Article V and the Law of Constitutional Conventions

There was nothing that could be said to constitute a law of constitutional conventions before the Civil War, at least not in the sense of courts playing a role in limiting the scope of convention authority. Indeed, there were very few cases that directly presented the question of the powers of the convention, and those that did were largely ignored or became embroiled in judicial reform politics, limiting their reach. As an “offspring of revolution,” as a judge would put it in the 1870s, the convention was understood to embody and exercise the people's constituent power. As James Kent explained, “The constitution is the act of the people speaking in their original character, and defining the permanent conditions of the social alliance.”

James Kent, 1 Commentaries on American Law 421 (1826).

This relationship between popular sovereignty and the constitutional convention was forged during 1770s and 1780s, before finding its way into American jurisprudence in the early nineteenth century.

The constitutional convention helped to make popular sovereignty the operating principle of the newly-founded republican governments by visibly embodying the people in a distinct institutional form. As Frederick Grimke explained, the invention of the constitutional convention meant that “the popular mind, and not merely the popular will, should have so direct an agency in the formation of a constitution of government.” Through the convention, “the people” had gained the capacity to both act and reason, marking “an entirely new era in the history of society.”

Frederick Grimke, Considerations upon the Nature and Tendencies of Free Institutions 124–25 (1848).

Today, while we still seem to view the convention as the embodiment of the people, it does not seem to carry the same meaning; the very idea of popular sovereignty has been “dulled.”

Daniel T. Rodgers, Contested Truths: Keywords in American Politics Since Independence 80 (1987).

Nevertheless, by 1860, the constitutional convention had become a common and regularized institution, for both statehood and reform. Between 1790 and 1820, most of the conventions held were statehood conventions, organized to create a constitution in order to be admitted as a state into the Union. The early statehood conventions were organized at the initiation of the territorial governments. Eventually, however, Congress made it a requirement for the statehood process.

Bayrd Still, An Interpretation of the Statehood Process, 1800–1850, 23 Miss. Valley Hist. Rev. 189 (Sept. 1936).

By the middle of the nineteenth century two traditions of constitutional revision had emerged, although it was not quite apparent to constitution-makers at the time. One was a revolutionary tradition. In times of constitutional crisis, a convention assembled to fill gaps in government, and to create a new constitutional order by drafting a new constitution. It was through the drafting and enacting of the new constitution that the constituent power revealed itself; this is popular sovereignty in its most elemental form. These were the conventions of the 1770s and1780s. The second tradition was a constitutional tradition. Conventions in this tradition were bodies used to create or change constitutions, but in times of peace not of violence, upheaval, or revolution; the regular governmental institutions continued to operate until the new constitution was ratified. Many constitution-makers believed that they had successfully combined the two traditions (if they even perceived a distinction), occasionally referring to the constitutional tradition as “peaceful revolution.” Over the first half of the nineteenth century, the tension between the revolutionary and constitutional traditions became more apparent and more pressing, with the two traditions finally colliding in secession.

The dividing line between the revolutionary and constitutional traditions is the question of limits, the very question at the center of debates over Article V conventions. For many decades, constitution-makers were able to suspend the distinction, as they only occasionally pushed conventions in radical directions. But beginning with the Kansas crisis, and culminating in secession and a war-time convention in Illinois in 1862, the idea of an unrestrained people exercising their sovereignty at will through a convention appeared dangerous to both government and liberty. That this idea could potentially lead to disunion, or “anarchy” as President Lincoln termed it, made the question of limits urgent.

Abraham Lincoln, “First Inaugural Address” (Mon., March 1, 1861).

The constitutional discourse of secession, like that of constitutional conventions, was grounded in popular sovereignty, particularly its connection to the constitutional convention. Nearly every state that seceded from the Union did so by way of a constitutional convention. As the embodiment of the people's sovereignty, the convention was the most constitutionally legitimate means of seceding. Secession, then, was not, as President Lincoln characterized it, “the essence of anarchy;” it was simply the people's exercise of their right to alter or abolish government. Secession was, to be sure, an extraordinary exercise of that right, but it was also thoroughly conventional, in both senses of the term.

Roman J. Hoyos, Peaceful Revolution and Popular Sovereignty: Reassessing the Constitutionality of Secession, in Signposts: New Directions in Southern Legal History 241 (Sally Hadden & Patricia Minter, eds., 2013).

Secession itself may have been enough of a spur for Jameson to write his treatise. He certainly pointed to it as a motivating factor. But as an Illinois Republican, Illinois’ 1862 constitutional revision convention brought the issue immediately to his door. Illinois’ convention was oddly timed, coming as it did amidst the early part of a war. The voters had approved a referendum for a convention in 1860, before the war, and when Democrats gained control of the legislature in 1861, they set about to provide for its organization. While most observers in the state agreed that the 1848 constitution needed reform, the timing and composition of the convention raised questions about the objectives of many of the delegates. In fact, the convention seemed to catch Republicans off-guard, or at least the Republican editors of the Chicago Tribune. They apparently paid little attention to the delegate elections. But after the election returns put Democrats clearly in control of the convention, 55-19, the editors suddenly became concerned.

O.M. Dickerson, The Illinois Constitutional Convention of 1862, 1 U. Illinois: The University Studies, no. 9 (1905).

Upon realizing the Democratic dominance of the convention Tribune editors fretted that, “It is probably one of the most ultra Democratic bodies ever got together in this State, and there is nothing they may not do.” It was this last aspect that proved most frightening, as “The more radical members are for refusing to submit the Constitution to the people and for turning out all the State officers.”

Chicago Tribune, Jan. 8, 1862.

It was only after members of his community threatened to shut down his paper, the paper reported, that he backed down.

Republicans had been worried about secessionists in southern Illinois since the fall of Sumter, and the convention's early actions resonated with those fears. Although the military condition of the state had been strengthened by the end of 1861, Union victory was not imminent.

Tracy Elmer Strevey, Joseph Medill and the Chicago Tribune During the Civil War Period 103–104 (unpublished Ph.D. diss., University of Chicago, 1938).

More ominous than the Merritt appointment, though seen in part through it, was the convention's appointment of a committee to draft a report on the extent of the convention's powers. “It is unfortunate,” declared the Tribune, “that the very first act of the Constitutional Convention, at Springfield, should have been the appointment of a committee to consider and report ‘how far the act of the Legislature calling the Convention limited the action thereof.’” The editor assumed that this was an attempt by Democrats to come up with a rationale for not submitting the constitution to the electorate ratification, which it deemed “a grave public danger.”

A Grave Public Danger, Chicago Tribune, January 9, 1862. According to Dickerson, the reason for this report was the determination of a printer for the convention. Dickerson identified three instances in which the convention considered its own powers: its right to appoint a printer, its right to ratify the proposed amendment to the federal constitution, and its authority to reapportion congressional districts. Dickerson, supra note 20, at 32–41.

These epithets soon led to a more legalistic analysis of the convention. One problem, as the Tribune saw it, was that the convention was not even properly organized, as the delegates had not taken a proper oath. Instead of swearing to support the federal and state constitution, delegates were simply required to swear support to the federal constitution. Moreover, this oath was distinct from the one required by the state constitution.

King Mob. The Tribune had taken up the oath issue more fully in a separate editorial. The issue was whether the convention was bound by the oath in the convention which required the delegates to swear to support both the U.S. Constitution and the existing state constitution. As the convention took an oath only to support the U.S. Constitution, the Tribune and others argued that the convention was an illegal body. Is the Convention Legally Organized? Chicago Tribune, Jan. 16, 1862.

Particularly rankling was that the Democrats did not deny these accusations. “Thirty-eight pro-slavery Egyptians, constituting a majority of the Convention, and representing constituencies numbering but one-third of the popular of the State, claim that the sovereign power of the whole people of Illinois is concentrated inside of their skins. As two sovereignties cannot exist in the State at the same time, therefore the people—the two millions of inhabitants of Illinois—at this moment are divested of the attributes of sovereignty, and can never recover them while the Convention chooses to exist. …[T]hey are no longer self-governing freemen. They have no political power left in their hands. The thirty-eight Egyptians have absorbed it all.”

Usurpation, Chicago Tribune, Feb. 12, 1862. Rumors were apparently rampant around Illinois, that Knights of the Golden Circle, secessionist sympathizers, were delegates. After the Tribune published an account of these rumors, the Convention created a committee to investigate them. Chicago Tribune, Feb. 13, 1862.

The Tribune, though, did not limit itself to a critique of the Democratic delegates and their decisions. It soon began a more positive exploration of the “plain and simple” powers of constitutional conventions. It wouldn’t be surprising if Jameson wrote some of these editorials himself. Jameson was one of the earliest members of the Chicago Republican Party, and was described by a friend as “devoted to the perpetuation of its principles in power, [defending] its course at all times with argument and personal devotion.”

Francis Newton Thorpe, In Memoriam: John Alexander Jameson 18 (1890).

According to the writer, whoever it was, the first thing to understand was that a convention was no more than a committee, appointed by the people to perform a particular act. And it was only the joint act of the committee and the electorate that produced a constitution: “The one framed the amendments, put the changes wanted into proper shape, and the other, the people, gave them vitality by adopting them.” As a “committee,” the convention was more of an administrative body than a sovereign one. “The Convention has no power of attorney from the people beyond that described in the act of the Legislature, which declares that whatever amendments to the Constitution may be framed, shall be submitted to the people for ratification. In other words, it is simply a conveyancer employed to fill up the instrument for the people to sign, and until they do sign it, the ordinances are utterly lifeless.” As a “conveyancer” the convention was limited simply to proposing a constitution, not enacting one. Thus, to “suppose the committee should take it into their heads that they possessed supreme power, and might draw up any resolutions they pleased, and declared them passed and binding upon the meeting” was usurpation and tyranny. Any constitution drafted and approved by the convention, the writer concluded, had to be submitted for ratification by the state's voters. There was “no wilder notion” than that the constitution making power allowed a convention to “seize the sovereign authority of the State, and make or unmake, set up or pull down, at once any law it pleases.”

Power Necessary to Change the Constitution, Chicago Tribune, Feb. 13, 1862.

Whatever broad claims Democrats had initially made about the convention's authority, the convention ultimately submitted its work to the electorate for ratification. Most of the amendments it proposed were rejected by the voters. The secessionist threat appeared to be thwarted. But this did not solve the larger problem. In fact, one historian has written, Republicans’ “private correspondence discloses no elevated feeling” regarding the triumph of democratic politics.

Nortrup, supra note 24, at 20. See also Bessie Louise Pierce, 2 A History of Chicago, 1848–1871, 261–65 (1937). Chicago voted for the new constitution by almost 1,000 votes. Id. at 265.

Secession and the Illinois convention had a profound impact on Jameson, a Republican activist, University of Chicago law professor, and future Chicago judge.

Thorpe, supra note 34, at 24. Jameson initially worked on his treatise as a lecturer in constitutional law at the first University of Chicago. Id. at 20. In 1865, while still working on the treatise, he was elected to the Superior Court of Chicago, where he served until 1883. He was also a founder of the American Academy of Political and Social Science, an editor for the American Law Review, and “an accomplished linguist.” Id. at 22, 24. He also received an appointment to be a lecturer in American constitutional history at the University of Pennsylvania in 1890, but died before starting. He was 67. Id. at 24.

Jameson easily could have let the arguments against the claims made by delegates in Illinois’ convention lay in Tribune's editorials. This was the usual course following a battle over a convention's power. Occasionally, convention critics would gather materials into a pamphlet. This happened in South Carolina, for instance, where a debate over the scope of authority of its nullification conventions generated newspaper commentary and even judicial opinions. Those opposed to the conventions gathered the opinions into a pamphlet, suggesting that the debate was at least as political as it was legal.

The Book of Allegiance; or A Report of the Arguments of Counsel, and Opinions of the Court of Appeals of South Carolina, on the Oath of Allegiance, Determined on the 24th of May, 1834 (1834). Jameson would rely upon the allegiance cases to help develop his arguments in his treatise.

Jameson picked up where the Tribune left off. Although he did have precedents from which to work, no one had undertaken a full-scale systematic study of constitutional conventions. Such a study required an in-depth examination not only of cases and the treatise literature, themselves sparse, but of the convention debates, as well. The project was enormous,

I can personally attest to the fact that such a project is an at-times mind-numbing experience, especially when dealing with the multi-volume, multi-columned octavo-sized books.

Jameson's purpose was not simply to recount what the conventions had done, but to subject them to legal limits. The main problem, as Jameson saw it, was that the convention was an “ill-defined assembly,” which had led to the “prevailing maxim” that the convention embodied the people.

Jameson, supra note 39, at 3.

Two classification schemes were key to Jameson's reconstruction effort. Jameson first divided conventions into types, ranging from the spontaneous to the revolutionary. The “lower species of conventions” were the spontaneous and ordinary legislative. Spontaneous conventions were “voluntary assemblages of citizens, which characterize free communities in advanced stages of civilization,” and are important “manufactories of public opinion.” But they are “wholly unofficial” bodies; they could only help to shape public opinion. Spontaneous conventions were quite common in the nineteenth century, dealing with topics ranging from rivers and harbors to women's rights. But they could be even more spontaneous than that, like town meetings on a pressing local issue. The ordinary legislative convention (i.e. a legislature), on the other hand, was wholly official, “it can do nothing except by the authority contained in the [constitution].”

Id. at 4–5.

But Jameson's more important distinction was between revolutionary and constitutional conventions. According to Jameson, revolutionary conventions are bodies that wield essentially illimitable power. Their “principal characteristics” are

that they are dehors the law; that they derive their powers, if justifiable, from necessity,—the necessity, in default of the regular authorities, of protection and guidance to the Commonwealth, —or, if not justifiable, from revolutionary force and violence; that they are possessed accordingly to an indeterminate extent, depending on the circumstances of each case, of governmental powers; finally, that they are not subaltern or ancillary to any other institutions whatever, but lords paramount of the entire political domain.

Id. at 6.

Because they exist outside of law, there are no definite forms of organization or operation for revolutionary conventions. Instead, a revolutionary convention is a “body which can, violently and without law, uproot all existing institutions.”

Id. (emphasis added).

What separated the constitutional from the revolutionary conventions was law. “If a Constitutional Convention step outside the circle of the law,” Jameson explained, “it does not continue to be a Constitutional Convention, but, so far, becomes that whose powers or methods it assumes, - a Revolutionary Convention. It leaves the domain of law, which is one of specified and restricted powers, and enters upon that of arbitrary discretion, within which law is silent, and where he is master who wields the greater force.”

Jameson, supra note 39, at 11.

A second classification scheme underscored the limited nature of constitutional conventions. Jameson added two branches to the traditional three-branch formula. The first addition, at the apex, was the electorate. The electorate constituted “the people,” but only in a “qualified” sense, as the true people could only be found in public opinion. Its distinguishing characteristic was that it acted without assembling, unlike the other branches; a sort of disembodied representative.

Id. at 23.

Two more elements rounded out this new law of constitutional conventions—the convention act and ratification, both of which made the convention and its work “legitimate and safe.”

Id. at 106.

Jameson, then, laid the basic foundation for the law of constitutional conventions. In distinguishing between revolutionary and constitutional conventions, he treated the constitutional convention as simply a branch of government, removing it from any association with the people's constituent power. By subordinating the constitutional convention to convention acts and ratification votes, he rendered it incapable of independent action, and ultimately subject to judicial oversight.

Jameson's treatise was published to favorable reviews. Francis Thorpe thought his treatise took “rank with Story, with Hurd, with Cooley, and with Kent.”

Thorpe, In Memoriam, supra note 34, at 26. See also John W. Burgess, [Review], 3 Political Science Quarterly 545 (1888). Jameson had his critics of course. Dodd, supra note 59. Their criticisms did not, however, undermine Jameson's larger project of legalizing conventions.

Reviewers understood the timeliness of Jameson's treatise, as “even now many of the rules which should govern [conventions] are undetermined,” and “of all our institutions, [the convention was] the one through which sedition and revolution would most naturally seek to make their approaches, the only check upon it being the power of rejection which the people should have over all its recommendations.”

Id. at 653.

But reviews were one thing. The more important question was the influence it would have on judges.

Or convention delegates themselves. It turned out that delegates were the first adopters of the treatise.

After the war, convention cases became increasingly common. The earliest postbellum convention cases came out of the southern and border states. Courts in 1866 and 1867, but even as late as 1871, sought to avoid the issue of convention power. A Texas court in 1866, for instance, found that it was “unnecessary for us to consider that grave question, which in other states has frequently elicited discussion and differences of opinion among the ablest jurists.”

L.C. Cunningham & Co. v. Perkins, 28 Tex. 488, 490 (1866).

It was becoming clear, though, that the convention's authority, and its relationship to law, was now in flux. Attorneys were pressing the issue before courts in ways they never had before. No doubt this was part of the factional politics of Reconstruction, as well as a dissatisfaction with congressional Reconstruction. But courts were beginning to understand that convention power broadly conceived was becoming problematic. As an Alabama court noted, “What the legitimate powers of a popular convention are, will possibly never be settled, so as to suit and harmonize with all the arguments upon this subject.”

Scruggs v. Mayor of Huntsville, 45 Ala. 220, 223 (1871).

After 1867, the year Jameson's treatise was published, courts became more aggressive. The Missouri Supreme Court, for instance, rejected its earlier position despite no change in its personnel. The idea of convention sovereignty, claiming “omnipotent powers and [holding] themselves emancipated of all restraints,” the court denounced “as breathing the worst spits of the worst men in the worst times. Such has been the tyrant's plea from the beginning of the world.” Convention sovereignty was now an “unqualified tyranny.”

Blair v. Ridgely, 41 Mo. 63, 98 (1867).

But the most important and influential cases arose out of Pennsylvania's 1873 convention, Wells v. Bain

75 Pa. 39 (1873). According to Thorpe, Wells was the first case to cite Jameson's treatise. Thorpe, In Memoriam, supra note 34. However, the earliest case I have found is Kirtland v. Molton, 41 Ala. 548, 564 (1868). The court there held that the convention did not possess legislative power. According to the court, “Its power was limited to the formation of a State constitution, and no legislative power was conferred on it by any competent authority....” Id.

Pennsylvania's 1873 convention was largely a response to Simon Cameron's political machine,

Frank Bernard Evans, Pennsylvania Politics, 1872–1877: A Study in Political Leadership (1966).

Convention bills were introduced repeatedly in the state legislature between 1867 and in 1871, when reformers secured a referendum vote on whether to hold a constitutional convention, which passed overwhelmingly.

Id. at 27.

Fearing obstruction by the Philadelphia machine, the convention passed an ordinance in which they appointed five commissioners of election to carry out the election in the Philadelphia. It gave the commissioners power to register voters, and to appoint judges and inspectors for each election district. Treasury Secretary Mackey refused to distribute state funds to pay for these special election officials. But the convention's commissioners continued their work without pay.

Id. at 90.

On November 24, Francis Wells and other “citizens and voters of Philadelphia,” sought an injunction against the city commissioners to prevent them from spending money on the election. They also sought an injunction to prevent the election commissioners appointed by the convention from holding an election. In addition, John Donnelly, an existing election commissioner, sought an injunction against the convention-appointed commissioners to prevent them from interfering with his duties as an inspector and from appointing other election officers. All of these plaintiffs were part of the Philadelphia political machine.

Meanwhile in Pittsburgh, the machine sought an injunction against the Secretary of the Commonwealth and the county sheriff from holding a ratification election, arguing that the convention acts themselves were unconstitutional. Id. at 91.

What was really at issue was the scope of the convention's power, which the Pennsylvania Supreme Court addressed in two separate cases. In Wells, the court addressed the revolutionary authority of the convention, while in Woods's Appeal, the court addressed the question of sovereignty. Chief Justice Agnew wrote both opinions. Agnew himself had been a delegate to Pennsylvania's 1837–38 convention, where he demonstrated his constitutional conservatism, as well as a first-rate legal mind. Throughout that convention Agnew insisted that the convention should take a narrow view of the convention's powers. He consistently argued against changes to the constitution, holding that the convention should be limited to those “evils” complained of, rather than “some imaginary evil.”

As a delegate, Agnew insisted the convention should be guided by three inquiries. The first was whether a subject was within the convention's jurisdiction, or, as he put it, “the propriety of introducing such a subject into the constitution.”

6 Proceedings and Debates of the Convention of the Commonwealth of Pennsylvania, 402 (1837).

The third inquiry involved consideration of the effects of a proposed reform.

3 Id. at 617.

In Wells, Agnew began with a discussion of popular sovereignty, specifically the right to alter or abolish government. This right had formed the basis of early constructions of convention authority, and was instrumental in connecting conventions to the people's sovereignty. But Agnew read this right narrowly, bending it away from revolution and toward law. “A self-evident corollary” to the right to alter or abolish government, he wrote, “is, that an existing lawful government of the people, cannot be altered or abolished unless by the consent of the same people, and this consent must be legally gathered or obtained.”

Wells, supra note 77, at 46 (emphasis added).

Between Wells and Woods's Appeal, the Pennsylvania convention weighed in with its views. In December 1873, the convention created a committee to inquire into the convention's powers.

8 Debates of the Convention to Amend the Constitution of Pennsylvania, 732–33.

The report then offered two resolutions. The first declared that the convention had been called by the people, and that the first convention act providing for a referendum vote was the only true mandate; “this vote was a mandate to the Legislature, which that body was not at liberty to disobey or modify.” In other words, the legislature had no authority to place any limitations on the convention in providing for its organization. The second resolution declared that no institution, except for the federal constitution, could limit the convention, as the people had “expressly” reserved to themselves the right to alter or abolish government. Thus, “this Convention deems it to be its duty to declare that it is not in the power of any department of an existing government to limit or control the power of the Convention called by the people to reform their Constitution.”

Id. at 742.

A minority report, authored by Harry White, responded that it was “inexpedient” to offer such resolutions. Other delegates not on the committee agreed with White's argument that the time was not ripe for such a determination. John Martin Broomall, for instance, agreed that it was not only inexpedient but dangerous, despite the fact that he agreed with the principles of the majority report. “That the positions asserted are sound,” he argued, “nine lawyers out of every ten in the State will agree; but the propriety of our asserting them at this time, I think an equal proportion of the lawyers will agree with me upon.” Moreover, he feared casting aspersions on the Pennsylvania Supreme Court. “It is important to the people of the State that the respect in which the supreme court has been heretofore held should not be impaired by any action of their representatives here.” He thus favored adjourning “without saying anything whatever about the unfriendly action of the Supreme Court recently had.”

Id. at 743–44.

The Pennsylvania Supreme Court, however, would have the last word. Indeed, the convention's resolutions would largely disappear from constitutional view. In Woods's Appeal, the court went out of its way to address the convention's claims, though without citing the report. Despite acknowledging that the question in the case was moot, and that, “the adoption of the proposed Constitution since this decree, forbids an inquiry into the merits of this case,” the court nonetheless pressed forward in discussing the issue of convention sovereignty, an idea “dangerous to the liberties of the people.”

Woods's Appeal, supra note 16, at 68–9.

Agnew then made an important move, separating rights from powers, and placing the judiciary in between to protect the people's rights. Because the people retained their rights against encroachment, only those powers “clearly expressed, or as clearly implied, in the manner chosen by the people to communicate their authority” could be imputed to the convention. Rather than the convention itself being the exercise and protection of the people's rights, it was now the job of the judiciary to make such a determination. Agnew placed great emphasis on the “manner” by which power was conferred, often using italics for the term. Thus, the right to alter or abolish government depended on “such manner as they may think proper.” The people could delegate as much or as little of their right to alter or abolish government as they chose. This delegation of authority meant that “A convention has no inherent rights; it exercises powers only.” This was the very definition of delegated power, and delegated powers meant that courts had a role in determining the scope of that delegation. Only a revolutionary convention could be said to be possessed of the people's sovereignty.

In a telling paragraph at the end of his opinion, Agnew revealed the reasons why constitutional conventions needed to be subject to law. He began, like Jameson, with secession. “In our day,” he wrote, “conventions, imputing sovereignty, to themselves, have ordained secession, dragged states into rebellion against the well-known wishes of their quiet people, and erected in the midst of the nation alien state governments and a Southern Confederacy.” But that was not the end of the problem. The nation was still in the midst of great revolutions. “The negro is now a citizen and an elector, and yet the time is not long gone by since the word ‘white’ was voted by a former convention into the article on elections.” The point here seemed to be two-fold. First, conventions might potentially engage in a social policy-making that may have disturbed Agnew's conservative mind. Second, new people were gaining political and electoral power, people who were ostensibly unschooled in self-government. The next sentence was telling: “Who can foretell the next subject of agitation?” If the convention was actually unlimited in its power, there was no telling what sort of tragic experimentation it might engage in. “The times abound in contests,” Agnew continued. “Labor and capital are strife. Agriculture wars on transportation. Communism, internationalism, and other forms of agitation excite the world.” These concerns seemed to tap into Agnew's deeply-held convictions against constitutional social policy-making. “Let conventions in such seasons possess, by mere imputation, all the powers of the people,” he concluded, “and what security is there for their fundamental rights?”

Id. at 74. See also Koehler & Lange v. Hill, 60 Iowa 543 (1883).

In this context, then, no longer could (or even should) the convention embody the people. Conventions may stray far from simply determining how to organize a government; they might instead use their power to legislate social reform, not just constitutional reform. This would not only subvert the purpose of the convention, but more fundamentally institutionalize conflict and violence into constitutional reform. “The fundamental rights of the people, the true principles of civil liberty, the nature of delegated power, and the liability of the people to temporary commotion, all rise up in earnest protect against such a doctrine of imputed sovereignty in the mere servants of the people.”

Id.

In a post-Jameson world, the idea of an unlimited convention, or convention sovereignty, appeared more like “Frankenstein's Monster,” than as the fullest expression of popular sovereignty.

Carton v. Secretary of State, 151 Mich. 337, 381 (1908).

Several courts have picked up Jameson's distinction between constitutional and revolutionary conventions. As the Kentucky Supreme Court explained, citing Jameson, “This conception or doctrine, that a constitutional convention inherently possesses unlimited sovereign power, seems to have had its origin in what are generally termed ‘Revolutionary Conventions.’”

Gaines, supra note 110, at 430. The court explained that “The reason for the view, therefore, fails under our firm and stable ‘government of law.’” Id.; see also Riviere v. Wells, 270 Ark. 206 (1980)(acknowledging the death of convention sovereignty).

Like Jameson, courts anchored the line between revolutionary and constitutional conventions in law. First, the right to alter or abolish government was refashioned from a revolutionary to a legal right.

In re Opinion to the Governor, supra note 110 (“It is settled that the people alone cannot, without revolutionary action, call a constitutional convention, unless the Constitution provides the necessary machinery for that purpose.”).

Courts have continued to harden the line between revolutionary and constitutional conventions by reimagining the right to alter or abolish government. In effect, they separated the right into two rights, the right to alter government and the right to abolish government. The right to alter government was the legal right to revise an existing constitution. The right to abolish government was revolution. This distinction has been most important in those states that assembled conventions despite the lack of a convention clause in that state's constitution. As a single right, the right to alter or abolish government was the expression of the people's constituent power. Thus, a convention could, as they often have, make the claim that once assembled it could ignore a convention act that attempted to limit it, and address any issue it saw fit. Moreover, it could claim to enact a new constitution itself, without the need for popular ratification, as members of Illinois’ convention attempted to do in 1862. Separating the right to alter government from the right to abolish mitigated this problem, and opened constitutional conventions to legal controls. The reconceptualization of the right to alter or abolish government was not explicit. It was implicit in discussions about a number of issues, including the distinction between amendment and revision, as well as in discussions about the role of the legislature in constitutional revision, and ratification of the new constitution.

Courts have relied upon the right to alter government, while keeping the right to abolish government at bay, in building up the jurisprudence upholding the work of conventions in the absence of a convention clause. As the Alabama Supreme Court in one of the earliest convention cases explained, “The constitution can be amended in but two ways: either by the people, who originally framed it, or in the mode prescribed by the instrument itself.”

Collier v. Frierson, 24 Ala. 100, 108 (1854). See also In re Opinion to the Governor, supra note 110, at 438 (“It is also well settled that no other method can be legally employed for amending or revising a Constitution or substituting another one for it, unless such other method is expressly provided for in the Constitution itself.”); Gatewood v. Matthews, 403 S.W.2d 716 (Ky. 1966); Smith v. Cenarusa, 93 Idaho 818 (1970); State v. Manley, 441 So.2d 864 (Ala. 1983).

A second component to the law of conventions that has helped to maintain the distinction between revolutionary and constitutional conventions is the convention act, which Jameson highlighted in his treatise. Although rare, conventions have been assembled without the aid of the state legislature. One historian has dubbed these “circumvention conventions.”

George Parkinson, Antebellum State Constitution-Making: Retention, Circumvention, and Revision, unpublished Ph.D. diss.

The Rhode Island Court turned this custom into law, concluding that “if a Constitution is silent on the subject of its own alteration, the Legislature and only the Legislature is authorized to provide an explicit and authentic mode for ascertaining and effectuating the will of the people on this subject, i.e., by the convention method.”

Id. at 449.

But if the legislature is necessary to effect the right to alter government, why not allow it to revise the constitution itself?

Americans discussed this problem during the American Revolution, determining that a body separate from the regular institutions of government was necessary to establish a constitution based upon the people's sovereign authority. But once we separate the right to alter from the right to abolish government, can the distinction hold? Conventions can be expensive, and it can be cheaper for legislatures to amend or revise the constitution itself. This was the issue in State v. Manley.

In Manley, the Alabama Supreme Court determined that “counsel mistakenly relies on the cases for the proposition that if the legislature has the authority to call a constitutional convention without a specific constitutional provision to such effect, then surely it has the authority to propose a new or revised constitution to the people.” While the Court agreed that the legislature had the power to assemble a convention in the absence of a convention clause in the state, it nonetheless believed that counsel's “argument distorts the concept of the plenary power of the legislature as the arm of the state to which the legislative power has been given by the people….”

The Court then distinguished the legislative power from the power to revise the constitution. It recognized that the legislature has a plenary power, but it also recognized that that power concerns matters of governance – the powers to regulate, police, and tax. The power to revise a constitution does not fall within the legislature's plenary powers. Instead, the revision power belongs to the people, through their right to alter government.

See also Wineman, supra note 117; Ex parte Birmingham, supra note 8; People ex rel. Stewart v. Ramer, 62 Colo. 128 (1916). The U.S. Supreme Court has reached the same conclusion, but directed it to a different end: “the case of amendments is evidently a substantive act, unconnected with the ordinary business of legislation, and not within the policy, or terms, of investing the President with a qualified negative on the acts and resolutions of Congress.” Hollingsworth v. Virginia, 3 U.S. 378 (1798). State courts have reached the same conclusion regarding the role of governors in the revision process. Opinion of the Justices to the Senate, 373 Mass. 877 (1977); Crenshaw v. Miller, 606 S.W.2d 285, 289 (Tenn. Ct. App. 1980) (“The Constitution does require the signature of the Governor on a measure submitting to the voters the question of calling a constitutional convention, even a limited constitutional convention such as that involved in the present suit.”).

So what does this tell us about the nature of the legislature's power to assemble a constitutional convention? First, the power to assemble a convention is distinct from a state legislature's power to legislate. The legislature's source of authority to assemble a convention is not its power to govern; rather, it flows out of the people's right to alter government. But the legislature's authority is not coterminous with the people's authority. Its role is merely to serve as a conduit for assembling the institution that possesses the people's right to alter (or abolish) government. The conductive nature of the legislature's role within the convention process means that the legislature cannot act sua sponte in organizing a convention. It requires sanction from another agent of the people. As the Indiana Supreme Court has explained,

It seems to be an almost universal custom in all of the states of the Union, where the Constitution itself does not provide for the calling of a constitutional convention, to ascertain first the will of the people and procure from them a commission to call such a convention, before the Legislature proceeds to do so. The people being the repository of the right to alter or reform its government, its will and wishes must be consulted before the Legislature can proceed to call a convention. 6 R. C. L. § 17, p. 27; Hoar, Constitution Conventions, p. 68 (1917).

Bennett v. Jackson, 186 Ind. 533, 116 N.E. 921, 923 (1917).

As an agent of the people, the legislature is charged with collecting the people's views on holding and assembling a convention, which requires, first, proposing the question of revision to the electorate.

The power to call for a convention is not unlimited. See, e.g., id. (no authority to call a convention after a state vote on question rejected).

But if the convention act imposes limits upon a convention, how binding is it?

The convention act has been the source of a great deal of debate about the limits of constitutional conventions. Prior to Jameson's treatise, this question was debated at length by convention delegates themselves, without any particular resolution. Conventions largely stayed within their limits, even if they rejected the authority of the convention act. After Jameson's treatise was published, it was possible for courts to enter the discussion.

Courts have determined that a convention act limiting the scope of the convention's authority to specific topics or amendments is binding, because, as we’ve seen, the act comes from people's right to alter government. “The Legislature merely proposes the conditions. It is the vote of the people for the convention that ratifies them and makes them binding upon the delegates.”

In re Opinion to the Governor, supra note 110, at 452. See also Staples v. Gilmore, 183 Va. 613 (1945) (referendum on convention act makes limitations by people not legislature), 624 (“The convention does not possess all of the powers of the people but it can exercise only such powers as may be conferred upon it by the people. The people may confer upon it limited powers.”); Cummings, supra note, at 70 (if limited convention act ratified, limited by people); Chenault v. Carter, 332 S.W.2d 623, 626 (1960) (“The delegates to the convention are the agents not of the legislature, but of the people themselves. As a principal may limit the authority of his agent, so may the sovereign people of this state limit the authority of their delegates. This they may do by accepting and approving, through a constitutional majority as set forth in sec. 258, a proposal for a limited constitutional convention.”).

Convention acts can, however, be used to thwart reform by unnecessarily limiting the scope of convention authority. The electorate might actually prefer an unlimited convention, or at least a convention with broader authority than that contained in a convention act. The electorate is then faced with a choice of either approving the act and getting the opportunity to achieve some reform, perhaps with the belief that once assembled the convention might go beyond its charge, or rejecting a proposed limited convention in the hopes of getting an act that more accurately expresses its desires. A convention act thus might not reflect the electorate's genuine preference.

Moreover, while on their face referendums and ratification votes appear to reinforce democratic norms of popular consent, they can also obstruct the desire for constitutional revision through voting exhaustion. As the Rhode Island Supreme Court explained, “If, after the Legislature has decided that such a convention ought to be called for the purpose stated, it is essential to the legality of the call that the people vote in favor of it at an election, then that makes necessary four popular elections, before their power of alteration can be effective. …The requirement of the second election clearly impedes rather than facilitates the exercise by the people of their power to control their governmental institutions.”

In re Opinion to the Governor, supra note 110, at 458 (emphasis in original). The four votes would be on whether to hold a convention, on the convention act, on the selection of delegates, and then on the proposed constitution itself.

It is probably unnecessary for a state to hold a referendum on a convention act providing for an unlimited convention, so long as there has been a vote on whether to hold a convention to draft a new constitution. However, the convention act can only reflect the vote on whether to hold a convention. So, for example, if the convention referendum question was whether to hold a convention to draft a new constitution, the convention act could not provide for a limited convention. Conversely, a convention referendum that posed the question of whether a convention should be assembled to address specific amendments, the legislature could not provide for an unlimited convention. In each case, the source of the legislature's power would be the convention referendum. If the referendum on the convention was contradicted by the convention act, the referendum on the convention act could be challenged as beyond the scope of the legislature's authority. But this could only occur prior to the election. Courts have proved unwilling to provide a post-referendum remedy, holding that ratification cures the legislature's original lack of power.

A constitutional commission generally aids the legislature in identifying specific amendments, recommending them to the legislature for consideration. Commissions have also been charged with determining whether there is a need for assembling a convention.

While this discussion has focused mostly on questions of substantive limitations, there are also procedural question, such as the form of the ballot. This can often be a sign of whether the legislature is trying to obstruct the assembling of a convention. See, e.g., Priest v. Polk, 322 Ark. 673, 687 (1995) (“The form of the ballot proposed by a constitutional convention cannot be misleading.”); Hawaii State AFL-CIO v. Yoshina, 84 Hawai’i 374, 377 (1997)(“term ‘ballots cast upon such a question’ of constitutional convention, as used in State Constitution, means aggregate printed or written tickets, sheets, or slips of paper, on which convention question is printed, which are deposited in appropriate receptacle, and thus includes blank ballots and “over votes,” or ballots in which both affirmative and negative votes are cast.”); Chicago Bar Association v. White, 386 Ill.App.3d 955, 957 (2008)(“We hold that the trial court was correct to characterize some of the language on the ballot as inaccurate and misleading, but we do not believe that any of the ballot deficiencies rise to the level of a constitutional question. As to the remedy ordered by the trial court, we affirm it in all respects as not constituting an abuse of discretion.”)

The ratification vote is a third critical component of the law of constitutional conventions. In his treatise on constitutional conventions, Roger Sherman Hoar used this vote to turn acquiescence into a central legal doctrine of popular sovereignty.

Constitutional Conventions, supra note 44.

The final ratification vote thus cures all defects related to the organization of the convention. Pennsylvania is not alone.

In Kahalekai v. Doi, the Hawai’i Supreme Court noted that “the cardinal principle of judicial review is that constitutional amendments ratified by the electorate will be upheld unless they can be shown to be invalid beyond a reasonable doubt.” This cardinal rule is based upon the “corollary” that “the people are presumed to know what they want, to have understood the proposition submitted to them in all of its implications, and by their approval vote to have determined that the amendment is for the public good and expresses the free opinion of a sovereign people.”

Larkin v. Gronna, 69 N.D. 234, 285 N.W. 59, 63 (1939).

The state constitutional jurisprudence on conventions thus reflects the core of Jameson's project. Jameson's insight separating revolutionary from constitutional conventions, celebrated by one of the initial reviews of Jameson's treatise, is the central spring for the jurisprudence. The procedural requirements for assembling a convention are designed to maintain this distinction. From requiring the state legislature to be the motive force for assembling a convention to the consistent involvement of the electorate in the process, courts have been largely successful in placing legal limits upon conventions.

Justice Black has argued that the Article V process is political from start to finish, and thus not subject to judicial review.

Coleman v Miller, 307 U.S. 433, 459 (1939).

A first difference is that Article V contemplates only “amendments.” Article V delegates the power to “propose amendments” to Congress or a convention. As a point of comparison, consider that the Articles of Confederation included a power to “alter” the Articles.

Art. XIII.

This distinction between amendment and revision is an important difference between the convention clause in Article V and convention clauses in state constitutions. In state constitutions, the amendment power is typically delegated to state legislatures, or to the electorate in the form of the initiative. The revision power, which includes the lesser amendment power, is typically delegated to conventions. That revision power is also reserved in right to alter or abolish clauses, in the absence of a convention clause. Courts have used this distinction between amendment and revision to limit the initiative as a technique of constitutional change by limiting it to “amendment,” striking down initiatives that have crossed the line into “revision.”

One of the foundational cases elaborating this distinction is Livermore v. Waite,

102 Cal. 113 (1894).

This distinction between amendment and revision, along with the 1787 convention's decision to use the term amendment rather than alteration suggests that Article V does not envision a general revision power either for Congress or an Article V convention.

Cf. In re Opinion of the Justices, 254 Ala. 183, 184 (1950) (“The power to propose amendments to the Constitution is not inherent in the legislative department, and in the absence of a provision in the Constitution conferring such power on the legislature, it has no capacity thus to initiate amendments.”)

A second difference between state and federal conventions is that Article V does not contemplate a significant role for the electorate in the amending process. With respect to state constitutional revision, the electorate is the critical institution. Whether it is initiating amendments itself, or ratifying convention acts, legislative amendments, or amendments or constitutions proposed by constitutional conventions, the electorate can and does both initiate and legitimate the reform process. Throughout the state convention process, the electorate plays a critical oversight role. The electorate's sometimes-heavy involvement has curative properties, so that even if a convention goes beyond the charge contained in the convention act, electoral ratification will render the defect moot. This is the doctrine of acquiescence.

By contrast, Article V contemplates no significant role for electorates. Instead, state legislatures play the critical role in the Article V amendment process, as petitioners for a convention, as ratifiers, as assemblers of ratifying conventions, or as assemblers of the election process for delegates to a federal convention. The only space allowed in Article V for electoral participation is in the election of delegates. The doctrine of acquiescence is thus not available for Article V conventions, as it is for state conventions. Modern jurisprudence has made it clear that conventions themselves, even ratification conventions do not possess the people's sovereign authority. Only a referendum on a convention's work can trigger acquiescence. Importantly, state legislatures have no authority to add more electoral participation to the Article V process.

State legislatures’ Article V power is narrower than their state constitutional amendment or revision power. First, the decision on the method of ratification of amending the federal constitution, either by state legislatures or by state ratification conventions, is delegated to Congress.

State ex rel. Tate v. Sevier, 333 Mo. 662, 667–68 (1933).

The state legislature's most discretionary role in the Article V convention process is petitioning Congress for a federal constitutional amendment or convention. Courts have protected this discretion against electoral interference. In the 1980s and 1990s, for instance, constitutional reformers impatient with state legislatures, who they thought were obstructing their efforts to achieve balanced budget and term limits amendments, turned to the initiative process to force legislatures to petition Congress for a convention. State courts turned back these efforts on state constitutional grounds, holding that the state law governing the initiative could be used only to enact laws.

See, e.g., State ex rel. Harper v. Waltermire, 213 Mont. 425 (1984); Donovan v. Priest, 326 Ark. 353 (1996); Opinion of the Justices, 673 A.2d 693 (Me. 1996); In re Initiative Petition No. 364, 930 P.2d 186 (Okla. 1996).

The Eu Court identified a deliberation ethic in Article V, which “envisions legislators free to vote their best judgment, responsible to their constituents through the electoral process, not puppet legislators coerced or compelled by loss of salary or otherwise to vote in favor of a proposal they may believe unwise.”

American Federation of Labor v. Eu, 36 Cal.3d 687, 694 (1984).

In the 1960s, for instance, some state legislatures sought an amendment to overturn the U.S. Supreme Court's one person, one vote doctrine.

See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964)

A more fundamental limit on state legislatures’ Article V power is, of course, Article V itself. As Article V is the exclusive source of the federal amendment power, states cannot add to its requirements.

Tate, supra note 151; In re Initiative Petition No. 364, supra note 154; Bramberg v. Jones, 20 Cal.4th 1045 (1999).

The people's role in petitioning Congress for a convention is a political not a legal one. Citizens may attempt to persuade their state legislators and legislatures to act, but they cannot force them to act. Even initiatives that identify a candidate's position on petitioning Congress or on a proposed amendment are precatory. “The citizens’ use of the initiative process to demand passage of a constitutional amendment clearly violates the strict language of Article V, which precludes state citizens from direct participation in the amendment process.”

Morrissey v. State, 951 P.2d 911, 916 (Colo. 1998) (en banc). Neither can state legislatures instruct federal representatives. Opinion of the Justices, 673 A. 693 (Me. 1996). For other term limit amendment cases, see Gralike v. Cooke, 996 F. Supp. 901 (W.D. Mo. 1998) (amendment to state constitution requiring federal representatives use their powers to pass a term limits amendment, and requiring congressional candidates to support the amendment adds qualifications to Article 1); Barker v. Hazeltine, 3 F.Supp.2d 1088 (D. S.D. 1998); Bramberg, supra note 160; Miller v. Moore, 169 F.3d 1119 (8th Cir. 1999). State legislatures also cannot bind future state legislatures to apply to Congress for a convention. Opinion of the Justices, supra note 153.

Similarly, the state legislature's power to assemble a ratification convention comes from Article V, and cannot be subject to referendum law.

Leser v. Garnett, 258 U.S. 130, 217–19 (1922)(“the function of a state Legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the federal Constitution; and it transcends any limitations sought to be imposed by the people of a state.”); In re Opinion of the Justice of the Supreme Court of Maine, 118 Me. 544, 107 A. 673, 674 (Me. 1919)(“the state Legislature in ratifying the amendment, as Congress in proposing it, is not, strictly speaking, acting in the discharge of legislative duties and functions as a lawmaking body, but is acting in behalf of and as representative of the people as a ratifying body under the power expressly conferred upon it by article 5”); Prior v. Nolan, 68 Colo. 263, 269 (1920)(“in the matter of the ratification of a proposed amendment to the federal Constitution, the General Assembly does not act in pursuance of any power delegated or given to it by the state Constitution, but exercises a power which it possesses by virtue of the fifth article of the Constitution of the United States.”); Decher v. Vaughn, 209 Mich. 565, 571 (1920) (“The action of the Legislature in ratifying an amendment is not, strictly speaking, a legislative act. It is but one of several steps required to be taken to change the federal Constitution.”)

Importantly, a convention's decision is not reviewable by the electorate. Referendums on legislative ratifications are barred, and there's no reason why that reasoning would not apply to a convention ratification. As the Ohio Supreme Court explained,

It is the prevailing, though not unanimous, view of writers on the question that a resolution of ratification of amendment to the Federal Constitution, whether adopted by the Legislature or a convention, is irrevocable. This conclusion seems inescapable as to the action of a convention called for the purpose of acting upon an amendment. When it has acted and adjourned, its power is exhausted. Since the ‘powers and disabilities’ of the two classes of representative assemblies mentioned in article V are ‘precisely the same,’ when a Legislature, sitting, not as a lawmaking body, but as such an assembly, has acted upon a proposal for an amendment, it likewise has exhausted its power in this connection.”

Wise v. Chandler, 1027. Hawke v. Smith, 253 U.S. 221 (1920) (referendum on legislative ratification void), 229 (“This argument is fallacious in this – ratification by a state of a constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the state to a proposed amendment.”); National Prohibition Cases, 253 U.S. 350 (1920) (referendum provisions cannot apply to ratification); Hebring v. Brown, 92 Or. 176, 180 (1919)(“To ascertain what is meant by the term ‘bill’ and ‘act,’ as used in the amendments quoted above, we must refer to the sense in which they were used in the Constitution before the initiative and referendum amendments were passed.”); Whittemore v. Terral, 140 Ark. 493, 215 S.W. 686, 687 (1919) (“An analysis of this provision of our Constitution reveals the fact that the reserved referendum power of the people relates only to laws enacted by the General Assembly. The word ‘act,’ as there used, means an enacted law –– a statute.”); Decher, supra note 163 (referendum after amendment deemed ratified by Congress), 572 (“The right of the people to thus legislate in no way makes them a part of the Legislature, or changes the well-recognized meaning of that term.”); State ex rel. Gill v. Morris, 79 Okla. 89 (1920) (issue settled by Hawke); State ex rel. Askew v. Maier 231 N.W.2d 821 (N.D. 1975); State ex rel. Hatch v. Murray, 165 Mont. 90 (1978) (per curiam); Walker v. Dunn, 498 S.W.2d 102 (Tenn. 1972) (referendum has no effect as it is a federally derived power). But see State ex rel. Mullen v. Howell, 105 Wash. 167 (1919) (referendum on ratification is law for purposes of state constitution, referendum thus valid); Trombeta v. Florida, 353 F. Supp. 575 (M.D. Fla. 1973).

Since the electorate can play only a limited role in the federal amendment process, electoral participation cannot cure procedural or substantive defects as it can in the state process.

Finally, an Article V convention could not itself provide for more electoral participation in the ratification of its work. Article V conventions can only “propose amendments.” Its powers are exhausted once it returns its proposals to Congress, which it must, for Congress to distribute to the states for ratification. Thus, the convention could not sua sponte send its proposed amendments directly to state electorates. Nor could it require a national referendum on its work product. Congress does not possess such a power, either. Its decision with respect to ratification is limited only to choosing between state legislatures or ratification conventions.

And so we return to the ultimate question that we are all concerned about regarding an Article V convention: what would, or should, happen if an Article V convention deliberately exceeded its delegated powers, and either considered amendments not included in the convention act, or drafted an entirely new constitution?

This problem was one of Jameson's central concern, what he called “usurping conventions.” A usurping convention is a convention that begins as a constitutional convention but assumes revolutionary authority. Ultimately, the law of constitutional conventions has been designed to address this problem. Whether an Article V convention exceeded its authority would not be a political question. The question would simply be whether the convention exceeded its mandate by considering issues beyond those included in the convention act creating the convention. If so, an injunction prohibiting the distribution of the proposed amendments or constitution could issue. Or, if already distributed, states could be barred from considering ratification. The lack of a curative power in the electorate means that courts could even overturn an amendment after it has been ratified. I imagine that courts would be reluctant to do so, and would be highly deferential to the ratification vote. But ratification should constitute merely a persuasive argument (if that) for upholding the ratification of an amendment, not a dispositive argument. It should not provide any persuasiveness, however, with regard to changes that cross the line into revision.

The only potential source for an unlimited federal convention in the federal constitution is the ninth amendment. We have seen already how the right to alter or abolish creates a power within a state legislature to assemble a constitutional convention when a state constitution lacks a convention clause. A similar logic could extend to the federal constitution. According to Akhil Amar, it does. “Indeed,” he writes, “the most obvious and inalienable right underlying the Ninth Amendment is the collective right of We the People to alter or abolish government, through the distinctly American device of the constitutional convention.”

Akhil Amar, The Bill of Rights: Creation and Reconstruction 120 (1998). For a fuller elaboration see Akhil Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. .Chi. L. Rev. 1043 (1988).

So what would be the difference between an Article V and ninth amendment convention? Most fundamentally, Congress's duty to assemble a ninth amendment convention would be discretionary, in contrast to its more ministerial duty under Article V. Congress would have to determine whether an unlimited convention was actually desired by the people, and not merely a portion thereof, a cabal perhaps. In fact, Congress could require a near-unanimous, or even a unanimous call for an unlimited convention, rather than the three-fourths required by Article V. Congress's main duty would be to determine a) whether a constitutional emergency existed, and b) whether the emergency demanded an unlimited convention. It was such an emergency that justified the first unlimited federal convention in 1787.

If Congress's convention act providing for the assembling of a constitutional convention intentionally provided for an unlimited convention, the first question would be whether Congress was acting under Article V or the ninth amendment. If Article V, then the act would be void, and a court could enjoin the assembling of the federal convention. If Congress relied upon the ninth amendment, on the other hand, two things would have to occur. First, electorates would have to be given a more prominent role in the convention process in order for it to reasonably reflect the people's exercise of their right to alter or abolish government. Second, some explanation of the need for the extraordinary choice of the ninth amendment rather than Article V should be required. But this would not necessarily place the convention beyond the reach of law.

A court could decide whether a legitimate emergency existed justifying the creation of an unlimited convention.

Compare Priest, supra note 134 682 (“it is a judicial determination whether facts constituting an emergency are stated.”) (“The test for determining if a real emergency has been stated is whether reasonable minds might disagree as to whether the enunciated facts state an emergency. If so, the emergency clause is upheld; if not, then the emergency clause is invalid. Emergency is defined as “some sudden or unexpected happening that creates a need for action.””) The court in Priest was interpreting an emergency statute.

The law of constitutional conventions has achieved Jameson's primary aim of subjecting conventions to limitations imposed by law. This jurisprudence, especially the distinction between revolutionary and constitutional conventions that lay at its core, can also provide a way for courts to think through the nature and scope of power of even an Article V convention. Having said that, the case for a limited Article V convention that I have just laid out provides me no comfort. I suspect that a case for an unlimited convention would neither. It only confirms to me how far we’ve come from popular sovereignty's original promise. As David Kyvig has written, “By the end of the eighteenth century, particularly in North America, optimism regarding human capacity for reason fostered the belief that fundamental changes could be wrought in otherwise enduring governments through a preordained and agreed-upon process that embodied republican values.” “[C]onstitutional amendment,” he continued, “offered a means of successfully balancing competing desires for stability and change, tradition and innovation, the wisdom of accumulated experience and democratic preferences for new definitions of government responsibility.”

David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 ix (1996).

Perhaps conventions are simply no longer necessary to self-government. The constituent power was a necessary element in the move away from monarchies toward constitutional republics in the eighteenth and nineteenth centuries. It may well be that conventions have little role to play in post-democratic societies. But without conventions, through which the people have exercised their constituent power, the people no longer play a defining role in American constitutionalism. The people can no longer enact or constitute. Instead, they are simply left to offer “opinion,” and the minor power of election and acclamation.

Roman J. Hoyos, Who Are the People?, 11 Elon L. Rev. 23 (2019).