I recently posted the following on Facebook:
There is a lot of discussion regarding an Article 5 convention, or convention of the states.
A clarification is needed.
A Constitutional Convention may only be called by Congress. Congress may submit a constitutional amendment to the states, of which 3/4 must ratify. Alternately, 2/3 of the states may “apply” to Congress to hold a convention.
If Congress consents to hold a convention it is the determination of Congress to set the parameters of Amendments to be considered. It is clear that no restrictions exist as to what amendments can or cannot be considered.
Once the Convention has completed its work 3/4 of the states must ratify the amendment. It is the disposition of Congress to determine how ratification shall be completed. Two apparent alternatives are: 1) Congress may choose to have all amendments ratified jointly, or severally. 2) Congress may dictate whether the ratification process shall occur by the state legislatures or by conventions in each state. Those powers of Congress are stipulated in Article I of the Constitution.
The question for each of us to answer is whether a convention will be support by those whom we elect to Congress. The power rest solely with Congress to call such a convention, while the obligation to apply for a convention rests solely with the state legislatures.
Hope this is of assistance.
That commentary generated a little discussion, and of course challenges to my conclusions. I will here attempt to provide a little more detail.
By way of definition when I speak of Congress I presume both Houses, unless I state otherwise.
Furthermore, the original colonies, under the Articles of Confederation, were more of a union for defensive purposes rather than an actual unified nation, even though there was a president (Not George Washington). Due to rebellion (See Shays Rebellion) in some states leaders at the time, particularly James Madison, sought to strengthen the union of states by creating a more powerful central government. This should only be viewed as a need for operation improvements.
However, some advocates for a Constitutional Convention, were much more progressive toward a more “Powerful” central government. Among those with that intent were Alexander Hamilton. Multiple sources claim that he even preferred that the Chief Executive (president) be entitled as “King.” They were not quite ready to fully leave all of the British customs behind them in a new nation.
Not to become too historical, but to clarify, there were generally two groups of thought; The Federalist and the Anti-federalist. The Federalist pursued ratification of the new Constitution, which gave the central government greater authority. The Anti-federalists wanted to curtail centralized authority as much as reasonable. Neither group opposed revisions to the existing compact between the colonies, just the limits on centralized power.
Hamilton was among the Federalist in persuasion. His writings, in The Federalist Papers, reflected his own tone of wanting a stronger central authority. Just as a personal observation I would propose that many of the “conservative voices,” quoting The Federalist Papers, of today would in fact have been Anti-federalists back then.
Under Article V of the US Constitution (hereafter only referred to as the article) Congress was given the power to propose amendments to the Constitution, when they deemed it necessary.
Congress retained the right to:
- Propose amendments
- Call a convention
- The convention was to propose amendments, not impose amendments.
- Propose how ratification of amendments is to be conducted.
- Such ratification could occur by
- either the individual state legislatures, or
- by convention within the several states.
States retained the rights to:
- Have their respective legislatures “Apply” to Congress to convene a Convention
- Such convention would only propose Amendment
- Two thirds of the states must be a party to the application
- For today that means thirty-four states.
Either by the direct congressional process, or by convention, any amendment must be ratified by three-fourths of the states. That equates to thirty-eight states.
Now, let’s examine the sentence structure regarding the setting of a convention.
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application 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;…”
- The Congress, modified by its component houses, shall propose amendments.
- Congress may do so only upon a two-thirds vote. [This modifies congressional proposal authority]
- The legislatures of two-thirds of the states (34) must apply to Congress to call a convention. [This modifies how amendments may be proposed, as an alternative to congressional proposal authority. It is not a stand alone process independent of Congress]
- The Convention may propose Amendments to the Constitution.
- Congress must “deem it necessary” to call a convention, based upon the application of the requisite number of states. [This is a further modification of the sentence. Congress has authority to call a convention, IF they determine it to be necessary.]
- Three-fourths of the states must ratify any amendments.
Now to a final point. There are two concepts in the first sentence which create a great deal of confusion. The first is the phrase “deem it necessary.” The second is the word “or” in the second line above.
The trouble with these two items is what they mean when used together in this sentence. The problem stems from the use of the comma in the English language. There are ten rules of construction for use of a comma in a compound sentence. Only one of those rules apply:
Separate independent clauses joined by coordinating conjunctions.
The coordinating conjunctions are and, but, for, nor, or, so, and yet. Independent clauses contain both a subject and a verb that function as a complete sentence. Thus, the sentence in the Constitution (under standard English grammar) must contain a subject AND a verb for each clause. Otherwise, it is simply a series of items dependent upon the initial subject and verb. Let’s examine the sentence’s initial clauses, removing superfluous content..
whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments…”
Here then are the two apparent clauses:
The Congress (subject) shall propose(verb) Amendments to this Constitution (predicate).
on the Application of the Legislatures of two thirds of the several States (subject). Note there is no verb, thus making this statement a dependent rather than an independent clause.
Now, finally, the way in which this second statement becomes a independent clause (possibly a separate sentence) is to take it in it’s full context on the entire sentence to read as, “The Congress, whenever two thirds of both Houses shall deem it necessary,
shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments…”
It is important to remember that the intention of the Constitutional Convention was to strengthen the alliance between the states, by providing needed authority to the central government.
Keep in mind that neither the people, state legislatures, Congress, nor SCOTUS are the supreme Law of the Land. The Constitution itself is the supreme Law of the Land. All judges of any court presuming authority within the central government are in fact subject to Congress. See Article III Section 1. first sentence. 
Only the states by a 3/4 majority may amend the Constitution (as described above), which would thereby modify the supreme Law of the Land. It is one of the checks and balances within the central government, proposed by the founders and ratified by the states. It does not diminish the powers and authority of Congress, but only makes them subject to a super majority of the states in rare cases.
Now, in conclusion, neither the authority of the states, people, or Congress is negated by the balancing of interests between those three branches of government (there are other branches also but they don’t explicitly relate to this matter). To amend the Constitution requires them all to work together, in sync, with separate duties, to modify the Law of the Land.
The intent is to protect the nation from frivolous changes which may occur when people of nefarious designs want to push their agenda upon the entire population.[See my various discussions of Count My Vote and SB-54 in Utah.}
That Is The Way I See It.
2. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.