When interpreting a legal document, you often can get clues from looking at any predecessors to the document. For example, what did earlier drafts say? What did previous documents that served as models provide? Did the framers of the final version mirror earlier wording, or did they change it?
If a phrase in an earlier writing had an established meaning and the document you are reading uses the same phrase, that implies that the meaning is the same. If language in the earlier writing was changed in the final, that suggests the meaning also changed.
But these are only presumptions. Other evidence of the intent behind the document can rebut them.
Constitutional scholar Russell Caplan may have been the first modern writer to notice that the Article V convention process seems to be modeled on Article 63 of the then-prevailing Georgia state constitution. The U.S. Constitution’s framers knew about the Georgia constitution—James Madison had collected all of the state constitutions and several other framers hailed from Georgia. Here is the Georgia language:
ART. LXIII. No alteration shall be made in this constitution without petitions from a majority of the counties, and the petitions from each county to be signed by a majority of voters in each county within this State; at which time the assembly [state legislature] shall order a convention to be called for that purpose, specifying the alterations to be made, according to the petitions preferred to the assembly by the majority of the counties as aforesaid.
Here is the relevant language in Article V:
The Congress . . . on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments. . . ., which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof . . . .
Here is what those successive provisions tell us:
* The framers changed the Georgia word “petitions” to “applications.” Then, as now, the term “petition” usually referred to a request from an inferior to a superior. But “application” usually did not have that connotation. This is appropriate, because a state’s counties are subordinate to its government, while the state legislatures pre-existed the federal government and would be full partners in the new federal system.
* The Georgia language required petitions from only a majority of counties, but the U.S. language required applications from two thirds of state legislatures before a convention could consider an amendment. The U.S. supermajority requirement parallels the two thirds requirement for Congress to propose.Continuing the parallel implies that just as Congress needs only a majority to consider, a convention of states requires only a majority to propose. The latter conclusion is supported by historical practice.
* The Georgia provision refers to petitions from “counties,” acting by reason of individual petition signers. But the U.S. language does not refer to applications from “states” but from “state legislatures.” This implies what the courts have held: Actions by state legislatures under Article V are actions of those assemblies; they are not actions of state governments per se.
* After petitions from a majority of counties are presented to the Georgia legislature, “the assembly shall order a convention to be called for that purpose.” This clearly means that the legislative duty to order the call is mandatory. The U.S. provision is much the same: “The Congress . . . on the Application . . . shall calla Convention.” The congressional duty is mandatory as well.
* The Georgia constitution provided that “the assembly shall order a convention to be called for that purpose, specifying the alterations to be made, according to the petitions preferred.” This implies that the petitions specify the subject matter [“that purpose”], the assembly informs the convention of that subject matter, and the convention drafts the amendment. (If the petition or the assembly could dictate the exact wording of the amendment, the convention would be unnecessary.) This interpretation is consistent with then-prevailing practice.
* In Georgia, the convention apparently decided on the amendment and promulgated it. There is no evidence that there was an additional ratification procedure. But the Article V convention is only for “proposing Amendments.” Article V specifies that ratification by three fourths of the states is necessary.
However, there is one place where a change in language does not mandate a change in meaning. The Georgia provision prescribes that “the assembly shall order a convention to be called for that purpose, specifying the alterations to be made, according to the petitions preferred.” Article V says only that the Congress “shall call a Convention for proposing Amendments . . .” Does this mean that under Article V the applications cannot specify subject matter and that the convention can propose any amendments it wishes?
No. Other evidence is overwhelming that the Article V procedure was not different in this respect from the Georgia procedure—even though the framers omitted the “specifying the alterations” term from Article V. The Georgia wording merely recited universal practice: During the Founding Era, applications and calls always defined convention subject matter in advance, while the convention decided whether to propose and drafted its proposals. There is zero evidence in the historical record that the Founders intended to abandon this universal practice when operating under Article V, and there is a fair amount to the contrary.
Rob Natelson is the Independence Institute’s Senior Fellow in Constitutional Jurisprudence and heads the Institute’s Article V Information Center. He was a law professor for 25 years, serving at three different universities. Click here to read this article on IndependenceInstitute.org.