Page Eleven

The Constitution was created by the 1787 Convention in Philadelphia, Pennsylvania between May 14, 1787 and September 17, 1787. The story of how the Constitution evolved is a fascinating one liberally discussed on the Internet and will not be repeated here. Instead this page will focus on
development of the Article V amendment clause of the Constitution with particular emphasis on the convention clause of Article V. The purpose will be to answer several questions:

On what basis did the Founders intend state applications for a convention call be "counted" by Congress;
Did the Founders intend states have authority to propose actual amendment text via the Article V Convention;
Did the Founders intend states to have authority to limit a convention to a specific agenda based on a single state's application;
Did the Founders intend states have authority to "instruct" a convention as to its vote on a specific amendment proposal
Did the Founders intend states would exercise control over all aspects of a convention

FOAVC believes the answers to these questions are found in the historic record of the 1787 Convention along with other relevant historic records of that time period. As with all the Constitution, Article V went through several drafts before being finalized by the convention. In its final form, the full text of Article V reads:

Fortunately the historic record of the convention is readily available in the seminal work of Professor Max Farrand, "The Records of the Federal Convention of 1787." This reference was first published in 1911 in a three volume set. Later Farrand republished his work in 1937 with the addition of a fourth volume. Professor Farrand organized all available records written by convention participants describing the daily events of the convention in a single publication grouping them by date. Thus all records for each day of the convention were, for the first time, available to be read together. The result was the most detailed record of events at the convention possible. Farrand then meticulously indexed this daily record by subject thus allowing the reader to quickly locate all relevant convention records on a particular subject.

Farrand included the official record of the convention recorded in its Journal which was first published by order of Congress in 1819. As observed by Farrand in the preface of his book the Journal was inadequate to the task of providing detailed information about the inner workings of the convention. The "Journal" was "no better than the daily minutes from which the regular journal ought to have been, but never was, made out." To fill in the gaps Farrand used other published records made by convention attendees. These included wittings by Robert Yates (published 1821), William Pierce (published 1828), James Madison (published 1840), George Mason (published 1892), Rufus King (published 1894), William Paterson (published 1898), Charles Pinckney (published 1903), Alexander Hamilton (published 1904) and James McHenry (published 1906). Despite all these references the record of the proceedings of the convention is still incomplete. There is no verbatim record of the convention (meaning a complete record of all that was said at the convention) as we are accustomed to having today.

The development of the amendment process for the Constitution is unique however. Unlike many other constitutional clauses the amendment article was always viewed by the convention delegates as a process, rather than a conception, to be described entirely within the Constitution. Therefore, of necessity, all proposals made in the convention fully described the intended process beginning with a simple statement of need for amendment then progressing with ever increasing detail to describe how the Constitution would be amended, who had authority to amend the Constitution and under what terms this authority would be exercised.

FOAVC believes it is imperative anyone studying the amendment process of the Constitution clearly understand the amendment process is exactly that--a process, not a conception. Thus, by this process (and no other) the Constitution may be amended. It is important also to understand only the final draft of Article V which was ratified by the states has constitutional and legal affect. Thus prior drafts of Article V which exist in convention record must be disregarded as to the meaning and intent of the amendment process of Article V. As observed by the Supreme Court (See Page 17K) the final form of Article V is "clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction." Therefore any "interpretations" of the meaning and intent of Article V, if correct, do not require ambiguous statements or contain rules of construction, such as the use of implied powers.

The language of the amendment process altered many times during the 1787 convention. Thus the convention altered how the Constitution would be amended and who had authority to do so. At each phase in this process of modification votes were recorded making the changes an official act of the convention. This vote was then ultimately discarded in favor of a subsequent revision to the draft. Unless carried forward into the new draft the rejection of the previous draft meant any amendment process specified in that draft was rejected by the delegates. Ultimately, all previous drafts were rejected in favor of an entirely new proposal which ultimately became Article V.

Despite these facts of public record many choose to base their theories of amendment process on these earlier rejected drafts rather than the final form of Article V or they deviate from the actual language of Article V or even misquote the public record of the convention in order to advance their "theory" as to how the Constitution shall be amended. Any earlier draft presenting a different form of amendment process from that ultimately accepted by the convention and ratified by the people cannot be regarded as reflecting the final intent of the convention delegates. Thus, only the final language of Article V is the "authoritative" text on how applications are counted and whether the states have the authority to propose amendments through the application process. To deviate from the text in the final form of Article V in order to assert a process of amendment for the Constitution other than what is clearly and unambiguously stated is therefore wrong.