ARTICLE V CONVENTIONS: LESSONS FROM THE REPEAL

OF PROHIBITION
JASON O. HEFLIN
I. WHY CONVENTIONS? ........................................................................ 344
II. DELEGATED FEDERAL POWER OR INHERENT STATE
SOVEREIGNTY? ............................................................................... 347
III. FORMATION AND CONDUCT OF STATE CONVENTIONS ................... 350
IV. LESSONS FOR A PROPOSING CONVENTION ..................................... 354

The United States Constitution provides for its own amendment in

Article V.1 Although some scholars purport to describe other methods of
legal constitutional change,2 Article V defines the sole procedure for
amending the Constitutions text.3 Article V lays out a two-step process:
amendments must first be proposed, and then ratified. It describes two
modes for proposal: (1) Congress can propose an amendment by twothirds vote in both houses, or (2) upon applications by two-thirds of the
states, Congress must call a convention for the proposing of amendments.4
The key benefit of the latter mode is that it requires only ministerial action
from Congress and not that bodys consent, which would be particularly
difficult to obtain in the case of an amendment that reduces or alters
Congresss power. Prior amendments, however, have only used the former
mode; America has not yet seen an Article V proposing convention.
Because Article V provides neither specific procedures for calling such a
convention (for instance, how delegates should be selected or apportioned)
nor a clear answer to who has authority to settle such questions, the
prospect of contentious political struggles over resolution of these
ambiguities may discourage use of the proposing convention. To
undertake such a convention would be to enter uncharted territory. That is,
Associate Attorney, Sullivan and Cromwell, L.L.P. B.A., 2005, University of
Florida; J.D., 2015, Harvard Law School.
1. U.S. CONST. art. V.
2. See, e.g., Akhil Reed Amar, The Consent of the Governed: Constitutional
Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994) (arguing that the Constitution
implicitly sanctions amendment through majoritarian referendum); David A. Strauss, The
Irrelevance of Constitutional Amendments, 114 HARV. L. REV. 1457 (2001) (arguing that
the super-majoritarian nature of the Article V process forces majority-driven change into
extraconstitutional channels).
3. U.S. CONST. art. V.
4. Id.

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some may find it safer to work for constitutional change through Congress
alone, even if it is that body itself that most requires change, than to pursue
an untested mode.
Supporters of a proposing convention, however, can take heart in the
fact that the deployment of an Article V mode left dormant since the
framing of the Constitution would not, in fact, be unprecedented. Just as it
does at the proposal stage, Article V provides two modes at the ratification
stage. Congress must choose either ratification by three-quarters of the
state legislatures or by conventions in three-quarters of the states.5 For the
first twenty amendments, Congress chose the state legislature mode.6 For
what would become the Twenty-First Amendment, however, Congress
chose the state convention mode. 7 Article V speaks with no more
specificity in regard to state conventions than it does in regard to
convention[s] for proposing amendments.8 Thus, the state conventions
posed many problems analogous to those posed by a proposing
convention; those problems, however, proved surmountable in the pursuit
of constitutional change.
This Article will describe the convention mode used to ratify the
Twenty-First Amendment. It will first outline some of the concerns
underlying the choice of the convention method. It will then review the
debate over whether Congress or the states held the power to regulate the
state conventions. It will then briefly review some of the procedures
adopted by the states and the conduct of the conventions themselves. It
will conclude with a discussion of a few lessons a proponent of a proposing
convention should draw from the experience of the Twenty-First
Amendment.
I. WHY CONVENTIONS?
The Twenty-First Amendment repealed the Eighteenth Amendment,
ending federal alcohol prohibition in the United States.9 Interestingly,
although they disagreed on the substantive issue,10 both major political
parties made convention ratification of a change to the Eighteenth
Amendment a plank in their 1932 party platforms. Democrats explicitly

5. Id.
6. Abraham C. Weinfeld, Power of Congress over State Ratifying Conventions, 51
HARV. L. REV. 473 (1938).
7. Id.
8. U.S. CONST. art. V.
9. U.S. CONST. amend. XXI.
10. DAVID E. KYVIG, REPEALING NATIONAL PROHIBITION 143 (2nd ed. 2000).

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favored outright repeal,11 while Republicans would have proposed an

amendment modifying the existing amendment in some unspecified way.12
Democrats demanded an amendment be proposed to truly
represent[ative] conventions in the states called to act solely on that
proposal,13 while Republicans wanted the people to act on the
amendment through [s]tate conventions called for that sole purpose in
accordance with the provisions of Article V of the Constitution and
adequately safeguarded so as to be truly representative.14 This emphasis,
in both platforms, on representativeness in conventions implies that the
parties felt the state legislatures were, by contrast, unrepresentative, and
could produce a result that would not put the repeal issue to rest. Both
planks passed with little debate.15
This political consensus likely explains why Congress ultimately
chose the convention mode.16 What explains such a preference for a neverbefore tried procedure? Both pragmatic, results-oriented concerns and
legitimacy concerns animated the preference for ratifying conventions
over legislatures. First, proponents of repeal were concerned over
malapportionment in the state legislatures; repeal sentiment was
considered strongest in urban centers, which were underrepresented in the
legislatures.17 Later studies suggest that repeal was indeed less popular
among rural constituencies.18 A related concern was that legislatures in
states with vocal interest groups opposing repeal might be disinclined to
vote for repeal out of fear of angering those vocal but unrepresentative
groups, whereas delegates elected solely for the purpose of ratification

11. Gerhard Peters and John T. Woolley, Democratic Party Platform of 1932, AM.
PRESIDENCY PROJECT (June 27, 1932), http://www.presidency.ucsb.edu/ws/?pid=29595.
12. Gerhard Peters & John T. Woolley, Republican Party Platform of 1932, AM.
PRESIDENCY
PROJECT
(June
14,
1932),
http://www.presidency.ucsb.edu/ws/index.php?pid=29638. The Republican platform
noted that the controversy over repeal distract[ed] attention from...national problems,
and that opinion within the party was varied on the question. Id.
13. Peters, supra note 11.
14. Peters, supra note 12.
15. John C. Gebhart, Movement Against Prohibition, 163 ANNALS AM. ACAD. POL. &
SOC. SCI. 172, 180 (1932).
16. There was some effort to propose the amendment for ratification by legislatures,
but this effort was quickly overcome. See 76 CONG. REC. 4, 148 (1933).
17. Gebhart, supra note 15; see also Herbert Brucker, How Long, O Prohibition? 234
N. AM. REV. 347, 353 (1932) (noting that support for repeal was strongest in the cities).
18. See Michael Munger & Thomas Schaller, The Prohibition-Repeal Amendments: A
Natural Experiment in Interest Group Influence, 90 PUB. CHOICE 139, 155-56 (1997)
(finding, through regression analysis, that states with a higher farm income per capita were
less likely to support repeal).

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would feel no such pressure.19 With national polls showing strong popular
support in more than three-quarters of the states,20 proponents would have
been concerned that state legislatures might magnify the power of antirepeal sentiment.
The case of ratification of the Eighteenth Amendment in Ohio
provided a cautionary tale on the imperfect connection between
legislatures and the popular will. There, the houses of the state legislature
ratified the prohibition amendment in lopsided votes,21 after which a
narrow majority of voters in a statewide referendum came to the opposite
result, rejecting ratification.22 The issue went to the Supreme Court, which
held the referendum ineffective and recognized the legislatures
ratification.23 This precedent of a dry state legislature frustrating a wet
popular majority (though a very narrow one), likely informed the
preference for conventions.
A second concern extended to both those favoring and those opposing
repeal. Many, on both sides, perceived the issue of repeal to be so
contentious that it should be submitted to the people themselves to ensure
the legitimacy of the outcome, and thereby allow the nation to move past
this divisive issue.24 Article V does not provide a popular vote mode of
ratification,25 but commentators at the time believed that a convention
process in which voters chose between wet and dry delegates would
serve essentially the same function as a direct popular vote.26 Of course,
the pro-repeal fear of malapportionment and the shared fear of a
ratification process that did not definitively settle the issue were facets of
a single problem. The basic fear underlying both concerns was a fear that
state legislatures could not be trusted to accurately represent the
sentiments of their constituents, at least on the issue of repeal.

19. See Thomas S. Schaller, Democracy at Rest: Strategic Ratification of the TwentyFirst Amendment, 28 PUBLIUS 81, 85 (Spring 1998).
20. Gebhart, supra note 15, at 173 (discussing the results of a 1932 Literary Digest poll
finding that only eight states would be likely to vote against repeal, short of the thirteen
needed to prevent ratification).
21. The vote in the Senate was twenty in favor, twelve opposed; in the Assembly it was
eighty-five in favor, twenty-nine opposed. Schaller, supra note 19, at 82.
22. Id. (The vote was 500,450 opposed, 499,971 in favor.).
23. Hawke v. Smith, 253 U.S. 221, 231 (1920).
24. See Gebhardt, supra note 15, at 85.
25. See Hawke, 253 U.S. at 231 (holding that a state does not have the authority to
submit ratification to a popular referendum).
26. See Brucker, supra note 17, at 353.

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II. DELEGATED FEDERAL POWER OR INHERENT STATE SOVEREIGNTY?

Once Congress chose the convention mode, it had to determine
whether it or the states would control the mechanics of the conventions.
Given that fear of the state legislatures largely drove the choice of the
convention method, the outcome, which placed control in the state
legislatures, is somewhat surprising. Indeed, at the time, it was neither
obvious nor unanimously accepted that the states held control over the
ratifying conventions; a 1932 poll of lawyers favoring repeal found that
sixty percent believed Congress had the power to regulate the
conventions.27 A number of prominent commentators argued that
Congress, not the states, held the power to regulate the conventions, and
thus controlled procedural decisions, including the essential ability to
apportion election districts.28 These debates occurred both within Congress
and in the public.
A. Mitchell Palmer, President Wilsons former Attorney General, laid
out a brief argument in favor of federal control in the New York Times.29
Palmer echoed one of the concerns discussed above: legislatures could
gerrymander districts to produce an undemocratic outcome, prolonging
the division the repeal issue engendered.30 Palmer also argued that
legislatures would move slowly and push the issue to the next legislative
session, which could delay ratification for up to two years and deprive the
federal government of the tax revenue he believed would arise from
repeal.31 Thus, Palmer demonstrated both a pragmatic concern with
passage of repeal as well concern over legitimacy and representativeness,
indicating that the issues that animated the selection of the convention
method also informed the struggle over procedural control of those
conventions.
Palmers newspaper piece offered a condensed legal argument for
Congressional control of conventions: because state conventions only
consider changes to the federal constitution, they exercise a federal, not a
state, power; delegates to such a convention are therefore federal
functionaries; Congress therefore holds the power to regulate their
selection.32 An earlier brief33 submitted to Congress provided an expanded
version of this argument. The argument ran thus: the Constitution was an
27. KYVIG, supra note 10, at 173.
28. See, e.g., A. Mitchell Palmer, Palmer Explains His Repeal Plan, N.Y. TIMES, Dec.
11, 1932, at 30.
29. Id.
30. Id.
31. Id.
32. Id.
33. 76 CONG. REC. 130 (1932).

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act of the people, not of the states,34 and, therefore, the states have no
independent power over amendments. The powers conferred on the
Congress and the state legislatures in Article V are national political
powers entirely outside the scope of the general legislative, executive, and
judicial power.35 Thus, a ratifying body (either a legislature or a
convention) acts not as an agent of the state, but rather as an agent of the
people.36 Because there is no independent state power over the federal
function of ratification, a state cannot have power over ratifying
conventions.37 Therefore, either Congress holds such power, or no one
does. In fact, Congress holds this power by virtue of the Necessary and
Proper Clause, as without it, Congress could not exercise its power to
choose the mode of ratification.38 Palmer analogized this power to the
power to set a time limit for ratification through the legislature mode, a
power which the Supreme Court had previously upheld.39 Furthermore, if
the state legislatures had power to regulate conventions, the intent of the
Constitution would be frustrated because the two modes of ratification
would collapse into a single mode.40 Finally, Palmer dismissed the fact
that the conventions that ratified the Constitution itself were called into
being under the auspices of the state legislatures as having no bearing on
the interpretation of Article V, because Article V did not govern those
conventions.41
Howard Lee McBain, Ruggles Professor of Constitutional Law and
dean of the political science faculty at Columbia University, echoed
Palmers support for federal control in a later article in the same paper.42
McBain contrasted legislatures with conventions: legislatures had a
permanent existence and were constituted according to defined rules,
while conventions were ad hoc bodies that necessarily required an external
authority to define rules for their constitution.43 He analogized Congresss
competence to do so to its competence to regulate the counting of the votes
of presidential electors pursuant to Article II, Section 3, which it had done
by way of an elaborate statute in 1886, filling a hiatus in the

34. Id. at 131 (citing Barron v. Baltimore, 7 Pet. 243, 247 (1833)).
35. Id. at 131-32 (citing Hawke v. Smith, 253 U.S. 221, 229 (1920)).
36. Id. at 132.
37. Id.
38. U.S. CONST. art I, 8.
39. 76 CONG. REC. 132 (citing Dillon v. Gloss, 256 U.S. 368 (1921)).
40. Id. at 130, 132.
41. Id. at 133.
42. Howard Lee McBain, Or By Conventions: A Phrase in the Constitution with New
Significance, N. Y. TIMES, Dec. 11, 1932, at E1.
43. Id.

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Constitution similar to the absence of procedures for convening a

convention in Article V.44
McBain essentially found that the law on the subject was at least
ambiguous enough to support a plausible case for Congressional control,
conceding that the 1886 vote counting statute had not yet faced judicial
scrutiny.45 Further, McBain thought that, whatever the law, the judicial
branch was likely to shy away from invalidating a successful ratification
based on this ambiguous law: At least I am reasonably certain that the
Supreme Court would never declare an amendment void because it had
been ratified by state Conventions regulated as to their constitution or
otherwise by Congressional law.46
Taking up the banner for state control, James Beck, a Congressman
and former Solicitor General, answered both articles with one of his own.47
He took an originalist approach, likening the text of the Constitution to
Pompeii, buried beneath the successive lava flows pouring from the
volcano that is the Supreme Court.48 His argument pointed to the original
ratifying conventions, which were regulated by the state legislatures, as
the only historical precedent for the meaning of the word conventions
in Article V.49 He also pointed to Article I, Section 4, which gives
Congress the power to override the states choices of time, place, and
manner of Congressional elections, to show that where the framers
intended for Congress to have power over elections, they made that power
explicit.50 Beck also cites state selection of electors to the Electoral
College, which he calls, a State convention called for the specific purpose
of voting for a President and a Vice President,51 as evidence that the
Framers intended states to designate the selection of convention delegates.
Beck then attempted to refute Palmers claim that ratification was a
function of the people and not of the state by pointing out the absurdity, if
ratification belongs to the people, of giving Nevadas fewer than 100
thousand residents the same vote as New Yorks twelve million
residents.52

44. Id.
45. Id.
46. Id.
47. James M. Beck, Senate Votes Dry Repeal by Conventions in States; House Will Act
Monday, N. Y. TIMES, Feb. 17, 1933, at XX2.
48. Id.
49. Id.
50. Id.
51. Id.
52. Id.

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After proposing the amendment, Congress debated the issue of control

of the conventions at length,53 but failed to produce a bill governing those
conventions. In an effort to prevent this uncertainty from delaying
ratification, a pro-repeal organization, the Voluntary Committee of
Lawyers, produced a model bill for state legislatures to use in constituting
their conventions and urged its members to press their legislatures for
quick adoption.54 Underscoring the confusion around the convention
mode, the model bill included a provision rendering it compatible with any
future regulation of the process Congress might pass.55
III. FORMATION AND CONDUCT OF STATE CONVENTIONS
Though the model bill provided helpful guidelines and likely aided the
states in acting quickly, state conventions were by no means uniform. In
fact, conventions varied widely across a number of dimensions, an
unsurprising outcome given the uncertainty and lack of precedent
surrounding the process. Forty-three states passed convention legislation,
of which thirty-eight held conventions before ratification was completed.56
Twenty-one states included provisions similar to that of the model bill in
their convention legislation, providing that the state legislation would be
inoperative should Congress prescribe procedures for constituting a
convention.57 In contrast, New Mexicos convention legislation provided
that any such congressional action would be null and void, and all state
officers were directed to resist any such action.58
States used varying criteria to determine the total number of delegates
for their conventions and the results varied wildly, from as few as three to
as many as 329.59 New Mexico determined that the number of delegates at
its convention should equal the number of presidential electors to which
the state was entitled, resulting in the fewest delegates of any convention.60
At the other end of the spectrum, Indiana provided one delegate for every
county, plus one additional delegate for each county with a population in
excess of ten thousand, plus another additional delegate for each

53. See, e.g., 76 CONG. REC. 4, 139-41,148-68, 515, 524-25 (1933).

54. KYVIG, supra note 10, at 173.
55. Id.
56. Everett S. Brown, The Ratification of the Twenty-First Amendment, 29 AM. POL.
SCI. REV. 1005, 1006 (1935).
57. Id. at 1008.
58. Id. at 1008-09.
59. Id. at 1006.
60. EVERETT S. BROWN, RATIFICATION OF THE TWENTY-FIRST AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES 618 (Everett S. Brown, compiler) (1938).

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additional ten thousand of the population of such county, or major fraction

thereof, resulting in the largest of all the conventions.61
Delegates in twenty-five states were nominated through petitions.62
Other methods included nomination by the state governor, by caucuses, by
party committees, and by primary elections.63 These various nomination
methods resulted in varying levels of state government control over the
slate of candidates. There was little top-down control in Nevada, where
mass conventions in each voting precinct selected delegates to county
conventions, who then nominated delegates for the convention.64 Colorado
took a very different tack, with the governor holding sole power to
nominate thirty delegates, of which voters would select fifteen.65 Other
states left nomination to groups composed of state officials, as in
Massachusetts, where nominations were left to a caucus of the governor,
lieutenant governor, councilors, state secretary, state treasurer, and
attorney general.66
States also faced a choice between electing delegates by district or
through an at-large vote of the entire state. This choice was particularly
important in light of concerns over gerrymandering in state legislative
districts. In Maine, the legislature submitted the issue as a special question
to the state supreme court.67 The court noted that both the original ratifying
conventions of 1789 and the convention by which Maine became a state
used district voting, and determined that under that precedent it was
unlawful for Maine to use at-large voting to elect delegates to a ratifying
convention.68 Fourteen states followed the Maine courts lead; twenty-five
states elected all delegates at-large, and another four states used a mixed
system, electing at-large delegates in addition to delegates from
geographically-determined districts.69
Elections largely functioned as a stand-in for a popular referendum.
Most state ballots presented voters with a choice between a slate of
candidates favoring ratification and one opposed to ratification, and many
states also included a separate question on whether the amendment should
be ratified.70 Many states required delegates to state their position for or
against ratification before election; Arizona went so far as to require
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.

Id. at 564.
Brown, supra note 56, at 1011.
Id.
Id.
BROWN, supra note 60, at 535-36.
Id. at 585.
Id.
In re Opinion of the Justices, 167 A. 176, 179 (Me. 1933).
Brown, supra note 56, at 1010.
Id. at 1013-14.

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delegates to vote in accordance with that statement, on pain of forfeiture

of his or her office as a delegate and nullification of his or her vote.71
Alabama went a step further, requiring candidates to swear to vote in
accordance with the outcome of the statewide vote on ratification, and
Arkansas required the convention itself to vote in accordance with the
outcome of the statewide question.72 Oregon similarly required its
delegates to vote in accordance with the outcome of the ratification
question in the county from which they were elected.73
Whether delegate pledging of this sort was legal was an open question.
Could the convention vote be merely pro forma, legally bound to
implement the popular vote, or was there a requirement that conventions
be deliberative? In its answer to a special question from the legislature, the
Supreme Court of Maine, without explicitly citing any authority, declared
that conventions must be deliberative.74 The Supreme Court of Alabama,
in a more detailed opinion, reached the opposite conclusion.75 In doing so,
it felt compelled to distinguish Hawke v. Smith,76 where, as previously
discussed, the Supreme Court held invalid an Ohio referendum on an
amendment to the federal Constitution submitted to the legislature for
ratification. The Alabama court had to address one particularly
problematic line from that case: Both methods of ratification, by
Legislatures or conventions, call for action by deliberative assemblages
representative of the people, which it was assumed would voice the will
of the people.77 Although the Alabama court did not say so, as applied to
conventions, the line is probably dicta, because the case itself dealt only
with an amendment submitted to the legislatures. This dicta, however,
states quite clearly that ratifying conventions must be deliberative.78 The
Alabama court emphasized that the function of ratifying bodies
deliberation was to voice the will of the people, and that the required
deliberation in the case of a ratifying convention would in fact occur
beforehand, among the voters.79 It then analogized the delegates pledges
with the solemnly implied pledge of electors to voice the choice of the
people of their respective states for President and Vice President.80

71.
72.
73.
74.
75.
76.
77.
78.
79.
80.

Id. at 1014.
Id. at 1013-14.
Id.
In re Opinion of the Justices, 167 A. 176, 180 (Me. 1933).
In re Opinions of the Justices, 226 Ala. 565, 569 (Ala. 1933).
Id. at 569.
Id. (citing Hawke v. Smith, 253 U.S. 221, 226-27 (1920)).
Id.
Id.
Id.

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In practice, the overwhelming majority of conventions were not

deliberative bodies. Twenty conventions voted on the ratifying resolution
either with no debate whatsoever, or after hearing only speeches in favor
of ratification.81 All but six conventions produced unanimous votes, and
of those six, only one produced a majority vote smaller than ninety
percent.82 Most conventions followed the pattern of New Mexico, whose
three delegates elected a chairman and a secretary, took a midday break,
voted unanimously in favor of ratification upon their return, then
adjourned.83
North Carolina presents a particularly interesting case, in that it
rejected Congresss call for conventions. There, pursuant to a requirement
in the state constitution, the ballot gave voters not only a choice of
delegates, but also a vote on the question of whether or not to hold a
convention at all.84 In answer to a special resolution from the legislature,
the North Carolina Supreme Court held that such a question comported
with the state constitution, which required that voters have a direct say on
the question of convention or no convention[.]85 The North Carolina
court did not determine whether such a ballot question violated the Federal
Constitution, saying that only the Supreme Court of the United States
could make such a determination.86 Ultimately, while electing a slate of
anti-ratification delegates,87 the people of North Carolina voted not to hold
a ratifying convention.88
Attempts to defeat ratification through litigation appear to have been
few and perfunctory, and essentially limited to state courts.89 In Vermont,
for example, opponents challenged the state convention vote on the ground
that the statute authorizing the convention violated both Article V and the
Vermont state constitution.90 The Vermont court rejected the request for a
writ of certiorari to review the action of the convention, saying simply that
the conventions actions were neither judicial nor quasi-judicial, and thus
not subject to appellate review.91 In Ohio, opponents sought to use the state
constitution to obtain a referendum to overturn the legislatures bill
providing for the convention, ironically following a path similar to
81.
82.
83.
84.
85.
86.
87.
88.
89.
90.
91.

Brown, supra note 56, at 1015.

Schaller, supra note 19, at 89.
BROWN, supra note 60, at 290-91.
Id. at 628.
In re Opinions of the Justices, 172 S.E. 474, 476-80 (N.C. 1933).
Id.
Schaller, supra note 19, at 89.
Brown, supra note 56, at 1006.
See KYVIG, supra note 10, at 175.
Chase v. Billings, 170 A. 903, 905 (Vt. 1934).
Id.

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referendum effort that gave rise to Hawke during the fight over the
Eighteenth Amendment.92 The court there held that, in passing the bill, the
legislature was exercising federal power, and therefore the state right to
obtain a referendum through petition was not applicable.93 A similar
attempt in Missouri met the same fate.94
IV. LESSONS FOR A PROPOSING CONVENTION
Proposing conventions and ratifying conventions are different beasts.
While not precedential, the experience of the Twenty-First Amendment
provides some lessons for those seeking a proposing convention. The most
salient lessons for a future proposing convention involve the apparent
absence of sabotage at the state level, the effects of district and at-large
voting, and the question of delegate pledging and convention deliberation.
One concern about a proposing convention is that, since the purpose
of the convention is to obtain amendment proposals outside Congress,
Congress might sabotage the convention by prescribing election
procedures that would derail the effort or skew the outcome. This concern
mirrors the fear in the Twenty-First Amendment ratification process that
state legislatures would manipulate delegate selection. Given the fear of
overrepresentation of rural interests in the legislatures, one might have
expected those legislatures to populate the conventions with delegates
from similarly malapportioned districts. However, in actual fact, if the
legislatures engaged in any such attempt at swaying the vote, it appears
not to have had any noticeable effect on the outcome. If those legislatures
had skewed representation in that manner, one would expect to see a
disparity between the popular vote and the convention votes. Of the eleven
states that chose the district method and held conventions before
ratification was achieved, ten produced conventions in which more than
90% of delegates voted for ratification.95 In the eleventh, Indiana, 75% of
convention delegates voted for ratification, but only 64% of voters in the
special election had voted for ratification.96
One speculative but plausible explanation for this apparent lack of
effective gerrymandering is that support for ratification was perceived to
be so strong that such an effort would have been futile. Popular opinion,
including both national political parties supporting at least some degree of
change to prohibition, the efforts of organized repeal groups like the
92.
93.
94.
95.
96.

State ex rel. Donnelly v. Myers, 186 N.E. 918 (Oh. 1933).

Id.
See State ex rel. Tate v. Sevier, 62 S.W.2d 895 (Mo. 1933).
See Schaller, supra note 19, at 89.
Id.

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Voluntary Committee of Lawyers, and measures of popular opinion like a

Literary Digest97 poll, show a swell of support for repeal, likely stayed the
legislatures hands. A similar dynamic might obtain in the context of a
proposing convention; if political support for such a convention is strong
enough to make some kind of constitutional change appear inevitable (as
it would likely have to be to meet the requirements for the calling of such
a convention), Congress may forego attempts to undermine the convention
through procedural controls.
In actual fact, if anything distorted convention votes, it was at-large
voting. All of the conventions populated through at-large voting produced
unanimous decisions, although the popular vote was, in some states, much
closer.98 For instance, in Tennessee, whose convention voted unanimously
in favor of repeal, the ratification majority in the popular vote was only
fifty-one percent.99 In South Carolina, where the convention voted
unanimously against ratification (the only convention do so), the antiratification majority in the popular vote was only fifty-two percent.100 In
the case of ratifying conventions, misleading unanimity is perhaps only a
minor flaw where it does not frustrate a democratic outcome. In a general
proposing convention, however, suppressing minority opinion and
magnifying support for change could be disastrous in that it could produce
amendments that would not find sufficient support to pass the ratification
stage. Any election scheme for populating a proposing convention should
be mindful of this skewing effect of at-large voting.
Delegate pledging presents a related issue for a proposing convention.
Deliberation at the ratifying conventions would not have been
unreasonable; delegates to those conventions could well have debated the
complicated costs and benefits of alcohol prohibition before registering a
vote. Pledging, however, scrubbed deliberation from most ratifying
conventions. Pledging could operate similarly in the proposing convention
context. In the context of a truly general proposing convention, candidates
might pledge to support only a particular set of reforms, hindering
deliberation at the convention. Pledging is even more problematic in the
context of a limited convention. Scholars disagree on the degree to which
state applications for a convention can constrain the scope of a
convention.101 Delegate pledging, however, could take limitation to an
97. See Gebhart, supra note 15.
98. Schaller, supra note 19, at 89.
99. Id.
100. Id.
101. Compare Walter E. Dellinger, The Recurring Question of the Limited
Constitutional Convention, 88 YALE L. J. 1623, 1624 (1979) (arguing that proposing
conventions cannot be limited) with Robert G. Natelson, Proposing Constitutional
Amendments by Convention: Rules Governing the Process, 78 TENN. L. REV. 693, 715

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extreme. Just as delegate pledging served as a makeshift referendum mode

for ratification, it could provide for amendment proposal by popular vote,
a mode not contemplated in Article V. For example, suppose that states
petitioned for a convention to consider a balanced budget amendment.
Although the convention might not technically be bound to consider any
particular proposal, candidates could pledge to support (or oppose) a
proposal put forth by a lobbying group or interest organization prior to
delegate elections, in effect transforming those elections into a question
on the amendment itself.
It is to be expected that candidates in a delegate election will take
positions. The real question is whether Congress102 or the states103 could
pass legislation requiring delegates to vote according to the positions they
supported as candidates, akin to the laws binding ratifying convention
delegates in states like Arizona and Oregon. Courts could very well strike
down such a law,104 especially given that the Supreme Court did not hear
any case implicating the delegate-binding laws in force for the TwentyFirst Amendments ratification. However, with no precedent for a
proposing convention, the legal question remains uncertain. Furthermore,
the judicial branch could choose to avoid a potentially controversial
decision, holding that the question of proposal convention delegate
selection, like that of the efficacy of ratifications, is a political question
left to Congress.105 Given this uncertainty, proponents of a proposing
convention should consider calling unauthorized, truly deliberative
conventions outside the bounds of Article V, to produce new proposal
ideas that could survive even a non-deliberative Article V process. If those
proposals capture public support, then even if delegates are bound, the
proposals to which they are bound would be the product of that earlier
deliberative process.
The most important lesson, however, may be simply that the
ambiguity and incompleteness of Article V need not stand as an
insurmountable barrier to constitutional change. Broad-based support for
(2011) (arguing that Founding-Era practice and later interpretation show that states can
limit the power of a proposing convention).
102. Convention procedures have been proposed in Congress, but not passed into law.
See PAUL J. WEBER & BARBARA A. PERRY, UNFOUNDED FEARS: MYTHS & REALITIES OF A
CONSTITUTIONAL CONVENTION 116 (1989).
103. See generally Natelson, supra note 101, at 739-40 (arguing that amendment
conventions were originally understood as assemblies of states, and that, therefore, power
over delegate selection and allocation belongs to the states).
104. Cf. Natelson, supra note 101, at 745-47 (summarizing state court cases striking
down voter initiatives that attempted to force state legislatures to call for a proposing
convention for a specific purpose).
105. See Coleman v. Miller, 307 U.S. 433, 449-50 (1939) (holding that the question of
efficacy of state legislature ratifications is under the ultimate authority of Congress).

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ARTICLE V CONVENTIONS

357

the use of the convention mode in ratifying the Twenty-First Amendment

translated into successful use of that mode. Should a proposing convention
garner similar support, it too, will navigate its ambiguities.
APPENDIX: Summary of State Ratifying Convention Votes
State

Number
delegates106

Alabama
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri

116
14
75
22
15
50
17
67
No law passed
21
50
329
99
No law passed
19
No law passed
80
24
45
100
21
No law passed
68

106.
107.
108.
109.

of

Delegate
Election votes
Convention
election107
for ratification108
votes
for
ratification109
Mixed
58.7%
100.0%
At large
76.9%
100.0%
District
59.5%
100.0%
At large
76.1%
100.0%
At large
67.9%
100.0%
Mixed
87.2%
100.0%
At large
77.2%
100.0%
At large
80.1%
100.0%
NA
NA
NA
At large
58.0%
100.0%
At large
78.2%
100.0%
District
64.1%
74.8%
At large
60.2%
100.0%
NA
NA
NA
At large
61.4%
100.0%
NA
NA
NA
District
68.4%
100.0%
Mixed
81.8%
100.0%
District
81.7%
100.0%
District
74.7%
99.0%
At large
65.1%
100.0%
NA
NA
NA
At large
76.2%
100.0%

Brown, supra note 56, at 1006.

Id.at 1010.
Schaller, supra note 19, at 89.
Id.

358
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming

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49
100
40
10
226
3
150
120
No law passed
52
16
116
15
31
41
NA110
63
31
21
14
30
99
20
15
66

District
District
District
At large
Mixed
At large
At large
District
NA
At large
At large
District
At large
At large
At large
District
At large
District
At large
At large
At large
District
At large
At large
District

[Vol. 61:2
Unavailable
No election
Caucus
71.5%
86.3%
77.5%
88.7%
29.1%
NA
71.2%
No election
65.2%
76.2%
87.8%
48.0%
NA
51.4%
61.4%
60.2%
66.5%
63.0%
70.2%
61.6%
82.1%
Unavailable

91.8%
No convention
100.0%
100.0%
99.0%
100.0%
100.0%
No convention
NA
100.0%
No convention
95.7%
100.0%
100.0%
0.0%
NA
100.0%
100.0%
100.0%
100.0%
100.0%
95.9%
100.0%
100.0%
100.0%

110. Equal to the number of legislative representatives in the state. No election was held.
BROWN, supra note 60, at 660.