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It’s a “Convention of the States”—Three More Founding-Era Documents Confirm It

It’s a “Convention of the States”—Three More Founding-Era Documents Confirm It

As readers of this website know, a common argument against holding a convention for proposing amendments to the U.S. Constitution is that the makeup and protocols of the convention are unknown.

Opponents continue to make this argument, even though there is a massive amount of uncontradicted evidence showing that an amendments convention is a “convention of the states,” a well established and oft-used institution. Opponents do not engage with this evidence; they simply ignore it, as if they were reading from a script.

But the evidence continues to pile up.

In 2020, Marquette Law Review, published Rob Natelson’s article, Is the Constitution’s Convention for Proposing Amendments A “Mystery?” Overlooked Evidence in the Narrative of Uncertainty. It collected numerous instances in which an amendments convention was called a “convention of the states” or a “convention of states.” Most of these came from the Founding-Era; others were later. Some were from official sources, such as legislatures and conventions, others from non-official sources. One was a U.S. Supreme Court opinion. Another was an opinion of the Supreme Court of Tennessee.

The official Founding-Era sources appear on pages 18 through 24 of the article.

Recently, we were able to obtain the 1788-89 official records of the State of North Carolina. And they provide even more evidence.

After the Constitution was released to the general public on September 17, 1787, many skeptics favored convening a new federal convention to propose changes in the document. Before the necessary number of states had ratified, they wanted this to be a gathering such as the one that drafted the Constitution. They often called this a “convention of of the states” or a “convention of states.”

After ratification, however, they advocated an Article V amendments convention. And what is critical for constitutional purposes, is that they referred to an Article V convention by the same label.

When the first North Carolina ratifying convention met in Hillsboro in July, 1788, eleven states already had ratified the Constitution, so everyone knew that it would be going into effect. Any second federal convention would have to be held under the Article V. With that background, let’s examine the three new documents.

Document #1: This is a letter dated Aug. 15, 1788 from North Carolina Governor Samuel Johnston. It was sent to his states’ delegates in the then-nearly defunct Confederation Congress. In the letter, the Governor reported the action of the Hillsboro convention: It failed to ratify the Constitution, but it proposed that there be an amendments convention to consider alterations. The relevant portion of the letter reads as follows:

Inclosed you will receive a Resolve of the Convention of this State offering Amendments to the Constitution proposed for the Government of the United States, by which you will perceive that they did not think it expedient to adopt it before the proposed Amendments were considered by a Convention of the States, and such of them as were approved of ingrafted into the Constitution.

21 N.C. State Reports, p. 491.

Document #2: This comes from the North Carolina Senate Journal of Nov. 15, 1788. It is a resolution calling for a second state ratifying convention–

for the purpose of deliberating and determining on the proposed Federal Constitution for the future Government of the United States, and on such amendments, if any, as shall or may be made to the said Constitution by a Convention of the States previous to the meeting of the said Convention of this State.

20 N.C. State Records, p. 515.

By the way, a second state convention finally was held in November, 1789, at which North Carolina ratified.

Document #3: This is from the North Carolina House of Commons Journal of Nov. 21, 1788. It reports a communication from the state senate in this language:

Received from the Senate a resolution of this House for appointing five persons by ballot to represent this State in a Convention of the States, should one be called . . .

21 N.C. State Records, p. 82

As reported in the Marquette Law Review article, other names used for an amendments convention were “convention of the United States” and “federal convention.” What is important for understanding the nature and make-up of the gathering, however, is that it routinely was called a “convention of the states.”

Rob Natelson