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State ratifying conventions

State ratifying conventions are special deliberative assemblies convened by the legislatures of U.S. states to debate and vote on the ratification of the United States Constitution or proposed amendments thereto, serving as an alternative to ratification by state legislatures and enabling a more direct appeal to popular sentiment.^[1]^[2]
Under Article VII of the Constitution, thirteen state conventions ratified the document between December 1787 and May 1789, with the approval of nine states—culminating in New Hampshire's vote on June 21, 1788—sufficient to establish the new federal government despite fierce debates between Federalists advocating centralized authority and Anti-Federalists wary of diminished state sovereignty, which ultimately prompted assurances of a Bill of Rights to secure key holdouts like Virginia and New York.^[2]^[3]
Article V empowers Congress to designate state conventions for ratifying amendments, a mode invoked only once for the Twenty-First Amendment in 1933, which repealed Prohibition by convening delegates in thirty-eight states to circumvent entrenched legislative opposition from temperance advocates, resulting in swift and near-unanimous approvals amid widespread public demand for ending the Eighteenth Amendment's federal enforcement of alcohol prohibition.^[1]^[4]

Constitutional Framework

Article V Provisions

Article V of the United States Constitution establishes the procedures for proposing and ratifying amendments, providing flexibility in the ratification process by allowing Congress to select between state legislatures or state conventions. The relevant provision states that amendments proposed either by Congress or by a constitutional convention "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."^[5]^[6] This dual-mode option empowers Congress to determine the appropriate mechanism for securing the requisite approval from 38 of the 50 states (or three-fourths of the states at the time of proposal), ensuring that ratification reflects a broad consensus while adapting to circumstances where legislative bodies might be unrepresentative or entrenched.^[7] The inclusion of state ratifying conventions as an alternative addresses potential obstacles in legislative ratification, such as malapportionment in state assemblies that overrepresented rural interests during eras like Prohibition.^[8] Under this mode, each state convenes a dedicated assembly solely for the purpose of voting on the proposed amendment, with delegates typically elected by popular vote to deliberate and decide ratification. Congress retains authority to prescribe procedural details, including timelines, delegate selection, and voting requirements, as it did for the sole historical invocation of this method.^[1] This convention mode was employed exclusively for the Twenty-first Amendment, proposed by Congress on February 20, 1933, to repeal the Eighteenth Amendment instituting national Prohibition. Congress specified ratification by conventions in the states, setting a seven-year deadline, which culminated in approval by conventions in 36 of the then-48 states by December 5, 1933—marking the fastest ratification in constitutional history.^[9]^[10] In contrast, all other 27 amendments have been ratified via state legislatures, underscoring the convention provision's rarity despite its textual parity with legislative ratification.^[11] The process for convening these bodies remains untested beyond this instance, with no judicial rulings mandating specific formats, though Congress's designation controls the operative mode.^[1]

Distinction from Article VII Ratification

Article VII of the United States Constitution prescribed the exclusive use of state ratifying conventions for approving the original document, requiring the affirmative vote of conventions in nine of the thirteen states under the Articles of Confederation for the Constitution to take effect among those states.^[12] This method deliberately circumvented state legislatures, which the Framers viewed as potentially obstructive due to their alignment with parochial interests or opposition to centralized authority, as evidenced by the state-centric structure of the Articles.^[13] Between 1787 and 1790, specially elected delegates in these conventions debated and voted on the Constitution as a whole, with nine states ratifying by June 21, 1788, thereby establishing the new government.^[12] In contrast, Article V provides for constitutional amendments through ratification by three-fourths of the states, with Congress selecting the mode—either state legislatures or state ratifying conventions—as specified in its proposal resolution.^[14] This convention alternative has never been invoked; all 27 amendments ratified since 1791 have proceeded via state legislatures, reflecting congressional preference for the legislative route due to its established procedures and lower logistical demands.^[15] The threshold under Article V adjusts dynamically to the total number of states (currently 38 of 50), unlike Article VII's fixed nine-of-thirteen requirement tied to the Confederation era.^[14] The core distinctions lie in compulsion, scope, and intent: Article VII mandated conventions to ensure popular sovereignty overrode legislative inertia for the foundational charter, whereas Article V's convention option serves as a contingent bypass mechanism for amendments when legislatures might entrench against change, though its disuse underscores reliance on legislative ratification absent extraordinary circumstances.^[15]^[13] Furthermore, Article VII conventions addressed ratification of an unamended Constitution without prior federal framework, while Article V operates within an existing Union, with conventions theoretically elected ad hoc for specific proposed amendments rather than holistic review.^[14] This flexibility in Article V allows Congress unilateral discretion in mode selection, unburdened by Article VII's rigid convention-only directive.^[14]

Judicial Interpretations

The U.S. Supreme Court has addressed the nature of state ratification under Article V, including the convention mode, primarily in the context of affirming Congress's discretion and the federal character of the process. In Hawke v. Smith (1920), the Court ruled that ratification by a state—whether through its legislature or a convention—constitutes a federal function derived from the national government, not a state legislative act subject to override by mechanisms like popular referendums under state constitutions.^[16] The decision emphasized that both ratification methods involve "deliberative assemblies representative of the people," rendering the state's assent binding as an expression of sovereign will rather than ordinary legislation.^[17] In United States v. Sprague (1931), the Court upheld Congress's selection of state legislatures over conventions for ratifying the Twentieth Amendment, rejecting claims that Article V required conventions for amendments altering state representation or other structural elements.^[18] The unanimous opinion declared Article V "clear in statement and in meaning, contains no ambiguity," affirming that the choice of mode lies solely with Congress without need for judicial construction or historical analogies to the original Constitution's convention ratification.^[19] This precedent established broad congressional authority over procedural details, insulating the process from state-level innovations or challenges. The Twenty-First Amendment, the only one ratified via state conventions (convened in 36 states between April and December 1933), faced no direct Supreme Court review of the conventions' formation or proceedings.^[20] Lower courts and subsequent practice have treated convention ratification as equivalent to legislative ratification in finality, with operational specifics—like delegate selection or voting rules—deemed political questions beyond judicial scrutiny, consistent with Coleman v. Miller (1939), which allocated such determinations to Congress.^[21] No federal court has invalidated a state convention's ratification outcome, underscoring the provision's insulation from routine litigation.^[22]

Historical Origins

Debates During Constitutional Framing

During the Federal Convention of 1787, delegates debated the mechanism for ratifying the proposed Constitution, ultimately favoring special conventions in each state over submission to existing state legislatures. On July 23, the nineteenth resolution, which called for ratification by assemblies chosen by the people for that express purpose, was considered. Proponents argued that legislatures lacked the authority to bind the people to a fundamental alteration of their political compact, as many state constitutions reserved such powers to the populace. George Mason emphasized that ratification required the direct sanction of the people to prevent future legislatures from undoing the act, while James Madison contended that legislatures could not legitimately amend state constitutions without risking instability. Edmund Randolph highlighted the risk of opposition from local demagogues in legislative bodies, and Nathaniel Gorham noted that conventions would assemble abler delegates less swayed by provincial biases. Opponents, including Elbridge Gerry and Oliver Ellsworth, favored legislatures for their established authority under the Articles of Confederation and warned that appealing directly to the people might incite confusion or manipulation by rulers influencing public opinion. The resolution passed 9 states to 1, establishing state ratifying conventions as the method under Article VII to ensure popular sovereignty and bypass entrenched legislative interests predisposed against a stronger national government.^[23] The concept extended to the amendment process in Article V, debated on September 10 amid concerns over safeguards against hasty or subversive changes. James Madison proposed that amendments, whether initiated by two-thirds of Congress or a convention called by two-thirds of state legislatures, be ratified by three-fourths of the states via their legislatures or conventions, providing flexibility to select the mode best suited to circumstances. This insertion of the convention option mirrored the original ratification method, allowing circumvention of legislative bodies if they proved obstructive due to local attachments or factional influences. Elbridge Gerry expressed apprehension that state-called conventions for proposing amendments might subvert state constitutions entirely, seconded by Alexander Hamilton, who nonetheless advocated conventions for ratification to facilitate necessary reforms. The proposal passed 9 states to 1 (with 1 divided), reflecting delegates' intent to balance rigidity with adaptability while preserving federalism by empowering states to choose the ratification vehicle. Gerry's motion to eliminate the state-convention proposal clause failed, underscoring a consensus that high thresholds—two-thirds for proposal and three-fourths for ratification—mitigated risks of abuse.^[24] These debates revealed a foundational tension: delegates prioritized mechanisms reflecting the people's deliberate consent over expediency through legislatures, which empirical experience under the Confederation had shown to prioritize state parochialism. The convention mode was thus justified as a causal safeguard, enabling overrides of legislative inertia rooted in self-interest, though not without acknowledged logistical and political hazards. No delegate proposed abolishing the option outright, indicating broad agreement on its theoretical merit for sustaining the Constitution's legitimacy over time.^[23]^[24]

Influences from State Practices

The provision for ratification of constitutional amendments by state conventions, as outlined in Article V, was shaped by precedents from Revolutionary-era state practices, where specially elected conventions served as mechanisms to enact fundamental governance changes directly expressive of popular will, often circumventing entrenched legislatures. During the period from 1776 to 1780, at least seven states—South Carolina, New Hampshire, Virginia, New Jersey, Delaware, Pennsylvania, and Maryland—convened such assemblies to draft and adopt constitutions amid the collapse of royal authority. These bodies, typically comprising delegates elected for the specific purpose, deliberated provisions like bills of rights and frames of government; Virginia's convention, for instance, convened on May 6, 1776, and approved its constitution on June 29, 1776, establishing separation of powers and safeguards against arbitrary rule that influenced subsequent documents. This method underscored conventions' capacity for unbiased deliberation on core political structures, as legislatures were viewed as potentially captive to local factions or prior oaths to the Crown. Such state experiments provided a practical model for the Framers, who sought analogous popular mechanisms to amend the federal Constitution without reliance on potentially adversarial legislatures. In the Federal Convention of 1787, delegates like Gouverneur Morris and Elbridge Gerry advocated replacing initial proposals for legislative ratification with conventions, arguing that assemblies "will have better means of corrupting the channels of information to the people" and that popularly elected bodies offered superior representation for "great national concerns."^[24] James Madison similarly endorsed conventions as "more likely to be composed of men of larger views, and more competent to decide," drawing on recent state successes where conventions had legitimized new governments without unanimous legislative consent, thereby proving their viability for binding sovereign acts.^[24] This preference aligned with the era's emphasis on deriving authority from the people, as evidenced by the Continental Congress's 1774 recommendation for colonies to form governments via "Conventions or Committees." These influences ensured Article V's dual ratification modes—legislatures or conventions—accommodated varying state contexts while prioritizing causal efficacy in amendment processes; empirical outcomes from state conventions, such as Pennsylvania's 1776 assembly adopting a unicameral legislature after public elections, validated the approach's ability to harness broader consent amid crisis. By September 17, 1787, the final text reflected this synthesis, permitting Congress to select conventions when amendments risked legislative obstruction, a safeguard rooted in the demonstrated resilience of state-level precedents against parochial interests.^[24]

Purpose and Theoretical Justification

Bypassing Entrenched Legislative Interests

The ratification mode specified in Article V empowers Congress to opt for state conventions over legislatures when proposing amendments, thereby enabling circumvention of legislative bodies potentially insulated from shifts in public sentiment by institutional inertia or localized pressures.^[25] This alternative arises from the clause granting Congress discretion in selecting the ratification procedure, a provision adopted during the Constitutional Convention on September 10, 1787, to afford adaptability in overcoming barriers posed by entrenched state assemblies.^[25] Framers like James Madison envisioned conventions as ad hoc gatherings of delegates elected expressly for ratification, minimizing the sway of ongoing partisan alliances or committee structures that often prioritize parochial gains over broader constitutional adjustments.^[25] In practice, this mechanism addresses scenarios where state legislatures, shaped by uneven districting or dominant factions, resist amendments aligning with evolving majoritarian views. For instance, during the Prohibition era, many legislatures overrepresented rural constituencies favoring retention of the Eighteenth Amendment, despite urban and national momentum for repeal; malapportionment amplified "dry" interests, entrenching opposition through supermajority requirements.^[8] Congress invoked conventions for the Twenty-First Amendment on February 20, 1933, prompting special elections in 39 states where delegates, unbound by legislative precedents, ratified repeal in 36 states by December 5, 1933—far swifter than legislative channels would have permitted.^[8] This episode underscored the method's utility in diluting factional vetoes, as convention electorates more directly mirrored contemporaneous demographics and preferences, unencumbered by gerrymandered seats or incumbency advantages.^[8] Theoretically, conventions mitigate risks of legislative capture by special interests, such as economic lobbies or ideological blocs that benefit from stasis, by reconstituting decision-making through temporary bodies less prone to careerist distortions.^[1] Unlike perpetual legislatures, where logrolling sustains unpopular policies, ratification conventions dissolve post-vote, aligning incentives toward singular scrutiny of the amendment's merits rather than reciprocal deal-making.^[1] Although invoked only once across 27 amendments, this option preserves Article V's resilience against ossification, ensuring amendments can proceed when legislatures, reflecting dated electoral maps or minority vetoes, obstruct necessary reforms.^[1]

Promoting Direct Popular Input

State ratifying conventions under Article V of the U.S. Constitution provide a mechanism for states to ratify proposed amendments through delegates elected specifically for that purpose, thereby facilitating a more immediate expression of popular sovereignty compared to ratification by state legislatures.^[1] This approach allows voters to select representatives unbound by ongoing legislative duties or partisan commitments, focusing deliberation solely on the amendment at hand and aligning outcomes more closely with contemporaneous public will.^[26] Proponents argue that such conventions embody the principle of "We the People" as the ultimate source of constitutional authority, instantiating tempered popular sovereignty by channeling mass input through structured, deliberative assemblies rather than indirect representation.^[27] The framers incorporated this option to ensure amendments reflect genuine consensus among the populace, drawing from the state conventions that ratified the original Constitution in 1787–1788, where fewer than 2,000 delegates—elected ad hoc—debated and approved the document, underscoring a deliberate preference for popular input over legislative proxies.^[28] Alexander Hamilton, in Federalist No. 85, defended the amendment process as safeguarding against errors in the founding document by enabling revisions through modes akin to initial ratification, implying conventions' role in directly engaging "the sense of the people" to validate or alter the fundamental law. This theoretical design counters the potential inertia of elected legislatures, which may prioritize reelection or factional alliances over constitutional fundamentals, thus preserving the republican form while incorporating democratic elements for high-stakes changes.^[29] In practice, the convention method's emphasis on direct input was evidenced in the Twenty-First Amendment's ratification in 1933, where 38 states opted for conventions to repeal Prohibition, enabling swift mobilization of public sentiment—often overriding "dry" legislative holdouts—and completing the process in under 10 months, faster than legislative routes in many cases.^[30] Scholars note this as a rare but illustrative instance of conventions functioning as a "safety valve" for popular overrides, though its infrequent use highlights the method's deliberate reservation for extraordinary circumstances requiring broad, unmediated consent.^[31] By mandating supermajorities across three-fourths of states, the process tempers raw majoritarianism with federalist checks, ensuring amendments arise from distributed popular deliberation rather than transient national majorities.^[32]

Federalism Implications

The provision for ratification of constitutional amendments by state conventions, as authorized under Article V, enables Congress to circumvent state legislatures when their composition may not accurately represent contemporary popular sentiment within the states, thereby preserving a mechanism for more direct state sovereignty in altering the federal compact. This option was invoked solely for the Twenty-First Amendment in 1933, where Congress specified conventions to ratify the repeal of Prohibition, avoiding rural-dominated legislatures that disproportionately favored continued federal enforcement due to malapportionment favoring "dry" interests over urban populations seeking repeal. By devolving authority over alcohol regulation to the states via Section 2 of the amendment—which prohibits the transportation of intoxicating liquors into states in violation of their laws—the convention method facilitated a rapid restoration of state powers, limiting federal commerce clause intrusions and exemplifying how alternative ratification can recalibrate federal-state authority balances.^[8]^[33] This ratification pathway underscores federalism by empowering states to engage constitutional changes through ad hoc bodies elected specifically for the purpose, often via at-large slates functioning as referenda, which enhance transparency and accountability compared to ongoing legislative sessions. In the 1933 process, 38 states convened such bodies, with procedures varying by state—some requiring simple majorities, others supermajorities—demonstrating autonomy in execution and preventing uniform federal imposition on state mechanics. Such flexibility aligns with the Framers' intent to treat states as distinct sovereigns capable of checking national overreach, as conventions can override legislative inertia on amendments that expand or contract federal scope without relying on bodies potentially aligned with entrenched national interests.^[8]^[33] Broader implications include the potential for ratifying conventions to invigorate federalism in future amendments aimed at curbing centralized power, such as fiscal restraints or term limits, by insulating the process from legislative capture and ensuring ratification reflects dispersed state wills rather than concentrated political classes. Empirical success in 1933, where ratification occurred in under 10 months across 36 states, contrasts with slower legislative processes for other amendments and highlights the method's utility in addressing federal-state disequilibria without congressional monopoly on amendment dynamics. However, reliance on this untested mechanism beyond isolated cases risks procedural disputes over state implementation, potentially straining federalist comity if conventions diverge sharply in fidelity to the proposed text.^[34]^[8]

Criticisms and Practical Drawbacks

Logistical Complexities in Convening

The absence of explicit federal guidelines in Article V of the U.S. Constitution for convening state ratifying conventions leaves procedural details to individual states, resulting in disparate approaches that can undermine uniformity in the ratification process.^[1]^[33] States typically rely on their own constitutions, statutes, or ad hoc legislative enactments to call conventions, select delegates, and establish rules, with no Supreme Court precedents mandating specific methods. This variability introduces risks of inconsistency, as some states might opt for popular elections while others appoint delegates via legislatures, potentially leading to challenges over the legitimacy of a convention's composition or vote.^[1] Delegate selection poses particular hurdles, often requiring special elections or appointments that demand significant administrative effort and resources. In the sole historical instance of widespread use—ratification of the Twenty-First Amendment in 1933—many states held elections for "wet" (pro-repeal) or "dry" (anti-repeal) delegate slates, involving ballot access, campaigning, and voter mobilization amid the Great Depression's economic constraints.^[1]^[33] Pledging delegates to vote in predetermined ways, as occurred in nearly all 38 ratifying conventions, raises questions of whether such bindings violate principles of free deliberation, though courts have not invalidated them when aligned with popular mandates.^[1] Disputes over delegate eligibility, such as residency requirements or conflicts of interest, could precipitate litigation, further complicating assembly in politically divided states. Convening the conventions themselves entails coordinating sessions, achieving quorums, and adopting procedural rules without a national template, amplifying logistical burdens. States must allocate funding for venues, staffing, and travel—estimated in modern terms to exceed millions per state for large delegations—while synchronizing timelines to meet Congress's "reasonable time" limit for ratification, which lacks precise definition.^[1] In the Twenty-First Amendment case, conventions often lasted only days due to overwhelming support for repeal, minimizing debate but highlighting how weaker consensus could extend proceedings into weeks or months, straining state budgets and delaying national outcomes.^[33] Absent statutory provisions in many states, legislatures might improvise rules, inviting challenges to quorum validity or voting thresholds that could invalidate ratifications post-facto. These complexities contribute to the method's rarity, as the effort of mobilizing 38 states outweighs the simplicity of legislative ratification in most scenarios, particularly when amendments enjoy broad support.^[1] Potential for procedural errors, such as failures in notice requirements or delegate certification, has historically deterred invocation beyond exigent cases like Prohibition's repeal, where public urgency overcame inertia.^[33] In contemporary contexts, partisan polarization could exacerbate delays through recounts or injunctions, underscoring the causal link between decentralized logistics and practical aversion to conventions.

Potential for Partisan Manipulation

State legislatures possess significant discretion in determining the procedures for convening ratifying conventions and selecting delegates, as neither the U.S. Constitution nor federal precedent mandates specific methods, thereby exposing the process to potential partisan control by legislative majorities.^[33] For instance, legislatures could opt to appoint delegates directly, allowing party leaders to select individuals aligned with prevailing political interests rather than broader public sentiment on the proposed amendment. Alternatively, if elections are chosen, gerrymandered districts or restrictive ballot access rules could favor one party's candidates, skewing representation toward entrenched interests. Such mechanisms mirror broader concerns in delegate selection for constitutional processes, where state authorities' unchecked authority risks substituting elite preferences for popular input.^[35] In the sole historical instance of widespread use—ratification of the Twenty-First Amendment in 1933—many states mitigated overt manipulation by holding popular elections for delegates, often framing contests as "wet" (pro-repeal) versus "dry" (anti-repeal) slates rather than strict party lines, which facilitated rapid, near-unanimous approval across 36 states within ten months.^[36] However, delegate selection varied by state, with some legislatures influencing procedures or appointing members, and cross-party dynamics on Prohibition limited partisan exploitation at the time. Empirical analysis of these 1933 referenda reveals that support for repeal correlated with urban population density and Democratic Party strength, indicating some underlying partisan currents but no systemic rigging that derailed the outcome.^[37] This variability underscores how state-specific rules can introduce bias without uniform safeguards, though the amendment's popularity constrained abuse. Theoretical critiques highlight amplified risks in a modern polarized environment, where state legislative majorities—often secured through gerrymandering—could delay conventions, impose loyalty oaths, or design multi-member districts to entrench outcomes favoring national party agendas over state consensus.^[38] Absent federal oversight, such tactics could undermine the convention mode's intent to bypass legislative entrenchment, as originally envisioned to enable direct popular ratification on contentious issues like Prohibition repeal. Legal scholars note that while courts have deferred to state procedures in past ratifications, challenges to overtly partisan methods could invite litigation, further politicizing the process without resolving underlying vulnerabilities.^[1] Proponents of reform argue for congressional specification of neutral selection standards to curb these potentials, though no such mandates exist.^[39]

Empirical Outcomes from Historical Use

State ratifying conventions have been employed twice in U.S. history for federal ratification purposes: first, to approve the original Constitution under Article VII, and second, to ratify the Twenty-First Amendment under Article V. In the 1787-1788 process, conventions in nine states approved the Constitution by June 21, 1788, meeting the threshold for it to take effect despite opposition from entrenched legislative interests in some states that favored the Articles of Confederation.^[40] ^[41] This method enabled direct election of delegates focused solely on ratification, resulting in narrow but successful majorities in contested states like Massachusetts (187-168 on February 6, 1788) and Virginia (89-79 on June 25, 1788), which averted deadlock and facilitated the new government's formation by March 4, 1789.^[3] The process demonstrated conventions' capacity to reflect popular sentiment more responsively than legislatures, as evidenced by subsequent concessions like the Bill of Rights to secure remaining ratifications, with all thirteen states eventually approving by May 29, 1790.^[41] The Twenty-First Amendment's ratification via conventions, proposed by Congress on February 20, 1933, provides the sole Article V instance, chosen to circumvent "dry" state legislatures resistant to repealing Prohibition amid the Great Depression's economic pressures for alcohol revenue.^[42] Utah's convention became the thirty-sixth to ratify on December 5, 1933, achieving the three-fourths threshold in approximately ten months—far faster than the multi-year timelines for most legislative ratifications, such as the Nineteenth Amendment's fourteen-month span or the Twenty-Seventh Amendment's 203-year delay. Conventions yielded overwhelming approvals, including unanimous or near-unanimous votes in states like Maine (72-0 on December 6, 1933) and Montana (45-4 on August 6, 1934), aligning with public majorities favoring repeal despite thirteen states' ongoing local prohibitions.^[42] This expedited outcome empowered wet-leaning electorates to override legislative inertia, restoring state-level alcohol regulation without federal overreach, though it highlighted risks of uneven implementation as "dry" states initially resisted. Empirically, these cases illustrate conventions' effectiveness in accelerating ratification when legislatures are polarized or malapportioned, achieving success in both instances where the alternative mode might have stalled progress—evident in the original framing's bypass of anti-federalist assemblies and the 1933 repeal's circumvention of prohibitionist holdouts.^[8] No failures occurred in convening or ratifying under these mechanisms, with delegate elections ensuring representation tied to the specific issue, though close margins in 1788 underscore dependence on mobilized public debate rather than guaranteed consensus.^[3] Absent further applications, outcomes suggest utility for bypassing entrenched interests but limited data on scalability or partisan distortions in modern contexts.^[8]

Primary Historical Application

Ratification of the Twenty-First Amendment

The Twenty-First Amendment to the United States Constitution, which repealed the Eighteenth Amendment instituting national Prohibition, was proposed by the 72nd Congress on February 20, 1933, through House Joint Resolution 11.^[9]^[43] In a departure from prior amendments, Congress specified ratification by specially elected state conventions rather than state legislatures, marking the sole use of this Article V mechanism.^[20] This method was selected to circumvent legislatures often skewed toward rural, pro-Prohibition ("dry") interests that malapportioned representation and failed to align with widespread urban public demand for repeal, exacerbated by economic pressures of the Great Depression.^[8] The amendment's text mandated ratification by conventions in three-fourths of the states—36 out of 48 at the time—within a seven-year period from proposal.^[9]^[43] State conventions were convened starting in spring 1933, with delegates tasked solely to vote on the single proposition of repeal.^[20] The process unfolded amid intense national debate, with wet (anti-Prohibition) forces leveraging direct elections to secure pro-repeal majorities in most conventions.^[8] Ratification culminated on December 5, 1933, when Utah's convention became the 36th to approve, certifying the amendment's validity despite Utah's dry leanings; subsequent conventions brought the total to 38 affirmatives.^[20]^[44] The Secretary of State proclaimed it effective on December 5, 1933, ending federal Prohibition enforcement.^[45] This swift convention-based ratification demonstrated the method's potential to reflect popular will more directly than legislative channels in bypassing entrenched interests.^[8]

Delegate Selection Processes

The selection of delegates to state ratifying conventions falls under state discretion, as Article V of the United States Constitution specifies neither the manner of convening conventions nor the process for choosing delegates.^[1]^[33] In the sole historical instance of widespread use—ratification of the Twenty-First Amendment repealing Prohibition—thirty-seven states held popular elections to select delegates between April and November 1933.^[36] These special elections were governed by state laws enacted by legislatures, which typically apportioned delegates according to congressional districts, senatorial districts, or population proportions, with numbers ranging from a few dozen to over 150 per state.^[46] Candidates often ran on nonpartisan ballots explicitly pledged as "wets" (favoring repeal) or "drys" (opposing it), allowing voters to directly influence the convention's outcome on the singular issue of amendment ratification.^[46] Election mechanics varied slightly by state but emphasized direct voter input to circumvent potentially biased legislatures beholden to dry interests. In Michigan, for example, county election commissions nominated candidates, who then appeared on ballots grouped by their pledged position, with 114 delegates elected statewide on April 10, 1933.^[47] Utah conducted its election on November 7, 1933, choosing among slates of 21 pro-repeal or 21 anti-repeal delegates, resulting in a unanimous pro-repeal convention.^[48] Similarly, in Missouri, 50 delegates were elected—one from each state senatorial district plus 15 at-large—under a gubernatorial-called election.^[49] Two states deviated from popular delegate elections, opting for alternative mechanisms such as preliminary referenda on convening the convention itself before delegate selection, though both ultimately failed to ratify.^[36]^[50] This elective approach ensured delegates represented popular sentiment more directly than legislative bodies, which had often sustained Prohibition despite shifting public opinion during the Great Depression. Voter turnout in these elections averaged around 50% of eligible voters, with pro-repeal slates prevailing in 36 states, enabling swift ratification by December 5, 1933.^[36]^[46]

Outcomes and Speed of Ratification

The ratification of the Twenty-First Amendment proceeded with unprecedented speed, taking approximately nine months from congressional proposal on February 20, 1933, to certification on December 5, 1933, after Utah's convention provided the 36th affirmative vote required under Article V.^[20] ^[9] This timeline outpaced all prior amendments, which typically required years due to reliance on state legislatures often beholden to entrenched interests; the convention mechanism, combined with acute public dissatisfaction, enabled direct expression of popular will through specially elected delegates.^[45] The rapid pace stemmed from empirical failures of the Eighteenth Amendment, including pervasive illegal production and consumption—estimated at over 80% noncompliance in some regions—fueled organized crime syndicates, enforcement costs exceeding $500 million annually by 1930, and foregone tax revenues amid the Great Depression's fiscal strains, prompting states to prioritize repeal for economic relief.^[51] ^[36] Outcomes across the 36 ratifying conventions were decisively favorable, with delegates approving repeal by margins that mirrored overwhelming "wet" victories in preceding elections for convention delegates, where pro-repeal candidates secured majorities exceeding 60% in aggregate state tallies.^[37] Typical votes reflected broad consensus, such as Michigan's 99-1 on April 10, 1933, as the first state to act, and similarly lopsided results in early adopters like Wisconsin (unanimous) and Rhode Island (31-0), underscoring causal drivers like urban-rural divides favoring repeal in industrialized areas hit hardest by prohibition's black market distortions.^[9] Even in historically "dry" strongholds, ratification succeeded, as in Utah's pivotal 1933 convention, though later states like Montana (45-4 in 1934) continued the pattern post-threshold.^[20] Four states rejected via convention or legislature, and two did not act, but the process validated the mechanism's efficacy for bypassing legislative inertia when public sentiment aligned strongly against a failed policy.^[52] This empirical success highlighted conventions' potential for swift, representative ratification under conditions of evident policy breakdown, unmediated by institutional biases toward status quo preservation.

State-Level Mechanisms

Provisions in Delaware

Delaware's provisions for state ratifying conventions are codified in Title 15, Chapter 77 of the Delaware Code, enacted through legislation approved on April 11, 1933, to enable action on federal constitutional amendments proposed by Congress for ratification by state conventions under Article V.^[53]^[54] These mechanisms activate upon congressional specification of convention ratification, with the governor issuing a proclamation to schedule an election for delegates, either at a special election or the next general election occurring more than three months after the amendment's proposal.^[55] Seventeen delegates are elected statewide, apportioned as seven from New Castle County, five from Kent County, and five from Sussex County, with qualified voters—those eligible for General Assembly elections—selecting from candidates nominated by petitions bearing at least 100 signatures and declaring their position as "for ratification," "against ratification," or "uncommitted."^[56]^[57] Ballots may include separate designations for each stance if directed by the governor, and the highest vote recipients in each category advance, aiming for a balanced delegation that reflects voter preferences on the amendment.^[58] The convention convenes 28 days after the election at noon in the Senate Chamber in Dover, where delegates elect a president, secretary, and other officers; adopt procedural rules; and maintain a journal recording each member's vote on ratification.^[59] Ratification requires a simple majority of delegates present, after which duplicate certificates of the outcome are executed under the convention's seal and transmitted to the U.S. Secretary of State if approved, or filed with state archives if rejected.^[60] Vacancies are filled by alternates elected alongside primary delegates, ensuring continuity.^[58] These procedures, designed for efficiency and transparency, were originally implemented for the Twenty-First Amendment but apply generally to any future convention-modeled ratification.^[54]

Provisions in Florida

Florida's provisions for state ratifying conventions are codified in Chapter 107 of the Florida Statutes, titled "Conventions to Ratify Amendments to the United States Constitution." These statutes govern the process when Congress proposes a constitutional amendment under Article V and specifies ratification by conventions in the states, rather than by state legislatures. The framework emphasizes a special election for delegates, ensuring popular input while limiting the convention's scope to ratification or rejection of the specific amendment.^[61] Upon receipt of Congress's proposal requiring state conventions, the Governor issues a call for a convention in Florida. A special statewide election selects 67 delegates, a number fixed by statute to reflect representation considerations. Candidates must file declarations with the Department of State, accompanied by a $25 filing fee and petitions bearing signatures from at least 500 qualified electors. Ballots categorize candidates explicitly by their pledged position: favoring ratification, opposing ratification, or unpledged, promoting transparency in delegate selection and allowing voters to influence outcomes based on amendment stance. The election follows general election procedures, with qualified electors determined from the most recent gubernatorial vote, and results canvassed by county canvassing boards and the state Elections Canvassing Commission to certify the top 67 vote recipients as delegates.^[62] Delegates convene at the State Capitol in Tallahassee on the second Tuesday following the election. The convention operates under self-adopted rules but possesses authority solely to ratify or reject the proposed amendment by majority vote—requiring at least 34 affirmative votes out of 67 for ratification. No additional powers extend to proposing amendments, debating unrelated matters, or binding future sessions; the body dissolves upon certification of its decision to the U.S. Secretary of State. Expenses are drawn from the state's General Revenue Fund, subject to audit by the Chief Financial Officer.^[63] This elective, limited-scope mechanism contrasts with legislative ratification, incorporating direct electoral accountability while adhering strictly to federal directives under Article V. The statutes, originating from Chapter 16180 (1933) and amended periodically, have not been invoked since the Twenty-First Amendment's ratification era, during which Florida opted for legislative action instead.^[61]

Provisions in New Mexico

New Mexico's statutory framework for ratifying federal constitutional amendments proposed by Congress for state conventions is outlined in Chapter 1, Article 18 of the New Mexico Statutes. Upon receipt of official notification from Congress of such a proposal, the governor is required to issue a proclamation within ten days convening the state legislature to sit as a ratification convention for the exclusive purpose of voting to ratify or reject the amendment.^[64] This process designates the sitting members of the legislature—42 senators and 70 representatives—as the convention delegates, eliminating the need for a separate election of special delegates.^[65] The statute, originally enacted in 1969, reflects a streamlined mechanism relying on the bicameral legislature's existing structure rather than convening an ad hoc body.^[64] The convention operates under the legislature's standard procedures unless otherwise specified, with ratification determined by a vote of the assembled body. Proceedings must be certified by the presiding officers and attested by the chief clerk of the house and secretary of the senate, following protocols akin to those for legislative actions on federal amendments submitted to state legislatures. This certification is then transmitted to the Secretary of State and forwarded to the U.S. Secretary of State. No provisions in the statute address quorum requirements, voting thresholds beyond a simple majority implication, or mechanisms for debate limitations, deferring to legislative rules. New Mexico has not invoked this convention mechanism historically, as the only instance of Congress proposing ratification by state conventions—the Twenty-First Amendment in 1933—occurred prior to the 1969 statute, with the state ratifying via its legislature on February 14, 1933. The provisions remain in effect as of 2024, providing a predefined pathway distinct from states requiring popular election of delegates, such as South Carolina or Indiana during the 1933 repeals.^[66]

Provisions in Vermont

Vermont's statutory framework for U.S. constitutional amendment ratification by convention is codified in Title 17, Chapter 31 of the Vermont Statutes Annotated (V.S.A.), titled "Conventions to Amend U.S. Constitution."^[67] This chapter establishes a process distinct from legislative ratification, emphasizing direct election of delegates by voters to deliberate and vote on proposed amendments.^[67] Upon Congress submitting a proposed amendment to the states, the governor must issue a call for the election of delegates within 60 days, scheduling the election between three and twelve months thereafter, provided it avoids occurring within 40 days of a general or primary election. The convention consists of 14 delegates elected at large statewide by qualified voters, reflecting Vermont's 14 counties. To facilitate the election, the governor, lieutenant governor, and speaker of the House appoint 28 candidates—14 favoring ratification and 14 opposing—allocating one proponent and one opponent per county. Appointees must file written acceptance, after which ballots permit voters to select up to 14 delegates either by marking the "for ratification" or "against ratification" column header (endorsing all in that group) or by individually circling names across columns. Returns are canvassed by the governor, lieutenant governor, and speaker, with ties resolved by lot. The convention convenes in the Senate chamber at the State House in Montpelier between 20 and 30 days after the election. A quorum requires a majority of elected delegates (at least eight). Ratification occurs by majority vote of attending delegates, with the chair and secretary of state certifying the result to the U.S. secretary of state. If Congress prescribes specific rules for the convention, those federal directives supersede conflicting state provisions. These mechanisms, enacted to enable popular input bypassing the legislature, have not been invoked historically for federal amendment ratification.^[67]

Approaches in Other States

In states beyond those with uniquely detailed constitutional mandates, statutory frameworks for ratifying conventions under Article V typically emphasize special elections for delegates or deference to congressional directives, ensuring alignment with federal requirements while incorporating state electoral processes. Indiana, for example, codifies a procedure in its election laws whereby the governor issues a proclamation upon Congress proposing an amendment for convention ratification, triggering a special election for delegates within 60 days of the proclamation and no later than four months after receipt of the amendment text from the U.S. Secretary of State.^[68] This election may coincide with a general election if timing aligns, utilizing existing election infrastructure to facilitate direct voter selection of delegates.^[68] Wyoming adopts a more conditional approach, with its statutes activating primarily when Congress specifies the convention's manner through resolution or law, rendering conflicting state provisions inoperative and empowering state officers to implement the federal directives with equivalent legal force to domestic enactments.^[69] Absent explicit congressional guidance, the state defers to its broader constitutional amendment processes, potentially involving legislative oversight or ad hoc elections, but prioritizes fidelity to Article V's ratification mode.^[69] In the majority of other states lacking preemptive statutes, legislatures would convene ratifying conventions through enabling acts upon a congressional call, often mirroring the 1933 model for the Twenty-First Amendment where delegates were elected at-large via partisan slates in special referenda, allowing voters to pledge support or opposition to the proposal.^[1] This ad hoc flexibility underscores Article V's delegation of organizational authority to states, with no uniform federal mandate on delegate apportionment or binding instructions, though historical practice favors popular election over legislative appointment to reflect sovereign consent.^[33] Such variability has prompted debates on preemptively limiting delegate authority, as seen in recent state bills, but remains unresolved absent Supreme Court clarification.^[39]

Modern Relevance and Proposals

Debates in Article V Convention Movement

In the contemporary Article V convention movement, spearheaded by organizations like the Convention of States Project, which has obtained applications from 19 states as of December 2024 for a convention limited to proposing amendments on fiscal restraints, congressional term limits, and federal overreach limits, discussions on ratification methods emphasize the constitutional safeguard of requiring approval by three-fourths of states.^[70] Proponents within the movement, such as COS co-founder Mark Meckler, assert that ratification—whether by state legislatures or conventions—serves as a critical check against any "runaway" proposing convention, mirroring the process for congressionally proposed amendments, with no amendments taking effect without this supermajority threshold.^[71] This view holds that state legislatures, often aligned with movement goals in Republican-controlled chambers, would likely ratify targeted reforms like a balanced budget requirement, given historical patterns where 27 amendments passed via legislative ratification without convention involvement.^[30] A subset of advocates, drawing from the Twenty-First Amendment's precedent, favors Congress selecting state ratifying conventions to insulate the process from special interests and malapportioned legislatures, as occurred in 1933 when conventions enabled swift repeal of Prohibition amid urban-rural divides and liquor industry influence in some assemblies.^[8] Conventions, they argue, could enhance democratic legitimacy by allowing direct popular election of delegates, potentially accelerating ratification— the 21st Amendment achieved it in under 10 months across 36 states—compared to legislative gridlock, and providing transparency absent in many non-transcribed legislative sessions of the era.^[8] This position gains traction among those wary of gerrymandered legislatures blocking populist amendments, positing conventions as a tool for causal insulation from partisan capture. Critics within conservative circles, including some Heritage Foundation analysts skeptical of the proposing convention itself, contend that pushing for ratifying conventions risks unnecessary complications, as untested state-level mechanisms could invite litigation over delegate selection, instructions, and voting rules, unlike the familiar legislative route used for all prior amendments except the 21st.^[39] They highlight potential for conventions to amplify factionalism or external influences, such as referenda prohibitions under Supreme Court precedent barring outside controls on ratifiers, and argue that legislative ratification suffices given current statehouse majorities favorable to fiscal conservatism.^[71] Opponents outside the movement, like Common Cause, amplify these concerns by warning that conventions at either stage could destabilize ratification through unpredictable outcomes or economic uncertainty from prolonged disputes.^[72] These debates underscore a tension between reliability and innovation: legislative ratification offers predictability but vulnerability to entrenched powers, while conventions promise broader representation yet demand novel state procedures, with Congress holding ultimate discretion under Article V without binding state input on the mode.^[73] No modern applications specify a preferred ratification method, as that authority resides solely with Congress upon convening the proposing body.^[74]

Potential for Future Amendment Ratifications

Congress retains authority under Article V to specify ratification of proposed amendments by state conventions rather than legislatures, a mechanism unused since the Twenty-First Amendment in 1933 but theoretically available for future amendments.^[33] This choice allows Congress to circumvent potential obstruction in state legislatures, which may reflect outdated apportionment, partisan entrenchment, or interest-group influence misaligned with broader public sentiment.^[8] For the Twenty-First Amendment repealing Prohibition, Congress selected conventions explicitly to override rural-dominated legislatures that perpetuated the ban despite shifting national opinion, resulting in swift ratification by February 1933 after conventions in 38 states approved it within seven months.^[8]^[33] In contemporary contexts, ratifying conventions could prove viable for amendments addressing fiscal constraints, such as a balanced budget requirement, where state legislatures—often incentivized by short-term spending—might resist despite public support evidenced by polls showing majority favorability (e.g., 80% in a 2023 Rasmussen survey). Proponents argue this mode enables more direct expression of state-level popular sovereignty, as delegates could be elected specifically for the purpose, potentially mirroring the deliberative yet decisive nature of the 1933 process.^[1] However, logistical challenges persist, including undefined federal guidelines for convention composition, delegate selection, and voting rules, which Congress would need to prescribe via legislation, raising risks of litigation over procedural fairness.^[74] No modern congressional proposals have explicitly called for ratifying conventions, with recent Article V activity focusing instead on state applications for proposing conventions to limit federal overreach.^[39] Yet, amid polarized governance—where, as of 2025, divided state legislatures control in 18 states—the option could gain traction if Congress perceives legislative ratification as a barrier to reforms like congressional term limits, supported by resolutions in over 15 states but stalled federally.^[11] Critics, including constitutional scholars, caution that conventions might amplify populist pressures or enable factional capture if not structured with safeguards, though the single-amendment focus limits scope compared to proposing conventions.^[75] Empirical precedent from 1933 demonstrates feasibility, with conventions averaging 3-5 days per state and minimal reported irregularities, suggesting operational viability absent deliberate obstruction.^[8]

Unresolved Legal Questions

Several unresolved legal questions persist regarding state ratifying conventions under Article V of the U.S. Constitution, primarily due to their rare invocation—employed only once, for the Twenty-First Amendment in 1933—and the absence of detailed procedural guidance in the text.^[1] Congress holds discretion to select the ratification mode (state legislatures or conventions), as affirmed in United States v. Sprague (282 U.S. 716, 1931), but lacks authority to prescribe operational details, leaving implementation to the states.^[76] This delegation creates ambiguity in areas such as delegate selection, convention structure, and binding mechanisms, with no Supreme Court precedents resolving most intricacies beyond general principles.^[77] A core uncertainty concerns the formation and operation of conventions, including delegate selection methods and voting protocols. Article V provides no standards, allowing states to devise processes—as seen in the 1933 conventions, where approaches ranged from popular elections to legislative appointments—yet raising questions about federal constitutional constraints on representation, such as per capita versus per-state voting or minimum quorum requirements.^[1] Legal scholars note that while states retain flexibility, untested limits could invalidate proceedings if deemed to undermine the convention's deliberative purpose, akin to the original state ratifying conventions of 1787–1788.^[76] Similarly, the extent to which conventions may deliberate beyond a simple yes-or-no vote on the proposed amendment remains debated, though historical practice for the Twenty-First Amendment involved minimal discussion due to overwhelming support.^[1] Delegate autonomy presents another puzzle: whether states may impose binding instructions, pledges, or referenda on convention delegates. During Twenty-First Amendment ratifications, some states required delegates to pledge support for repeal, prompting challenges unresolved by courts, with arguments favoring independent judgment to mirror the framers' intent for unbound deliberation.^[76] Hawke v. Smith (253 U.S. 221, 1920) invalidated state referenda as additives to legislative ratification, suggesting conventions cannot be similarly encumbered, but no ruling addresses convention-specific bindings, leaving open whether such mandates violate Article V's structure.^[77] Proposals to equate referenda with conventions have been floated but lack endorsement, as they may not constitute the representative assembly contemplated.^[76] Rescission of convention ratifications adds further ambiguity, distinct from legislative rescissions debated under Coleman v. Miller (307 U.S. 433, 1939), which treated timing and reversals as political questions. Conventions, as ad hoc bodies, may preclude straightforward rescission, yet no precedent clarifies if a state legislature or subsequent convention could revisit a prior convention's action, potentially complicating future uses.^[77] Congressional deadlines for ratification, enforceable as political matters per Coleman, apply equally but untested for conventions, as the Twenty-First Amendment's seven-year limit succeeded without judicial intervention.^[1] These gaps underscore Article V's interpretive voids, where state innovations could invite litigation absent congressional specification or Supreme Court clarification.^[76]

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