After the Virginia Plan introduced at the start of the Constitutional Convention called in a general way for an amendment process that would allow but not require amendment by the national legislature “whensoever it shall seem necessary,” the Committee of Detail proposed a process whereby Congress would call for an amendments convention on the request of two-thirds of the state legislatures. George Mason feared this method was insufficient to protect the states, while Alexander Hamilton thought that Congress should be able to propose amendments independent of the states. Madison (as recorded in his Notes of Debates in the Federal Convention of 1787) thought the vagueness of an amendments convention sufficiently problematic to reject the provision: “How was a Convention to be formed? By what rule decide? What the force of its acts?” After further debate, the delegates passed language proposed by Madison (and seconded by Alexander Hamilton) that combined the two ideas without an amendments convention: the national legislature would propose amendments when two-thirds of each house of Congress deemed it necessary, or on the application of two-thirds of the state legislatures. Proposed amendments were to be ratified by three-fourths of the states in their legislatures or by state convention.

Just before the end of the convention, George Mason objected that the amendment proposal would allow Congress to block as well as propose amendments, and the method was changed once again to require Congress to call a convention to propose amendments on the application of two-thirds of the states. Madison did not see why Congress would not be equally bound by two-thirds of the states’ directly proposing amendments (his original proposal for the states’ initiation of amendments) as opposed to the same number calling for an amendments convention, especially when the proposed Article V convention process left so many unresolved questions. In the end, Madison accepted the compromise to include an amendments convention but consistent with his earlier comments warned “that difficulties might arise as to the form, the quorum etc. which in constitutional regulations ought to be as much as possible avoided.”

As Madison predicted, the numerous unanswered questions inherent in the Article V amendments convention process have prevented its use. A first set of questions concerns calling the convention. The language here is “peremptory" according to Alexander Hamilton in The Federalist No. 85: “The Congress ‘shall call a convention.’ Nothing in this particular is left to the discretion of that body.” Nevertheless, there is dispute about the tabulation of applications in triggering that call. There have been hundreds of applications for an amending convention over the years from virtually every state; some argue that there are currently more than enough applications to require Congress to call a convention. While various organizations have tabulated state applications, Congress has never officially tabulated or listed applications and has established no process for doing so. It is unclear, despite Hamilton’s confidence, whether Congress could be compelled to call an Article V convention if it chose not to.

A second set of questions concerns whether such a convention can be limited in scope, either to a particular proposal or within a particular subject. While most calls for amendments conventions in the nineteenth century were general, the modern trend is to call (and thus count applications) for conventions limited to considering a single amendment. There seems to be a consensus that a convention cannot be limited to considering a specific amendment, as merely confirming a particular amendment already written, approved, and proposed by state legislatures would effectively turn the convention for proposing amendments into a ratifying convention. The debate focuses rather on whether a convention must be general and without limits or whether the convention can or even must be limited to a subject or subject areas based on state applications.

Still, some scholars, such as Michael Rappaport, do suggest that a “ratifying convention” is not outside the scope of Article V. As evidence, they cite James Madison’s initial suggestion (that two-thirds of the states should be able to propose amendments directly) and argue that the addition of a convention was merely to facilitate communication amongst the states in order to develop proposed amendments. If, however, two-thirds of the states were able to agree on the text of an amendment beforehand, then restricting the convention to an affirmation of that amendment would be appropriate.

Michael Stokes Paulsen makes an originalist argument that a convention properly understood holds broad powers as a deliberative political body. Other scholars argue from an originalist view that the states determine through their applications whether a convention is general or limited, and that an Article V convention is an agent of and responsible to the states. Robert G. Natelson has made a case for this view based on the history of interstate meetings prior to the Constitutional Convention. Nevertheless, it is not at all clear as a matter of constitutional construction that the power of two-thirds of the states to make applications for a convention restricts, supersedes, or overrides the power of all the states assembled in that convention to propose amendments to the Constitution. The Federalist Papers, unfortunately, offer little guidance on this matter. Madison refers to amendments conventions in The Federalist No. 43 only in general terms, noting that Article V “equally enables the general and the State governments to originate the amendment of errors.” And in The Federalist No. 85, while discussing how Congress cannot limit the scope of an Article V convention, Hamilton says nothing as to whether states can or cannot do so.

A third set of questions concerns the many practical aspects of how an amendments convention would operate (time, place, duration, voting procedure, etc.) and whether authority over some or all of these questions belongs to the states or is implied in Congress’s power to call the convention. Congress has historically understood its authority to “call” a convention as a broad mandate to establish procedures for such a convention, and in the last forty years has considered (but not passed) numerous bills to that effect. These procedural issues (along with limiting the subject matter of the convention) raise a further question as to whether Congress can refuse to forward amendments for ratification if those amendments are deemed to be beyond the scope of the convention. Lastly, there is the general question whether and to what extent aspects of such a convention (including going beyond its instructions) would be subject to judicial review. A suit asserting that existing applications require Congress to call an Article V convention, for instance, was denied at the district court level (and later denied certiorari) as without standing and because it raised political questions more properly the province of Congress. Walker v. United States (2001).

While a valid method created and available under the Constitution, “a Convention for proposing Amendments” has never been viewed as a tool for reform as much as an option to be deployed in extremis for the sake of maintaining the Constitution. Hence, the only time Madison proposed an amendments convention was during the Nullification Crisis of 1832, seeing it as a last ditch effort to prevent the unconstitutional alternatives of nullification and secession that then threatened the continued existence of the United States. Likewise, when Abraham Lincoln looked to constitutional reforms to resolve disputed questions in the midst of the Civil War, he noted that “under existing circumstances” the convention mode “seems preferable” precisely because it “allows amendments to originate with the people themselves, instead of only permitting them to take or reject propositions originated by others, not especially chosen for the purpose.” Yet when the immediate crisis was over, Lincoln strongly advocated what became the Thirteenth Amendment by congressional proposal and did not pursue an amendments convention, despite the amendment’s initial failure in the House of Representatives. It should be noted that in both cases an amendments convention was understood to be free to propose whatever amendments thought necessary to address the problems at issue.

The requirement that amendments proposed by such a convention must be ratified by three-fourths of the states is a significant limit on the process and likely prevents a true “runaway” convention from fundamentally altering the Constitution. It is worth noting, however, that of the amendments that have been proposed to the states the vast majority (twenty-seven out of thirty-three) have been ratified. Because of the lack of clear intentions or constitutional precedent, scholars will undoubtedly continue to debate the historical record and speculate about the possibility of an amendments convention under Article V. 

Precisely because of the potential chaos of the process, the very threat of an amendments convention can be used to pressure Congress to act rather than risk an amendments convention. The movement favoring direct election of senators was just one state away from an amending convention when Congress proposed the Seventeenth Amendment in 1911. There was also an effort to overturn the Supreme Court’s 1964 one man, one vote decisions (Wesberry v. Sanders and Reynolds v. Sims). By 1969, the proponents obtained thirty-three state applications for a convention to consider amendments regarding legislative apportionment in the states; one vote short of the two-thirds necessary for Congress to call an amendments convention. Most recently, in the 1980s, state applications for a convention to propose a balanced budget amendment led Congress to vote on such an amendment and pass the Gramm-Rudman-Hollings Act (later declared unconstitutional in part by the Supreme Court) requiring the federal budget to be balanced. 

Following the 2010 elections, renewed efforts on both sides of the political spectrum have looked to an Article V amendments convention as a way for the states to circumvent Congress in order to achieve various policy outcomes, in particular to propose a balanced budget amendment. More recently, some scholars, recognizing the many unknowns of an Article V amendments convention, have suggested that an agreement among two-thirds of the states under the Compact Clause (Article I, Section 10, Clause 3) could be used to address many of the procedural questions involved in that process.