Could Congress Control an Amendments Convention? Not According to the Founders!

Published September 12, 2016

As we move closer to holding a “convention for proposing amendments” to restrain federal overreach, naysayers have not been silent. One of their claims is an amendments convention would be fruitless or dangerous because it could be controlled by Congress.

The Constitution directs Congress to “call” an amendments convention when two thirds of the state legislatures so demand. Opponents assert Congress could leverage its duty to “call” the convention into a mechanism for controlling it. For example, they contend Congress could decide how the convention’s commissioners are selected, how the commissioners are allocated, and the nature of the agenda.

The claim has several weaknesses. First, it is based on an erroneous legal argument about the nature of the Constitution’s Necessary and Proper Clause. Second, the Founders and the Supreme Court characterize an amendments convention as a “convention of states.” That term historically means a state-based gathering, accountable to the state legislatures, not to Congress. Third, the courts are unlikely to sustain congressional efforts to take over the process because doing so would contradict the central purpose of an amendments convention, which is precisely to circumvent Congress.

But there is another weakness as well: While the Constitution was being debated, Antifederalists, who were opponents of the Constitution, contended that Congress could control the convention process, and supporters of the Constitution (Federalists) successfully rebutted that contention.

On February 13, 1788, a Philadelphia newspaper called the Independent Gazetteer published an Antifederalist tract written under the pseudonym “Algernon Sidney.” The tract stated, in part:

“Much as been said upon the easy practicability of altering the new constitution without tumult or discord, if it should be found a pernicious or inconvenient system of government. This we shall perceive, however, after examination to be a delusive idea …”

The writer than quoted Article V and continued, “It is obvious to common sense, that an alteration in the government cannot be procured without the approbation and consent of congress. And he must be weak indeed who supposes that when they are entrusted with power, they will grow weary of it, and make a voluntary surrender of it.”

The article was reprinted on April 2, 1788, in the Freeman’s Journal. It deserved a response, and that response was not long forthcoming.

Tench Coxe is little known today, but he served as a member of the Confederation Congress and as commissioner of the revenue during the presidency of George Washington. More importantly for present purposes, his essays on the Constitution were very widely read and perhaps more influential with the general public than the Federalist Papers (which were hard for most people to wade through). Coxe specifically undertook to rebut the claim the Constitution was unamendable because Congress could control the convention process. He did so in two essays in the Pennsylvania Gazette, published on June 11, 1788, and on July 23.

In the latter essay, Coxe wrote, “It has been asserted, that the new constitution, when ratified, would be fixed and permanent, and that no alterations or amendments, should those proposed appear on consideration ever so salutary, could afterwards be obtained. A candid consideration of the constitution will show this to be a groundless remark.

“It is provided, in the clearest words, that Congress shall be obliged to call a convention on the application of two thirds of the legislatures; and all amendments proposed by such convention, are to be valid when approved by the conventions or legislatures of three fourths of the states,” wrote Coxe. “It must therefore be evident to every candid man, that two thirds of the states can always procure a general convention for the purpose of amending the constitution, and that three fourths of them can introduce those amendments into the constitution, although the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them. Congress therefore cannot hold any power, which three fourths of the states shall not approve, on experience.”

Why is this so important? It is important in part because Coxe was played such a leading role in persuading the people to ratify the Constitution. Moreover, when lawyers and judges interpret a public measure, they give special weight to reassurances from the measure’s promoters. This is because adoption of the measure usually signifies the adopters accepted the promoters’ arguments and rejected those of their adversaries.

Under these circumstances, it would be difficult for Congress to claim authority to dictate to an amendments convention and even more difficult for the courts to concede Congress has any authority to do so.