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One of the more frequent objections to a Convention of States goes something like this:  “Article V says Congress ‘calls’ the convention when it receives 34 applications.  Doesn’t this mean Congress controls the convention and chooses the delegates?”

In a word, no.

The Founders were very clear on this point.  Once 34 states apply, Congress has no discretion whether to call a convention and no control over the delegates.  Alexander Hamilton said as much in Federalist No. 85:

“[T]he national rulers, whenever nine States concur, will have no option upon the subject.  By the fifth article of the plan, the Congress will be obliged ‘on the application of the legislatures of two thirds of the States [which at present amount to nine], to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof.’

The words of this article are peremptory.  The Congress ‘shall call a convention.’  Nothing in this particular is left to the discretion of that body.  And of consequence, all the declamation about the disinclination to a change vanishes in air . . . We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.”

Hamilton makes two key points.  First, Congress has no discretion over the convention process (“Congress shall call a convention”).  The states are not asking Congress to call a convention.  They are ordering Congress to perform its constitutional duty to call the convention when 34 states apply. 

Second, a Convention of States is meant to “erect barriers against the encroachments of the national authority.”  The purpose of convention process was to give the states power over the federal government.  The Framers unanimously decided to add the Convention of States provision to Article V because they thought Congress had too much control over the amendment process.  It makes no sense to interpret Article V to give more power to Congress, when the whole point was to take power away.  Why would the Founders—given their intelligence and foresight—include two amendment processes if both were controlled by Congress?

Finally, the claim that Congress gets to choose the delegates goes against common sense.  Just because one party “calls” a convention, doesn’t mean it gets to choose the delegates for everyone else.  Think about it.  Virginia called the Philadelphia Convention of 1787.  Did it get to choose the delegates for Massachusetts?  Of course not.  Massachusetts did.  Each state chooses its own delegates; it doesn’t matter who calls the convention.  This is Agency law 101 and basic common sense.

Does Congress “call” the convention?  Yes.  Does it have any discretion whether to do so?  No.  Does it control the delegates or set the agenda?  Absolutely not.  The Founders wanted a congressional bypass in case the federal government became corrupt.  What was their plan?  A convention controlled by the states.

Be a part of the Founders’ solution and join us today!

About The Author

Jordan Sillars