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| Other acceptable names for a convention for proposing amendments are //amendments convention//, //convention of the states//, and //Article V convention//. (For reasons explained in section II it is inaccurate and misleading to call a convention for proposing amendments a "constitutional convention.") | Other acceptable names for a convention for proposing amendments are //amendments convention//, //convention of the states//, and //Article V convention//. (For reasons explained in section II it is inaccurate and misleading to call a convention for proposing amendments a "constitutional convention.") |
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| The congressional-proposal method has been used several times to correct //state //abuses. For example, Congress proposed the 14th, 15th, and 24th Amendments to restrain state oppression of minorities.<sup>[[#i|1]]</sup> But thus far the states have never exercised their corresponding power to correct //federal //abuses. As a result, the constitutional design has become unbalanced. | The congressional-proposal method has been used several times to correct //state //abuses. For example, Congress proposed the 14th, 15th, and 24th Amendments to restrain state oppression of minorities.((The Fourteenth Amendment extended certain federal guarantees to all citizens; the Fifteenth Amendment protected the right to vote, despite "race, color, or previous condition of servitude;" and the Twenty-Fourth Amendment eliminated the poll tax system sometimes used to suppress voting by minorities.)) But thus far the states have never exercised their corresponding power to correct //federal //abuses. As a result, the constitutional design has become unbalanced. |
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| To correct for this imbalance, the American Legislative Exchange Council (ALEC) has recommended several constitutional amendments to limit some of the worst abuses of federal power—among these, a balanced budget amendment (BBA).<sup>[[#ii|2]]</sup> Except for repeal of Prohibition, however, Congress has not forwarded to the states any amendment limiting its own power since approving the Bill of Rights in 1789. Thus, despite recurrent hopeful talk about how Congress might adopt a BBA or other corrective amendments on its own, history suggests reformers cannot depend on that. The states must do the job, as our Founders expected them to do. | To correct for this imbalance, the American Legislative Exchange Council (ALEC) has recommended several constitutional amendments to limit some of the worst abuses of federal power—among these, a balanced budget amendment (BBA).((ALEC has also recommended, among others, (1) a general BBA application (2011), (2) the Vote on Taxes Amendment (2010), (3) the National Debt Relief Amendment (2011) (which requires approval by a majority of the state legislatures before the federal government can go deeper into debt), (4) the Repeal Amendment (2011) (permitting two-thirds of state legislatures to invalidate federal laws and regulations), (5) An Accountability in Government Amendment (1996) (limiting federal mandates on states), (6) a Government of the People Amendment (1996) (similar to the Repeal Amendment, but with a seven-year repeal limit), and (7) a States' Initiative Amendment (1996) (permitting three quarters of the states to propose amendments without a convention, subject to congressional veto). To see model legislation on any of these bills, contact Jonathan Williams at 202-466-3800 or [[mailto:jwilliams@alec.org?subject=Model legislation on amendment bills|jwilliams@alec.org]].)) Except for repeal of Prohibition, however, Congress has not forwarded to the states any amendment limiting its own power since approving the Bill of Rights in 1789. Thus, despite recurrent hopeful talk about how Congress might adopt a BBA or other corrective amendments on its own, history suggests reformers cannot depend on that. The states must do the job, as our Founders expected them to do. |
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| Although state lawmakers have initiated the state application and convention process many times, they never have carried it to completion. Historically, there are many reasons for this, but since the 1960s a principal reason for this neglect has been alarmism based on misinformation (a topic explained later in section V). Indeed, many of the writings published about the state application and convention process since the 1960s have been based more on guesswork than on serious historical or legal investigation. Many more writings on the subject are simply briefs promoting an agenda rather than a source of complete and accurate information. However, there have been a few solid studies of the process, and the recommendations in this Handbook are based on their research and conclusions (see Appendix D). | Although state lawmakers have initiated the state application and convention process many times, they never have carried it to completion. Historically, there are many reasons for this, but since the 1960s a principal reason for this neglect has been alarmism based on misinformation (a topic explained later in section V). Indeed, many of the writings published about the state application and convention process since the 1960s have been based more on guesswork than on serious historical or legal investigation. Many more writings on the subject are simply briefs promoting an agenda rather than a source of complete and accurate information. However, there have been a few solid studies of the process, and the recommendations in this Handbook are based on their research and conclusions (see Appendix D). |
| During the Founding Era, a "convention" was usually an //ad hoc //assembly designed to pinch-hit for a legislature. Today we tend to think of a convention as a "constitutional convention," but during the Founding Era most of those gatherings were not "constitutional" at all. Most were simply task forces assigned to recommend solutions to pre-specified problems. Others were established to ratify the work done by others. The Constitution authorizes three kinds of limited purpose conventions: One kind to ratify the Constitution itself, another to ratify amendments, and a third to act as a task force to recommend solutions to pre-specified problems. The convention for proposing amendments is in the third category. | During the Founding Era, a "convention" was usually an //ad hoc //assembly designed to pinch-hit for a legislature. Today we tend to think of a convention as a "constitutional convention," but during the Founding Era most of those gatherings were not "constitutional" at all. Most were simply task forces assigned to recommend solutions to pre-specified problems. Others were established to ratify the work done by others. The Constitution authorizes three kinds of limited purpose conventions: One kind to ratify the Constitution itself, another to ratify amendments, and a third to act as a task force to recommend solutions to pre-specified problems. The convention for proposing amendments is in the third category. |
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| The historical record tells us what the Founders had in mind when they authorized a convention for proposing amendments: They envisioned an interstate or "federal" convention—that is, an assembly composed of state delegations ("committees") responsible to their respective state legislatures and operating, at least initially, according to a rule of one state/one vote. Although the fact is not widely known today, inter-colonial and (after Independence) interstate conventions were commonplace during the 18 century: There were well over twenty of them.<sup>[[#iii|3]]</sup> They were modeled after diplomatic conventions among separate sovereignties. | The historical record tells us what the Founders had in mind when they authorized a convention for proposing amendments: They envisioned an interstate or "federal" convention—that is, an assembly composed of state delegations ("committees") responsible to their respective state legislatures and operating, at least initially, according to a rule of one state/one vote. Although the fact is not widely known today, inter-colonial and (after Independence) interstate conventions were commonplace during the 18 century: There were well over twenty of them.((For a survey of 18th century conventions, including the rules that governed them, see Robert G. Natelson, //Founding-Era Conventions and the Meaning of the Constitution's "Convention for Proposing Amendments," 65 Fla. L. Rev. 615 (2013).//)) They were modeled after diplomatic conventions among separate sovereignties. |
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| The agenda and powers of interstate conventions were fixed by the participating states, sometimes after congressional recommendation, sometimes not. Usually the agenda was fairly narrow. For instance, the interstate convention held in Yorktown, Pennsylvania in 1777 was entrusted only with issues of price inflation. The 1781 interstate convention held in Providence, Rhode Island was restricted to military supply for a single year. | The agenda and powers of interstate conventions were fixed by the participating states, sometimes after congressional recommendation, sometimes not. Usually the agenda was fairly narrow. For instance, the interstate convention held in Yorktown, Pennsylvania in 1777 was entrusted only with issues of price inflation. The 1781 interstate convention held in Providence, Rhode Island was restricted to military supply for a single year. |
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| The scope of a convention for proposing amendments is similarly narrow. As James Madison made clear, it is not what leading Founders called a "plenipotentiary convention." In other words, it is not an assembly with very wide authority, such as one charged with drafting or adopting a Constitution. //Thus, it is simply incorrect to refer to a convention for proposing amendments as a "constitutional convention." //They are different creatures entirely.<sup>[[#iv|4]]</sup> | The scope of a convention for proposing amendments is similarly narrow. As James Madison made clear, it is not what leading Founders called a "plenipotentiary convention." In other words, it is not an assembly with very wide authority, such as one charged with drafting or adopting a Constitution. //Thus, it is simply incorrect to refer to a convention for proposing amendments as a "constitutional convention." //They are different creatures entirely.((The Founding-Era evidence for distinguishing an Article V convention from a "constitutional convention" is overwhelming. //See// Robert G. Natelson, //Amending the Constitution by Convention: A More Complete View of the Founders' Plan// (Independence Institute, 2010) (updated and amended version of an earlier paper published by the Goldwater Institute), available at [[http://constitution.i2i.org/files/2010/12/IP_7_2010_a.pdf|http://constitution.i2i.org/files/2010/12/IP_7_2010_a.pdf]].)) |
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| The convention for proposing amendments was based on comparable provisions in state constitutions that predated the U.S. Constitution. One of these was Article 63 of the 1777 Georgia Constitution. It granted to a majority of counties the power to petition for an amendment, upon which "the assembly [legislature] shall order a convention to be called for that purpose, specifying the alterations to be made, according to the petitions preferred to the assembly by the majority of the counties as aforesaid." In other words, the Georgia Constitution enabled the counties to designate what kind of amendment they wanted, ordered the legislature to call the convention, and empowered that convention to write the specific language. | The convention for proposing amendments was based on comparable provisions in state constitutions that predated the U.S. Constitution. One of these was Article 63 of the 1777 Georgia Constitution. It granted to a majority of counties the power to petition for an amendment, upon which "the assembly [legislature] shall order a convention to be called for that purpose, specifying the alterations to be made, according to the petitions preferred to the assembly by the majority of the counties as aforesaid." In other words, the Georgia Constitution enabled the counties to designate what kind of amendment they wanted, ordered the legislature to call the convention, and empowered that convention to write the specific language. |
| In the U.S. Constitution two-thirds of state legislatures (now 34 of 50) petition instead of a majority of counties: | In the U.S. Constitution two-thirds of state legislatures (now 34 of 50) petition instead of a majority of counties: |
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| 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 Convention in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that . . . no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.<sup>[[#v|5]]</sup> (Italics added.) | 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 Convention in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that . . . no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.(([[historicaldocuments:constitution#article_v|U.S. Const., Art. V]].)) (Italics added.) |
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| As in the Georgia prototype, the U.S. Constitution grants named assemblies (legislatures, conventions) designated roles in the amendment process. The Constitution gives Congress authority to propose amendments and, for any amendment (however proposed), to choose among two modes of ratification. The Constitution also empowers state legislatures to force Congress to call an amendments convention and empowers the convention to propose. The Constitution further authorizes state legislatures and state conventions to ratify. This view of Article V—as a grant of enumerated powers to named assemblies—has been adopted by the U.S. Supreme Court. | As in the Georgia prototype, the U.S. Constitution grants named assemblies (legislatures, conventions) designated roles in the amendment process. The Constitution gives Congress authority to propose amendments and, for any amendment (however proposed), to choose among two modes of ratification. The Constitution also empowers state legislatures to force Congress to call an amendments convention and empowers the convention to propose. The Constitution further authorizes state legislatures and state conventions to ratify. This view of Article V—as a grant of enumerated powers to named assemblies—has been adopted by the U.S. Supreme Court. |
| **In summary, please note:** | **In summary, please note:** |
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| • Just as other parts of the Constitution grant Congress certain listed ("enumerated") powers, Article V also grants enumerated powers. Article V grants them to //named assemblies (conventions and legislatures) and not to states or the federal government as a whole.//<sup>[[#vi|6]]</sup> The executive branch of federal and state governments does not have any role in the amendment process. | • Just as other parts of the Constitution grant Congress certain listed ("enumerated") powers, Article V also grants enumerated powers. Article V grants them to //named assemblies (conventions and legislatures) and not to states or the federal government as a whole.//((The courts, including the Supreme Court, have affirmed this repeatedly. |
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| | Note that Article V grants eight distinct enumerated powers, four powers at the //proposal //stage and four at the //ratification //stage. At the proposal stage, the Constitution (1) grants to two-thirds of each house of Congress authority to propose amendments; (2) grants to two-thirds of the state legislatures power to require Congress to call a convention to propose amendments; (3) then empowers (and requires) Congress to call that convention; and (4) authorizes that convention to propose amendments. |
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| | At the ratification stage, (1) the Constitution authorizes Congress to select whether ratification shall be by state legislatures or state conventions; (2) if Congress selects the former method, the Constitution authorizes three fourths of state legislatures to ratify; (3) if Congress selects the latter method, the Constitution empowers (and requires) each state to call a ratifying convention; and (4) the Constitution further empowers three-fourths of those conventions to ratify.)) The executive branch of federal and state governments does not have any role in the amendment process. |
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| • Proposing amendments through a convention, as in Congress, is still only a method of //proposing// amendments. No amendment is effective unless ratified by three-fourths of the states (now 38 of 50). | • Proposing amendments through a convention, as in Congress, is still only a method of //proposing// amendments. No amendment is effective unless ratified by three-fourths of the states (now 38 of 50). |
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| Despite some language to the contrary from an old Supreme Court decision,<sup>[[#vii|7]]</sup> it is now clear that //the courts can and will resolve Article V disputes//. A court might have to decide whether a legislative resolution qualifies as an "application," applications are sufficient to require Congress to call a convention, or a convention resolution is a valid "proposal" that can be ratified. | Despite some language to the contrary from an old Supreme Court decision,((Coleman v. Miller, 307 U.S. 433 (1939). That language actually was not part of the ruling, but only //dicta// (non-authoritative side comments) by four justices.)) it is now clear that //the courts can and will resolve Article V disputes//. A court might have to decide whether a legislative resolution qualifies as an "application," applications are sufficient to require Congress to call a convention, or a convention resolution is a valid "proposal" that can be ratified. |
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| For state lawmakers, the bad news in judicial review is that groups opposed to amendments may sue to block them. The good news outweighs that, because it is better that the courts, rather than Congress, define and enforce the state application and amendment process. If Congress refuses to carry out the duties mandated by Article V, the courts can order Congress to do so. In addition, judicial review should protect the constitutional role of the state legislatures. Recall that the central purpose of the state application and convention process to enable state legislatures to bypass Congress in proposing amendments. Courts routinely construe legal provisions to further their central purpose. | For state lawmakers, the bad news in judicial review is that groups opposed to amendments may sue to block them. The good news outweighs that, because it is better that the courts, rather than Congress, define and enforce the state application and amendment process. If Congress refuses to carry out the duties mandated by Article V, the courts can order Congress to do so. In addition, judicial review should protect the constitutional role of the state legislatures. Recall that the central purpose of the state application and convention process to enable state legislatures to bypass Congress in proposing amendments. Courts routinely construe legal provisions to further their central purpose. |
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| <WRAP center round box 60%> | <WRAP center round box 60%> |
| The legislature of the State of %%_____________%% hereby applies to Congress, under the provisions of Article V of the Constitution of the United States, for the calling of a convention of the states limited to proposing an amendment to the Constitution of the United States requiring [//here state general nature of the amendment//].<sup>[[#viii|8]]</sup> | The legislature of the State of %%_____________%% hereby applies to Congress, under the provisions of Article V of the Constitution of the United States, for the calling of a convention of the states limited to proposing an amendment to the Constitution of the United States requiring [//here state general nature of the amendment//].((Appendix A contains model legislation that can be used to apply for a convention to discuss a balanced budget amendment.)) |
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| </WRAP> | </WRAP> |
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| An application probably lasts until it is duly rescinded. Some have argued that older applications grow "stale" after an unspecified time and lose their validity. However, this argument probably does not have merit. The power to rescind continues until the two-thirds threshold is reached, or perhaps shortly thereafter.<sup>[[#ix|9]]</sup> | An application probably lasts until it is duly rescinded. Some have argued that older applications grow "stale" after an unspecified time and lose their validity. However, this argument probably does not have merit. The power to rescind continues until the two-thirds threshold is reached, or perhaps shortly thereafter.((Exactly when the power to rescind ends has not been determined judicially, but presumably it ends when the application triggers larger legal consequences—i.e., when the 34-state threshold is reached, Congress calls the convention, or the convention actually meets. Once the 34-state threshold is reached, the call and meeting become merely "ministerial" (not discretionary), which would suggest that the power to rescind ends as soon as 34 states have applied.)) |
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| An application probably may provide that it is automatically terminated as of a particular date or on the occurrence of a specific event—as long as the terminating condition is not an effort to coerce Congress, other states, or the convention. Thus, a provision is most likely valid if it says, "This application, if not earlier rescinded, shall terminate on December 31, 2015." Also valid would be this language: "This application, if not earlier rescinded, shall be null and void if Congress shall propose a balanced budget amendment to the U.S. Constitution." On the other hand, courts may deem some kinds of automatic terminations to be coercive, and therefore void. A clear example would be a provision automatically terminating the application unless the convention followed specified rules or adopted an amendment in specified language. | An application probably may provide that it is automatically terminated as of a particular date or on the occurrence of a specific event—as long as the terminating condition is not an effort to coerce Congress, other states, or the convention. Thus, a provision is most likely valid if it says, "This application, if not earlier rescinded, shall terminate on December 31, 2015." Also valid would be this language: "This application, if not earlier rescinded, shall be null and void if Congress shall propose a balanced budget amendment to the U.S. Constitution." On the other hand, courts may deem some kinds of automatic terminations to be coercive, and therefore void. A clear example would be a provision automatically terminating the application unless the convention followed specified rules or adopted an amendment in specified language. |
| "//Aggregation" of applications//. When 34 state legislatures have submitted applications on the same subject, the Constitution //requires// Congress to call a convention for proposing amendments. Both the historical and legal background of Article V and modern commentary clarify that the congressional role at this point is merely "ministerial" rather than "discretionary." In other words, the Constitution assigns Congress a routine duty it must perform. It is important to note, however, that congressional receipt of 34 applications is not sufficient; those applications must relate to the same subject matter. | "//Aggregation" of applications//. When 34 state legislatures have submitted applications on the same subject, the Constitution //requires// Congress to call a convention for proposing amendments. Both the historical and legal background of Article V and modern commentary clarify that the congressional role at this point is merely "ministerial" rather than "discretionary." In other words, the Constitution assigns Congress a routine duty it must perform. It is important to note, however, that congressional receipt of 34 applications is not sufficient; those applications must relate to the same subject matter. |
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| Historically some members of Congress have tried to find excuses for avoiding any duty to call a convention.<sup>[[#x|10]]</sup> One possibility is that Congress may refuse to "aggregate" toward the two-thirds threshold any applications that try to dictate to the convention different ways of solving the same problem. Thus, if 17 states have applied for a clean balanced budget amendment and another 17 have applied for a balanced budget amendment with a requirement of a two-thirds vote to raise taxes, Congress may refuse to treat both groups as addressing the same subject. The more differences exhibited by the applications, the more justification Congress will have in refusing to aggregate them. | Historically some members of Congress have tried to find excuses for avoiding any duty to call a convention.((The late Senator Sam Ervin (D.-N.C.) reported disapprovingly on the obstructionism of some of his senatorial colleagues during the 1960s. Sam J. Ervin, Jr., //Proposed Legislation to Implement the Convention Method of Amending the Constitution//, 66 Mich. L. Rev. 875, 878 (1968-68).)) One possibility is that Congress may refuse to "aggregate" toward the two-thirds threshold any applications that try to dictate to the convention different ways of solving the same problem. Thus, if 17 states have applied for a clean balanced budget amendment and another 17 have applied for a balanced budget amendment with a requirement of a two-thirds vote to raise taxes, Congress may refuse to treat both groups as addressing the same subject. The more differences exhibited by the applications, the more justification Congress will have in refusing to aggregate them. |
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| One way to forestall such obstruction is to specify in the application that it be aggregated with certain other state applications. For example, an application may include the following language: | One way to forestall such obstruction is to specify in the application that it be aggregated with certain other state applications. For example, an application may include the following language: |
| //This process is for the states, not Congress//. In the past, well-meaning members of Congress have introduced bills to resolve issues that properly are for the state legislatures or for the convention to resolve. If adopted, these bills would have dictated how delegates are selected, how many delegates each state may have at the convention, and what voting and other rules the convention must follow. | //This process is for the states, not Congress//. In the past, well-meaning members of Congress have introduced bills to resolve issues that properly are for the state legislatures or for the convention to resolve. If adopted, these bills would have dictated how delegates are selected, how many delegates each state may have at the convention, and what voting and other rules the convention must follow. |
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| That kind of legislation is probably unconstitutional for several reasons. First, congressional efforts to control the convention would handicap its fundamental purpose as a mechanism for the //states //to amend the Constitution without interference from Congress. Also, the historical record shows that such provisions exceed the scope of what the Constitution means by "calling" an interstate convention. The power to "call" an interstate convention authorizes Congress only to count and categorize the applications by subject matter, announce on what subjects the two-thirds threshold has been reached, and set the time and place of the convention. Any further prescriptions by Congress exceed the scope of powers reasonably incidental to the constitutional power to "call."<sup>[[#xi|11]]</sup> | That kind of legislation is probably unconstitutional for several reasons. First, congressional efforts to control the convention would handicap its fundamental purpose as a mechanism for the //states //to amend the Constitution without interference from Congress. Also, the historical record shows that such provisions exceed the scope of what the Constitution means by "calling" an interstate convention. The power to "call" an interstate convention authorizes Congress only to count and categorize the applications by subject matter, announce on what subjects the two-thirds threshold has been reached, and set the time and place of the convention. Any further prescriptions by Congress exceed the scope of powers reasonably incidental to the constitutional power to "call."((An "incidental" power is an unmentioned and subordinate power implicitly granted along with a power expressly granted. The link is created by the intent behind the document, generally shown by custom or necessity. When the Constitution grants a specified power it generally grants incidentals as well. The Constitution's direction to Congress to call a convention of the states includes authority to set the time and place because that authority is properly incidental. On the other hand, some powers are too substantial to be incidents of a mere power to call, such as prescribing convention rules and methods of delegate selection. On incidental powers and the Constitution, see Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, and Guy I. Seidman, The Origins of the Necessary and Proper Clause (Cambridge University Press, 2010). Chief Justice Roberts followed this analysis of incidental powers in NFIB v. Sebelius, 132 S.Ct. 2566, 2591-93 (2012) (the "ObamaCare" case).)) |
| ==== D. Delegate selection. ==== | ==== D. Delegate selection. ==== |
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| All states, not merely the applying states, are entitled to send committees to a convention for proposing amendments. The convention is, as James Madison once asserted, "subject to the forms of the Constitution." In other words, it is not "plenipotentiary" (or "constitutional") in nature. Accordingly, a convention for proposing amendments has no authority to violate Article V or any other part of the Constitution. According to the rules in Article V, the convention may not propose a change in the rule that each state has "equal Suffrage in the Senate,"<sup>[[#xii|12]]</sup> nor may it alter the ratification procedure.<sup>[[#xiii|13]]</sup> | All states, not merely the applying states, are entitled to send committees to a convention for proposing amendments. The convention is, as James Madison once asserted, "subject to the forms of the Constitution." In other words, it is not "plenipotentiary" (or "constitutional") in nature. Accordingly, a convention for proposing amendments has no authority to violate Article V or any other part of the Constitution. According to the rules in Article V, the convention may not propose a change in the rule that each state has "equal Suffrage in the Senate,"((U.S. Const., Art. V. ("Provided that . . . no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."). This means that an amendment may not alter the Constitution's rule that each state has equal weight in the U.S. Senate. An amendment could increase the number of Senators from each state to three, or require voting by state delegations. But it could not, for example, give New York more voting power than Nebraska.)) nor may it alter the ratification procedure.((//Id. ("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 Convention in three fourths thereof").)) |
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| Prior rules and practice governing interstate conventions show that conventions must honor the terms of their call and limit themselves to the scope of the subject matter they are charged with addressing. The scope of the subject matter is set by the scope of the 34 or more successful applications, and ideally Congress should reproduce that scope in its call. | Prior rules and practice governing interstate conventions show that conventions must honor the terms of their call and limit themselves to the scope of the subject matter they are charged with addressing. The scope of the subject matter is set by the scope of the 34 or more successful applications, and ideally Congress should reproduce that scope in its call. |
| Delegates to American conventions generally have had power to elect their own officers and adopt their own rules, and this has been universally true of interstate conventions. These rules include the standards of debate, daily times of convening and adjourning, whether the proceedings are open or secret, and other matters of internal procedure. Interstate conventions traditionally have determined issues according to a "one state/one vote," although a convention is free to change the rule of suffrage. The convention also may limit how many commissioners from each state can occupy the floor at a time. | Delegates to American conventions generally have had power to elect their own officers and adopt their own rules, and this has been universally true of interstate conventions. These rules include the standards of debate, daily times of convening and adjourning, whether the proceedings are open or secret, and other matters of internal procedure. Interstate conventions traditionally have determined issues according to a "one state/one vote," although a convention is free to change the rule of suffrage. The convention also may limit how many commissioners from each state can occupy the floor at a time. |
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| Like other diplomatic personnel, convention commissioners are subject to instruction from home—in this case from the legislature or the legislature's designee.<sup>[[#xiv|14]]</sup> The designee could be a committee, the executive, or another person or body. Although state applications cannot specify particular wording for an amendment, a state could instruct its commissioners to not agree to any amendment that did not include particular language. In accordance with Founding Era practice and the convention's purpose, each state should pay its own delegates. | Like other diplomatic personnel, convention commissioners are subject to instruction from home—in this case from the legislature or the legislature's designee.((State legislative authority to instruct state commissioners has been universal to all interstate conventions, both during the Founding Era and at the 1861 Washington Conference Convention. See also Ray v. Blair, 343 U.S. 214 (1952) (upholding state authority to instruct members of the electoral college).)) The designee could be a committee, the executive, or another person or body. Although state applications cannot specify particular wording for an amendment, a state could instruct its commissioners to not agree to any amendment that did not include particular language. In accordance with Founding Era practice and the convention's purpose, each state should pay its own delegates. |
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| The convention may opt to propose one or more amendments within the designated subject matter or it may adjourn without proposing anything. Unless altered by convention rule, proposal requires only a majority vote. Some have argued that a formal proposal requires a two thirds convention vote—or that Congress may impose such a rule—but there is nothing in law or history to support this argument. | The convention may opt to propose one or more amendments within the designated subject matter or it may adjourn without proposing anything. Unless altered by convention rule, proposal requires only a majority vote. Some have argued that a formal proposal requires a two thirds convention vote—or that Congress may impose such a rule—but there is nothing in law or history to support this argument. |
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| The //runaway convention scenario //was conjured up in the 19<sup>th</sup> century to dissuade state lawmakers from bypassing Congress through the state application and convention process. The scenario became famous during the 1960s, when liberal activists, legislators, and academics raised it to defeat an application campaign for amendments that would have overturned some Supreme Court decisions. Various groups have employed the same tactic to defeat balanced budget amendment proposals over the years.<sup>[[#xv|15]]</sup> In one of the ironies of history, some deeply //conservative //groups now promote the scenario as well. One can expect both liberal and conservative opponents to promote it again if another application campaign begins to gain traction. | The //runaway convention scenario //was conjured up in the 19<sup>th</sup> century to dissuade state lawmakers from bypassing Congress through the state application and convention process. The scenario became famous during the 1960s, when liberal activists, legislators, and academics raised it to defeat an application campaign for amendments that would have overturned some Supreme Court decisions. Various groups have employed the same tactic to defeat balanced budget amendment proposals over the years.((Notable among those publicizing the scenario were Yale's Charles Black and Harvard's Lawrence Tribe; Supreme Court Justices Warren Burger and Arthur Goldberg; Senators Joseph Tidings (D.-Md.) and Robert F. Kennedy (D.-N.Y); and individuals within the "Kennedy circle," such as Goldberg and speechwriter Theodore Sorensen.)) In one of the ironies of history, some deeply //conservative //groups now promote the scenario as well. One can expect both liberal and conservative opponents to promote it again if another application campaign begins to gain traction. |
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| In the "runaway convention" scenario, state legislatures attempt to limit the convention through their applications, but once the convention meets the commissioners disregard the applications and their subsequent instructions. Instead, heedless of their reputations, their political futures, and all ties of honor, the commissioners issue proposed amendments that are //ultra vires//—that is, beyond their legal authority. | In the "runaway convention" scenario, state legislatures attempt to limit the convention through their applications, but once the convention meets the commissioners disregard the applications and their subsequent instructions. Instead, heedless of their reputations, their political futures, and all ties of honor, the commissioners issue proposed amendments that are //ultra vires//—that is, beyond their legal authority. |
| {{:documents:external:gear.png?direct&20 |}} //**Don't make applications too specific; let the convention do its work.**// | {{:documents:external:gear.png?direct&20 |}} //**Don't make applications too specific; let the convention do its work.**// |
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| Once a task force is told the problem to address, it should be allowed to do its job. In other words, although the task is preset, the precise solution cannot be. Both Founding Era practice and modern court decisions tell us that it is unconstitutional for some assemblies working under Article V (such as the legislatures) to try to dictate a solution to others (such as the convention). The courts may invalidate any applications that limit the convention to an up or down vote on specific wording.<sup>[[#xvi|16]]</sup> | Once a task force is told the problem to address, it should be allowed to do its job. In other words, although the task is preset, the precise solution cannot be. Both Founding Era practice and modern court decisions tell us that it is unconstitutional for some assemblies working under Article V (such as the legislatures) to try to dictate a solution to others (such as the convention). The courts may invalidate any applications that limit the convention to an up or down vote on specific wording.((Among the cases emphasizing that assemblies (legislatures and conventions) meeting under Article V must have a certain amount of deliberative freedom are Hawke v. Smith, 253 U.S. 221 (1920); In Re Opinion of the Justices, 132 Me. 491, 167 A. 176 (1933); State ex rel. Harper v. Waltermire, 213 Mont. 425, 691 P.2d 826 (1984); AFL-CIO v. Eu, 36 Cal.3d 687, 206 Cal. Rptr. 89 (1984), //stay denied sub nom//. Uhler v. AFL-CIO, 468 U.S. 1310 (1984); Donovan v. Priest, 931 S.W. 2d 119 (Ark. 1996), //cert. denied//, 117 S.Ct. 181 (1997) (no official report) (requiring an assembly that can engage in "intellectual debate, deliberation, or consideration"); League of Women Voters of Maine v. Gwadosky, 966 F.Supp. 52 (D. Me. 1997); Barker v. Hazetine, 3 F. Supp. 2d 1088, 1094 (D.S.D. 1998) ("Without doubt, Initiated Measure 1 brings to bear an undue influence on South Dakota's congressional candidates, and the deliberative and independent amendment process envisioned by the Framers when they drafted Article V is lost."); Gralike v. Cooke, 191 F.3d 911, 924-25 (8<sup>th</sup> Cir. 1999), //aff'd on other grounds sub nom//. Cook v. Gralike, 531 U.S. 510 (2001); Miller v. Moore, 169 F.3d 1119 (8<sup>th</sup> Cir. 1999). //Cf. //Kimble v. Swackhamer, 439 U.S. 1385, //appeal dismissed//, 439 U.S. 1041 (1978) (Rehnquist, J.) (upholding a referendum on an Article V question because it was advisory rather than mandatory); Dyer v. Blair, 390 F.Supp. 1291, 1308 (N.D. Ill. 1975) (Justice Stevens) (upholding a rule of state law on an Article V assembly, but only because the assembly voluntarily adopted it).)) |
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| There also are some practical reasons for avoiding too much specificity. The more specific an application is, the more difficult it is to garner the broad coalition necessary to induce 34 states to approve it. Further, the more specific it is, the more likely it will deviate enough from other applications to give Congress a reason for refusing to aggregate it with other applications. Finally, the convention probably will do a better job of drafting an amendment than dispersed state lawmakers. Consisting as it will of experienced personnel from all states, the convention may very well craft a solution more deft—and more politically palatable—than any specified in the applications. | There also are some practical reasons for avoiding too much specificity. The more specific an application is, the more difficult it is to garner the broad coalition necessary to induce 34 states to approve it. Further, the more specific it is, the more likely it will deviate enough from other applications to give Congress a reason for refusing to aggregate it with other applications. Finally, the convention probably will do a better job of drafting an amendment than dispersed state lawmakers. Consisting as it will of experienced personnel from all states, the convention may very well craft a solution more deft—and more politically palatable—than any specified in the applications. |
| In some states there will be pressure for popular election. If a legislature does opt for popular election, it still must clarify that a commissioner's failure to follow legislative instructions could lead to his or her removal. This is required to serve the core purpose of the state application and convention process: To enable state legislatures to advance amendments targeted at problems those legislatures have identified. Unless a state legislature can control its own committee at the convention, that core purpose is defeated. | In some states there will be pressure for popular election. If a legislature does opt for popular election, it still must clarify that a commissioner's failure to follow legislative instructions could lead to his or her removal. This is required to serve the core purpose of the state application and convention process: To enable state legislatures to advance amendments targeted at problems those legislatures have identified. Unless a state legislature can control its own committee at the convention, that core purpose is defeated. |
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| Some have suggested that states adopt statutes providing that commissioners who exceed the scope of the convention or disregard legislative instructions are deemed immediately recalled. It is uncertain whether such a law would be enforceable against a state legislature acting within Article V. However, such a law can serve an educational function, and may act as an implicit legislative rule.<sup>[[#xvii|17]]</sup> | Some have suggested that states adopt statutes providing that commissioners who exceed the scope of the convention or disregard legislative instructions are deemed immediately recalled. It is uncertain whether such a law would be enforceable against a state legislature acting within Article V. However, such a law can serve an educational function, and may act as an implicit legislative rule.((//See //Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (Stevens, J.) )) |
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| {{:documents:external:gear.png?direct&20 |}} //**Respond to the "minority rule" argument.**// | {{:documents:external:gear.png?direct&20 |}} //**Respond to the "minority rule" argument.**// |
| An application should be kept as simple as possible. Extra language may lead to confusion, invalidity, or congressional refusal to aggregate the application with those from other states. If a state legislature wishes to make recommendations or issue declarations or statements of understanding, those items should appear only in an accompanying resolution. Credentialing of and any instructions to commissioners also should be placed in separate resolutions. | An application should be kept as simple as possible. Extra language may lead to confusion, invalidity, or congressional refusal to aggregate the application with those from other states. If a state legislature wishes to make recommendations or issue declarations or statements of understanding, those items should appear only in an accompanying resolution. Credentialing of and any instructions to commissioners also should be placed in separate resolutions. |
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| The starting point for the following form was one of two forms commonly employed by state legislatures during their highly successful application campaign for direct election of U.S. Senators.<sup>[[#xviii|18]]</sup> The BBA wording is similar to that used in some currently outstanding states' BBA applications from the late 1970s and early 1980s. Additional material has been added. The language in //italics //is optional. | The starting point for the following form was one of two forms commonly employed by state legislatures during their highly successful application campaign for direct election of U.S. Senators.((The form was developed by the Minnesota legislature, and originally read as follows: |
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| | SECTION 1. The legislature of the State of Minnesota hereby makes application to the Congress, under the provisions of Article V of the Constitution of the United States, for the calling of a convention to propose an amendment to the Constitution of the United States //making United States Senators elective in the several States by direct vote of the people//. |
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| | Notice how simple and direct the italicized wording is; drafting details are left to the convention. As it turned out, however, Congress rather than a convention drafted the details. After 31 states (one short of the needed 32 of the then 48) had approved similar applications, the U.S. Senate, which had resisted the change, finally consented to congressional proposal of what became the [[historicaldocuments:constitution-lateramendments#amendment_xvii|17th Amendment]].)) The BBA wording is similar to that used in some currently outstanding states' BBA applications from the late 1970s and early 1980s. Additional material has been added. The language in //italics //is optional. |
| </WRAP> | </WRAP> |
| |
| • Observe how simple this application is. For one thing, it does not include a lengthy preamble ("whereas" clauses), which might be construed as creating limitations or qualifications on the application. | • Observe how simple this application is. For one thing, it does not include a lengthy preamble ("whereas" clauses), which might be construed as creating limitations or qualifications on the application. |
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| • Further, although the application provides that the convention is to be limited to the subject of a balanced budget amendment, it does not require the convention to adopt, or reject, particular wording. If it did, it might be void.<sup>[[#xix|19]]</sup> | • Further, although the application provides that the convention is to be limited to the subject of a balanced budget amendment, it does not require the convention to adopt, or reject, particular wording. If it did, it might be void.((In proposing other amendments, it is equally important to avoid trying to mandate particular wording. For example, the proposed National Debt Relief Amendment (which ALEC has endorsed), provides that "An increase in the federal debt requires approval from a majority of the legislatures of the separate States." An application might describe the subject matter as "an amendment to the Constitution of the United States forbidding increases in the debt of the United States unless approved by a specified proportion of state legislatures.")) |
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| • This application also avoids listing other specific terms. Insertions of additional requirements—such as a two-thirds requirement for Congress to raise taxes—may critically reduce support among lawmakers and the public. | • This application also avoids listing other specific terms. Insertions of additional requirements—such as a two-thirds requirement for Congress to raise taxes—may critically reduce support among lawmakers and the public. |
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| <WRAP round box 100%> | <WRAP round box 100%> |
| A tactic employed by promoters of the "runaway convention scenario"<sup>[[#xx|20]]</sup> is to challenge lawmakers with a list of supposedly unanswerable questions.<sup>[[#xxi|21]]</sup> Several lists are used and they vary somewhat, but all appear to be based on questions published over three decades ago by Professor Lawrence Tribe of Harvard Law School, a liberal opponent of conventions for proposing amendments.<sup>[[#xxii|22]]</sup> | A tactic employed by promoters of the "runaway convention scenario"((See [[documents:external:articlev-handbook#v_the_myth_of_a_runaway_convention|Part V: "The Myth of a Runaway Convention.]]")) is to challenge lawmakers with a list of supposedly unanswerable questions.((Thus, one list trumpets: "If these questions cannot be answered (and they CANNOT!), then why would any state legislator even consider voting for such an uncertain event as an Article V Constitutional Convention?")) Several lists are used and they vary somewhat, but all appear to be based on questions published over three decades ago by Professor Lawrence Tribe of Harvard Law School, a liberal opponent of conventions for proposing amendments.((Lawrence H. Tribe, //Issues Raised by Requesting Congress to Call a Constitutional [sic] Convention to Propose a Balanced Budget Amendment//, 10 Pac. L.J. 627 (1979) (republishing earlier legislative testimony). This article offers virtually no supporting evidence from the historical record or case law.)) |
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| Although it is claimed the questions are unanswerable, most do, in fact, have good answers. Because state lawmakers may encounter them while considering Article V applications, those questions, supplemented by a few others, are listed in this appendix. They are organized by topic, although the questions can be presented in any order. The questions are reproduced verbatim, together with their sometimes-odd phrasing and punctuation. An answer immediately follows each question. | Although it is claimed the questions are unanswerable, most do, in fact, have good answers. Because state lawmakers may encounter them while considering Article V applications, those questions, supplemented by a few others, are listed in this appendix. They are organized by topic, although the questions can be presented in any order. The questions are reproduced verbatim, together with their sometimes-odd phrasing and punctuation. An answer immediately follows each question. |
| **Q23.** **Isn't it true that the 1787 Constitutional Convention was a "runaway"—that Congress convened it under the Articles of Confederation only to propose amendments to the Articles, but it ended up drafting an entirely new Constitution?** | **Q23.** **Isn't it true that the 1787 Constitutional Convention was a "runaway"—that Congress convened it under the Articles of Confederation only to propose amendments to the Articles, but it ended up drafting an entirely new Constitution?** |
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| A. The truth is quite to the contrary: Most commissioners had full authority to recommend a new Constitution, as explained in the article cited in this endnote.<sup>[[#xxiii|23]]</sup> | A. The truth is quite to the contrary: Most commissioners had full authority to recommend a new Constitution, as explained in the article cited in this endnote.((The facts appear in Robert G. Natelson, //Proposing Constitutional Amendments by Conventions: Rules Governing the Process//, 78 Tenn. L. Rev. 693, 719-23 (2011), available at [[http://constitution.i2i.org/files/2011/10/Rules_for_Art_V_Conventions.pdf|http://constitution.i2i.org/files/2011/10/Rules_for_Art_V_Conventions.pdf]].)) |
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| ===== Appendix D: ===== | ===== Appendix D: ===== |
| As observed in [[documents:external:articlev-handbook#i_introduction|Part I (Introduction)]], most writing on the state application and convention process has been poorly-researched, agenda-driven, or both. However, not everything published on the subject has been biased or shallow. | As observed in [[documents:external:articlev-handbook#i_introduction|Part I (Introduction)]], most writing on the state application and convention process has been poorly-researched, agenda-driven, or both. However, not everything published on the subject has been biased or shallow. |
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| Serious scholarship on the topic began in 1951 with an extraordinary Ph.D. thesis written by the late William Russell Pullen, then a political science graduate student at the University of North Carolina. The Pullen study suffered from the author's lack of legal or historical training (Pullen was a political science graduate student, not a historical or legal scholar), but it presented an excellent and thorough summary of applications and history up to that time.<sup>[[#xxiv|24]]</sup> | Serious scholarship on the topic began in 1951 with an extraordinary Ph.D. thesis written by the late William Russell Pullen, then a political science graduate student at the University of North Carolina. The Pullen study suffered from the author's lack of legal or historical training (Pullen was a political science graduate student, not a historical or legal scholar), but it presented an excellent and thorough summary of applications and history up to that time.((William Russell Pullen, //The Application Clause of the Amending Provision of the Constitution// (Univ. of North Carolina, 1951) (unpublished). Pullen worked largely from the long-collected files of his mentor, Professor W.S. Jenkins. Pullen later became a distinguished academic librarian.)) |
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| More recent scholarship (defined as work that makes a serious attempt to marshal the historical and legal evidence) falls chronologically into two groups. The first group of studies was published during the 1970s and 1980s. It included a research report from the American Bar Association; a lengthy legal opinion composed by John M. Harmon at the Office of Legal Counsel at the U.S. Department of Justice; and Russell Caplan's book, //Constitutional Brinksmanship//, published by Oxford University Press.<sup>[[#xxv|25]]</sup> Although the findings of these studies differed in detail, they all agreed on some important conclusions—including the conclusion that state legislative applications could limit the scope of the convention. | More recent scholarship (defined as work that makes a serious attempt to marshal the historical and legal evidence) falls chronologically into two groups. The first group of studies was published during the 1970s and 1980s. It included a research report from the American Bar Association; a lengthy legal opinion composed by John M. Harmon at the Office of Legal Counsel at the U.S. Department of Justice; and Russell Caplan's book, //Constitutional Brinksmanship//, published by Oxford University Press.((The citations of the studies are as follows: //Amendment of the Constitution by the Convention Method Under Article V// (American Bar Ass'n, 1974); John M. Harmon, //Constitutional Convention: Limitation of Power to Propose Amendments to the Constitution//, 3 Op. Off. Legal Counsel 390 (1979); Russell Caplan, //Constitutional Brinksmanship// (Oxford University Press, 1988).)) Although the findings of these studies differed in detail, they all agreed on some important conclusions—including the conclusion that state legislative applications could limit the scope of the convention. |
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| The second group of studies includes several published from 2011 to 2013 by the author of this Handbook, a retired constitutional law professor and constitutional historian. These encompass a three-part paper initially written for the Goldwater Institute and updated for the Independence Institute; full-length articles published by Florida Law Review and Tennessee Law Review, and shorter works for a book chapter and for the Harvard Journal of Law and Public Policy. This research takes into account (1) more recent court decisions, (2) formerly untapped records from the Constitution's ratification debates, (3) the re-discovered journals of numerous 18th century federal conventions, (4) the journal and other writings pertaining to the Washington Conference Convention, and (5) other formerly-neglected information. | The second group of studies includes several published from 2011 to 2013 by the author of this Handbook, a retired constitutional law professor and constitutional historian. These encompass a three-part paper initially written for the Goldwater Institute and updated for the Independence Institute; full-length articles published by Florida Law Review and Tennessee Law Review, and shorter works for a book chapter and for the Harvard Journal of Law and Public Policy. This research takes into account (1) more recent court decisions, (2) formerly untapped records from the Constitution's ratification debates, (3) the re-discovered journals of numerous 18th century federal conventions, (4) the journal and other writings pertaining to the Washington Conference Convention, and (5) other formerly-neglected information. |
| Also belonging in this latter group is an article by Professor Michael Rappaport that examines only the Founding Era record. | Also belonging in this latter group is an article by Professor Michael Rappaport that examines only the Founding Era record. |
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| This second group of studies largely corroborates the conclusions of those dating from the 1970s and 1980s, but they also make some corrections to earlier work. The accompanying endnote tells the reader where to obtain these studies.<sup>[[#xxvi|26]]</sup> | This second group of studies largely corroborates the conclusions of those dating from the 1970s and 1980s, but they also make some corrections to earlier work. The accompanying endnote tells the reader where to obtain these studies.((The studies by the author of this Handbook are available at http:%%//%%constitution.i2i.org/articles-books-on-the-constitution-by-rob-natelson/ (second topic). The Rappaport study is Michael B. Rappaport, //The Constitutionality of a Limited Convention: An Originalist Analysis, //28 Const. Comment. 53 (2012).)) |
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| | {{page>:wiki_footer}} |
| ===== (Endnotes) ===== | ===== (Endnotes) ===== |
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| <BOOKMARK:i>1 The Fourteenth Amendment extended certain federal guarantees to all citizens; the Fifteenth Amendment protected the right to vote, despite "race, color, or previous condition of servitude;" and the Twenty-Fourth Amendment eliminated the poll tax system sometimes used to suppress voting by minorities. | |
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| <BOOKMARK:ii>2 ALEC has also recommended, among others, (1) a general BBA application (2011), (2) the Vote on Taxes Amendment (2010), (3) the National Debt Relief Amendment (2011) (which requires approval by a majority of the state legislatures before the federal government can go deeper into debt), (4) the Repeal Amendment (2011) (permitting two-thirds of state legislatures to invalidate federal laws and regulations), (5) An Accountability in Government Amendment (1996) (limiting federal mandates on states), (6) a Government of the People Amendment (1996) (similar to the Repeal Amendment, but with a seven-year repeal limit), and (7) a States' Initiative Amendment (1996) (permitting three quarters of the states to propose amendments without a convention, subject to congressional veto). To see model legislation on any of these bills, contact Jonathan Williams at 202-466-3800 or [[mailto:jwilliams@alec.org?subject=Model legislation on amendment bills|jwilliams@alec.org]]. | |
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| <BOOKMARK:iii>3 For a survey of 18th century conventions, including the rules that governed them, see Robert G. Natelson, //Founding-Era Conventions and the Meaning of the Constitution's "Convention for Proposing Amendments," 65 Fla. L. Rev. 615 (2013).// | |
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| <BOOKMARK:iv>4 The Founding-Era evidence for distinguishing an Article V convention from a "constitutional convention" is overwhelming. //See// Robert G. Natelson, //Amending the Constitution by Convention: A More Complete View of the Founders' Plan// (Independence Institute, 2010) (updated and amended version of an earlier paper published by the Goldwater Institute), available at [[http://constitution.i2i.org/files/2010/12/IP_7_2010_a.pdf|http://constitution.i2i.org/files/2010/12/IP_7_2010_a.pdf]]. | |
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| <BOOKMARK:v>5 [[historicaldocuments:constitution#article_v|U.S. Const., Art. V]]. | |
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| <BOOKMARK:vi>6 The courts, including the Supreme Court, have affirmed this repeatedly. | |
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| Note that Article V grants eight distinct enumerated powers, four powers at the //proposal //stage and four at the //ratification //stage. At the proposal stage, the Constitution (1) grants to two-thirds of each house of Congress authority to propose amendments; (2) grants to two-thirds of the state legislatures power to require Congress to call a convention to propose amendments; (3) then empowers (and requires) Congress to call that convention; and (4) authorizes that convention to propose amendments. | |
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| At the ratification stage, (1) the Constitution authorizes Congress to select whether ratification shall be by state legislatures or state conventions; (2) if Congress selects the former method, the Constitution authorizes three fourths of state legislatures to ratify; (3) if Congress selects the latter method, the Constitution empowers (and requires) each state to call a ratifying convention; and (4) the Constitution further empowers three-fourths of those conventions to ratify. | |
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| <BOOKMARK:vii>7 Coleman v. Miller, 307 U.S. 433 (1939). That language actually was not part of the ruling, but only //dicta// (non-authoritative side comments) by four justices. | |
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| <BOOKMARK:viii>8 Appendix A contains model legislation that can be used to apply for a convention to discuss a balanced budget amendment. | |
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| <BOOKMARK:ix>9 Exactly when the power to rescind ends has not been determined judicially, but presumably it ends when the application triggers larger legal consequences—i.e., when the 34-state threshold is reached, Congress calls the convention, or the convention actually meets. Once the 34-state threshold is reached, the call and meeting become merely "ministerial" (not discretionary), which would suggest that the power to rescind ends as soon as 34 states have applied. | |
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| <BOOKMARK:x>10 The late Senator Sam Ervin (D.-N.C.) reported disapprovingly on the obstructionism of some of his senatorial colleagues during the 1960s. Sam J. Ervin, Jr., //Proposed Legislation to Implement the Convention Method of Amending the Constitution//, 66 Mich. L. Rev. 875, 878 (1968-68). | |
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| <BOOKMARK:xi>11 An "incidental" power is an unmentioned and subordinate power implicitly granted along with a power expressly granted. The link is created by the intent behind the document, generally shown by custom or necessity. When the Constitution grants a specified power it generally grants incidentals as well. The Constitution's direction to Congress to call a convention of the states includes authority to set the time and place because that authority is properly incidental. On the other hand, some powers are too substantial to be incidents of a mere power to call, such as prescribing convention rules and methods of delegate selection. On incidental powers and the Constitution, see Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, and Guy I. Seidman, The Origins of the Necessary and Proper Clause (Cambridge University Press, 2010). Chief Justice Roberts followed this analysis of incidental powers in NFIB v. Sebelius, 132 S.Ct. 2566, 2591-93 (2012) (the "ObamaCare" case). | |
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| <BOOKMARK:xii>12 U.S. Const., Art. V. ("Provided that . . . no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."). This means that an amendment may not alter the Constitution's rule that each state has equal weight in the U.S. Senate. An amendment could increase the number of Senators from each state to three, or require voting by state delegations. But it could not, for example, give New York more voting power than Nebraska. | |
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| <BOOKMARK:xiii>13 //Id. ("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 Convention in three fourths thereof"). | |
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| <BOOKMARK:xiv>14 State legislative authority to instruct state commissioners has been universal to all interstate conventions, both during the Founding Era and at the 1861 Washington Conference Convention. See also Ray v. Blair, 343 U.S. 214 (1952) (upholding state authority to instruct members of the electoral college). | |
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| <BOOKMARK:xv>15 Notable among those publicizing the scenario were Yale's Charles Black and Harvard's Lawrence Tribe; Supreme Court Justices Warren Burger and Arthur Goldberg; Senators Joseph Tidings (D.-Md.) and Robert F. Kennedy (D.-N.Y); and individuals within the "Kennedy circle," such as Goldberg and speechwriter Theodore Sorensen. | |
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| <BOOKMARK:xvi>16 Among the cases emphasizing that assemblies (legislatures and conventions) meeting under Article V must have a certain amount of deliberative freedom are Hawke v. Smith, 253 U.S. 221 (1920); In Re Opinion of the Justices, 132 Me. 491, 167 A. 176 (1933); State ex rel. Harper v. Waltermire, 213 Mont. 425, 691 P.2d 826 (1984); AFL-CIO v. Eu, 36 Cal.3d 687, 206 Cal. Rptr. 89 (1984), //stay denied sub nom//. Uhler v. AFL-CIO, 468 U.S. 1310 (1984); Donovan v. Priest, 931 S.W. 2d 119 (Ark. 1996), //cert. denied//, 117 S.Ct. 181 (1997) (no official report) (requiring an assembly that can engage in "intellectual debate, deliberation, or consideration"); League of Women Voters of Maine v. Gwadosky, 966 F.Supp. 52 (D. Me. 1997); Barker v. Hazetine, 3 F. Supp. 2d 1088, 1094 (D.S.D. 1998) ("Without doubt, Initiated Measure 1 brings to bear an undue influence on South Dakota's congressional candidates, and the deliberative and independent amendment process envisioned by the Framers when they drafted Article V is lost."); Gralike v. Cooke, 191 F.3d 911, 924-25 (8<sup>th</sup> Cir. 1999), //aff'd on other grounds sub nom//. Cook v. Gralike, 531 U.S. 510 (2001); Miller v. Moore, 169 F.3d 1119 (8<sup>th</sup> Cir. 1999). //Cf. //Kimble v. Swackhamer, 439 U.S. 1385, //appeal dismissed//, 439 U.S. 1041 (1978) (Rehnquist, J.) (upholding a referendum on an Article V question because it was advisory rather than mandatory); Dyer v. Blair, 390 F.Supp. 1291, 1308 (N.D. Ill. 1975) (Justice Stevens) (upholding a rule of state law on an Article V assembly, but only because the assembly voluntarily adopted it). | |
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| <BOOKMARK:xvii>17 //See //Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (Stevens, J.) | |
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| <BOOKMARK:xviii>18 The form was developed by the Minnesota legislature, and originally read as follows: | |
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| SECTION 1. The legislature of the State of Minnesota hereby makes application to the Congress, under the provisions of Article V of the Constitution of the United States, for the calling of a convention to propose an amendment to the Constitution of the United States //making United States Senators elective in the several States by direct vote of the people//. | |
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| Notice how simple and direct the italicized wording is; drafting details are left to the convention. As it turned out, however, Congress rather than a convention drafted the details. After 31 states (one short of the needed 32 of the then 48) had approved similar applications, the U.S. Senate, which had resisted the change, finally consented to congressional proposal of what became the [[historicaldocuments:constitution-lateramendments#amendment_xvii|17th Amendment]]. | |
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| <BOOKMARK:xix>19 In proposing other amendments, it is equally important to avoid trying to mandate particular wording. For example, the proposed National Debt Relief Amendment (which ALEC has endorsed), provides that "An increase in the federal debt requires approval from a majority of the legislatures of the separate States." An application might describe the subject matter as "an amendment to the Constitution of the United States forbidding increases in the debt of the United States unless approved by a specified proportion of state legislatures." | |
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| <BOOKMARK:xx>20 See [[documents:external:articlev-handbook#v_the_myth_of_a_runaway_convention|Part V: "The Myth of a Runaway Convention.]]" | |
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| <BOOKMARK:xxi>21 Thus, one list trumpets: "If these questions cannot be answered (and they CANNOT!), then why would any state legislator even consider voting for such an uncertain event as an Article V Constitutional Convention?" | |
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| <BOOKMARK:xxii>22 Lawrence H. Tribe, //Issues Raised by Requesting Congress to Call a Constitutional [sic] Convention to Propose a Balanced Budget Amendment//, 10 Pac. L.J. 627 (1979) (republishing earlier legislative testimony). This article offers virtually no supporting evidence from the historical record or case law. | |
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| <BOOKMARK:xxiii>23 The facts appear in Robert G. Natelson, //Proposing Constitutional Amendments by Conventions: Rules Governing the Process//, 78 Tenn. L. Rev. 693, 719-23 (2011), available at [[http://constitution.i2i.org/files/2011/10/Rules_for_Art_V_Conventions.pdf|http://constitution.i2i.org/files/2011/10/Rules_for_Art_V_Conventions.pdf]]. | |
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| <BOOKMARK:xxiv>24 William Russell Pullen, //The Application Clause of the Amending Provision of the Constitution// (Univ. of North Carolina, 1951) (unpublished). Pullen worked largely from the long-collected files of his mentor, Professor W.S. Jenkins. Pullen later became a distinguished academic librarian. | |
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| <BOOKMARK:xxv>25 The citations of the studies are as follows: //Amendment of the Constitution by the Convention Method Under Article V// (American Bar Ass'n, 1974); John M. Harmon, //Constitutional Convention: Limitation of Power to Propose Amendments to the Constitution//, 3 Op. Off. Legal Counsel 390 (1979); Russell Caplan, //Constitutional Brinksmanship// (Oxford University Press, 1988). | |
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| <BOOKMARK:xxvi>26 The studies by the author of this Handbook are available at http:%%//%%constitution.i2i.org/articles-books-on-the-constitution-by-rob-natelson/ (second topic). The Rappaport study is Michael B. Rappaport, //The Constitutionality of a Limited Convention: An Originalist Analysis, //28 Const. Comment. 53 (2012). | |
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| // | |
| // | |
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