Article V Legislative Compendium

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§ 3.8.3. State Legislatures May Limit Their Applications to a Single Subject.

The normal practice of political bodies suggests power to define the scope of their resolutions. There should be, therefore, a presumption that a state legislature may apply for a convention to consider only certain topics rather than be required to apply only for an unlimited convention.1) # Cf. Opinion of the Justices to the Senate, 366 N.E.2d 1226 (Mass. 1977) (holding that a single-subject application is valid, although not dealing with the issue as to whether the limitation is enforceable). Nevertheless, during the 1960s and 1970s various legal writers (predominantly those opposing a convention) argued that all conventions must be unlimited. Some even contended that limited applications were void by reason of their limits.

These contentions were made on very slender evidence, and subsequent research has discredited them.2) # See, e.g., Michael B. Rappaport, The Constitutionality of a Limited Convention: An Originalist Analysis, 28 Const. Comment. 53 (2012) [hereinafter Rappaport, Limited Convention], reprinted infra § 5.3.; Michael Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765 (2011) [hereinafter Stern, Reopening], reprinted infra § 5.4. Founding-Era practice, upon which the Constitution's amendment convention was based, was to limit in advance the topic and scope of multi-government conventions.3) # See generally Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments,” 65 Fla. L. Rev. 615 (2013) [hereinafter Natelson, Conventions], reprinted infra § 5.1. Discussions from the Founding Era reveal a universal assumption that applications would be made to promote amendments addressing prescribed problems.4) # Robert G. Natelson, Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693, 723–31 (2011) [hereinafter Natelson, Rules], reprinted infra § 5.2; Rappaport, Limited Convention, at 83–89; Stern, Reopening, at 771. The first application ever issued, that of Virginia in 1788,5) # This application is substantially reproduced in Natelson, Rules, at 739, along with its unlimited New York counterpart. was arguably limited as to subject, and hundreds of later applications have been limited as well.6) # Natelson, Rules, at 731–32. Indeed, the central purpose of the state application and convention procedure—to grant state legislatures parity with Congress in the proposal process—would be largely defeated unless those legislatures had the same power Congress does to define an amendment's scope in advance.

It also follows from historical practice, not to mention common sense, that Congress should aggregate together towards the two-thirds threshold only those applications that address the same general topic.7) #See infra § 3.9.6.

The limits on the ability of the convention to “run away”—that is, exceed the scope of the applications and call—is not within the present scope of this work. Suffice to say that no prior American inter-governmental conventions have run away, and contrary to some claims, this is also true of the 1787 Constitutional Convention.8) #See generally Natelson, Conventions. On the Constitutional Convention, see id. at 674; Natelson, Rules, at 719–23. There are numerous and redundant legal checks on an Article V convention exceeding its authority.9) #Robert G. Natelson, Proposing Constitutional Amendments by a Convention of the States: A Handbook for State Lawmakers 17–18 (Am. Legislative Exch. Council, 2d ed. 2013), available at http://www.alec.org/wp-content/uploads/article-five-handbook-1.pdf; see also Rappaport, Limited Convention, at 81–82; Stern, Reopening, at 781–87.

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