable? The relevant “understanding” surely does not embrace everything that would have come to mind when the Framers imagined a convention. Otherwise our modern convention delegates would have to dress in 18^th century clothes, arrive by horse and buggy, and leave their cell phones, I-pads and laptops at home!

An amusing thought, but certainly not required by the Constitution.