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The Baton Rouge Lawyer

Article V Revisited: The U.S.

Constitutional Provision for States

to Control the Federal Government

and Louisiana Participation

By Albert Dale Clary

T

he U.S. Constitution

has a little-known

provision for the states

to control a runaway

federal government: Article V,

the amendments article. Article

V has two methods for amending

the Constitution, but only one has been

used. All 27 of the current amendments

to the Constitution were proposed by

one method, in which Congress intro-

duced amendments and states ratified

those proposals. However, Article V

has a second method for introducing

amendments, known as the convention

method.

1

The text, logic and history

of Article V show this second method

was created to give states the power to

control the federal government when the

federal government fails to honor the

Constitution’s limits on federal power.

Article V: The text

Article V provides a process for the

states to propose amendments, rather

than Congress:

The Congress, whenever two thirds

of both Houses shall deem it neces-

sary, shall propose Amendments

to this Constitution, or, on the Ap-

plication 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, as the one or

the other Mode of Ratification may

be proposed by the Congress . . . .

2

So, when two-thirds of the states

apply for a convention for proposing

amendments, Congress “shall” call

that convention. However, any amend-

ments proposed by the convention

only become “part” of the Constitution

if ratified by the legislatures of three-

fourths of the states, just as any amend-

ments proposed by Congress.

How the state power to control the

federal government arose

As the Constitutional Convention

neared its completion in 1787, the only

method to propose amendments was

for Congress to propose them. Then, on

Sept. 15, 1787, George Mason of Virginia

addressed the Convention and said, as

paraphrased by James Madison in his

notes of the Convention, “It would be

improper to require the consent of the

Natl. Legislature because they may abuse

their power, and refuse their consent on

that very account. . . .”

3

Thus, Article V was modified to provide

for states to control one mode of

proposing amendments.

4

Both modes

of proposing amendments were subject

to the same state ratification to become

part of the Constitution. However, this

second method puts states in control

of both proposing the amendments

and ratifying the amendments. As one

contemporary essayist said,

The sovereign power of amending

the constitution . . . does not lie with

the federal legislature, whom some

have erroneously apprehended to

be supreme. That power, which is

truly and evidently the real point of

sovereignty,  is vested in the several

legislatures and [ratifying] conven-

tions of the states, chosen by people

respectively with them.

5



Alexander Hamilton in 1788 observed

this about Article V:

[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, . . .The

words of this article are peremptory.

The Congress “shall call a conven-

tion.” Nothing in this particular is

left to the discretion of that body.

6

The use of this second method of

proposing amendments gives the states

power over both proposing and ratifying

July/August 2022

19

amendments. The role of Congress in

this process is very limited, i.e., only to

“call” the convention.

7

As explained by

Professor Natelson, this convention is a

Convention of States, not Congress,

8

and

Article V was written by those familiar

with a long tradition of multi-colony and

multi-state conventions.

9

Current state efforts to amend the

Constitution

State legislatures have approved

numerous applications for amendment

conventions. Various estimates range

from dozens to over 400.

10

In 2015,

Congress began tracking these applica-

tions, and a registry of “memorials” to

propose amendments is kept by the Com-

mittee on the Judiciary of the U.S. House

of Representatives.

11

Other websites also

privately track state resolutions.

12

While no resolution has yet reached

the threshold 34 states required to

force Congress to “call” an amendment

convention, national interest in limiting

the growth of the federal government has

given birth to several Article V amendment

movements. Currently, the most notable

are the Balanced Budget Amendment

Task Force

13

and the Convention of States

Project,

14

but there are other efforts.

15

Louisiana Article V resolutions

Louisiana has been one of the most

active states to approve such ap-

plications.

16

For example, in 1907 the

Louisiana legislature passed a resolution

calling for a convention to propose an

amendment for direct election of U.S.

Senators, noting that “[t]he failure of

Congress to submit such amendments

to the States has made it clear that the

only practicable method of securing a

submission to the States is through” an

Article V convention.

17

More recently,

Louisiana has passed resolutions to

question federal government control

over public schools (1960),

18

bar federal

taxation of interest income on state debt

(1970),

19

allow school choice (1970),

20

impose limits on the federal debt (1975)

21

and require a balanced federal budget

(1975).

22

However, in 1990 the legislature

rescinded all prior Article V resolutions.

23

In 2016, the Louisiana legislature

approved an application for a convention

to propose amendments limited to three

subject areas: to (1) limit the terms of

office that may be served by its officials

and by members of Congress, (2)

impose fiscal restraints upon the federal

government and (3) limit the power and

jurisdiction of the federal government.

24

In 2018, the legislature approved a

Commissioner Selection resolution,

discussed further below. Since then, two

Article V resolutions for term limits have

failed to pass.

25

Possible Amendments arising

from the 2016 Louisiana Article V

resolution

The three subject areas of the Louisiana

2016 resolution could include amend-

ments that impose significant limits on

federal power. Possible amendments

germane to the call would be those

to impose term limits on members

of Congress and the judiciary and

to require a balanced budget. Other

possible amendments could be to repeal

the direct election of U.S. Senators,

26

grant the states direct authority to check

Congress

27

or check the authority of

federal bureaucracies

28

or to narrow the

judicial expansion of the Commerce

Clause or the General Welfare clause.

The Louisiana model legislation

for state legislative control of the

amendment convention

Although some authors critical of an

Article V amendment convention raise

the specter of a “runaway” convention,

29

Louisiana is one of the states that has

already passed a resolution to direct how

the state legislature will control the people

sent to the convention. In the 2018 Com-

missioner Selection Resolution (CSR),

the legislature directed how it will select,

authorize, instruct and supervise the people

who attend this convention.

30

As Professor

Natelson reports, “Founding-Era practice

informs us also that commissioners at an

amendment convention were to operate

under agency law and remain within the

limits of their commissions[,]”

31

which

includes “the duty to abide by instructions

established by concurrent resolution of the

legislature for participation in the conven-

tion and the duty to act only within the scope

of the Louisiana Legislature’s application for

the convention . . . .”

32

This 2018 CSR imposes two layers

of limitations on the authority of

Louisiana’s commissioners. First, the

commissioners cannot act outside the

convention resolution by the Louisiana

legislature. The “duty to act only within

the scope of the . . . Legislature’s applica-

tion” means Louisiana’s commissioners

cannot participate in any “runaway”

convention.

33

Second, the commissioners’

20

The Baton Rouge Lawyer

authority to act will be limited by any

“instructions established by concurrent

resolution of the legislature.”

34



To leave no doubt, the Louisiana CSR

contains the clear statement that any vote

cast by a commissioner outside the scope

of the legislature’s instructions or the

legislature’s application “is an unauthor-

ized vote and is therefore void.”

35

This

Louisiana procedure is entirely consistent

with similar historical conventions, for

which typically the legislatures, sitting as

representatives of the citizens, selected,

“empowered,” instructed and supervised

their amendment convention commis-

sioners.

36

This procedure for limiting

authority of commissioners to an Article

V convention is also entirely consistent

with the Louisiana Civil Code articles

on mandate, which allow a principal to

impose limitations on the authority of

its mandates.

37

It is anticipated all states

that send commissioners to the amend-

ment convention would similarly select,

authorize, instruct and supervise that

state’s commissioners.

Conclusions

Louisiana has been a leader in the Article

V movement. The legislature has passed

perhaps more resolutions for Article V

conventions than any other state and has

also passed a CSR, which can serve as a

model to other states on how to control

the commissioners and conduct of any

Article V convention.

1

Michael Stern, Reopening the Constitutional Road to

Reform: Toward a Safeguarded Article V Convention,
78 Tenn. L. Rev. 765, 765 (2011).

2

U.S. Const. art. V (emphasis added).

3

Robert G. Natelson, Proposing Constitutional

Amendments by Convention: Rules Governing the
Process, 78 Tenn. L. Rev. 693, 732-33 n.21 (citing The
Records of the Federal Convention of 1787 (Max
Farrand ed., 1937)) and n.264-69.

4

See Robert G. Natelson, Founding Era Conventions

and the Meaning of the Constitution’s Convention
for Proposing Amendments, 65 Fla. L. Rev. 615, 621
(2013).

5

As stated by Trent Coxe, a Philadelphia business-

man and one of the most influential pro-Constitu-
tion essayists, as described by Robert G. Natelson
in The Law of Article V, State of Initiation of
Constitutional Amendments 28 (2018) (emphasis
added).

6

Alexander Hamilton, The Federalist Papers No. 85

(1788) (emphasis added).

7

Natelson, supra note 3, at 733

8

Robert G. Natelson, Why The Constitution’s “Con-

vention for Proposing Amendments” Is a Convention
of the States, Policy Brief, The Heartland Institute,
October, 2017.

9

Natelson, supra note 4, at 620.

10

The Article V Library, http://article5library.org/

applications.htm.

11

U.S. House or Representatives Clerk, Selected

Memorials, http://clerk.house.gov/legislative/memo-
rials.aspx.

12

See, e.g., State Legislators Article V Caucus, http://

articlevcaucus.com/; Friends of the Article V Con-
vention http://www.foavc.org/01page/Amendments/
index.htm.

13

http://bba4usa.org/.

14

Convention of the States Action, https://conven-

tionofstates.com/ (note that the author is a volun-
teer for the Convention of States Project).

15

See, e.g.,U.S. Term Limits, https://www.termlimits.

com/; Wolf-PAC, https://wolf-pac.com/.

16

See U.S. House Clerk, supra note 11.

17

National Archives, Center for Legislative Ar-

chives, Application of the Louisiana State Legislature

The Baton Rouge Lawyer

is seeking

articles for publication.

Contact Pam Labbe

at [email protected]

Interested in serving

in a leadership position

in the BRBA?

Self-nomination forms for 2023

leaders will be in the next issue of

The Baton Rouge Lawyer

.

and Governor for a Convention to Propose a Consti-
tutional Amendment for Direct Election of Senators,
November 25, 1907, https://www.archives.gov/legis-
lative/features/17th-amendment/louisiana.html.

18

House Concurrent Resolution (HCR) No. 21 (Act

2 of the First Extraordinary Session of 1960).

19

Senate Concurrent Resolution (SCR) No. 25

(Regular Session, 1970).

20

HCR No. 12 (Reg. Session, 1970).

21

SCR No. 109 (Reg. Session, 1975).

22

HCR No. 269 (Reg. Session, 1975).

23

HCR No. 218 (Reg. Session, 1990).

24

SCR No. 52 (Reg. Session, 2016) (following the

Convention of States resolution).

25

HCR No. 28 (Reg. Session, 2020); HCR No. 51

(Reg. Session, 2021).

26

The 17th amendment changed the method of

selection of U.S. Senators.

27

Mark R. Levin, The Liberty Amendments 179

(2013).

28

Id. at 99.

29

See, e.g., The Article V Convention to Propose

Constitutional Amendments: Current Developments,
Congressional Research Service, November 15,
2017, CRS report R44435, p. 18.

30

HCR No. 4 (Reg. Session, 2018).

31

Natelson, supra note 4, at 686.

32

HCR No. 4, supra note 30, at Section 3.A (empha-

sis added).

33

For an excellent analysis of the mistaken no-

tion that an amendments convention can be a
“runaway” convention to act on matters outside
the authority of commissioners, see Michael B.
Rappaport, The Constitutionality of a Limited Con-
vention: An Originalist Analysis, 81 Const. Comm.
53 (April 6, 2012), available at https://ssrn.com/
abstract=2035638.

34

HCR No. 4, supra note 30, at Section 3.A.

35

Id. at Section 3.C.

36

Robert G. Natelson, The Law of Article V: State

Initiation of Constitutional Amendments, at §
3.10. Selecting Commissioners, § 3.11. Empowering
Commissioners and § 3.12. Instructing and Super-
vising Commissioners.

37

See La. C.C. art. 2989, et.seq.

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