Sometimes even friends of the Constitution misinterpret the document or the history surrounding it.
Throughout the country right now, state lawmakers are advancing constitutional amendments to restrain federal power and federal spending. Because they know that Congress will never propose amendments to restrain itself (2/3 of both the Senate and House would have to approve them), state lawmakers are using the Constitution’s other amendment route – state application, followed by an interstate drafting committee (which the Constitution calls a “convention for proposing amendments”), followed by ratification by 3/4 of the states.
In reaction to this reasonable course, a few small conservative groups are claiming that a convention for proposing amendments – even one limited as to subject matter – would be an uncontrollable “constitutional convention” that could trash our basic law and maybe take over the country.
As readers of this website know, such claims do not hold water either legally or historically. However one of those groups cites a carefully-selected passage from a 1788 letter written by James Madison purporting to show that Madison opposed any convention for proposing amendments – and in fact was “horrified” by the prospect.
A little thought should show that this conclusion makes absolutely no sense. After all, Madison himself had been a leading drafter of the Constitution’s amendment rules the previous year. It was well understood that such a convention would work only from ideas advanced by the states. And there had been many interstate conventions during Madison’s lifetime, but none had turned into a “runaway” that tried to take over the country.
Why would Madison oppose the whole idea of a limited, Article V convention?
The answer is: He didn’t. His letter is being misinterpreted.
A fuller reading of Madison’s correspondence, together with contemporaneous history, shows that what Madison was opposing was not a limited Article V convention at all. What he was opposing was a national campaign by Governor George Clinton of New York, a determined opponent of the Constitution, for a complete rewrite of the document.
At the very least, Clinton wanted an unlimited Article V convention to completely restructure the Constitution: Under his influence, the New York ratifying convention had demanded at least 32 separate amendments — some of them very extensive. (In fact, New York applied for an unlimited convention the following year.) And one of Madison’s letters suggests he believed Clinton really wanted more: a convention outside the “forms of the Constitution” (as he put it) — an entirely new “plenipotentiary” assembly. Madison was willing to go along with a Bill of Rights, but did not want a complete re-write. He favored giving the new Congress a chance to draft a Bill of Rights. Madison saw from the early election returns that the new Congress would have a Federalist majority, but he feared that Clinton’s convention might be packed with Anti-Federalists.
In other words, Madison was NOT opposing any and every “convention for proposing amendments” — only Clinton’s unlimited version at that particular moment. He wanted the forms of the Constitution to be respected, most of the provisions left alone, and Congress given a chance to propose a Bill of Rights.
Other things Madison wrote — including other letters he wrote around the same time — confirm that he was not arguing against Article V conventions as such. For example, he indicated in letters to Thomas Jefferson that he would be willing for a convention to meet in a year or two. Several years later (1799) he acknowledged the Article V convention as a usable procedure, and still later, during the South Carolina Nullification Crisis, he wrote a public letter in which he rejected Nullification and suggesting this if the Constitution’s checks and balances proved insufficient:
“Should the provisions of the Constitution as here reviewed be found not to secure the Govt. & rights of the States agst. usurpations & abuses on the part of the U. S. the final resort within the purview of the Constn. lies in an amendment of the Constn. according to a process applicable by the States.” (The letter is available here.)
In modern times, the checks and balances have largely broken down. So advocates of responsible amendments are merely following Madison’s advice by urging the states to apply for a convention for proposing amendments.