Report: Article V Constitutional Conventions
Gerard N. Magliocca provides a detailed review of the Constitution's Article V and the amendment process to set the stage for scholarly dates on this subject. Magliocca is Distinguished Professor and Lawrence A. Jegen III Professor, Indiana University, Robert H. McKinney School of Law.
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Article V lays out three paths for changing the Constitution. The most familiar one is that Congress, by a two-thirds vote of each House, can propose a constitutional amendment on virtually any subject.[1] These proposals must then be ratified by three-fourths of the state legislatures to become law. This was the process used to create what we now call the Bill of Rights and virtually every other constitutional amendment.
Article V also provides that Congress shall call a national constitutional convention to consider amendments if two-thirds of the state legislatures request one.[2] Though never exercised, the uncertainty posed by the possible invocation of this extraordinary power can prompt Congress to undertake more modest reforms when a substantial number of states issue convention petitions. Finally, when Congress proposes an amendment, it can require ratification by state conventions rather than by state legislatures. Congress chose that path only once—for the Twenty-First Amendment repealing Prohibition.[3]
This Report is a tale told in three parts. The first goes through the basics on the use of conventions before and during the Founding. The second describes state petitions for a national constitutional convention from 1789 until the present. The final section discusses the ratification of the Twenty-First Amendment by state conventions in 1933.
PART I—THE CONVENTIONS OF CONVENTIONS
The idea of a convention was invented in England out of necessity. In the Glorious Revolution of 1688, the Catholic King James II was forced to abdicate the throne after abusing his power. The House of Lords and the House of Commons then met to draft what became the English Bill of Rights and to offer the throne to the Protestant Dutch Prince William of Orange and his wife Mary, who was James II’s daughter. Since a meeting of Parliament could not occur without a monarch, the Lords and Commons styled themselves as a “convention.” After William and Mary were coronated, the two Houses reconvened as Parliament and authorized their prior actions as a convention. This was the only constitutional convention held in Britain.
Americans adopted but adapted the convention model in 1776. They saw the 1688 convention as a milestone in the fight for liberty against a tyrannical King. Consequently, they used the convention label to describe the gatherings that met in many states after independence was declared to write new constitutions and repudiate King George III. But these were not legislatures meeting under another name as Parliament did. They were separate bodies chosen or elected for the sole purpose of producing a new constitution. The theory behind this innovation was that only an institution outside of government could create higher law that could bind that government.[4] A constitution written by a legislature would be no different in form from an ordinary law. The same understanding of what was required to make higher law was also behind the creation of the Constitution by a convention in 1787.
Framing and Ratifying the Constitution
The 1787 Philadelphia Convention remains the leading precedent for states calling a national constitutional convention. State legislatures concerned about defects about our first national Constitution—the Articles of Confederation—sent convention resolutions to Congress.[5] The chief defect in the eyes of many was that the Articles could be amended only through a proposal by Congress and a unanimous vote of all thirteen state legislatures.[6] Many improvements were proposed by Congress, but none of them could win approval in every state. Congress responded to the state convention petitions with its own resolution supporting a convention in Philadelphia “for the sole and express purpose of revising the articles of confederation.”[7] Any proposals from that convention would become law “when agreed to in Congress and confirmed by the States.” The Framers famously went beyond their commissions by proposing a new Constitution that stated in Article VII that the text would become law when ratified by nine state conventions rather than by thirteen state legislatures.
In Federalist No. 40, James Madison defended the Convention’s authority to speak for the People. He pointed out that the Convention was only proposing constitutional changes for the states to consider rather than imposing them on the nation. With respect to the new and easier ratification method, Madison condemned the “absurdity” of requiring Congress and all thirteen states to agree to constitutional changes, as that would give “a majority of 1/60th of the people of America” in Rhode Island a veto. Finally, he argued that “in all great changes of established governments, forms ought to give way to substance.” Only “informal and unauthorized propositions, made by some patriotic and respectable citizen or number of citizens” could breathe life into the people’s right—stated in the Declaration of Independence—to “abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.” The active participation of the two most famous Americans at the time—George Washington and Benjamin Franklin—was probably the most crucial factor in establishing the Philadelphia Convention’s informal and patriotic legitimacy to propose a new ratification method that the public would accept.
The Founding example raises the question of whether the proposal power of a national convention can be limited. While state petitions under Article V often restrict their convention call to a particular topic, the Philadelphia Convention can be cited as authority for the proposition that a national convention is free to propose anything, including a new document and ratification process.[8] And if no proposal limits can be imposed, then a national convention acts as the ultimate constitutional institution, much like an ecumenical council like Vatican II is for the Catholic Church.[9] The only limit on a national convention that can be inferred from Philadelphia is that the proposal requires a separate ratification process. But the nature of that process could probably be changed from three-fourths of the state legislatures or state conventions to a simple majority by a national referendum given that Article VII changed the prior ratification process.
The Framers cared more about creating the Constitution and getting the proposal ratified than about the process for future changes. Article V was added late in the Philadelphia Convention with little discussion. Indeed, Madison’s initial proposal for constitutional amendments did not include any provision for another national convention. That was quickly changed to the current version, in part to give the states a way of proposing amendments without the consent of Congress. The Framers’ choice of a three-fourths requirement for state ratification of amendments stands out as inexplicable.[10] Only roughly two-thirds of the states (nine out of thirteen) were required to ratify the Constitution. Why, then, did the Framers make it harder to ratify amendments? The simplest explanation is that they just did not give this issue careful consideration at the tail end of their convention.
There was a similar lack of interest in Article V’s amendment procedures during the state ratification debates. The point that the Federalists stressed to convince skeptics was simply that the Constitution could be amended to address any concerns. Consistent with that argument, the Virginia ratifying convention gave its approval to the proposal with a request that amendments be made concerning “the liberty of conscience and of the press.”[11] In Federalist No. 85, Alexander Hamilton said that Congress would be required to convene a national convention for amendments upon sufficient state applications. “Nothing in this particular is left to the discretion of that body,” Hamilton wrote. As a result, the Anti-Federalist charge that Congress would always be able to veto constitutional reform “vanishes in air.” After Federalist No. 85 was published, the New York ratifying convention also endorsed the Constitution while calling for amendments guaranteeing basic rights.
Following the Constitution’s ratification in 1788, the New York and Virginia legislatures formally petitioned for a second unrestricted constitutional convention. Madison, who was now a member of the House of Representatives, insisted that Article V barred Congress from calling another convention on its own. Instead, he proposed a series of constitutional amendments to ward off another convention called by the states. In his 1789 speech introducing what we now call the Bill of Rights, he said that he “was unwilling to see a door opened for a reconsideration of the whole structure of the government.”[12] Representative James Page of Virginia said that the failure to act on constitutional amendments might lead to another national convention, and “how dangerous such an expedient would be I need not mention.”[13] Calls for a second convention were, in fact, silenced by the proposal and ratification of the first ten amendments.
The Bill of Rights teaches a larger lesson about the political function of Article V petitions. Federal officials are generally terrified at the prospect of a national constitutional convention. As a result, significant state requests for one can galvanize Congress and the President into taking other actions to bring down convention fever. Sometimes the tool of choice is an Article V amendment proposal. Sometimes the response is a statute. Either way, the takeaway is that the lack of a second national convention after 1787 does not mean that the state summoning power is irrelevant.
PART II—STATE CONVENTION PETITIONS AFTER 1789
Over the next century, only a handful of states invoked the Article V convention option.[14] One of the first applications for a limited convention came in 1833, when Alabama sought a constitutional amendment restricting Congress’s power to impose tariffs. During the secession crisis of 1861, a few states applied to Congress for a general convention or for amendments regarding slavery, but those requests were swiftly overtaken by events.
The Seventeenth Amendment
Under the 1787 Constitution, United States Senators were elected by state legislatures.[15] In the 1890s, growing support for the direct popular election of senators reawakened interest in holding a national convention. The House of Representatives, which was directly elected, repeatedly passed such an amendment, but getting senators to change how they were chosen was a heavier lift. Thus, in 1893, state legislatures began issuing Article V petitions for a convention limited to the topic of proposing direct elections for senators. These legislatures were willing to give up their power to pick senators because they were often unable to pick anyone when different parties controlled each legislative chamber. In 1900, the Pennsylvania Legislature went so far as to send its convention call to every other state legislature asking for support. Other states answered Pennsylvania’s call, and in 1906, Chief Justice Walter Clark of the North Carolina Supreme Court wrote in the Yale Law Journal that “[i]t is high time that we had a Constitutional Convention.”[16] “It is too much to expect,” Chief Justice Clark explained, “that the great corporations which control a majority of the Senate will ever voluntarily transfer to the people their profitable and secure hold upon supreme power.”
By one count, thirty-one states—just one shy of the necessary two-thirds at the time—issued a limited Article V petition by 1912.[17] Senate resistance to what became the Seventeenth Amendment crumbled at around the same time. Did the convention petitions cause the Senate to yield? The evidence is inconclusive. Senator Weldon Heyburn of Idaho did express alarm that Article V “does not contemplate that any constitutional convention shall assemble with a limitation on it to deal with a particular question.”[18] But another reasonable view is that the Senate was responding to public opinion more generally.[19]
The convention procedure then went into hibernation again, though this time for only half a century. To the extent that state legislatures did act, their requests were usually for limited conventions. For example, after World War II, four states asked Congress for a convention to propose an amendment permitting the United States to join a world government should one be established by the United Nations. Other convention subjects that received support from more than one state in this period included: (1) repealing the Sixteenth Amendment and limiting Congress’s taxing authority; (2) barring polygamy; (3) requiring federal legislation to implement international treaties; and (4) revising Article V itself to give state legislatures the power to propose and ratify amendments on their own.
State Legislative Apportionment
Backlash against the Warren Court produced the next large wave of Article V petitions. In 1962, the Council of State Governments endorsed a national convention to consider a set of constitutional amendments to weaken federal judicial authority in response to the Court’s cases on racial desegregation and application of the Bill of Rights to the states. The response from state legislatures was muted, but in 1964, the Court held in Reynolds v. Sims that state legislatures must be reapportioned on a “one-person, one-vote” basis.[20] Many state legislatures that were organized to give extra weight to rural areas responded with petitions requesting an Article V convention to overrule Reynolds. A constitutional amendment was proposed in Congress that would have permitted states to have one legislative chamber apportioned without reference to population so long as a state referendum approved that structure.[21] By 1967, over thirty state convention petitions were before Congress, and the two-thirds threshold was in sight.
This time the Article V petitions did not produce a ratified constitutional amendment. One reason for that failure was that lawmakers doubted whether the state petitions truly reflected public opinion. A common criticism of these requests was that they came from malapportioned legislatures. A few Senators even held that these petitions were invalid because they were sent by assemblies comparable to the “rotten boroughs” in Britain that once gave tiny groups of people representation in Parliament. That argument probably proved too much. First, Article V says nothing about the definition of a state legislature. Second, the invalidity claim ran up against Hamilton’s assertion in Federalist No. 85 that Congress lacked discretion to reject state applications. Third, these malapportioned state legislatures were counted toward the ratification of the Twenty-Fifth Amendment in 1967.[22] Finally, these same legislatures enacted many state laws that were applied without question.
A more limited objection was that the next state legislature apportioned under the one-person, one-vote rule should be given an opportunity to speak before that state’s request was deemed final. At least one of those new legislatures then rescinded their predecessor’s convention petition. But can a state legislature withdraw a convention petition? The answer is unclear. One thought is that a state may not rescind its ratification of a constitutional amendment proposed by Congress. If that is correct, then the same logic might bar state rescissions of Article V petitions. Whether a state may rescind an amendment ratification, though, is unsettled law. The recission issue for convention petitions was not resolved because the two-thirds requirement for a state apportionment amendment was not met.
State enthusiasm for Article V applications on legislative apportionment spilled over into other topics involving federalism. For instance, some states requested a constitutional convention that would propose an amendment mandating that a portion of annual federal revenue be distributed to the states. Likewise, more than one state in the 1960s and 1970s petitioned for a national convention on: (1) restricting public school busing ordered by federal courts; (2) permitting prayer in public schools; (3) reforming the Electoral College to bar large states from awarding all of their electors to the winner of that state; and (4) the use of federal funds to coerce states into adopting regulations that Congress could not directly command.
Given all these state requests, Senator Sam Ervin—who became a household name as the Chair of the Senate Watergate Committee—worried about the possibility that a second constitutional convention would be convened and held without rules. The Philadelphia Convention consisted of delegates chosen by state legislatures who deliberated in secret and voted by state. These procedures would not be acceptable to most Americans in the 1970s. Ervin therefore proposed legislation that passed in the Senate (but not in the House) setting forth a framework for counting state petitions and regulating the time, place, and manner of any convention that was called. Among other things, the Federal Convention Act of 1973 would have imposed a seven-year time limit on state Article V applications and made clear that states could rescind an application. The Act also established how many convention delegates there would be from each state, how they would be elected in each state, and how such a convention would operate. Ervin’s bill also would have required the delegates to swear an oath that they would abide by any call for a limited convention and could not propose a different ratification method. Who knows, though, if the states or delegates would have followed these rules or if they would have been upheld by the courts against a legal challenge. To take a simple example, Rhode Island boycotted the 1787 Philadelphia Convention. Consequently, a state probably could refuse to attend a national convention no matter what Congress or the other states said.
State petitions also sometimes purport to dictate how a convention must be held. Some applications specified that a convention must be held in Philadelphia on a particular date. Another provided for a national referendum to decide on ratification. Others said that the delegates to the convention must be leading state officials and argued for equal state representation within the convention. Once again, the ability of the states to agree on these conditions or enforce them is highly questionable.
A Balanced Budget Amendment and Modern Developments
Fiscal policy during the 1970s and 1980s produced the next burst of state action on constitutional reform. Unnerved by what seemed like large federal budget deficits at the time, state legislatures began requesting a convention that would propose a national debt limit or a line-item veto for the President. But the most popular reform proposal was for a balanced budget amendment. States may well have thought that Congress would not consider a proposed amendment limiting its taxing and spending power under the ordinary Article V process, thus, by 1979, convention petitions were issued by thirty states. Senator Barry Goldwater, a former Republican presidential nominee, responded that a constitutional convention was “very foolhardy” and would be “a tragic mistake.”[23] President Jimmy Carter contended that a convention “might do serious, irrevocable damage to the Constitution.”[24] Feeling the political pressure, the Senate did pass a balanced budget amendment in 1982. But the proposal failed in the House.
Ronald Reagan, who supported a balanced budget amendment, then became the only President to endorse an Article V convention. He wrote to legislators in states that were still considering convention resolutions and asked for action. In a national radio address delivered in 1987, President Reagan explained that the unwillingness of Congress to act: “inspired a number of Americans to try another method provided for in the Constitution: a constitutional convention, one with delegates from each State who could propose a balanced budget amendment and then send it on to the State legislatures for approval. Only two more States are needed to call such a convention. And believe me, if the Congress continues to balk at passing the balanced budget amendment, I think the drive for a constitutional convention will pick up steam.”[25]
Despite Reagan’s appeals, no other state endorsed a constitutional convention for this purpose during the 1980s. Perhaps some of the wind was taken out of the balanced budget amendment’s sails when Congress enacted the Gramm-Rudman-Hollings Act of 1985. The Act required automatic spending cuts that were designed to bring the federal budget more into balance. Part of the Act was held unconstitutional by the Supreme Court, and the spending cuts were not enforced fully.[26] Still, Gramm-Rudman-Hollings can probably be added to the list of trophies that the state petition process can claim even though no constitutional convention was held.
Article V applications for a national convention are still active, though in recent years none have come close to the two-thirds threshold. Prior to the Supreme Court’s overruling of Roe v. Wade,[27] several states requested a convention to propose an amendment permitting a ban on abortion. The most popular fresh state request is for a “Convention of States” (endorsed by 19 states) that would propose amendments for term limits on members of Congress and further limits on federal authority. Other new subjects with petitions from more than one state since the 1990s include: (1) prohibiting federal judges from ordering tax increases; (2) curtailing the imposition of unfunded federal mandates on the states; and (3) overruling the Court’s campaign finance decision in Citizens United v. Federal Election Commission.[28]
Almost as popular was the trend for states to rescind all past convention petitions. From 1993 to 2011, twelve state legislatures purported to do so. While this was partly meant to clean up obsolete applications, another concern may have been the argument that every Article V petition should be deemed a general one because conventions cannot be limited. On this reasoning, though, Congress would have long ago been required to convene a national constitutional convention, as more than two-thirds of the states have called for some sort of convention at a given time in the twentieth and twenty-first centuries. This last point presents a puzzle. If Congress has no discretion to refuse a call by two-thirds of the states for a convention but there are disputes about how to count the applications, then who should resolve those disputes? The Supreme Court has never faced this question but could someday if the states and Congress disagree about whether the Article V threshold for a convention is met.
PART III—RATIFICATION BY STATE CONVENTIONS
The other role for conventions under Article V involves the ratification of constitutional amendments proposed by Congress. Congress can choose whether these proposals must be ratified by state legislatures or by state conventions. The only time Congress picked the convention route was in 1933 for the Twenty-First Amendment.[29] These conventions were limited to considering that one proposed amendment.[30]
Congress chose state conventions as the ratification method for the Twenty-First Amendment to prevent malapportioned state legislatures from blocking Prohibition’s repeal. Rural districts that were overrepresented in many state legislatures were more likely to support alcohol bans. This helps explain how Prohibition was ratified in 1918 even though the policy was unpopular. Another advantage of using state conventions is that they required fresh elections on the single issue of Prohibition rather than leaving ratification to legislatures elected in earlier years based on many concerns. Finally, state conventions could be far more transparent than legislatures. In the 1930s, most state legislatures did not keep transcripts of their debates. By contrast, careful records were kept of every state ratifying convention for all to see.[31] Indeed, the Twenty-First Amendment debates are the most detailed accounts on state consideration about any part of the Constitution.
But taking the convention route raised new questions. For example, did Congress have the power to say how these state conventions would be elected or organized? This question was as perplexing as whether Congress could regulate a national convention summoned by the states. After considerable debate, Congress declined to tell the states how to proceed. How, then, could states decide in a timely manner how to decide the composition of their conventions?
One answer was supplied by the Volunteer Committee of Lawyers (VCL), an Anti-Prohibition organization. The VCL drafted a model convention statute for states to enact. This model law, which was widely accepted, provided for the election of convention delegates at-large on slates pledged either to oppose or support the Twenty-First Amendment.[32] At-large elections across an entire state circumvented the problem of malapportioned state legislative districts.[33] Unlike the ratifying conventions for the 1787 Constitution, the state delegates who gathered to ratify the Twenty-First Amendment spent virtually no time deliberating. There was little room for discussion because the delegate elections on pledged slates acted as a referendum on Prohibition.[34] Thus, none of these conventions lasted longer than a day and some lasted less than an hour. The Twenty-First Amendment was ratified less than a year after its proposal by Congress.
When Congress considered the Twenty-Second Amendment imposing a presidential term limit, the possibility of ratification by convention was again discussed. The Senate supported using state conventions, while the House wanted state legislatures. For reasons that are unclear, the House prevailed in the final proposal. Congress never again entertained the idea of requiring state conventions to ratify a constitutional amendment.
CONCLUSION
The informal nature of constitutional conventions is their strength and their weakness. Article V allows the people to express their sovereign will through forms that can be easily changed to suit the times. The power and flexibility of constitutional conventions, though, leaves many procedural questions unresolved in a way that makes many uneasy when calls for a convention become more than background noise. In that sense, a convention is like a jury. Both are more direct representatives of the people that can mete out justice in a way that formal law cannot. But both are also the only legal institutions that are often prefaced by the word “runaway.”
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[1] Article V made three parts of the Constitution almost impossible to amend. One was the requirement that Congress could not prohibit the importation of enslaved people until 1808. See U.S. Const., art. I, § 9, cl. 1; id. at art. V (“[N]o Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article”). Another is the requirement that no capitation or direct tax, which included a tax on enslaved people, could be imposed except in proportion to the state populations as determined by a census. See id. at art. I, § 9, cl. 4. The final rule privileged by Article V is the equality of state voting in the Senate. Id. at Art. V (“[N]o State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”).
[2] The pertinent text of Article V is:
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 . .
[3] For an illuminating discussion on practices in state constitutional conventions writing state constitutions, see David E. Pozen, The Common Law of Constitutional Conventions, 112 Cal. L. Rev. 2213 (2024).
[4] The classic account of how conventions came to America is Gordon Wood, The Creation of the American Republic, 1776-1787 (1969).
[5] The Articles of Confederation was written by Congress rather than by a convention, which may explain why the Articles did not acquire legitimacy and authority as a constitution.
[6] See Articles of Confederation of 1781, Art. XIII.
[7] Federalist No. 40 quoted the “recommendatory act of Congress” for the Convention.
[8] The best discussion of this issue, which includes a complete list of state Article V petitions at that time, is Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L.J. 677 (1993). Professor Paulsen updated his list in 2011. See Michael Stokes Paulsen, How to Count to Thirty-Four: The Constitutional Case for a Constitutional Convention, 34 Harv. J.L. & Pub. Pol’y 837 (2011).
[9] Article V of the Confederate Constitution of 1861 did try to limit conventions to “such amendments to the Constitution as the said States shall concur in suggesting at the time the said demand is made.” Conf. Const., art. V, § 1
[10] Consider that many provisions of the Constitution require a two-thirds vote (for example, to expel a member of Congress, for an impeachment conviction, to ratify a treaty, to override a presidential veto, to propose an Article V amendment or convention, and to provide amnesty under Section Three of the Fourteenth Amendment). The only three-fourths supermajority rule is for state ratification of a constitutional amendment.
[11] The Virginia Convention’s ratification resolution can be found at https://avalon.law.yale.edu/18th_century/ratva.asp.
[12] 1 Annals of Congress 450 (1789) (statement of Rep. Madison).
[13] See id. at 446 (statement of Rep. Page).
[14] The definitive source on federal constitutional change is David E. Kyvig, Explicit & Authentic Acts: Amending the U.S. Constitution, 1776-1995 (1996).
[15] See U.S. Const, art. I, § 3, cl. 1.
[16] See Walter Clark, The Next Constitutional Convention of the United States, 16 Yale L.J. 65, 72 (1906).
[17] The count was uncertain because the petitions were not identically worded and there were no rules in Congress about how to count them.
[18] 46 Cong. Rec. 2769 (1911) (statement of Sen. Heyburn).
[19] See U.S. Const., amend. XVII.
[20] 377 U.S. 533 (1964).
[21] Reapportionment of State Legislatures: Testimony Before the Subcommittee on Constitutional Amendments of the Senate Judiciary Committee, 89th Cong., 1st Sess. (1965).
[22] See U.S. Const., amend XXV. The Twenty-Fifth Amendment created a procedure for filling a vacancy in the vice-presidency and for addressing presidential disability.
[23] 125 Cong. Rec. 3159 (1979) (statement of Sen. Goldwater).
[24] “A constitutional convention?” Chicago Tribune, Apr. 1, 1979, at 32.
[25] Ronald Reagan, “Radio Address to the Nation on Memorial Day and the Budget Deficit,” May 23, 1987.
[26] See Bowsher v. Synar, 478 U.S. 714 (1986).
[27] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).
[28] 558 U.S. 310 (2010).
[29] An argument can be made that Congress required many of the ex-Confederate States to ratify the Fourteenth Amendment via convention indirectly. The First Military Reconstruction Act of 1867 provided that these states must hold a convention elected with Black male suffrage to write a new state constitution. A legislature elected under that convention was then required to ratify the Fourteenth Amendment to bring the state back into the Union with full congressional representation.
[30] See U.S. Const, amend XXI.
[31] See Ratification of the Twenty-First Amendment to the Constitution of the United States (Everett Somerville Brown, ed.) (1938).
[32] An unresolved question was whether the state convention delegates were required to follow their pledge one way or the other. If Congress lacks the power to tell national convention delegates what to do, then do state legislatures also lack the power to instruct delegates to a ratifying convention? No delegate went back on a pledge if one was made, so the issue remains hypothetical. But in an advisory opinion, the Alabama Supreme Court stated that “we are unable to see in the Federal Constitution any purpose to prohibit a direct and binding instruction to the members of the convention voicing the consent of the governed.” In re Opinions of the Justices, 148 So. 107, 111 (Ala. 1933).
[33] The Maine Supreme Court, in an advisory opinion, stated that choosing that state’s delegates at-large would violate Article V by denying geographic representation to some parts of the state. See In re Opinion of the Justices, 167 A. 176, 179 (Me. 1933).
[34] There is an analogy here to presidential electors, who are also usually elected at-large and do not engage in debate when they meet to vote as part of the Electoral College.
