The Article V Convention to Propose
Constitutional Amendments: Contemporary
Contemporary Issues for Congress
Thomas H. Neale
Specialist in American National Government
July 9, 2012April 11, 2014
Congressional Research Service
7-5700
www.crs.gov
R42589
CRS Report for Congress
Prepared for Members and Committees of Congress
The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress
Summary
Article V of the U.S. Constitution provides two methods of proposing amendments. First,
Congress, with the approval of two-thirds ways of amending the nation’s fundamental
charter. Congress, by a two-thirds vote of both houses, may propose amendments to the states
for for
ratification, a procedure used to proposefor all 27 current amendments to the Constitution.
Second. Alternatively, if the legislatures of
two-thirds of the states (apply, 34 at present) apply, Congress “shall call a Convention for proposing
Amendments....”shall call a
convention for considering and proposing amendments. This alternative, known as an Article V
Convention, has not been implemented to date. yet to be implemented.
This report examines the Article V Convention
method, focusing on contemporary issues for Congress. A companion report,
CRS Report
R42592, The Article V Convention for Proposing Constitutional Amendments: Historical
Historical Perspectives for Congress, examines thisthe procedure’s constitutional origins; reviews the history
of 20th century campaigns to call a convention; and history
and provides an analysis of related state procedures.
Significant developments in this issue have occurred recently: in March 2014, the Georgia
Legislature applied for a convention to consider a balanced federal budget amendment, revoking
its rescission of an earlier application; in April 2014, Tennessee took similar action. While both
applications are valid, they may revive questions as to the constitutionality of rescissions of state
applications for an Article V Convention and whether convention applications are valid
indefinitely. Either issue could have an impact on the prospects for a convention. In other recent
actions, the legislatures of Ohio, in November 2013, and Michigan, in March 2014, applied to
Congress for an Article V Convention to consider a balanced federal budget amendment; these
are the first new state applications since 1982 and are also the 33rd and 34th applications for the
balanced budget amendment convention. If all 32 previous related state applications are valid, it
is arguable that the constitutional requirement for requests from two-thirds of the states has been
met, and that Congress should consider calling a convention.
Internet- and social media-driven public policy campaigns have also embraced the Article V
Convention as an alternative to perceived policy deadlock at the federal level. In 2011, the
“Conference on a Constitutional Convention,” drew participants ranging from conservative
libertarians to progressives together to discuss and promote a convention. In December 2013, a
meeting of state legislators advocated a convention, while the “Convention of States” called for a
convention to offer amendments to “impose fiscal restraints and limit the power of the federal
government.” Also in 2013, the advocacy group Compact for America proposed the “Compact for
a Balanced Budget,” an interstate compact that would provide a “turn-key” application, by which,
with a single vote, states could join the compact; call for a convention; agree to its format,
membership, and duration; adopt and propose a specific balanced budget amendment; and
prospectively commit themselves to ratify the amendment.
Congress would face a range of questions if an Article V Convention seemed likely, including the
following. What constitutes a legitimate state application? Does Congress have discretion as to
whether it must call a convention? What vehicle does it use to call a convention? Could a
convention consider any issue, or must it be limited to a specific issue? Could a “runaway”
convention propose amendments outside its mandate? Could Congress choose not to propose a
convention-approved amendment to the states? What role would Congress have in defining a
convention, including issues such as rules of procedure and voting, number and apportionment of
delegates, funding and duration, service by Members of Congress, and other questions. Under
these circumstances, Congress could consult a range of information resources in fashioning its
response. These include the record of the founders’ original intent, scholarly works cited in this
report and elsewhere, historical examples and precedents, and relevant hearings, reports, and bills
produced by Congress from the 1970s through the 1990s.
Congressional Research Service
The Article V Convention to Propose Constitutional Amendmentsstate procedures in the
Article V Convention process.
After three decades of inactivity, various contemporary developments could contribute to a
renewal of congressional interest in the Article V Convention alternative. The emergence of
Internet and social media-driven public policy and issue campaigns has combined with renewed
interest in specific constitutional amendments, and the Article V Convention procedure in
general, as a means of bypassing perceived policy deadlock at the federal level. The Tea Party
Movement, MoveOn.org, and Occupy Wall Street are cited as technology-driven issue advocacy
groups that could provide a model for convention advocates. The Article V Convention concept
enjoys support from several advocacy groups, and has been the subject of a recent academic
conference and a range of “op-ed” articles publicizing the once-obscure alternative.
The Constitution provides only a brief description of the Article V Convention process, leaving
many details that would need to be considered if a convention were to become a serious prospect.
In the event an Article V Convention movement generated applications approaching the 34-state
threshold, Congress would face a range of issues and questions in anticipation of a potential
convention summons. Among these would be the following. Is Congress required to call a
convention? What constitutes a legitimate convention summons from the states, and what
authority does Congress have to decide this question? What sort of convention would it be:
“general,” open to consider any issue, or “limited,” confined to a specific issue? Could a
“runaway” convention propose amendments outside its mandate? Is Congress required to submit
to the states any amendment proposed by an Article V Convention? Does Congress have the
authority to establish procedures in anticipation of a convention; how has it addressed this issue
in the past? What procedures does Congress follow when it receives states’ applications for a
convention? How many delegates should a convention contain? How should the states vote? How
long a term should the convention have? Could Senators and Representatives serve on an Article
V Convention? Would a simple majority suffice to propose amendments, or is a super-majority
appropriate? What would be the role of the District of Columbia, U.S. territories, and other
associated jurisdictions? Would the President have any role in the convention?
Notwithstanding the scope of these questions, if it were called on to summon a convention,
Congress could consult a wide range of information resources in fashioning its response. These
include the original intent of the founders as preserved in the constitutional record; the broad
range of scholarly works cited in this report and elsewhere; historical examples and precedents;
and the work and products of two decades of serious congressional examination, from the 1970s
through the 1990s, of the question of an Article V Convention.
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The Article V Convention: Contemporary Issues for Congress
Contents
Introduction...................................................................................................................................... 1
Background: Article V of the U.S. Constitution in Brief ................................................................. 1
Congress and the Article V Convention in the 21st Century ............................................................ 3
Congress: Key Actor in the Article V Convention Process ....................................................... 3
Traditional Deterrents to an Article V Convention .................................................................... 4
Contemporary Revival ofRenewed Interest in the Article V Convention Option .......................................................................... 5
Emergence of Technology-Driven Issue Advocacy—A Model for Contemporary
Article V Convention AdvocatesSupporters? .......................................................................................... 7 5
Most Recent Developments ....................................................................................................... 6
Georgia (March 2014) and Tennessee (April 2014) Apply for an Article V
Convention to Consider a Balanced Federal Budget Amendment, Reversing
Their Earlier Rescissions.................................................................................................. 6
Ohio (November 2013) and Michigan (March 2014) Pass First-Time Applications
for an Article V Convention to Consider a Balanced Federal Budget
Amendment ...................................................................................................................... 7
2010-2013: Advocacy Group Initiatives ............................................................................. 9
The Role of Congress in the Article V Convention Process ............................................................ 8 18
Is Congress Required to Call a Convention?.. ........................................................................... 818
What Sort of Convention Does Article V Authorize?.............................................................. 1020
The General Convention ................................................................................................... 1021
The Limited Convention ................................................................................................... 1323
The Runaway Convention ................................................................................................. 1525
An Article V Convention Limited to the Consideration of a Specifically Worded
Amendment?―H.J.Res. 5752 in the 112th113th Congress ......................................................... 1626
Is Congress Required to Propose Ratification of Amendments Approved by a
Convention?.......................................................................................................................... 1728
Additional Issues for Congress ................................................................................................ 2030
A Role for the President? .................................................................................................. 2030
“Checks and Balances” in the Article V Amendment Process .......................................... 2233
Details of the Article V Convention Process―Is Congress a Clerk or the
Guardian? ......
the Guardian? ................................................................................................................. 2435
Providing a Framework: The Precedent of Congressional Proposals to Shape an
Article V Convention ..................................................................................................... 2536
What Are the Current Procedures for Receipt and Processing of State
Applications by Congress?............................................................................................. 2838
Could Senators and Representatives Serve as Delegates to an Article V
Convention? ................................................................................................................... 29
Convention Procedures: Would State Representation and Voting in the
Convention be Equal? Proportional to Population? or Both
Article V Convention? ........................................ 30
Convention Procedures: Would the Convention Require a Super Majority of State
or Delegate Approvals to Propose Amendments? ........................................................... 3140
Convention Procedures: The Role of the District of Columbia and U.S. Territories
in an Article V Convention........Ancillary Issues for Congress ..................................................................................... 31 40
Concluding Observations............................................................................................................... 3243
Contacts
Author Contact Information........................................................................................................... 3343
Congressional Research Service
The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress
Introduction
Article V of the U.S. Constitution provides two methods by which the nation’s founding charter
may be amended. The first, Amendment by Congressional Proposal, requires the adoption of an
amendment or amendments by a two-thirds vote in both houses of Congress; the second,
generally referred to as the “Article V Convention” method, authorizes the states to apply to
Congress for a convention for proposing an amendment or amendments. If the legislatures of
two-thirds of the states, 34 at present, do, in fact, apply for a convention, Congress is obliged to
convene one. Both methods then require the approval of three-fourths of the states, 38 at present,
in order to become part of the Constitution.
While the Article V Convention option was largely dormant for more than two decades after the
early 1980s, there is evidence of revived interest both in new constitutional amendment proposals
and in the use of the Article V method as a grass-roots or state-driven alternative that could
empower a convention to propose amendments without securing a two-thirds majority in both
chambers of Congress. Indeed, the evidence of the founder’s actions at the 1787 Constitutional
Convention suggests that they intended the Article V Convention as a “way around” a Congress
unwilling to consider an amendment or amendments that enjoyed broad support. Whether current
efforts to promote an Article V Convention enjoy sufficiently broad support to make serious
progress toward their goal remains to be seen.
In the past, the need to mobilize public support, coupled with the measured pace of state
legislative action, guaranteed that an organized movement for an Article V Convention would
take considerable time to develop public awareness and support and move the application process
forward. Over the past 15 years, however, extraordinary advances in communications technology
may have altered this calculation. The swift rise of Internet- and social media-driven policy
campaigns suggests that the time and effort required to establish and develop-consuming organization and development once considered
prerequisite to an effective Article
V Convention advocacy movement could be greatly
compressed in the contemporary context, and
that much of the infrastructure previously thought
necessary for such a campaign might be
avoided altogether.
This report opens with a brief overview of the provisions of Article V of the U.S. Constitution,
which established the alternative procedures for proposing amendments to the states. A
companion report, CRS Report R42592, The Article V Convention for Proposing Constitutional
Amendments: Historical Perspectives for Congress, provides more comprehensive information on
the Article V Convention mechanism, including a detailed examination of constitutional and
statutory provisions, constitutional origins and original intent, case studies of major campaigns
for an Article V Convention, and a review of the role of the states in the process.
Background:
Article V of the U.S. Constitution in
Brief
Article V of the U.S. Constitution provides two methods for amending the nation’s fundamental
charter. The first, or “Congressional” method, authorizes proposal of amendments by Congress:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose
Amendments to this Constitution, ... which ... shall be valid to all Intents and Purposes, as
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The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress
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.... 1
The second, or “Article V Convention” method, requires Congress, “on the Application of the
Legislatures of two thirds of the several States,” 34 of 50 at present, to call “a Convention for
proposing Amendments....”
Amendments ratified by the states under either procedure are indistinguishable and have equal
force; they are both “valid to all Intents and Purposes, as Part of this Constitution ....”2 Both
modes of amendment share key constitutional requirements:
•
Amendments proposed either by Congress or an Article V Convention must be
ratified by three-fourths of the states, 38 at present.
•
Congress is authorized to choose the method of ratification in the states. The
options are ratification by ad hoc conventions called by the states for the specific
purpose of considering the ratification, or ratification by the legislatures of the
states. The three-fourths requirement applies in both instances.3
In addition, three elements not included in the Constitution have also become “standard
procedure” when Congress proposes amendments. As precedents, they would also likely be
followed for an amendment or amendments proposed by an Article V Convention.4
•
First, amendments are not incorporated into the existing text of the Constitution
as adopted in 1788, but rather, are included as supplementary articles.5
•
Second, Congress may set a time limit on the ratification process. Beginning with
the 18th Amendment, proposed in 1917, and continuing with the 20th through 26th
Amendments,6 Congress specified that amendments must be ratified within seven
years after being proposed in order to become effective.7
1
U.S. Constitution, Article V.
Ibid.
3
To date, Congress has specified ratification by ad hoc state convention for only one amendment, the 21st, which
repealed the 18th “prohibition” amendment. This is discussed at greater length later in this memorandum.
4
A fourth element applies to amendments proposed by Congress: the congressional vote must be by two-thirds vote of
the Members present and voting, a quorum being present in both the House and Senate, in order to propose an
amendment. This practice was endorsed by the Supreme Court in the National Prohibition Cases, of 1920 (253 U.S.
350, 386 (1920)).
5
James Madison, sponsor in the House of Representatives of the amendments now known as the Bill of Rights,
suggested they should be incorporated in the body of the Constitution. The House decided instead to add them to the
end of the Constitution as additional articles, a precedent followed for all subsequent amendments.
6
The 27th Amendment, the most recently ratified, was proposed to the states in 1789 without a seven-year time limit on
ratification. It requires that congressional salary increases can take effect, only after an intervening election. Despite
having been pending for 203 years, this amendment was revived, ratified by more states, and was ultimately declared to
have been ratified in 1992.
7
The seven-year requirement was incorporated in the body of the amendment in the 18th and 20th through 22nd
Amendments. For subsequent amendments, Congress concluded that incorporating the time limit in the amendment
itself “cluttered up” the amendment. Consequently, the 23rd through 26th Amendments placed the limit in the
authorizing resolution, rather than in the body of the amendment. (See “Article V: Ratification” in U.S. Congress,
Senate, The Constitution of the United States, Analysis and Interpretation, 108th Congress, Senate Document 108-17
(Washington: GPO, 2004), available at http://www.gpoaccess.gov/constitution/pdf2002/015.pdf .
2
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The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress
•
Finally, the Constitution does not require approval of proposed amendments by
the President, who has no official function in the process of proposing an
amendment to the states. The chief executive’s approval or signature has no
bearing on the process, and he or she cannot veto or pocket veto a proposed
amendment that has been approved by the requisite congressional majorities, or
proposed by an Article V Convention.8
The first method has been used by Congress to submit 33 amendments to the states, beginning
with the Bill of Rights in 1789. Of these, 27 amendments were approved by the states; 26 of them
are currently in effect, while one, the 18th Amendment that prohibited the “manufacture, sale, or
transportation of intoxicating liquor,” was ultimately repealed by the 21st Amendment.
The Article V Convention option has yet to be successfully invoked, although not for lack of
activity in the states. Three times in the 20th century, concerted efforts were undertaken by
proponents of particular amendments to secure the number of applications necessary to summon
an Article V Convention. These included conventions to consider amendments to (1) provide for
popular election of U.S. Senators; (2) permit the states to include factors other than equality of
population in drawing state legislative district boundaries; and (3) to propose an amendment
requiring the U.S. budget to be balanced under most circumstances.9 The campaign for a
popularly elected Senate is frequently credited with “prodding” the Senate to join the House of
Representatives in proposing what became the 16th17th Amendment to the states in 1912, while the
latter two campaigns came very close to meeting the two-thirds for an Article V Convention in
the 1960s and 1980s, respectively.10
Congress and the Article V Convention
in the 21st
Century
Three decades have passed since the high-water mark of the balanced budget amendment
convention campaign in 1982the 1980s. Few current Members of either chamber have experienced the
prospect of an Article V Convention. After 30 years of relative inactivity, however, there is
evidence of renewed public interest in the convention alternative.
Congress: Key Actor in the Article V Convention Process
What compelling interest, among the many competing demands for its time and energy, does
Congress have in the Article V Convention mechanism? There is little to command its interest if
the Article V Convention remains, as it has for the past three decades, a constitutional footnote. In
the event of revived pubic interest in this issue, however, Congress might choose to reexamine its
constitutional duties under Article V.
8
This issue was determined as part of a 1798 Supreme Court decision, Hollingsworth v. Virginia, 3 Dall. (3 U.S.) 378
(1798).
9
For more detailed information on the origins and history of the Article V Amendment process, please consult the
companion report, CRS Report R42592, The Article V Convention for Proposing Constitutional Amendments:
Historical Perspectives for Congress , by Thomas H. Neale.
10
By 1969, 33 states had applied for a convention to consider amendments related to state legislative reapportionment.
Between 1975 and 19821983, 32 petitioned for a convention to consider a balanced budget amendment.
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The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress
First, Article V delegates important and exclusive authority over the amendment process to
Congress. As noted earlier in this report, first among these are the right to propose amendments
directly to the states for their consideration on the vote of two-thirds of the Members of the House
of Representatives and the Senate and the responsibility for summoning a convention for
consideration of amendments on application of the legislatures of two-thirds of the states and
submitting any amendments proposed by an Article V Convention to the states for their
consideration.
Second, while the Constitution is silent on the mechanics of an Article V convention, Congress
has traditionally laid claim to broad responsibilities in connection with a convention, including
(1) receiving, judging, and recording state applications; (2) establishing procedures to summon a
convention; (3) setting the amount of time allotted to its deliberations; (4) determining the
number and selection process for its delegates; (5) setting internal convention procedures,
including formulae for allocation of votes among the states; and (6) arranging for the formal
transmission of any proposed amendments to the states.
Traditional Deterrents to an Article V Convention
It may be argued that there is no immediately pressing need for Congress to examine its Article V
options and responsibilities. Historical precedent suggests that attaining petitions from two-thirds
of the states in a timely manner is a difficult obstacle, as demonstrated by the several
unsuccessful convention drives in the latter part of the 20th century. As noted earlier, these fell
short of the two-thirds mark, despite the vigorous efforts of organized support groups over a
period of several years, and until recently, there has been little apparent interest in the Article V
Convention mechanism in the states since the 1980s. Judging by the historical record, the process
might arguably be described as a footnote to constitutional history.
The obstacles to any campaign for an Article V Convention remain daunting even in the face of
rapid change: the Constitution sets a considerable hurdle for the Article V Convention process by
requiring that applications for a convention be made by the legislatures of at least two-thirds of the
the several states. Further, as this report demonstrates, there are competing schools of thought on how
how a convention should be called, what would be an appropriate mandate for the convention, the
scope of any amendments it might propose, and, perhaps most important, the role of Congress in
all these questions. Moreover, any amendments proposed would face the same task of securing
approval of three-fourths of the states before they were ratified.
The measured pace of the legislative process in the states has also traditionally served as a check
to haste in calling such a convention.11 For instance, in the case of the balanced budget
amendment convention drive, it took seven years for an organized campaign to gain convention
applications from 32 of the necessary 34 states.12 Nevertheless, given the extraordinary speed and
11
As Supreme Court Justice and constitutional commentator Joseph Story noted, “The great principle to be sought is to
make the changes practicable, but not too easy; to secure due deliberation, and caution; and to follow experience, rather
than to open a way for experiments, suggested by mere speculation or theory.” See Joseph Story, Commentaries on the
Constitution of the United States (Boston: Hilliard, Gray & Co., 1833), § 1821. Available in The Founders
Constitution,
a joint venture of the University of Chicago Press and the Liberty Fund, Webweb edition, at http://presspubspress-pubs.uchicago.edu/
founders/documents/a5s12.html.
12
See later in this report, under “The Balanced Budget Amendment: 1975-1983.” While most state legislatures convene
” in CRS Report R42592, The Article V Convention for
Proposing Constitutional Amendments: Historical Perspectives for Congress , by Thomas H. Neale. While most state
legislatures convene annually, their sessions are frequently limited by law; 32 states place some form of time constraint on their sessions,
frequently limiting them to as little as 60 to 90 session days. Given the generally hectic pace and urgent demands faced
(continued...)
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flexibility of contemporary social media and communications technology, interested
organizations could conceivably launch an Article V Convention campaign for a specific
amendment or amendments, or perhaps for a general constitutional convention, within a
shortened time frame. In the 1960s, 1970s, and 1980s, it took time for “grass roots” efforts to
emerge, form organizations to promote their causes, communicate with like-minded groups,
undertake campaigns in state legislatures, and generally to learn and perfect the ancillary skills
necessary for nationwide issue advocacy. Today, in contrast, the greatly enhanced level of
communications technology and widespread use of social media arguably provide a ready-made
infrastructure for emerging advocacy campaigns.
Contemporary Revival ofRenewed Interest in the Article V Convention
Option
After more than 20 years of inactivity, there is evidence of renewed interest in the Article V
Convention option among various policy advocacy groups. The convention method may be
particularly attractive on several grounds: it springs unquestionably from the “original intent” of
the founders; the need for state petitions suggests widespread popular grass-roots origins; and the
prospect of proposing amendments directly to the states offers an alternative to what some have
characterized as a legislative and policy deadlock at the federal level.
One organization, the Friends of the Article V Convention (FOAVC), a self-described nonpartisan group, has been a persistent advocate of the convention option since at least 2007. Its
website13 includes lists of what the organization claims are over 700 state applications for a
convention.
In a more recent development, in September 2011, a diverse coalition, including Harvard Law
School; the Tea Party Patriots; and Fix Congress First, a self-described “network of activists
fighting the corrupting influence of money and politics,14 sponsored a Conference on the
Constitutional Convention—“ConConCon”—at Harvard.15 This colloquium investigated
constitutional and political questions associated with an Article V Convention, identified state and
local grass-roots planning for a convention, and considered the question of proceeding with a
convention campaign.16
Also in 2011, the Tax and Fiscal Policy Task Force of the American Legislative Exchange
Council (ALEC) released Proposing Constitutional Amendments by a Convention of the States, A
Handbook for State Lawmakers. This publication, which provides an overview of the Article V
Convention question, includes such elements as an overview of the process; the question of
(...continued)
by most state legislatures during their sessions, it seems unlikely that Article V convention proposals could make it
through the legislatures of 34 states in one year. Judging from previous efforts, it appears more likely that even a wellpublicized and popular Article V petition drive would require two to five years of state legislative action before it
approached “critical mass.” See The Book of the States, 2009 edition, volume 41 (Lexington, KY: Council of State
Governments, 2009), pp. 83-85.
13
See Friends of the Article V Convention, available at http://www.foa5c.org/.
14
This group has renamed itself Rootstrikers, available at http://rootstrikers.org/.
15
Conference on the Constitutional Convention, available at http://conconcon.org/.
16
Ibid., available at http://conconcon.org/agenda.php .
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judicial review; a step-by-step guide to the state application process; an examination of the
“runaway convention” question; and “practical recommendations” for the states. ALEC describes
itself as a non-profit organization that provides a forum for state legislators and private sector
leaders to discuss and exchange information on state policy issues. It focuses on such issues as
“free markets, limited government and constitutional division of powers between the federal and
state governments.”17 Critics of ALEC and its programs, such as Bob Edgar, president of
Common Cause, assert, however, that “its mission is to bring together corporations and state
legislators to draft profit-driven, anti-public-interest legislation, and then help those elected
officials pass the bills in statehouses from coast to coast.”18
A further example of increasing interest in the Article V device was offered by a “ConConCon”
participant, Harvard Professor Lawrence Lessig, collaborating with campaign management expert
Mark Mackinnon on “How to Sober Up Washington,” a related article that appeared in The Daily
Beast on April 6, 2012. The authors called for a convention to consider amendments that would
eliminate what they describe as corruption in the federal government:
There is something we can do. We, the People, can take back the power we gave to
Congress. We can take it back through the states. The framers left open a path to amendment
that doesn’t require the approval of Congress: a convention. Article V of the Constitution
requires Congress to call a convention to propose amendments if 34 state legislatures
demand it.19
Moreover, they assert that an Article V Convention would be equally attractive to the political left
and right, because, assuming that it would be an open convention,20 the delegates could consider,
and conceivably propose, amendments from the agendas of both ends of the political spectrum:
The beauty of a convention is that it would provide a forum of possibility for conservative
Tea Party types who might want an amendment calling for a balanced budget; or a line-item
veto for the president as well as progressives who would like to amend the [C]onstitution to
make it possible to enact meaningful campaign finance reform. The only requirement is that
two-thirds of the states apply, and then begins the drama of an unscripted national
convention to debate questions of fundamental law. It would be a grand circus of democracy
at its best.21
One notable aspect of these proposals for an Article V Convention appears to be the political
diversity of their proponents. As noted previously, “ConConCon” was partially sponsored by
organizations that represent divergent parts of the political spectrum, while the conference itself
was co-sponsored by Harvard Law School and held on the Harvard campus. These efforts may
reflect a deliberate choice to target “grass roots” populist and libertarian reformist elements on
both the political left and right.
17
For additional information on ALEC, see http://www.alec.org/about-alec/frequently-asked-questions/.
Mike McIntyre, “Conservative Non-Profit Acts as a Stealth Business Lobbyist, New York Times, April 21, 2012,
available at http://www.nytimes.com/2012/04/22/us/alec-a-tax-exempt-group-mixes-legislators-and-lobbyists.html?
pagewanted=1&_r=1.
19
Mark McKinnon and Lawrence Lessig, “How to Sober Up Washington,” The Daily Beast, April 6, 2012, available at
http://www.thedailybeast.com/articles/2010/04/06/how-to-tell-dc-politicians-to-go-to-hell.html.
20
The question of whether an Article V Convention has the authority to propose an amendment or amendments on any
issue (open), or is restricted to the single issue for which it is convened (closed) is examined in detail later in this
report.
21
McKinnon and Lessig, “How to Sober Up Washington.”
18
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Related Trends in Constitutional Amendment Proposals
In the past few years, interest has also grown in several new constitutional amendment proposals.
One of these, the “Repeal Amendment,” would provide for the repeal of any federal legislation by
a vote of disapproval in the legislatures of two-thirds of the states.22 Another recent proposal
would repeal the 17th Amendment and restore the election of U.S. Senators to state legislatures.23
Given the advances in communications technology cited above, groups supporting these measures
or others might find the Article V Convention to be an attractive vehicle for the promotion of their
proposed amendments.
Emergence of Technology-Driven Issue Advocacy—A Model for
Contemporary Article V Convention Advocates?
Communications technology has greatly advanced in the three decades since the campaign for an
Article V balanced budget convention gained its last state application in 1982. The development
and subsequent universality of e-mail and social media have already provided a new and
compelling model for issue-driven mass policy advocacy campaigns. The emergence of socialmedia driven groups such as MoveOn.org, the Tea Party movement, and Occupy Wall Street
serve as the most obvious examples. Their swift rise, combined with widespread publicity, and a
certain degree of success, suggest the possibility that a contemporary campaign, using the
communications strategies and tools of the age, could arguably move the issue of an Article V
Convention to the forefront of public awareness on a shorter cycle than was possible for previous
campaigns.
In an era of instant interpersonal electronic communication, e-mail and other social network
media can facilitate remarkably rapid growth in awareness of a political phenomenon. For
instance, MoveOn.org emerged in 1998 as an ad hoc online coalition opposed to the impeachment
of President Bill Clinton; it has since grown to a membership of 5 million.24 More recently, the
Tea Party movement originated in late 2008 with online discussions on conservative-oriented
social networking sites and frequent conference calls among organizers. On February 19, 2009, a
cable network business commentator made an on-air call for rallies to oppose government
spending; his emotionally charged remarks were picked up by various websites and went “viral.”
In just two months the newly named “Tea Party” movement was able to rally over 600,000
supporters in more than 600 demonstrations around the nation.25 Occupy Wall Street was started
by Canadian activists on July 13, 2011;26 by September 17, it had begun its protests in New York
City, and within a month, it claimed to have mounted demonstrations or other protests in 70 major
cities and more than 600 communities throughout the country.27
22
Kate Zernicke, “Proposed Amendment Would Enable States to Repeal Federal Law,” New York Times, December
19, 2010, available at http://www.nytimes.com/2010/12/20/us/politics/20states.html.
23
The Campaign to Restore Federalism, “Repeal the Seventeenth Amendment,” available at
http://www.restorefederalism.org/?gclid=CK386ay3pa4CFSEQNAodaTKFRw.
24
Jonathan Rauch, “How Tea Party Organizes Without Leaders,” National Journal, September 11, 2010, available at
http://www.nationaljournal.com/njmagazine/cs_20100911_8855.php.
25
Ibid.
26
“Occupy Wall Street To Turn Manhattan Into ‘Tahrir Square’” New York Times, September 17, 2011, available at
http://newyork.ibtimes.com/articles/215511/20110917/occupy-wall-street-new-york-saturday-protest.htm.
27
Joanna Walters, “Occupy America: Protests Against Wall Street and Inequality Hit 70 Cities,” The Guardian (U.K.),
(continued...)
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Advances in communications technology and the examples of such phenomena as the Tea Party
and Occupy Wall Street movements could provide a model for present-day advocates of the
Article V Convention alternative. Notwithstanding the deterrents to an Article V Convention cited
earlier in this report, the methods and technologies identified above could arguably be harnessed
to promote a credible campaign in a much shorter period of time than was the case with previous
convention advocacy movements.
As the institution authorized by the Constitution to summon, and, arguably, to plan for and guide
an Article V Convention, this prospect could present Congress with a range of consequential
issues in a time frame that could require its urgent consideration. Under these circumstances,
Congress might be called on to revisit the Article V Convention issue for the first time since the
1980s.
The Role of Congress in the Article V Convention
After nearly three decades of comparative inactivity, public interest in the Article V Convention
option has revived in recent years. Advocacy groups representing much of the political spectrum
from left to right have embraced the convention alternative as a vehicle to bypass perceived
policy deadlock at the federal level. Some recent developments are examined in this section.
Emergence of Technology-Driven Issue Advocacy—A Model for
Contemporary Article V Convention Supporters?
Communications technology has advanced dramatically over the three decades since the nearly
successful campaign for an Article V Convention to consider a balanced federal budget stalled in
the early 1980s. The development and subsequent ubiquity of e-mail and social media have
provided a new and compelling model for issue-driven mass policy advocacy campaigns. The
emergence of social-media driven groups such as MoveOn.org, the Tea Party movement, and
Occupy Wall Street serve as the most obvious examples. Their swift rise, combined with
widespread publicity, suggest the possibility that a contemporary campaign, using the
communications strategies and tools of the current day, could arguably move the issue of an
Article V Convention to the forefront of public awareness on a shorter cycle than was possible for
previous campaigns.
In an era of instant interpersonal electronic communication, e-mail and other social network
media can facilitate remarkably rapid growth in awareness of a political phenomenon. For
instance, MoveOn.org emerged in 1998 as an ad hoc online coalition opposed to the impeachment
of President Bill Clinton; it has since grown to a membership of 5 million.13 More recently, the
Tea Party movement originated in late 2008 with online discussions on conservative-oriented
social networking sites and frequent conference calls among organizers. On February 19, 2009, a
cable network business commentator made an on-air call for rallies to oppose government
spending; his emotionally charged remarks were picked up by various websites and went “viral.”
(...continued)
on their sessions, frequently limiting them to as little as 60 to 90 session days. Given the generally hectic pace and
urgent demands faced by most state legislatures during their sessions, it seems unlikely that Article V convention
proposals could make it through the legislatures of 34 states in one year. Judging from previous efforts, it appears more
likely that even a well-publicized and popular Article V petition drive would require two to five years of state
legislative action before it approached “critical mass.” See The Book of the States, 2009 edition, volume 41 (Lexington,
KY: Council of State Governments, 2009), pp. 83-85.
13
Jonathan Rauch, “How Tea Party Organizes Without Leaders,” National Journal, September 11, 2010, available at
http://www.nationaljournal.com/njmagazine/cs_20100911_8855.php.
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In just two months the newly named “Tea Party” movement was able to rally over 600,000
supporters in more than 600 demonstrations around the nation.14 Occupy Wall Street was started
by Canadian activists on July 13, 2011;15 by September 17, it had begun its protests in New York
City, and within a month, it claimed to have mounted demonstrations or other protests in 70 major
cities and more than 600 communities throughout the country.16
Advances in communications technology and the examples of such phenomena as the Tea Party
and Occupy Wall Street movements could provide a model for present-day advocates of the
Article V Convention alternative. Notwithstanding the deterrents to an Article V Convention cited
earlier in this report, the methods and technologies identified above could arguably be harnessed
to promote a credible campaign in a much shorter period of time than was the case with previous
convention advocacy movements.
As the institution authorized by the Constitution to summon, and, arguably, to plan for and guide
an Article V Convention, this prospect could present Congress with a range of consequential
issues in a time frame that could require its urgent consideration. Under these circumstances,
Congress might be called on to revisit the Article V Convention issue for the first time since the
1980s.
Most Recent Developments
Since late 2013, the level of interest and the pace of events, both in the states and among Article
V Convention advocacy groups, have noticeably heightened.
Georgia (March 2014) and Tennessee (April 2014) Apply for an Article V
Convention to Consider a Balanced Federal Budget Amendment, Reversing
Their Earlier Rescissions
On March 7, 2014, the Georgia Legislature completed action on S.R. 371, a “Resolution making
renewed application to the Congress of the United States to call for a convention for the purpose
of proposing an amendment to the Constitution....”17 On April 10, 2014, the Tennessee
Legislature completed action on a similar measure, H.J. Res. 548, an application to Congress for a
convention to consider an amendment requiring a balanced federal except in time of war or
national emergency. The text of the resolution specifies that it “is to be considered as covering the
same subject matter as the presently-outstanding balanced budget resolutions”18 submitted by 32
states in the 1970s and 1980s and in recent months by Ohio and Michigan. The action of these
two states is noteworthy in that they had previously repealed their earlier resolutions purporting to
rescind, that is, to retract or cancel, their prior applications for an Article V Convention. At
question here is not the current applications, but the constitutionality of the earlier rescissions and
14
Ibid.
“Occupy Wall Street To Turn Manhattan Into ‘Tahrir Square’” New York Times, September 17, 2011, available at
http://newyork.ibtimes.com/articles/215511/20110917/occupy-wall-street-new-york-saturday-protest.htm.
16
Joanna Walters, “Occupy America: Protests Against Wall Street and Inequality Hit 70 Cities,” The Guardian (U.K.),
October 8, 2011, available at http://www.guardian.co.uk/world/2011/oct/08/occupy-america-protests-financial-crisis.
17
Georgia General Assembly website, at http://www.legis.ga.gov/Legislation/en-US/display/20132014/SR/371.
18
Tennessee General Assembly website, at http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=
HJR0548.
15
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those of other states. This point has never been decided, and the issue remains open to question
and debate; it is examined in greater detail later in this report.
Ohio (November 2013) and Michigan (March 2014) Pass First-Time
Applications for an Article V Convention to Consider a Balanced Federal
Budget Amendment
Other state actions have drawn attention in recent months, particularly adoption by the
legislatures of Ohio, in November 2013,19 and Michigan, in March 2014,20 of first-time
applications for an Article V Convention to consider a balanced federal budget amendment.
Unlike Georgia and Tennessee, neither state had previously applied for a balanced budget
convention. These applications call on Congress to summon a convention to consider an
amendment requiring a balanced federal budget except in wartime or instances of declared
national emergency. The potential significance here is that
•
they are the first entirely new state applications since 1983 to request a
convention to consider such an amendment; and
•
they also claim association with the text and format of applications made by 32
states between 1975 and 1983 as part of an earlier, nearly-successful campaign to
call for a convention to propose a convention to consider a balanced budget
amendment.21
If the Ohio and Michigan applications are included in this series dating to the 1970s and 1980s,
they would be the 33rd and 34th such applications for a balanced federal budget amendment
convention. If, moreover, all 32 similarly phrased previous state applications for such a
convention are valid, including Georgia and Tennessee’s recent re-applications, advocates for the
Article V Convention would almost certainly argue that the constitutional requirement for
applications from two-thirds of the states has been met for the first time, and that Congress must
consider implementing the relevant section of Article V. The viability of this assertion arguably
depends, among other things, on two factors: the long-term status or lifespan of earlier state
applications, and the question of whether states have the constitutional authority to rescind
applications for an Article V Convention, both of which are examined in the next section of this
report.
State Applications for an Article V Convention:
Are They Indefinitely Valid or Time-Limited?
Some observers maintain that state applications remain valid indefinitely, so that Ohio and
Michigan’s new applications bring the total to 34, meeting the constitutional two-thirds
19
S.J. Res. 5, 130th Ohio General Assembly, at http://www.legislature.state.oh.us/res.cfm?ID=130_SJR_5. The
resolution also called on Congress to propose a balanced budget amendment to the states, a format previously
employed widely in other past state applications.
20
Senate Joint Resolution V, Michigan Legislature, at http://www.legislature.mi.gov/
(S(tr13u455jdxnjo45dhvlbyrk))/milegPrint.aspx?page=BillStatus&objectname=2013-SJR-V&query=on.
21
For additional information on this movement, please see CRS Report R42592, The Article V Convention for
Proposing Constitutional Amendments: Historical Perspectives for Congress , “The Balanced Budget Amendment:
1975-1983,” pp. 12-14.
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The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress
requirement. Others disagree, however, claiming that state applications have only a limited
validity; periods of two, four, and seven years are commonly cited as appropriate lifespans. By
this reasoning, most previous applications have long since expired and are invalid, so only the
Ohio and Michigan applications, and those of Tennessee, Georgia, and three other states which
have submitted applications since 2010 should be considered currently valid, the first of a new
series.22
State Rescissions of Article V Convention Applications:
Are They Constitutional?
A further complicating factor centers on state actions rescinding or retracting their previous
applications for a balanced budget amendment convention. In the years following the convention
movement’s high water mark in 1983, 17 states passed resolutions rescinding their applications
for an Article V Convention, or in some instances, all previous applications. Five of these 17
states, most recently Tennessee and Georgia, have submitted fresh applications since 2010, thus
arguably making the question of their original rescissions, and those of other states, moot.23 With
respect to rescission, the current status of applications from the remaining 12 states turns on the
question of whether states have the right to rescind their applications for an Article V Convention.
Proponents of the convention device tend to deny legality of rescission, while others argue to the
contrary. Ultimately, the question remains at issue because it has yet to be the subject of
congressional legislation or a definitive court decision.24
The issue thus becomes increasingly complex depending on these two factors: whether
applications expire or are valid indefinitely, and whether rescission is permissible under the
Constitution. For instance:
•
Ohio and Michigan could be counted as the 33rd and 34th states to apply for an
Article V Convention to propose a balanced federal budget amendment if state
applications are valid indefinitely and rescission of applications is
unconstitutional.25
•
They could be counted as the 22nd and 23rd applications if state applications are
valid indefinitely and rescission is constitutional.26
22
A shelf life of two, four, or seven years has been suggested, but other observers claim that state applications have no
expiration date. For additional information on this question, consult CRS Report R42592, The Article V Convention for
Proposing Constitutional Amendments: Historical Perspectives for Congress , by Thomas H. Neale, p. 18.
23
According to the Friends of the Article V Convention’s website, between 1988 and 2010, Alabama, Arizona, Florida,
Georgia, Idaho, Louisiana, Montana, New Hampshire, Nevada, North Dakota, Oklahoma, Oregon, South Carolina,
South Dakota, Tennessee, Utah, and Wyoming rescinded Article V applications. As noted earlier, in recent years,
however, Alabama, Florida, and New Hampshire, and now Tennessee and Georgia have submitted fresh applications
for a convention to consider a balanced budget amendment. The author gratefully credits Gregory Watson, Legislative
Assistant with the Texas Legislature for his assistance in verifying this list
24
Dwight Connely, “Amending the Constitution: Is This any Way to Call for a Constitutional Convention?” Arizona
Law Review, volume 22, issue 4, 1980, pp. 1033-1034.
25
In this case, the new applications would be added to the 32 existing applications filed between 1975 and 1983, but all
rescissions would be disregarded.
26
In this case the applications of Ohio and Michigan would be added to the 16 states whose applications had never
been rescinded and the five states, most recently Georgia and Tennessee, that had previously rescinded their
applications but have submitted fresh applications since 2010.
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The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress
•
Finally, Ohio and Michigan could be the sixth and seventh applications for a
convention to consider a balanced federal budget amendment if state applications
have a limited, seven-year lifespan.27
To summarize, if applications are valid indefinitely and rescission is unconstitutional, then the
constitutional threshold for an Article V Convention has arguably been reached. If applications
have a limited life span and/or rescission is constitutional, then the threshold has not been
attained.
2010-2013: Advocacy Group Initiatives
The recent actions of the Ohio and Michigan legislatures are arguably the culmination of
developments that have taken place in recent years that demonstrate continued growing interest
among a range of advocacy groups in an Article V Convention, particularly an amendment or
amendments requiring a balanced federal budget and/or limits on the federal debt. The convention
option may be particularly attractive on several grounds: it springs unquestionably from the
“original intent” of the founders; the need for state petitions suggests widespread popular grassroots origins; and the prospect of proposing amendments directly to the states offers an alternative
to what some have characterized as a legislative and policy deadlock at the federal level. A
number of these organizations are identified and analysis of their proposals provided in this
section.
Friends of the Article V Convention—FOAVC
One organization, the Friends of the Article V Convention (FOAVC), a self-described nonpartisan group, has been a persistent advocate of the convention option since at least 2007. Its
website28 includes lists of what the organization claims are over 700 state applications for a
convention.
Restoring Freedom
Another organization, RestoringFreedom.org, a non-profit corporation chartered in Texas in 2009,
originated the “National Debt Relief Amendment.” This organization calls for states to apply for
an Article V Convention to consider a specific proposal, under which any increase in the national
debt would require the approval of a majority of the legislatures of the 50 states prior to
enactment.29 The proposal has been introduced in a number of state legislatures; as of late March
2014, the legislatures of Louisiana and North Dakota had approved applications for a convention
to consider the amendment. The constitutionality of state applications for conventions to consider
particular, specifically worded amendments has been widely debated and remains an open issue,
which is examined later in this report.30
27
In this case, the applications of Ohio and Michigan would be added to the five states that submitted fresh applications
since 2010. Rescission would not be an issue in this scenario because all 32 earlier applications would have expired by
1990.
28
See Friends of the Article V Convention, available at http://www.foavc.org/.
29
RestoringFreedom.org, “The Amendment,” at http://restoringfreedom.org/the-amendment/.
30
See “An Article V Convention Limited to the Consideration of a Specifically Worded Amendment?―H.J.Res. 52 in
the 113th Congress.”
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Conference on the Constitutional Convention: “ConConCon”
In a subsequent development, in September 2011, a diverse coalition, including Harvard Law
School; the Tea Party Patriots; and Fix Congress First, a self-described “network of activists
fighting the corrupting influence of money and politics,31 sponsored a Conference on the
Constitutional Convention—“ConConCon”—at Harvard.32 This colloquium investigated
constitutional and political questions associated with an Article V Convention, identified state and
local grass-roots planning for a convention, and considered the question of proceeding with a
convention campaign.33
A further example of increasing interest in the Article V device was offered by a “ConConCon”
participant, Harvard Professor Lawrence Lessig, collaborating with campaign management expert
Mark McKinnon on “How to Sober Up Washington,” a related article that appeared in The Daily
Beast on April 6, 2012. The authors called for a convention to consider amendments that would
eliminate what they describe as corruption in the federal government:
There is something we can do. We, the People, can take back the power we gave to
Congress. We can take it back through the states. The framers left open a path to amendment
that doesn’t require the approval of Congress: a convention. Article V of the Constitution
requires Congress to call a convention to propose amendments if 34 state legislatures
demand it.34
Moreover, they assert that an Article V Convention would be equally attractive to the political left
and right, because, assuming that it would be an open convention,35 the delegates could consider,
and conceivably propose, amendments from the agendas of both ends of the political spectrum:
The beauty of a convention is that it would provide a forum of possibility for conservative
Tea Party types who might want an amendment calling for a balanced budget; or a line-item
veto for the president as well as progressives who would like to amend the [C]onstitution to
make it possible to enact meaningful campaign finance reform. The only requirement is that
two-thirds of the states apply, and then begins the drama of an unscripted national
convention to debate questions of fundamental law. It would be a grand circus of democracy
at its best.36
One notable aspect of these proposals for an Article V Convention appears to be the political
diversity of their proponents. As noted previously, “ConConCon” was partially sponsored by
organizations that represent divergent parts of the political spectrum, while the conference itself
was co-sponsored by Harvard Law School and held on the Harvard campus. These efforts may
reflect a deliberate choice to target “grass roots” populist and libertarian reformist elements on
both the political left and right.
31
This group has renamed itself Rootstrikers, available at http://rootstrikers.org/.
Conference on the Constitutional Convention, available at http://conconcon.org/.
33
Ibid., available at http://conconcon.org/agenda.php.
34
Mark McKinnon and Lawrence Lessig, “How to Sober Up Washington,” The Daily Beast, April 6, 2012, available at
http://www.thedailybeast.com/articles/2010/04/06/how-to-tell-dc-politicians-to-go-to-hell.html.
35
The question of whether an Article V Convention has the authority to propose an amendment or amendments on any
issue (open), or is restricted to the single issue for which it is convened (closed) is examined in detail later in this
report.
36
McKinnon and Lessig, “How to Sober Up Washington.”
32
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American Legislative Exchange Council Article V Handbook for
State Legislators
Also in 2011, the Tax and Fiscal Policy Task Force of the American Legislative Exchange
Council (ALEC) released Proposing Constitutional Amendments by a Convention of the States, A
Handbook for State Lawmakers. This publication, which provides an overview of the Article V
Convention question, includes such elements as an overview of the process; the question of
judicial review; a step-by-step guide to the state application process; an examination of the
“runaway convention” question; and “practical recommendations” for the states. ALEC describes
itself as a non-profit organization that provides a forum for state legislators and private sector
leaders to discuss and exchange information on state policy issues. It focuses on such issues as
“free markets, limited government and constitutional division of powers between the federal and
state governments.”37 Critics of ALEC and its programs, such as Bob Edgar, president of
Common Cause, assert, however, that “its mission is to bring together corporations and state
legislators to draft profit-driven, anti-public-interest legislation, and then help those elected
officials pass the bills in statehouses from coast to coast.”38
“Mount Vernon Conference,” December 2013
In a related development, a group of 100 state legislators met on December 7, 2013, at the
National Library for the Study of George Washington on the grounds of the Mount Vernon estate
in Virginia, to discuss organizing for a projected Article V Convention. It is unclear whether the
conference organizers intended a comparison to the Mount Vernon Conference of 1785, a meeting
of Maryland and Virginia delegates that was a precursor to the Philadelphia Constitutional
Convention.39
According to one press account, “The purpose of the meeting is to discuss and draft an agenda for
a ‘Convention of the States’ for the sole purpose of writing the rules that would govern any
Article V Conventions for proposing amendments, a so-called constitutional convention.”40
Another report identified Convention of States (COS) as the primary stimulus for the meeting.
Convention of States is a project of Citizens for Self Governance, an advocacy group whose selfdescribed goal is “to take power away from big government and the big money that influences
it… and return the power to its rightful owners, the people ...” and “enable the conservative
grassroots to restore our country to a republic with effective self-governance.”41 According to
COS, the movement’s ultimate objective is to call an Article V Convention that would address a
37
For additional information on ALEC, see http://www.alec.org/about-alec/frequently-asked-questions/.
Mike McIntyre, “Conservative Non-Profit Acts as a Stealth Business Lobbyist, New York Times, April 21, 2012,
available at http://www.nytimes.com/2012/04/22/us/alec-a-tax-exempt-group-mixes-legislators-and-lobbyists.html?
pagewanted=1&_r=1.
39
The organizers may have intended to draw a connection with the original Mount Vernon Conference of 1785, at
which representatives from Maryland and Virginia negotiated an agreement settling outstanding issues concerning
fisheries, commerce, and navigation in the Potomac River and Chesapeake Bay. George Washington presided. In
addition to negotiating a compact settling these issues, other states were invited to attend a conference on commercial
issues at Annapolis the following year. The Annapolis Convention of 1786, attended by representatives of six states, in
turn issued the call for the Philadelphia Constitutional Convention of 1787.
40
Nikki Kelly, “Long Pushes Mount Vernon Assembly,” Journalgazette.net (Fort Wayne, IN), November 145, 2013, at
http://www.journalgazette.net/article/20131114/LOCAL0202/131119679.
41
Citizens for Self Governance, “About Citizens for Self Governance/Mission” at http://selfgovern.com/about/.
38
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particular subject, rather than a specific amendment, in this case, issues related to “limit[ing] the
power and jurisdiction of the federal government.” According to their argument, this would then
allow a convention to consider amendments in other related issues (e.g., term limits and tax
reform).42
Compact for America’s Compact for a Balanced Budget Amendment:
A “Turn-Key” Plan for an Article V Convention43
A different approach to the Article V Convention question was advanced in 2013 by the
“Compact for America,” CFA. CFA is a domestic non-profit “501(c)4” corporation registered in
Texas.44 The organization’s program is comprised of the Compact for a Balanced Budget
Amendment (“the Compact”), a proposed interstate compact, which, in the words of its
proponents, would transform “the otherwise cumbersome state-initiated amendment process
under Article V into a ‘turn-key’ operation.”45 The Compact includes a comprehensive program
that, in the opinion of its advocates, meets all the requirements necessary to:
•
apply for and convene a convention;
•
provide rules and operating procedures for the convention;
•
convene the convention;
•
present, approve, and propose a pre-drafted amendment for transmission to the
states; and
•
provide for prospective state ratification of the amendment.
The single action of the requisite number of states in agreeing to the Compact would, its
proponents argue, set in motion the convention process and carry it through to successful
ratification and incorporation as part of the Constitution. Proponents of the Compact maintain that
the interstate compact device would speed up the Article V Convention process so that a
convention could be called, convened, and adjourned and an amendment proposed and ratified
within 12 months.46
The Compact seeks to anticipate and prescribe procedures for various elements in the Article V
Convention process. States that agree to the Compact would simultaneously agree to its various
requirements. A state’s act of agreement to the Compact would constitute its application for an
Article V Convention, the sole purpose of which would be to propose an amendment whose text
is prescribed in the Compact. Participating states also agree to observe the Compact’s provisions
governing the convention’s composition and rules of procedure. Finally, by agreeing to the
42
Convention of States, “News,” Citizen’s Toolkit, Frequently Asked Questions, at
http://www.conventionofstates.com/news/looking-back-moving-forward.
43
The author extends grateful thanks and credit to CRS Legislative Attorney Kathleen S. Swendiman,
kswendiman@crs.loc.gov, 7-9105, who prepared much of the section dealing with interstate compacts.
44
CompactforAmerica.org, “About,” at http://www.compactforamerica.org/about-2/.
45
Goldwater Institute, “Compact for a Balanced Budget,” at http://goldwaterinstitute.org/article/compact-balancedbudget.
46
Goldwater Institute, Compact for America, Statement of Nick Dranias, November 20, 2013, at
http://goldwaterinstitute.org/article/compact-america.
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Compact, states also commit themselves to “prospective” ratification of the proposed
amendment.47
The keystone element of the Compact is the “Balanced Budget Amendment” that would be
proposed by the convention. Among its major elements, the amendment would
•
provide for a balanced federal budget at all times, unless any deficit is financed
by debt issued in conformity with the amendment’s requirements;
•
set a ceiling for federal debt equal to 105% of the outstanding debt at the time the
amendment takes effect;
•
require that any increase in the federal debt ceiling proposed by Congress must
be submitted to the states and approved by a simple majority (26, assuming the
District of Columbia and the territories are excluded) of state legislatures within
60 days before taking effect;
•
require the President to ensure that the debt ceiling is not exceeded by proposing
the impoundment of specific expenditures sufficient to prevent the breach. The
President’s impoundments would become effective in 30 days unless Congress
proposed alternatives of the same or greater amount;
•
specify that the President’s failure to designate or enforce such impoundments
would be an impeachable misdemeanor; and
•
require that any new or increased tax revenue tax legislation be approved by twothirds of the full membership of the Senate and House of Representatives on a
roll call vote.
The Compact includes other noteworthy provisions. It would establish an ongoing Compact
Commission which would promote the convention, encourage states to join, and “coordinate the
performance of obligations (presumably of signatory states) under the Compact,” among other
things. It would set the size of convention delegations as one delegate per member state, and
specifies that the governor of each member state would serve as the state’s delegate, contingent
on the governor’s taking a leave of absence from state duties. The convention would last one day,
and its sole duty would be to introduce, debate, vote upon, and reject or propose for ratification
the specific text of the Balanced Budget Amendment described above.48
As part of the compact initiative, the CFA has also drafted model legislation for a concurrent
resolution that could be used by Congress to call the convention. Title I of the model resolution
also includes the text of the proposed amendment and would establish procedures governing the
form of the convention, delegate appointment, convention rules of procedure, and provisions
governing congressional referral of the proposed amendment to the states. Title II of the
resolution would refer the Balanced Budget Amendment proposed by the convention to the state
legislatures for ratification.49
47
Ibid., “Compact for State Legislators,” at http://goldwaterinstitute.org/article/compact-america.
Goldwater Institute website, “Compact for a Balanced Budget,” at http://goldwaterinstitute.org/sites/default/files/
CFA-Text-Compact%20for%20a%20Balanced%20Budget%20Final%20%282%29.pdf.
49
Goldwater Institute website, “Omnibus Concurrent Resolution,” at http://www.compactforamerica.org/wp-content/
uploads/CFA-Text-Congressional-Omnibus-Resolution.pdf.
48
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Compact for a Balanced Budget Amendment:
An Interstate Compact under the Constitution
The Compact for a Balanced Budget Amendment is self-identified as an interstate compact. As
such, it falls under the authority of Article I, Section 10, clause 3 of the Constitution, which states
that, “No State shall, without the Consent of the Congress ... enter into any Agreement or compact
with another State....” This provision is known as the “Compact Clause,” and it is the only section
of the United States Constitution that deals with formal agreements between and among the
states. The Compact Clause reflects the view of the Framers that states should be able to work
cooperatively together, as well as the concern that unchecked interstate alliances might threaten
the harmony of the Union or the authority vested by the Constitution in the federal government.50
The compact clause was originally included in the Constitution primarily to govern boundary
agreements between states, but it has subsequently evolved “as an instrument for state
cooperation in carrying out affirmative programs for common problems.”51
The Constitution places no limits on what might be done through an interstate compact other than
the requirement of congressional consent. In the early years of government under the
Constitution, they were used almost exclusively to settle boundary disputes. Beginning with the
establishment of the Port of New York Authority52 in 1921, however, compacts began to be used
to address more complex, regional issues requiring intergovernmental cooperation. Some
compacts are merely advisory in form, but others may be regulatory, with significant powers
granted to multi-state commissions.53 More recently, compacts have addressed such wide-ranging
concerns as mental health treatment, law enforcement and crime control, education, driver
licensing and enforcement, environmental conservation, energy, nuclear waste control, facilities
operations, transportation, economic development, insurance regulation, placement of children
and juveniles, disaster assistance, and pollution control. There are approximately 200 interstate
54
compacts in effect today.
Even though the Compact Clause specifically provides for congressional consent, the United
States Supreme Court declined, in 1893, in Virginia v. Tennessee,55 to read the consent
requirement literally, so as to apply to each and every agreement between states. “There are many
matters upon which different States may agree that can in no respect concern the United States,”
such as joint actions between states to fight disease.56 Thus the Court held that the Framers
50
Michael L. Buenger and Richard L. Masters, “The Interstate Compact on Adult Offender Supervision: Using Old
Tools to Solve New Problems,” Roger Williams Law Review, v. 9, issue 1, fall 2003, pp.71, 85.
51
U.S. Constitution Annotated, Article I, Section 10, clause 3 at http://www.crs.gov/conan/default.aspx?mode=topic&
doc=Article01.xml&t=3|2&s=10&c=3.
52
1921 N.Y. Laws Ch. 154; N.J. Laws Ch. 151; 42 Stat 174 (1921).
53
Administrators under compacts with congressional compacts with congressional consent may have the power to
promulgate rules and regulations, and may also review federal agency action under certain circumstances. See Seattle
Master Builders Assn. v. Pacific Northwest Elec. Power, 786 F.2d 1359, 1362 (9th Cir. 1986).
54
The Council of State Governments, National Center for Interstate Compacts (NCIC), at http://www.csg.org/
programs/ncic/default.aspx. The NCIC website includes a database of current interstate compacts searchable by state,
name of compact, and subject.
55
148 U.S. 503 (1893). It may also be noted that this case involved a boundary agreement between Virginia and
Tennessee early in the 19th century that had never obtained formal congressional consent. The court held that, over the
years, Congress had relied upon the terms of the compact for judicial and revenue purposes and thus had impliedly
consented to the interstate compact.
56
Ibid., 518. For an analysis of whether congressional consent may or may not be required for the proposed National
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intended this requirement to apply only to compacts “directed to the formation of any
combination tending to the increase of political power in the States, which may encroach upon or
interfere with the just supremacy of the United States.”57 States may enter into agreements among
themselves, and congressional consent will not be required, so long as the agreements do not
infringe on federal interests or shift the balance of power within the federal system of
government.58 It should, however, be noted that the consent power of Congress is absolute.
Congress can require consent to any interstate compact, and can deny consent to any interstate
compact if it so chooses.59
Usually congressional consent to an interstate compact takes the form of a joint resolution or act
of Congress specifying its approval of the text of the compact, adding any conditions or
provisions it deems necessary, and often embodying the compact document. As with any
congressional enactment, it must be signed by the President before it becomes law.60 Very rarely
has the President vetoed or threatened to veto consent legislation by Congress.61 While
congressional consent to an interstate compact is most often explicit, consent by Congress may
also be implied by subsequent acts of Congress: “An inference clear and satisfactory that
Congress ... intended to consent” to a compact may be sufficient.62 Congress may also delegate its
power to approve a compact to a federal official so long as an “intelligible principle” against
which approval can be measured is apparent.63
In addition, Congress can condition its consent to require that the proposed interstate compact be
changed to meet congressional criteria, or contain specific provisions.64 The Supreme Court, in
(...continued)
Popular Vote Compact, see Heather Green, “The National Popular Vote Compact: Horizontal Federalism and the
Proper Role of Congress Under the Compact Clause,” Chapman Law Review, vol. 16, spring 2012, p.16.
57
Ibid., 519.
58
See Cuyler v. Adams, 449 U.S. 433, 440 (1981), where the Court stated that if an agreement is not “directed to the
formation of any combination tending to increase the political power of the States, which may encroach upon or
interfere with the just supremacy of the United States,” it does not require congressional consent to be valid.
59
This may be true even where affirmative consent is not necessary. St. Louis & San Francisco Ry. Co. v. James, 161
U.S. 545 (1896); Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275 (1959). See also Cuyler v. Adams, 449
U.S. 433 (1981), where the Court deferred to Congress’s political judgment that the Interstate Agreement on Detainers
was to be treated as a compact pursuant to the Compact Clause even if the Constitution did not require such treatment.
Justice White noted that the “requirement that Congress approve a compact is to obtain its political judgment.” Cuyler,
at 441, n. 8 (White, J., joined by Blackmun, J., dissenting).
60
See Metropolitan Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, 501 U.S. 252, 276 & n.21 (1991).
“If the power is legislative, Congress must exercise it in conformity with the bicameralism and presentment
requirements of Art. I, § 7.” See, also, footnote 21 of that decision, wherein Justice Stevens, concurring in the
judgment, cites several provisions in the Constitution which permit Congress or a part of Congress to take some actions
without complying with the bicameral and presentment requirements of Art. I, § 7. While the Justice’s list may not be
all inclusive, it is noted that the Compact Clause is not included.
61
In 1942, President Roosevelt vetoed the Republican River Compact, stating that it “seeks to withdraw the jurisdiction
of the United States over the waters of the Republican Basin for purposes of navigation.” Congressional Record, v. 87,
pt. 3, April 2, 1941, pp. 3285-86. He did, however, sign a later, modified version of the compact. See 57 Stat. 86.
Joseph F. Zimmerman, Interstate Cooperation: Compacts & Administrative Agreements, 2nd ed. (Albany, NY: State
University of New York Press, 2012), p. 56.
62
Virginia v. West Virginia, 78 U.S. 39, 60 (1870). Congressional consent “is always to be implied when Congress
adopts the particular act by sanctioning its objects and aiding in enforcing them ...” Virginia v. Tennessee, 148 U.S.
503, 521 (1893).
63
Milk Indus. Found. v. Glickman, 132 F.3d 1467, 1471 (D.C. Cir. 1998).
64
Chief Justice Charles Evans Hughes wrote in James v. Dravo Contracting Company, 302 U.S. 134, 138 (1937): “It
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Cuyler v. Adams, stated that, “(b)y vesting in Congress the power to grant or withhold consent, or
to condition consent on the States’ compliance with specified conditions, the Framers sought to
ensure that Congress would maintain ultimate supervisory power over cooperative state action
that might otherwise interfere with the full and free exercise of federal authority.”65
The Interstate Compact for a Balance Budget Amendment would require congressional approval
under the Compact Clause because it proposes actions that would redefine, via a constitutional
amendment, Congress’s taxing and spending authority, arguably shifting the balance of power
within the federal system of government.
Goldwater Institute Constitutional Policy Director Nick Dranias notes, however, that there is no
apparent requirement of congressional approval for the states to organize and participate in the
Compact Commission envisaged by the CFA.66
If the Interstate Compact for a Balanced Budget Amendment were to be approved by Congress
via a concurrent resolution without presentment to the President, it would likely be challenged as
unconstitutional. As noted above, congressional approval of interstate compacts, along with any
conditions attached to such approval, generally takes the form of a legislative bill, usually a joint
resolution, which becomes law when signed by the President. A concurrent resolution which does
not include presentment may be found by the courts to fall short of the requirement of
congressional approval under the Compact Clause.67
Reaction to the Compact for a Balanced Budget
In its early announcements, Compact for America, the Compact’s sponsoring organization,
initially suggested that quick approval by the 38 state legislatures required by the plan could lead
to a convention and subsequent ratification of the amendment as early as July 4, 2013, due to the
“prospective” ratification process embedded in the compact. The only identifiable state legislative
actions to date have been the Georgia Legislature’s passage of a bill, HB 794, committing the
state to the Compact for a Balanced Budget68 and action by the Rules Committee of the Arizona
House of Representatives rejecting a bill incorporating the Compact in February 2013.69
Although the Compact does not appear to have generated widespread coverage in major national
newspapers, broadcast or cable media, or in academic journals, it has attracted considerable
reaction, largely posted on the Internet.
Among its supporters, as noted earlier, is the Goldwater Institute, which may have provided startup assistance or encouragement for CFA, the organization that developed the Compact. In
(...continued)
can hardly be doubted that in giving consent Congress may impose conditions.”
65
Cuyler v. Adams, 449 U.S. 433, 439-440 (1981).
66
Email message from Nick Dranias to the author, March 12, 2014.
67
Metropolitan Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, 501 U.S. 252, 276 (1991). See also
Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).
68
Georgia General Assembly website, at http://www.legis.ga.gov/Legislation/en-US/Search.aspx. As of April 10, 2014,
the bill had yet to be signed by Georgia Governor Nathan Deal.
69
“Compact for America Dies, Legality Questioned,” Arizona Daily Independent, February 20, 2013, at
http://www.arizonadailyindependent.com/2013/02/20/compact-for-america-dies-legality-questioned/.
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addition, the Board of Directors of the American Legislative Exchange Council, ALEC, approved
a resolution offering the Compact as model legislation in January 2013.70 Cato Institute71 senior
fellow in constitutional studies Ilya Shapiro also declared his support in a Cato blog posting in
which the author asserted that “the Compact for America would powerfully check and balance
Washington’s debt addicts.”72 In its literature, Compact for America also lists a number of
Members of Congress and other public figures who support the Compact for a Balanced Budget
Amendment.73
Other organizations have criticized the Compact, however. The conservative John Birch Society,
which opposes an Article V Convention on the grounds that a runaway convention could damage
the Constitution, also opposes the Compact for a Balanced Budget Amendment on the same
grounds. In addition, the society’s journal, The New American, asserted the CFA’s balanced
budget amendment would “grant the President new, sweeping authority over the budget-making
process. Furthermore, giving the President the right to ‘designate’ any spending request is
tantamount to giving him the power to rewrite laws passed by Congress, which would amount to
rewriting both Articles I and II of the Constitution.”74 Bill Walker, co-founder of Friends of the
Article V Convention, and one of the earliest contemporary supporters of the convention concept,
strongly opposed CFA on several grounds in a monograph posted on the FOAVC website. He
claimed that CFA would be an improper use of the interstate compact device, since it seeks
effectively to circumvent the amendment process as established in Article V and would adversely
impact the balance of power among the various branches built into the Constitution. He further
criticized the proposal on the grounds that by reducing the convention to a “turn-key” process, it
would reduce what the founders envisioned as a deliberative effort to a clockwork series of events
with pre-ordained outcomes. In his critique, he asserted that the Compact would ignore the
founders’ vision of the Article V Convention as a deliberative assembly, that debate and
amendment in the convention would be prohibited, that Congress would be deprived of any
discretion with respect to proposing the amendment, and the states would be locked in to a
prospective ratification without the chance for debate or reconsideration.75
From the standpoint of Congress and its role in the Article V Convention process, the Compact
presents certain issues for consideration.
First, its literature appears to presume congressional approval of the interstate compact providing
for a Balanced Budget Amendment via a concurrent resolution. As noted previously, however, a
concurrent resolution which does not include presentment to the President may be found by the
70
http://www.alec.org/model-legislation/resolution-to-effectuate-the-compact-for-america/.
The Cato Institute, based in Washington, describes itself as a “public policy research organization—a think tank—
dedicated to the principles of individual liberty, limited government, free markets and peace.” See http://www.cato.org/
about.
72
Ilya Shapiro, “A Compact for America to Reign in Government,” Cato Institute, At Liberty, January 4, 2103, at
http://www.cato.org/blog/compact-america-rein-government.
73
“Compact for America’s ‘Article V 2.0’ Turn-Key Approach is Our Best Shot,” Compact for America website, at
http://goldwaterinstitute.org/sites/default/files/CFAFact%20Sheet%20Turn%20Key%20Article%20V%20Approach%20to%20Reforming%20Washington.pdf.
74
Joe Wolverton, II, “How the Compact for America Threatens the Constitution,” The New American, January 10,
2013, at http://www.thenewamerican.com/usnews/constitution/item/14109-how-the-compact-for-america-threatensthe-constitution.
75
Bill Walker, “The Diabolical Plot of ‘Compact for America’ A Blueprint for Disaster,” undated, FOAVC website at
http://www.foavc.org/reference/file48.pdf.
71
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courts to fall short of the congressional approval requirement of Article I, Section 10, clause 1 of
the Constitution.
Second, by approving the resolution, Congress would presumably agree to its “turn-key” design,
effectively waiving any claim to further authority for setting the convention’s mandate, form, or
procedures; determining whether the amendment should be proposed to the states; and selecting
the ratification process, that is, whether by the state legislatures or ad hoc convention, as
explicitly provided in Article V. It should be noted, however, that Congress has maintained a more
expansive view of its responsibilities under the Article V Convention process. Congress has not,
in general, embraced the theory that its role is purely ministerial or clerical, and that its work is
done once a convention has been called. On the contrary, it has traditionally asserted broad and
substantive authority over the full range of the Article V Convention’s procedural and institutional
aspects from start to finish.76 The role and responsibilities of Congress in the Article V
Convention process are examined at greater length in the next section of this report.
The Role of Congress in the Article V
Convention Process
The state legislatures are indispensable actors in the process of proposing an Article V
Convention—nothing can happen unless 34 or more apply, but Congress is equally indispensable
in the process of summoning, convening, and by its own assertion, defining, one. The
Constitution, with characteristic economy of phrase, simply directs that “Congress ... on the
application of the Legislatures of two thirds of the several States, shall call a Convention for the
proposing of Amendments....” Beyond the language of Article V, however, observers have
identified subsidiary issues for consideration by Congress, of which three may arguably be most
important:
•
Is Congress obligated to call an Article V Convention on the receipt of sufficient
state applications?
•
What sort of convention does Article V authorize?
•
If an Article V Convention proposes amendments, does Congress have any
discretion as to whether they must be submitted to the states for consideration?
Is Congress Required to Call a Convention?
The language of the Constitution is notably straightforward on Congress’s duty to call an Article
V Convention: “... on the Application of the Legislatures of two thirds of the several States,
[Congress] shall call a Convention for proposing Amendments.... (emphasis added)” The
founders’ intentions seem unmistakable, and, as noted earlier in this report, no less an authority
than Alexander Hamilton wrote
emphatically that, once the two-thirds threshold is met, “the
Congress will be obliged ... to call a
convention for proposing amendments.... The words of this
article are peremptory. The Congress
‘shall call a convention.’ Nothing in this particular is left to
the discretion of that body (emphasis
76
See especially under “Providing a Framework: The Precedent of Congressional Proposals to Shape an Article V
Convention,” later in this report.
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added). And of consequence, all the declamation of
disinclination to a change vanishes in air.”28 77
One scholar, Russell L. Caplan, noted that, “[t]he
(...continued)
October 8, 2011, available at http://www.guardian.co.uk/world/2011/oct/08/occupy-america-protests-financial-crisis.
28
Alexander Hamilton, in The Federalist, Number 85, “Conclusion,” p. 546.
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The Article V Convention: Contemporary Issues for Congress
founding generation spoke with one voice on
this duty,” going on to quote the writings of John
Marshall, James Iredell, John Dickinson, and
James Madison in which they all asserted the
obligation of Congress to call a convention once the
two-thirds threshold has been passed.2978
Given the founders’ stern injunctions, on what grounds could Congress decline to call a
convention? Several factors concerning state applications might be used to represent state
applications as defective, and therefore not valid. For instance, as noted previously, most
most constitutional scholars hold
that applications proposing a specifically worded amendment are
invalid. As one scholarobserver noted,
“these resolutions seek to make the ‘Convention’ part of the
ratifying (emphasis in the original)
process, rather than part of the deliberative process for
“proposing” constitutional amendments.... they
They are applications for a convention empowered
solely to approve or disapprove the
submission to the states of particular amendments ‘proposed’
elsewhere.”3079 Another reason for
hesitation in calling an Article V Convention centers on the
great issue of its scope ― general ―general
versus limited. A further potential impediment is lack of
contemporaneity, in other words, an
application or applications have expired and no longer have
any force. As noted earlier, however, Friends of anIt should be noted,
however, that the advocacy group, Friends of the Article V Convention assert, holds that state
applications never expire.80 Similarly, a 2010 study by the Goldwater Institute Similarly, the Goldwater Institute’s 2010 study on the Article V
Convention asserts that Congress’s role in the convention process is purely ministerial, or clerical:
Congress acts primarily as the legislatures’ agent. From the nature of that role it follows that
Congress may not impose rules of its own on the states or on the convention. For example, it
may not limit the period within which states must apply. Time limits are for principals, not
agents to impose: if a state legislature believes its application to be stale, that legislature may
rescind it.3181
Cyril Brickfield, reporting to the House Judiciary Committee in 1957, suggested that Congress
was, arguably, not required to summon an Article V Convention on the presentation of the
requisite number of state applications: “[i]t is doubtful, however, that there is any process or
machinery by which the [C]ongress could be compelled (emphasis added) to perform this duty.”3282
In support of this assertion, he cited as precedent the failure of Congress in 1920 to carry out its
constitutionally mandated duty to reapportion the House of Representatives.33 Congress, he noted,
had the mandate to perform, but “its failure of refusal to do so apparently gives rise to no
enforcible (sic) cause of action.”34
Still another option potentially available is preemption of the call for a convention. Supporters of
this tactic maintain that Congress can legally respond to the applications of the states by
proposing its own relevant amendment. During the 1980s campaign for a balanced budget
amendment convention, the National Taxpayers’ Union asserted that the call for a convention
was, “just a way of getting attention ― something akin to batting a mule with a board.”35 In
defense of this argument, the House Judiciary Committee’s 1993 print, Is There a Constitutional
29
Caplan, Constitutional Brinksmanship, pp. 115-117.
Arthur Earl Bonfield, “Proposing Constitutional Amendments by Convention: Some Problems,” Notre Dame Law
Review, volume, 39, 1963-1964, pp.662-663.
31
Natelson, Amending the Constitution by Convention, A Complete View of the Founders’ Plan, p. 21.
32
Brickfield, Problems Relating to a Federal Constitutional Convention, p. 27.
33
See U.S. Constitution, Article I, Section 2, clause 3, and Amendment 14, section 2.
34
Brickfield, Problems Relating to a Federal Constitutional Convention, p. 27.
35
Baltimore Evening Sun, March 11, 1983; quoted in Is There a Constitutional Convention in America’s Future?, p.
13.
30
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83 Congress, he noted,
77
Alexander Hamilton, in The Federalist, Number 85, “Conclusion,” (Cambridge, MA: the Belknap Press of Harvard
University Press, 1961), p. 546.
78
Russell L. Caplan, Constitutional Brinksmanship, Amending the Constitution by National Convention (New York:
Oxford University Press, 1988) pp. 115-117.
79
Arthur Earl Bonfield, “Proposing Constitutional Amendments by Convention: Some Problems,” Notre Dame Law
Review, volume, 39, 1963-1964, pp.662-663.
80
Friends of the Article V Convention, “What Does Contemporaneous Mean as It Relates to Counting Applications,”
available at http://www.foavc.org/mod/resource/view.php?id=2.
81
Robert G. Natelson, Amending the Constitution by Convention: A Complete View of the Founders’ Plan, Goldwater
Institute, Policy Report Number 241, September 16, 2010. p. 21. The Goldwater Institute is a public policy research
institute, the self-identified focus of which is policy research oriented to individual rights, the free market economy and
limited constitutional government.
82
U.S Congress, House of Representatives, Committee on the Judiciary, Problems Relating to a Federal Constitutional
Convention, by Cyril F. Brickfield, 85th Congress, 1st sess., Committee Print (Washington: GPO, 1957), p. 27.
83
See U.S. Constitution, Article I, Section 2, clause 3, and Amendment 14, Section 2.
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had the mandate to perform, but “its failure of refusal to do so apparently gives rise to no
enforcible (sic) cause of action.”84
Still another option potentially available is preemption of the call for a convention. Supporters of
this tactic maintain that Congress can legally respond to the applications of the states by
proposing its own relevant amendment. During the 1980s campaign for a balanced budget
amendment convention, the National Taxpayers’ Union asserted that the call for a convention
was, “just a way of getting attention―something akin to batting a mule with a board.”85 In
defense of this argument, the House Judiciary Committee’s 1993 print, Is There a Constitutional
Convention in America’s Future?, noted that during the 1980s, a number of states had forwarded
conditional applications that specifically stated their applications would be canceled in the event
Congress proposed a balanced budget amendment incorporating the general principles included
therein.3686
Ultimately, it is difficult to conceive that Congress would fail to heed the deliberate call of a
substantial majority of the nation’s citizens, acting through the agency of their state legislatures,
and meeting the clearly stated requirements of Article V. As Cyril Brickfield noted, in the final
analysis, “[p]ublic opinion and, ultimately, the ballot box are the only realistic means by which
the Congress can be persuaded to act.”3787 The House Judiciary Committee speculated that
congressional failure to call a convention might trigger court challenges that could lead to a
constitutional crisis,3888 but another legal scholar wrote that, “[e]ven conceding the reach of the
judicial power as exercised these days, I find it difficult to believe that the Supreme Court would
issue an order compelling Congress to carry out a duty which can hardly be called a simple
ministerial duty, or would, in the alternative, take it upon itself to prescribe the procedures for a
convention. I much prefer to rely on the integrity of Congress in carrying out a constitutional
duty.”3989
What Sort of Convention Does Article V Authorize?
One of the weightiest issues Congress would face when considering an Article V Convention
turns on the question of what sort of convention is contemplated by the Constitution. What did
the founders envision when they drafted this clause of the Constitution? Commentators have
generally suggested three alternative models for the Article V Convention: the general
convention; the limited convention; and the runaway convention, actually a subset of the limited
convention. A general convention would be free to consider any and all additions to the
Constitution, as well as alterations to existing constitutional provisions. A limited convention
would be restricted in its “call” or authorizing legislation to consideration of a single issue, or
group of issues, as specified by the states in their applications. The third model is a much-cited
subset of the limited convention, the runaway convention, an assembly that departs from its
84
Brickfield, Problems Relating to a Federal Constitutional Convention, p. 27.
Baltimore Evening Sun, March 11, 1983; quoted in Is There a Constitutional Convention in America’s Future?, p.
13.
86
Ibid. For additional information on conditional state applications, see CRS Report R42592, The Article V Convention
for Proposing Constitutional Amendments: Historical Perspectives for Congress, by Thomas H. Neale, pp. 17-18.
87
Brickfield, Problems Relating to a Federal Constitutional Convention, p. 28.
88
Is There a Constitutional Convention in America’s Future?, p. 14.
89
Paul G Kaupfer, “The Alternative Amendment Process: Some Observations,” Michigan Law Review, volume 66,
issue 5, March 1967-1968 (sic), pp. 905-906.
85
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mandate to address a wide range of issues that had supposedly been beyond its purview. Each of
these alternative models has had its proponents and detractors over the years.
The General Convention
Supporters of a general convention note that the language of Article V is broadly inclusive: “... on
the Application of the Legislatures of two thirds of the several States, [Congress] shall call a
Convention for proposing Amendments (emphasis added)....” They assert that the article places no
limitation on the number or scope of amendments that would be within a convention’s purview.
Constitutional scholar Charles Black offered emphatic support of this viewpoint: “I believe that,
in Article V, the words ‘a Convention for proposing such amendments’ mean ‘a convention for
36
Ibid. See above under “Conditional Applications” for additional information on this state application variant.
Brickfield, Problems Relating to a Federal Constitutional Convention, p. 28.
38
Is There a Constitutional Convention in America’s Future, p. 14.
39
Paul G Kaupfer, “The Alternative Amendment Process: Some Observations,” Michigan Law Review, volume 66,
issue 5, March 1967-1968 (sic), pp. 905-906.
37
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proposing such amendments as that convention decides to propose.’”4090 In fact, he went on to
assert that limited conventions would be constitutionally impermissible for the reason that no
language is found in Article V that authorizes them:
It (Article V) does not (emphasis in the original) imply that a convention summoned for the
purpose of dealing with electoral malapportionment41malapportionment91 may kick over the traces and emit
proposals dealing with other subjects. It implies something much more fundamental than
that; it implies that Congress cannot be obligated, no matter how many States ask for it, to
summon a convention for the limited purposed of dealing with electoral apportionment
alone, and that such a convention would have no constitutional standing at all.4292
Consequently, by this reasoning, the many hundreds of state applications for a convention to
consider amendments on a particular subject are null and void. Moreover, Professor Black noted
that state applications demanding a convention on a single issue were almost unknown in the 19th
century; he described the phenomenon as “ ... a child of the twentieth century (emphasis in the
original).... The twentieth century petitions, embodying this theory, are on the point of law
implicitly resolved by them, nothing but self-serving declarations, assertions of their own power
by the state legislatures.”4393
Writing at the height of debate over the 1980s campaign for an Article V Convention to consider
a balanced budget amendment, former Solicitor General Walter Dellinger asserted that the
framersFramers deliberately sought to provide a means of amending the Constitution that is insulated
from excessive influence by either the state legislatures, or by Congress.4494 His view of the
convention’s authority is among the most expansive advanced by commentators on the Article V
Convention:
... any new constitutional convention must have the authority to study, debate, and submit to
the states for ratification whatever amendments it considers appropriate (emphasis added).45
According to his judgment, an Article V Convention must be free to pursue any issue it pleases,
notwithstanding the limitations included in either state applications or the congressional summons
by which it was called:
If the legislatures of thirty-four states request Congress to call a general constitutional
convention, Congress has a constitutional duty to summon such a convention. If those thirty four states recommend in their applications that the convention consider only a particular
subject, Congress still must call a convention and leave to the convention the ultimate
determination of the agenda and the nature of the amendments it may choose to propose.46
40
Black, “Amending the Constitution: A Letter to a Congressman,” p. 199.
90
Charles Black, “Amending the Constitution: A Letter to a Congressman,” Yale Law Journal, volume 82, number 2,
December 1972, p. 199.
91
Professor Black was writing in the context of the Article V Convention campaign to overturn the Supreme Court
decision in Reynolds v. Simms, 377 U.S. 553 ( 1964) and Wesberry V. Sanders, 376 U.S. 1 (1964), which extended the
“one-person, one vote” requirement respectively to state legislative districts and congressional districts, ruling that the
population of both jurisdictions must be substantively equal.
4292
Black, “Amending the Constitution: A Letter to a Congressman,” p. 199.
4393
Ibid., p. 203.
4494
See Walter E. Dellinger, “The Recurring Question of the ‘Limited’ Constitutional Convention,” Yale Law Journal,
volume 88, issue 8, July 1979, pp. 1623-1640.
45
Ibid., p. 1624.
46
Ibid., p. 1640.
41
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any new constitutional convention must have the authority to study, debate, and submit to the
states for ratification whatever amendments it considers appropriate (emphasis added).95
According to his judgment, an Article V Convention must be free to pursue any issue it pleases,
notwithstanding the limitations included in either state applications or the congressional summons
by which it was called:
If the legislatures of thirty-four states request Congress to call a general constitutional
convention, Congress has a constitutional duty to summon such a convention. If those thirty four states recommend in their applications that the convention consider only a particular
subject, Congress still must call a convention and leave to the convention the ultimate
determination of the agenda and the nature of the amendments it may choose to propose.96
: Contemporary Issues for Congress
More recently, Michael Stokes Paulsen invoked original intent and the founders’ understanding of
such a gathering. Asserting that they would have considered a “convention” to be a body that
enjoyed broad powers, similar to the Constitutional Convention itself. He, he suggests:
“Convention” had a familiar ... public meaning in 1787. It referred to a deliberative political
body representing the people, as it were, “out of doors.” Representatives or delegates to such
a convention might well operate to some extent pursuant to “instructions” of the people thus
represented, but a convention was not a pass-through or a cipher, but rather an agency ― ―a
deliberative political body.”4797
Perhaps the most assertive expression of the open or general convention argument centers on the
doctrine of “conventional sovereignty:”
According to this theory, a convention is, in effect, a premier assembly of the people, a
representative body charged by the people with the duty of framing the basic law of the land,
for which purpose there devolves upon it all the power which the people themselves possess.
In short, that for the particular business of amending and revising our Constitution, the
convention is possessed of sovereign powers and therefore is supreme to all other
Government branches or agencies.”4898
Another school of thought, cited by the House Judiciary Committee in a 1957 study, rejects the
conventional sovereignty argument, primarily on the grounds that an Article V Convention can
only be summoned subject to the conditions of the Constitution:
... those who assert the right of the Congress to bind a convention contend that the
convention convention
is, in no proper sense of the term, a sovereign. It is, they argue, but an agency
employed by
the people to institute or revise fundamental law. While there may be a special
dignity dignity
attaching to a convention by reason of its framing fundamental law, no such dignity
or power
should attach which would invest it with a primacy over other branches of
government government
having equally responsible functions.4999
95
Ibid., p. 1624.
Ibid., p. 1640.
97
Michael Stokes Paulsen, “How to Count to Thirty-Four: The Constitutional Case for a Constitutional Convention,”
Harvard Journal of Law and Public Policy, volume 34, issue 3, 2011, p. 842.
98
Brickfield, Problems Relating to a Federal Constitutional Convention, 16.
99
Ibid.
96
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Writing in Constitutional Brinksmanship, Russell Caplan further noted the example that
contemporary state conventions called to propose constitutional amendments tended to exceed
their mandates unless they had been strictly limited:
The trend toward aggrandizement of power at a convention is supported by modern
experience in the states. When delegates are presented with the choice of writing a new
constitution or submitting a number of amendments to the existing document, they have
exhibited a desire to become part of history by framing a new constitution.50100
Defenders of the general convention counter opponents by asserting that the founders included
ample checks on the work of a general or unlimited convention: first, any proposed amendment or
amendments would face the same requirement of approval by three-fourths of the states, and
second, Congress is empowered to choose whether such amendments will be considered by the
47
Michael Stokes Paulsen, “How to Count to Thirty-Four: The Constitutional Case for a Constitutional Convention,”
Harvard Journal of Law and Public Policy, volume 34, issue 3, 2011, p. 842.
48
U.S Congress, House of Representatives, Committee on the Judiciary, Problems Relating to a Federal Constitutional
Convention, by Cyril F. Brickfield, 85th Congress, 1st sess., Committee Print (Washington: GPO, 1957), p. 16.
49
Ibid.
50
Caplan, Constitutional Brinksmanship, Amending the constitution by National Convention, p. 147.
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state legislatures or special-purpose ratification conventions. In the final analysis, they assert, “a
convention can only propose (emphasis in the original) amendments, not ratify them.”51101 An
additional check not cited in the Constitution centers on the question of whether Congress is
required to propose to the states any or all amendments offered by an Article V Convention. This
issue is examined at greater length later in this report.
The Limited Convention
While the concept of the general convention enjoys considerable support, there are those who
maintain opposing views. A broad range of constitutional scholars holds that a convention may, in
fact, be limited to a specific area or areas contained in state applications, or indeed, that it must be
so limited. A fundamental assumption of this viewpoint is that the framersFramers did not contemplate a
wholesale or large-scale revision of the Constitution when they drafted Article V. Senator Sam
Ervin, a champion of advance congressional planning for a convention, wrote that, “... there is
strong evidence that what the members of the convention were concerned with ... was the power
to make specific amendments.... [The] [p]rovision in article V for two exceptions to the
amendment power52power102 underlines the notion that the convention anticipated a specific amendment
or amendments rather than general revision.”53103
One commentator, championing the states’ authority in this question, noted that the founders’
intention in establishing the state petition device was to provide a check against a Congress that
had declined to propose an amendment or amendments that commanded widespread support,
suggesting that a convention limited by the subject area of state applications was constitutional,
but that a convention could not be limited by Congress:
... Congress may not impose its will on the convention.... the
100
Caplan, Constitutional Brinksmanship, Amending the constitution by National Convention, p. 147.
Michael A. Almond, “Amendment by Convention: Our Next Constitutional Crisis?” North Carolina Law Review,
volume. 53, issue 3, February 1975, p. 507.
102
These were the prohibitions against amendments restricting the slave trade before 1808, imposing a capitation tax
outside the census formula previously agreed to, or depriving states of equal suffrage in the Senate.
103
Sam J. Ervin, Jr., “Proposed Legislation to Implement the Convention Method of Amending the Constitution,”
Michigan Law Review, volume 66, issue 5, March, 1967-1968 (sic), p. 882.
101
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Congress may not impose its will on the convention.... The purpose of the Convention
Clause is to allow the States to circumvent a recalcitrant Congress. The convention Clause,
therefore, must allow the States to limit a convention in order to accomplish this purpose.54104
According to this view, the states should decide whether a convention would be open and general,
or limited, depending on the actions of the several legislatures.
Congress, however, has historically sought to provide for limited conventions when it has
considered this question. Once valid applications have been received from 34 states, it has
maintained, the call for an Article V Convention must come from Congress, and Congress has the
authority to limit the subject of amendments to be considered. It is at this step that Congress has
asserted in the past, but not provided in legislation, its power to set limits as to the convention’s
agenda. This suggests a delicate balance of authority: the states are authorized to apply for a
limited convention, but only Congress can guarantee, by law, that a convention so summoned will
confine its recommendations to the issues within its mandate. For instance, the Senate Judiciary
51
Michael A. Almond, “Amendment by Convention: Our Next Constitutional Crisis?” North Carolina Law Review,
volume. 53, issue 3, February 1975, p. 507.
52
These were the prohibitions against amendments restricting the slave trade before 1808, imposing a capitation tax
outside the census formula previously agreed to, or depriving states of equal suffrage in the Senate.
53
Sam J. Ervin, Jr., “Proposed Legislation to Implement the Convention Method of Amending the Constitution,”
Michigan Law Review, volume 66, issue 5, March, 1967-1968 (sic), p. 882.
54
James Kenneth Rogers, “The Other Way to Amend the Constitution: The Article V Amendment Process,” Harvard
Journal of Law and Public Policy, volume 30, issue 3, summer 2007, p. 1018.
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Committee in 1984 claimed for Congress the power both to set and enforce limits on the subject
or subjects considered by a convention summoned in response to state petitions that specified the
consideration of amendments in particular areas. This was stated in the committee’s report on S.
119 in the 98th Congress, the “Constitutional Convention Implementation Act of 1984”:
Under this legislation, it is the States themselves, operating through the Congress, which are
ultimately responsible for imposing subject-matter limitations upon the Article V
Convention.... the States are authorized to apply for a convention “for the purpose of
proposing one or more specific amendments.” Indeed, that is the only kind of convention
within the scope of the present legislation, although there is notno intention to preclude a call
for a “general” or “unlimited” convention.55
A recent study by the Goldwater Institute56105
The Goldwater Institute’s 2010 study106 reached similar conclusions. Examining the
contemporary record at the time of the Constitutional Convention, the author asserted the
founders anticipated that the Article V Convention would serve chiefly as an agent of the states.
Consequently, the states could set the convention’s agenda by specifying the questions it would
address, and that the convention would be bound to respect the limits of its mandate.57107 Congress,
in this viewpoint, acts to facilitate the will of the people acting through their state legislatures: if
they call for a convention to consider one or more specific policy proposals, then Congress should
call for an appropriately limited convention. If, however, the states petition for a general
convention,58108 then the argument can also be made in favor of the broader-based assembly.
Assuming that Congress does possess a constitutional mandate to limit the issue or issues a
convention might consider, what sort of instruction would be appropriate to this task? Past
legislative proposals offer a view of the most widely favored mechanism. First, Section 6(a) of S.
104
James Kenneth Rogers, “The Other Way to Amend the Constitution: The Article V Amendment Process,” Harvard
Journal of Law and Public Policy, volume 30, issue 3, summer 2007, p. 1018.
105
Constitutional Convention Implementation Act of 1984, 98th Cong., 2nd sess., S.Rept. 98-594, p. 25.
106
Natelson, Amending the Constitution by Convention: A Complete View of the Founders’ Plan, Goldwater Institute,
Policy Report Number 241, September 16, 2010.
107
Natelson, Amending the Constitution by Convention: A Complete View of the Founders’ Plan, pp. 15-18. Available
online at http://www.goldwaterinstitute.org/article/5005.
108
Presumably, language that asked only for a “Convention for Proposing Amendments,” would be interpreted as
calling for a general convention.
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119 (98th Congress), cited earlier, required the concurrent resolution summoning an Article V
Convention to “set forth the nature of the amendment or amendments for the consideration of
which the convention is called.” Section 10(b) further required that
No convention called under this Act may propose any amendment or amendments of a nature
different from that stated in the concurrent resolution calling the convention. Questions
arising under this subsection shall be determined solely by the Congress of the United States
and its decisions shall be binding on all others, including State and Federal courts.59109
Alternatively, a number of scholars suggest that while state applications are not prescriptive with
respect to the issue areas a convention may address, state intentions must be given “great weight”
by Congress when it calls a convention under Article V procedures. William Van Alstyne, writing
in the Duke Law Journal in 1978 went so far as to assert that,
55
Constitutional Convention Implementation Act of 1984, 98th Cong., 2nd sess., S.Rept. 98-594, p. 25.
Robert G. Natelson, Amending the Constitution by Convention: A Complete View of the Founders’ Plan, Goldwater
Institute, Policy Report Number 241, September 16, 2010. The Goldwater Institute is a public policy research institute,
the self-identified focus of which is research policy research oriented to individual rights, the free market economy and
limited constitutional government.
57
Natelson, Amending the Constitution by Convention: A Complete View of the Founders’ Plan, pp. 15-18. Available
online at http://www.goldwaterinstitute.org/article/5005 .
58
Presumably, language that asked only for a “Convention for Proposing Amendments,” would be interpreted as
calling for a general convention.
59
S. 119, 98th Congress, “The Constitutional Convention Implementation Act of 1984,” Section 10(b).
56
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...
[i]f two thirds of the state legislatures ... agree on the exact wording of an amendment ...
this this
would seem to me to state the paradigm case in which Congress should proceed with the
call ― ―and limit the agenda exactly in accordance with the unequivocal expressions of those
solely responsible for the event.60110
The Runaway Convention
Fear of a runaway Article V Convention has a been a recurring theme over many decades. What,
in in
fact, is a “runaway convention?” It is generally defined as one that was summoned to consider
a a
limited agenda, but moved beyond its original mandate to consider policy questions and
potential potential
amendments not contemplated in the applications of the state legislatures or in the
congressional congressional
summons. In 1967 hearings held on the convention issue, Theodore Sorenson, one
of President
John Kennedy’s principal domestic policy counselors, cautioned that, “[n]o matter
how many and
how sincere are the assurances from the backers of a new Convention that their
sole concern is
reapportionment, no one can safely assume that delegates to such a Convention,
once safely
seated and in action, would wish to go home without trying their hand at improving
many parts of
this delicately balanced document.”61111 It is, as another scholar noted, the subject of
“age old
fear.”62112 “Opponents suggest that a runaway convention, driven by ‘political fringe
groups’ might
revisit a wide range of constitutional provisions.”63113 Proposals to alter parts of the
Bill of Rights,
in particular, seem to be singled out as being the most serious challenge to the
Constitution by a
runaway convention.64114
These concerns, have, however, been characterized as overstated and alarmist. Critics note that
the viewpoint elaborated above assumes an Article V Convention would be ideologically
monolithic and dominated by a disciplined coalition dedicated to the imposition of an
ideologically focused agenda. The breadth of opinion and viewpoints in a nation as populous and
diverse as the United States arguably makes this prospect questionable, however, not to mention
the element of time that would inevitably pass during and between the various stages of the
Article V Convention process. Justice Joseph Story cast doubt on the runaway convention theory
on these grounds as early as 1833:
Time is thus allowed, and ample time, for deliberation, both in proposing and ratifying
amendments. They cannot be carried by surprise, or intrigue, or artifice. Indeed, years may
elapse before a deliberate judgment may be passed upon them, unless some pressing
emergency calls for instant action.65
In its 1984 report on 109
S. 119, (98th Congress), the “, “The Constitutional Convention Implementation Act,”
the Senate Judiciary Committee argued that any Article V Convention would be more like
60
of 1984,” Section 10(b).
110
See William W. Van Alstyne, “Does Article V Restrict the States to Calling Unlimited Conventions Only? ― ―A
Letter to a Colleague,” Duke Law Journal, volume 1978 (sic), issue 6, pp. 1295-1306.
61111
Quoted in Caplan, Constitutional Brinksmanship, pp. 146, 146.
62112
Almond, “Amendment by Convention: Our Next Constitutional Crisis?” p. 504.
63113
James M. LeMunyon, “A Constitutional Convention Can Rein Inin Washington,” Wall Street Journal, March 31,
2010,
available at http://online.wsj.com/article/SB10001424052702304370304575152231710551888.html.
64114
U.S. Congress, Senate, Committee on the Judiciary, Constitutional Convention Implementation Act of 1984, 98th
Cong., 2nd sess., S.Rept. 98-594 (Washington: GPO, 1984), p. 29.
65
Joseph Story, Commentaries on the Constitution of the United States, (Boston: Hilliard, Gray and Co., 1833) ss.
1824, volume 3, p. 688. Quoted in The Founders’ Constitution, Web Edition, available online at http://presspubs.uchicago.edu/founders/documents/a5s12.html.
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diverse as the United States arguably makes this prospect questionable, however, not to mention
the element of time that would inevitably pass during and between the various stages of the
Article V Convention process. Justice Joseph Story cast doubt on the runaway convention theory
on these grounds as early as 1833:
Time is thus allowed, and ample time, for deliberation, both in proposing and ratifying
amendments. They cannot be carried by surprise, or intrigue, or artifice. Indeed, years may
elapse before a deliberate judgment may be passed upon them, unless some pressing
emergency calls for instant action.115
In its 1984 report on S. 119 (98th Congress), the “Constitutional Convention Implementation Act,”
the Senate Judiciary Committee argued that any Article V Convention would be more like
Congress: broad, inclusive, and essentially moderate. Here, the report echoed Madison’s
assurance that the “size and variety” of the nation serve as a deterrent to “faction.”66116 Finally, the
report noted that the founders did not provide unchecked power to the Article V Convention:
every amendment proposed would be subject to the same stringent conditions faced by
amendments proposed by Congress: “... the notion of a ‘runaway’ convention, succeeding in
amending the Constitution in a manner opposed by the American people, is not merely remote, it
is impossible.”67117 To this judgment may be added the fact that even a runaway convention’s
proposed amendment or amendments would be subject to approval by the legislatures or
conventions of three-fourths of the states before being incorporated as part of the Constitution.
An Article V Convention Limited to the Consideration of a Specifically
Worded Amendment?―H.J.Res. 5752 in the 112th113th Congress
One point on which most observers appear to agree is that an Article V Convention, either limited
or general, could not be restricted to consider a specific amendment. During the 1980s campaign
for a convention to consider a balanced budget amendment, a number of state legislatures
proposed specific amendment language. Some would have accepted a “substantially similar”
amendment, while others attempted to limit the convention solely to consideration of their
particular amendments. In its 1993 study, the SenateHouse Judiciary Committee indicated the former
might be qualified, but:
... an application requesting an up-or-down vote on a specifically worded amendment cannot
be be
considered valid. Such an approach robs the Convention of its deliberative function which
is is
inherent in article V language stating that the Convention’s purpose is to “propose
amendments.” If the State legislatures were permitted to propose the exact wording of an
amendment and stipulate that the language not be altered, the Convention would be deprived
of this function and would become instead part of the ratification process.68118
Walter Dellinger has further argued that exact language proposals “short-circuit” the checks and
balances built into Article V by the founders. According to his interpretation, they intended to
115
Joseph Story, Commentaries on the Constitution of the United States, (Boston: Hilliard, Gray and Co., 1833) ss.
1824, volume 3, p. 688. Quoted in The Founders’ Constitution, web edition, available online at http://presspubs.uchicago.edu/founders/documents/a5s12.html.
116
James Madison in The Federalist, Number 10, “The Size and Variety of the Union as a Check on Faction,” pp. 129136.
117
Constitutional Convention Implementation Act of 1984, 98th Cong., 2nd sess. S.Rept. 98-594, p. 29.
118
Is There a Constitutional Convention in America’s Future? p. 6.
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provide sub-federal communities, embodied in the states, the authority to propose a convention to
consider amendments, but deliberately refrained from giving the state legislatures the power to
determine the exact text of the amendments to be proposed.69119
The general acceptance of this interpretation is highlighted by the fact that a constitutional
amendment has been introduced in the 112th113th Congress to require Congress, on the application of
two thirds of the states, to call a convention to consider a specifically worded amendment
proposed by the states. The convention’s sole function would be “to decide whether to propose
that specific amendment to the States....”70120 H.J.Res. 5752 would eliminate some of the uncertainties
concerning scope and format both of state applications, and of the convention itself, noted earlier
in this report. It would definitively settle discussion over the constitutionality of proposing a
66
James Madison in The Federalist, Number 10, “The Size and Variety of the Union as a Check on Faction,” pp. 129136.
67
Constitutional Convention Implementation Act of 1984, 98th Cong., 2nd sess. S.Rept. 98-594, p. 29.
68
Is There a Constitutional Convention in America’s Future? p. 6.
69
Walter E. Dellinger, “The Recurring Question of the ‘Limited’ Constitutional Convention,” Yale Law Journal,
volume 88, issue 8, July 1979, p. 1632.
70
H.J.Res. 57, 112th Congress, introduced on May 10, 2011, by Representatives John Culberson and Henry Cuellar.
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convention to consider a specific amendment by empowering the states to do so. An asserted
collateral advantage is that a convention summoned pursuant to the provisions of H.J.Res. 5752
would be authorized to consider only the amendment in question, apparently eliminating the
; its proponents assert that this
would eliminate the prospect of a runaway convention. A final point: since it makes no reference
to repeal of existing
arrangements, the amendment would arguably supplement, rather than
supersede, current
language concerning amendments proposed by an Article V Convention, in
effect offering a
second option for the states in the Article V process. As of June 2012, late March 2014,
H.J.Res. 5752 had been
referred to the Subcommittee on the Constitution and Civil Justice of the
of the House Judiciary Committee, but no
further action had been taken.
It may also be noted that H.J.Res. 5752 is a version of a proposal known as “the Madison
Amendment,”
initially offered by the Madison Amendment Coalition, an ad hoc advocacy group
established in
2010.71121 At the time of this writing, two organizations have endorsed the general
concept: a task
force of the American Legislative Exchange Council, identified earlier in this
report as an organization of state legislators and other
interested persons supporting “free
markets, limited government, federalism, and individual
liberty,”72122 and the National Taxpayers
Union, an advocacy group promoting “lower taxes and
smaller government at all levels.”73123 The
National Debt Relief Amendment, examined earlier in this report, is an example of the sort of
specifically worded proposal that would be permitted under the Madison Amendment.124
In the final analysis, the question “what sort of convention?” is not likely to be resolved unless or
until the 34-state threshold has been crossed and a convention assembles. An estimate of the
outcome of this process might well be based on the application process itself. It seems fair to
assume that a convention summoned to consider a balanced budget, for instance, would confine
itself to that issue. It is possible, as surmised by various observers over the years, that a
convention could be “hijacked” by agenda-driven factions,74 but it seems more likely that it
125 but it seems more likely that it
119
Dellinger, “The Recurring Question of the ‘Limited’ Constitutional Convention,” p. 1632.
H.J.Res. 52, 113th Congress, introduced on September 13, 2013, by Representative John Culberson, with
Representatives Bishop, Cuellar, and Lamar Smith as co-sponsors.
121
See “The Madison Amendment,” available at http://www.madisonamendment.org/index.html.
122
American Legislative Exchange Council website, available at http://www.alec.org/AM/Template.cfm?Section=
About.
123
“Leading Advocacy Group for Constitutional Federal Budget Reform Backs ‘Madison Amendment’ to Give States’
Greater Say,” National Taxpayers Union website, available at http://www.ntu.org/news-and-issues/government-reform/
madison-amendment.html.
124
The National Debt Relief Amendment would require that any increase in the “national debt” be approved by a
majority of the legislatures of the 50 states.
125
LeMunyon, “A Constitutional Convention Can Rein In Washington,” Wall Street Journal, March 31, 2010.
120
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would reflect James Madison’s judgment in The Federalist, that the size and variety of the
convention, as with that of the Union, would serve as a check to faction75faction126 Ultimately, an Article V
V Convention’s proposals would be subject to the checks and balances written into the
Constitution,
which will be examined later in this report.
Is Congress Required to Propose Ratification of Amendments
Approved by a Convention?
Once an Article V Convention has drafted and approved a constitutional amendment or
amendments, the next step in the ratification process is their proposal by Congress to the states
for consideration and approval. The fact that Congress is authorized in Article V to designate
whether amendments will be considered in the states by ad hoc conventions or by the state
legislatures arguably suggests that amendments must be transmitted by Congress in order for the
ratification process to begin. The larger question is whether Congress is required to propose
71
See “The Madison Amendment,” available at http://www.madisonamendment.org/index.html.
American Legislative Exchange Council website, available at http://www.alec.org/AM/Template.cfm?Section=
About.
73
“Leading Advocacy Group for Constitutional Federal Budget Reform Backs ‘Madison Amendment’ to Give States’
Greater Say,” National Taxpayers Union website, available at http://www.ntu.org/news-and-issues/governmentreform/madison-amendment.html.
74
LeMunyon, “A Constitutional Convention Can Rein In Washington,” Wall Street Journal, March 31, 2010.
75
James Madison, in The Federalist, Number 10, “The Size and Variety of the Union as a Check on Faction,” pp. 129136.
72
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amendments adopted by an Article V Convention to the states. The range of opinion on this issue
is predictably broad.
As noted earlier in this report, Congress gave active consideration to the Article V Convention
process from the 1970s through the 1990s. During this period, a number of bills were introduced
that sought to establish procedures in the event state petitions reached the two-thirds
constitutional threshold. In most of these proposals, Congress reserved the right to decide whether
an amendment or amendments proposed by an Article V Convention should be circulated to the
states for approval and ratification. This assertion of authority rests on the assumption that Article
V envisions only a limited convention, called in response to state applications dealing with a
particular issue, for example, state legislative reapportionment in the 1960s, or the balanced
budget amendment in the 1970s and 1980s. The report to accompany S. 119 in the 98th Congress
stated explicitly that
... the convention is without authority to propose any amendment or amendments of a subject
matter different than that set forth in the concurrent resolutions calling the convention.... In
other words, the convention, although a sovereign body, is subject to the limitations of its
constitutional charter ― ―the concurrent resolution by Congress ― ―which itself merely
reflects reflects
the intent of two-thirds of the States in applying for a convention in the first place.76127
The mechanism provided in S. 119, as in nearly all bills, was a concurrent resolution which stated
that Congress would not submit the amendment or amendments in question to the states because
the subject matter differed from the issue or question which the convention had been called to
address.
Senator Sam Ervin, Jr., a champion of constitutional convention procedures legislation, defended
Congress’s assertion of authority to propose or withhold Article V Convention amendments from
the ratification process, but he also favored that Congress be prohibited expressly from refusing
to circulate an amendment “because of doubts about the merits of its substantive provisions.”77
128
126
James Madison, in The Federalist, Number 10, “The Size and Variety of the Union as a Check on Faction,” pp. 129136.
127
Constitutional Convention Implementation Act of 1984, 98th Cong., 2nd sess. S.Rept. 98-594, pp. 40-41.
128
Ervin, “Proposed Legislation to Implement the Convention Method of Amending the Constitution,” p. 894.
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He asserted that “unlimited power in the Congress to refuse to submit proposed amendments for
ratification would destroy the independence of the second alternative amending process.”
Moreover, most later versions of the proposed convention procedures recognized this point by
authorizing the states to bring legal action, often in the Supreme Court, if Congress failed to act in
calling a convention, or failed to propose a convention’s amendments by a certain deadline, most
commonly 30 days.78129
The Goldwater Institute’s 2010 study, focusing particularly on the role of the states in the process,
found that Congress must propose the amendments approved by an Article V Convention to the
states, but that the amendments must fall within the convention’s mandate:
Because the convention for proposing amendments is the state legislatures’ fiduciary, it must
follow the instructions of its principals ― ―that is, limit itself to the agenda, if any, that states
specify in their applications.... If the convention does propose amendments, Congress must
send on to the states those within the convention’s call (emphasis added).79
76
Constitutional Convention Implementation Act of 1984, 98th Cong., 2nd sess. S.Rept. 98-594, pp. 40-41.
77
Ervin, “Proposed Legislation to Implement the Convention Method of Amending the Constitution,” p. 894.
78
See, for instance, Section 15, S. 119, 98th Congress, Constitutional Convention Implementation Act of 1984 or
Section 11(c), S. 214, 102nd Congress, Constitutional Convention Implementation Act of 1991.
79
Natelson, Amending the Constitution by Convention: A Complete View of the Founders’ Plan, p. 24.
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It is worth noting that the Goldwater Institute study offers a potential solution to this difficult
question: the report suggests that an Article V Convention wishing to offer proposals outside the
scope of its mandate could make additional policy recommendations, but not in the form of
constitutional amendments.80131 While these instruments would not enjoy the same constitutional
status as amendments proposed by the convention, they would arguably be accorded considerable
attention in Congress, the states, and the policy arena at large, and might serve as the foundation
for a national debate on the questions they address.
Conversely, a substantial range of constitutional commentators holds that Congress is ultimately
obliged to propose any and all amendments approved by an Article V Convention to the states.
Writing in the late 1960s, when the campaign to overturn the Supreme Court’s decision on state
legislative apportionment81apportionment132 seemed poised to cross the 34-state threshold, Morris Forkosch
asserted:
Congress has its own independent machinery to propose amendments in the first alternative,
and to give Congress the power to review the proposals necessarily deprives the second
alternative of its independence. As a result, Congress would become supreme, and Article V
would automatically read that “The Congress ... call a[n advisory] Convention for proposing
Amendments [to it]....” This would be an adoption of the very system rejected by the 1787
Convention.82133
Professor Gerald Gunther similarly asserted that a congressional claim of veto power over
amendments proposed by an Article V Convention directly contravened the founders’ intent:
In my view, the text, history and structure of Article V make a congressional claim to play a
substantial role in setting the agenda of the convention highly questionable. If the stateinitiatedstate129
See, for instance, Section 15, S. 119, 98th Congress, Constitutional Convention Implementation Act of 1984 or
Section 11(c), S. 214, 102nd Congress, Constitutional Convention Implementation Act of 1991.
130
Natelson, Amending the Constitution by Convention: A Complete View of the Founders’ Plan, p. 24.
131
Ibid., p. 25.
132
See under “State Legislative Apportionment, 1964-1969” in CRS Report R42592, The Article V Convention for
Proposing Constitutional Amendments: Historical Perspectives for Congress , by Thomas H. Neale.
133
Morris D. Forkosch, “The Alternative Amending Clause in Article V: Reflections and Suggestions,” Minnesota Law
Review, volume 51, issue 6, 1966-1967, p. 1079.
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initiated method for amending the constitution was designed for anything, it was designed to
minimize (emphasis in original) the role of Congress. Congress was given only two ...
extremely narrow responsibilities. First Congress must call the convention when thirty-four
valid applications are at hand (and it is of course a necessary part of that task to consider the
validity of the applications and set up the machinery for convening the convention). Second,
Congress has the responsibility for choosing a method of ratification once the convention
submits its proposals. I am convinced that is all that Congress can properly do.83134
He went on to suggest that any effort by Congress to “veto” an amendment proposed by an
Article V Convention might prove to be unsustainable. Its delegates, he asserted, might not go
quietly, arguing instead that they acted with justification, despite efforts to restrict their mandate,
and that a refusal by Congress to propose an amendment to the states thwarted “the opportunity of
the people to be heard through the ratification process.”84135 Ultimately, Congress might be faced
with an embarrassing political dilemma:
... might not Congress find it impolitic to refuse to submit the convention’s proposals to
ratification? I suggest that it is not at all inconceivable that Congress, despite its initial belief
80
Ibid., p. 25.
See above at “State Legislative Apportionment, 1964-1969.”
82
Morris D. Forkosch, “The Alternative Amending Clause in Article V: Reflections and Suggestions,” Minnesota Law
Review, volume 51, issue 6, 1966-1967, p. 1079.
83
Gerald Gunther, “The Convention Method of Amending the United States Constitution,” Georgia Law Review,
volume 14, number 1, fall 1979, p. 23.
84
Ibid., p. 9.
81
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that it could impose limits, and despite its effort to impose such limits, would ultimately find
it to be the course of least resistance to submit all of the proposals emanating from a
convention ... to the ratification process, where the people would have another say.85136
Ultimately, the question of whether Congress can refuse to propose an amendment may also
depend on one of the issues addressed above: what manner of convention does Article V
authorize? If only a limited convention is permissible, then Congress could argue strongly that it
would be within its rights to refuse proposing an amendment that addressed an issue beyond the
convention’s mandate. If Article V were interpreted to include a general convention, either as
authorized in its call, or a convention that addresses issues beyond those cited in the applications
that led to its call, then Congress would arguably have less standing to assert its role as judge of
validity of Article V Convention proposals.
Additional Issues for Congress
Beyond the three fundamental questions examined above―the mandate of the Article V
Convention and the authority of Congress both in calling such a convention and proposing
amendments emerging from its deliberations to the states―the process presents a range of other
issues for consideration by Congress.
A Role for the President?
Perhaps one of the most obvious subsidiary questions surrounding the Article V Convention
process is, “what is the President’s role?” The immediate answer is that the Constitution clearly
designates Congress as the sole agent in federal aspects of the process—by contrast, neither the
President, nor the executive branch and the judiciary, are mentioned in Article V.
134
Gerald Gunther, “The Convention Method of Amending the United States Constitution,” Georgia Law Review,
volume 14, number 1, fall 1979, p. 23.
135
Ibid., p. 9.
136
Ibid., pp. 9-10.
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One point of view, noting the language of the article, maintains that the chief executive would not
have a role in the Article V Convention process. The Senate Judiciary Committee’s 1971 report
on S. 215, the proposed Federal Constitutional Procedures Act, in the 92nd Congress, noted simply
that “[i]nasmuch as the function of Congress is simply to operate the machinery to effectuate the
actions of the States and the convention, there is no proper place for a Presidential role.”86137
Moreover, the committee went on to assert that the appropriate device for proposing an Article V
Convention Amendment proposed in the bill was a concurrent resolution, a legislative vehicle
that, by tradition, is not sent to the President for his approval.87138 Thirteen years later, without
explicitly excluding the President, the same committee made what arguably was a broader claim
of congressional authority over the Article V Convention process in its report on S. 119, the
Constitutional Convention Implementation Act of 1984, 98th Congress:
Although there is no explicit statement to this effect in Article V, there can be little doubt
that the Congress is possessed with the authority to issue legislation on the subject matter of
the “Constitutional Convention Implementation Act.” Article V states in relevant part that,
“The Congress ... on Application of the Legislatures of two thirds of the several states shall
call a Convention for proposing Amendments.” Congress’ explicit authority under this
85
Ibid., pp. 9-10.
U.S. Congress, Senate, Committee on the Judiciary, Federal Constitutional Procedures Act, report to accompany S.
215, Report No. 92-336, 92nd Cong., 1st sess. (Washington: 1971), p. 12.
87
Ibid.
86
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provision is to “call” the convention. The powers invested in Congress under S. 119 are
entirely a function of this responsibility, authorized under the “necessary and proper” clause
of Article I, section 8, clause 18.88139
In its 1974 study, the American Bar Association cast further doubt on a role for the President in
the Article V Convention. The study argued that presidential approval would impose an additional
requirement in the process, and that the potential of a presidential veto of a convention call would
attach a de facto super-majority requirement not contemplated by the founders.89140 The report found
found that, under these circumstances, “the parallelism between the two initiating methods would be
be altered, in a manner that could only thwart the intended purpose of the convention process as an
an ‘equal’ method of initiating amendments.”90141
Some observers argue, however, that the President should have a role in certain aspects of the
process. The President’s constitutional authority to approve legislation is cited in support of this
assertion:
Every Order Resolution, or Vote to which the Concurrence of the Senate and House of
Representatives may be necessary (except on a question of Adjournment) shall be presented
to the President of the United States; and before the Same shall take Effect, shall be approved
by him....91 142
Proponents maintain that the President’s authority to approve or disapprove legislation―his veto
power―as provided in Article I, clause 7, would extend to a congressional call for an Article V
Constitutional Convention, notwithstanding the choice of legislative vehicle. In more than 40
constitutional convention procedures bills introduced from the 1970s through the 1990s, a
137
U.S. Congress, Senate, Committee on the Judiciary, Federal Constitutional Procedures Act, report to accompany S.
215, Report No. 92-336, 92nd Cong., 1st sess. (Washington: 1971), p. 12.
138
Ibid.
139
Constitutional Convention Implementation Act of 1984, 98th Cong., 2nd sess. S.Rept. 98-594, p. 21.
140
American Bar Association, Amendment of the Constitution by the Convention Method Under Article V, p. 27.
141
Ibid., p. 28.
142
U.S. Constitution, Article I, Section 7, clause 3.
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concurrent resolution, which does not permit presidential approval, was designated as the
approved vehicle for a call for an Article V Convention. Constitutional scholar Charles Black
emphatically rejected this choice, asserting that the call for a convention was too important not to
come under the President’s purview:
... a convention call would have the force of law ― ―significant, vital law, comparable to a
law law
establishing any other body with power to act. (As a contrasting example, S.J. Res. 197
[in
the 92nd Congress], setting up an arbitration board ... went to the President.... What
possible possible
reason could there be for not following this procedure as to the setting up of a
constitutional constitutional
convention, more important by several orders of magnitude than an arbitration
board? Can it
be thought that Article I, Section 7, can be evaded by mere nomenclature
[emphasis in the
original] ― ―by merely calling something a “Concurrent” rather than a
“Joint” Resolution?92143
Supporters of the President’s role in the Article V Convention process also note that the
legislative models offered by constitutional convention procedures bills in the past were more
than simple “calls” for a convention. They prescribed a form and procedures for a convention,
authorized use of federal resources and facilities, and provided for public funding of convention
expenses. As Arthur Bonfield noted,
88
Constitutional Convention Implementation Act of 1984, 98th Cong., 2nd sess. S.Rept. 98-594, p. 21.
American Bar Association, Amendment of the Constitution by the Convention Method Under Article V, p. 27.
90
Ibid., p. 28.
91
U.S. Constitution, Article I, Section 7, clause 3.
92
Black, “Letter to a Congressman,” p. 208.
89
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... Congress must necessarily make more than a mere call for a convention. Such a call would
be meaningless without the inclusion of the specific terms upon which such a body is to be
constituted, organized, and conducted. These terms to be spelled out by Congress would
appear similar to the general kinds of legislation with which Congress normally deals.
Consequently, no reason of logic dictates its different treatment in respect to the need for
Presidential approval.93144
From the standpoint of the broader national welfare, the same author noted that as the President is
the only federal official elected and responsible to the American people as a whole, “[h]is
participation in this process that would intimately affect all Americans and our nation as a whole
seems, therefore, especially proper and natural.”94145
The House Judiciary Committee’s 1993 study identified a potential alternative, noting that a call
for an Article V Convention and the legislation carrying the call into effect need not be part of the
same vehicle. This suggests a two-step process in which Congress could, on its own authority,
pass a concurrent resolution summoning the convention, while additional arrangements
implementing the convention call could be contained in a law-making measure, subject to
presidential approval.95146
Moving beyond the convention call to the actual proposal of amendments passed by an Article V
Convention, most observers maintain that, as with the method of congressional proposal, the
President would not be a part of the process. In this instance, it is asserted that the Supreme
Court’s ruling in Hollingsworth v. Virginia that the President’s signature was not necessary when
143
Black, “A Letter to a Congressman,” p. 208.
Bonfield, “Proposing Constitutional Amendments by Convention: Some Problems,” p. 675.
145
Arthur Earl Bonfield, “The Dirksen Amendment and the Article V Convention Process,” Michigan Law Review,
volume 66, 1967-68, p. 986.
146
Is There a Constitutional Convention in America’s Future, p. 14.
144
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Congress proposed amendments to the states would arguably apply to those offered by a
convention.96147
“Checks and Balances” in the Article V Amendment Process
As noted above, the work of an Article V Convention, once proposed, would be subject to various
checks and balances, including congressional authority to designate ratification by ad hoc
conventions or state legislatures and the requirement that all amendments proposed must be
ratified by three-fourths of the states. In addition, for nearly the past century, Congress has also
required that amendments be ratified by the states within a seven-year time limit.
Congressional Authority to Propose Ratification by Convention or Legislature
Article V states explicitly that amendments “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 Congress.” For amendments proposed by Congress, the convention alternative has
been provided only for the 21st Amendment, which repealed the 18th Amendment, and with it,
prohibition. All other amendments were sent to the state legislatures for ratification.
93
Bonfield, “Proposing Constitutional Amendments by Convention: Some Problems,” p. 675.
Arthur Earl Bonfield, “The Dirksen Amendment and the Article V Convention Process,” Michigan Law Review,
volume 66, 1967-68, p. 986.
95
Is There a Constitutional Convention in America’s Future, p. 14.
96
See above at footnote 12.
94
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The alternative of ratification by state conventions or legislatures at the discretion of Congress
was introduced by James Madison at the Philadelphia Convention and was adopted by a wide
margin; beyond that, however, the reasoning of the founders is unclear. In their earlier discussion
on how the Constitution itself was to be adopted, the delegates indicated that ratification by ad
hoc conventions, on which they ultimately settled, would be more democratic and more reflective
of the public will than by state legislatures. State legislatures, it was assumed, would be less open
to change, and more interested in preserving the status quo.97148 This understanding evidently
motivated the framers of the 21st Amendment, which effectively ended prohibition; according to
one source, pro-repeal Members “favored this mode of ratification because they believed that
they clearly had popular sentiment on their side, and furthermore, they distrusted the response to
the issue of rural-dominated state legislatures.”98149 One commentator observed that “[t]he
convention, therefore, is the only mechanism of ratification which assures the expression of the
people.... it seems apparent, however, that the convention mode will be used only when there is a
powerful public opinion in its favor.”99150 A contrary view was expressed by another scholar, who
suggested that since amendments have been proposed by a convention, Congress should choose
the state legislatures to ratify them, on the grounds that
... there should be two different bodies, one to check on the other; the different sets of
delegates delegates
to the Convention and to the state’s legislature may and should produce different
reasons and
arguments for so amending the Constitution.100151
147
See above at footnote 12.
Philip L. Martin, “Convention Ratification of Federal Constitutional Amendments,” Political Science Quarterly,
volume LXXXII, no. 1, March, 1967, pp. 61-71.
149
Grimes, Democracy and the Amendments to the Constitution, p. 110.
150
Martin, “Convention Ratification of Federal Constitutional Amendments,” p. 71.
151
Forkosch, “The Alternative Amending Clause in Article V: Reflections and Suggestions,” pp. 1079-1080.
148
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Thus the Constitution, in this seemingly minor delegation of authority, arguably endows Congress
with a powerful check to the work of an Article V Convention.101152
Approval by Three-fourths of the States Required for Ratification
A second constitutional check on amendments proposed by an Article V Convention also applies
equally to those proposed by Congress: they must be ratified by a supermajority of three-fourths
of the states. Here again, the founders’ intentions are clear. As James Madison wrote in The
Federalist:
That useful alterations will be suggested by experience could not but be foreseen. It was
requisite, therefore, that a mode for introducing them be provided. The mode preferred by the
convention seems to be stamped with every mark of propriety. It guards equally against that
extreme facility, which would render the Constitution too mutable; and that extreme
difficulty which might perpetuate its discovered faults.102153
Amendments to the Constitution, whether proposed by Congress or an Article V Convention,
were thus intended by the founders to reflect the measured and deliberate opinion of the nation.
97
Philip L. Martin, “Convention Ratification of Federal Constitutional Amendments,” Political Science Quarterly,
volume LXXXII, no. 1, March, 1967, pp. 61-71.
98
Grimes, Democracy and the Amendments to the Constitution, p. 110.
99
Martin, “Convention Ratification of Federal Constitutional Amendments,” p. 71.
100
Forkosch, “The Alternative Amending Clause in Article V: Reflections and Suggestions,” pp. 1079-1080.
101
“Congress has complete freedom of choice between the two methods of ratification recognized by Article V ― by
the legislatures of the States, or by conventions in the States (emphasis added).” U.S. Congress, The Constitution of the
United States of America, Analysis and Interpretation (Washington: GPO, 2004), p. 952. Available at
http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-8-6.pdf.
102
James Madison, in The Federalist, Number 43, “Powers Delegated to the General Government: III,” p. 315.
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Their purposeful selection of the most stringent super-majority requirement provided in the
Constitution strongly suggests the founders’ sense of the gravity that applies to the amendment
process.
Ratification Within Seven Years of Proposal
As noted earlier in this report, for the 18th, 20th, and all subsequent amendments, Congress has set
a time limit of seven years for ratification. This standard is not found in the Constitution, but it
has been confirmed by the Supreme Court in its 1921 ruling in Dillon v. Gloss.103154 In this case, the
Court, “finding no express provision in Article V,” authorizing the deadline nonetheless thought it
was “reasonably implied” therein “that the ratification must be within some reasonable time after
the proposal.”104155 Notwithstanding this long tradition, a ratification deadline is not required by the
Constitution, and it is possible that an Article V Convention might choose not to include one for
any amendments it might propose.
This leads to a subsequent question: would Congress have the authority to attach a ratification
deadline by including one in the concurrent resolution by which it transmits to the states an
amendment or amendments proposed by an Article V Convention? Proponents might well argue
that historic precedent suggests Congress does have this power, based on contemporary practice
of including the ratification deadline in the resolution proposing amendments, rather than in the
body of the amendments themselves. For instance, while the 18th, 20th, and all subsequent
amendments have included a seven-year sunset provision for the ratification process, since the
152
“Congress has complete freedom of choice between the two methods of ratification recognized by Article V―by the
legislatures of the States, or by conventions in the States (emphasis added).” U.S. Congress, The Constitution of the
United States of America, Analysis and Interpretation (Washington: GPO, 2004), p. 952. Available at
http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-8-6.pdf.
153
James Madison, in The Federalist, Number 43, “Powers Delegated to the General Government: III,” p. 315.
154
256 U.S. 368 375 (1921).
155
The United States Constitution, Analysis and Interpretation, p. 950, Available at http://www.gpo.gov/fdsys/pkg/
GPO-CONAN-2002/pdf/GPO-CONAN-2002-8-6.pdf.
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proposal of the 23rd Amendment, the time limit has been included not in the body of the
amendment itself, but in the authorizing or “resolving” language found in the resolution
proposing the amendment.105156 The argument here is that since Congress would use a concurrent
resolution to propose an amendment drafted by an Article V Convention (as envisioned in the
various convention procedures acts discussed earlier in this report), it would also have the
authority to include the traditional seven-year deadline in the resolving language of the resolution.
Details of the Article V Convention Process―Is Congress a Clerk or the
the Guardian?
Article V’s barebones provisions provide little guidance on the role of Congress in the Article V
Convention process. As noted earlier, the minimalist interpretation would assign a purely
ministerial or clerical role to Congress: it should call a convention; impose minimal requirements
on the convention as to its form, procedures, and agenda; and should refer whatever amendment
or amendments are proposed by the convention to the states in timely fashion. In other words, call
the convention, and then stand aside. There is, in fact, justification for this course of action from
the pens of the founders themselves; as noted earlier, Alexander Hamilton explained the Article V
Convention process in unmistakable terms:
103
256 U.S. 368 375 (1921).
The United States Constitution, Analysis and Interpretation, p. 950, Available at http://www.gpo.gov/fdsys/pkg/
GPO-CONAN-2002/pdf/GPO-CONAN-2002-8-6.pdf .
105
For instance, in the 18th Amendment, Section 3 of the amendment itself preserves the ratification deadline. By
comparison, the 26th Amendment (setting the voting age at 18) included the deadline in the resolving clause or
preamble of the joint resolution (S.J.Res. 7, 92nd Congress) that proposed the amendment.
104
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By the fifth article of the plan, the Congress will be obliged ... to call a convention for
proposing amendments.... The words of this article are peremptory. The Congress “shall call
a convention.” Nothing in this particular is left to the discretion of that body (emphasis
added).”106157
This point of view is held in varying degrees by proponents of the Article V Convention. The
Goldwater Institute’s 2010 study summarized it as follows:
The ministerial nature of congressional duties and the requirement that it call a convention at
the behest of two-thirds of the state legislatures supports the conclusion in the previous
section that in the state application-and-convention process, Congress acts primarily as the
legislatures’ agent. From the nature of that role, it follows that Congress may not impose
rules of its own on the states or on the convention.... In the state-application-and-convention
procedure, the states are in the position of the property owner, Congress in the position of the
manager, and the convention for proposing amendments in the place of the contractor.107158
Congress, however, has historically interpreted the language authorizing it to “call” an Article V
Convention as providing a broad mandate to establish standards and procedures for such an
assembly. In its 1984 report on S. 119, 96th98th Congress, the Senate Judiciary Committee expressed
its judgment that
... [a]s a necessary incident of its responsibility to “call” the convention, Congress must have
the authority to determine that the constitutional preconditions exist for such a convention....
156
For instance, in the 18th Amendment, Section 3 of the amendment itself preserves the ratification deadline. By
comparison, the 26th Amendment (setting the voting age at 18) included the deadline in the resolving clause or
preamble of the joint resolution (S.J.Res. 7, 92nd Congress) that proposed the amendment.
157
Alexander Hamilton, in The Federalist, Number 85, “Conclusion,” p. 546.
158
Natelson, Amending the Constitution by Convention: A Complete View of the Founders’ Plan, p. 21.
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The Congress, as well, clearly possesses the authority to set forth the necessary and attendant
details of the convention.108159
The House Judiciary Committee considered both points of view in its 1993 print, Is There a
Constitutional Convention in America’s Future?, ultimately suggesting that Congress does have a
role beyond that of calling the convention and then standing aside, but noting that the extent of
that function is open to dispute:
Congress, according to most commentators, has only two roles in the Convention process:
To call the Convention and to choose a method of ratification. However, all are agreed that a
range of ancillary functions are necessary and proper to carry out the primary roles. The
disagreement begins in deciding the limits of the ancillary functions.109160
Some of these ancillary functions associated with an Article V Convention are considered below.
Providing a Framework: The Precedent of Congressional Proposals to Shape
an Article V Convention
As noted in the previous section, Congress has historically interpreted the language authorizing it
to “call” an Article V Convention as providing a broad mandate to establish standards and
procedures for such an assembly. This viewpoint evolved during the 1970s and 1980s as Congress
considered legislation to establish procedures for an Article V Convention: by the mid-1980s,
106
Alexander Hamilton, in The Federalist, Number 85, “Conclusion,” p. 546.
Natelson, Amending the Constitution by Convention: A Complete View of the Founders’ Plan, p. 21.
108
Constitutional Convention Implementation Act of 1984, 98th Cong., 2nd sess. S.Rept. 98-594, p. 21.
109
Is There a Constitutional Convention in America’s Future?, pp. 28-29.
107
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these bills generally included quite specific standards for state petitions, delegate apportionment
formulas and delegate qualifications, convention procedures and funding, specific limits for the
life of a convention, ratification procedures, and judicial review.
Between 1973 and 1992, 22 bills were introduced in the House and 19 in the Senate that sought to
establish a procedural framework that would apply to an Article V Convention. Proponents
argued that constitutional convention procedures legislation would eliminate many of the
uncertainties inherent in first-time consideration of such an event and would also facilitate
contingency planning, thus enabling Congress to respond in an orderly fashion to a call for an
Article V Convention. The Senate, in fact, passed constitutional convention procedures bills, the
“Federal Constitutional Convention Procedures Act,” on two separate occasions: as S. 215 in
1971 in the 92nd Congress, and as S. 1272 in 1983, in the 93rd98th Congress. Neither bill was
considered in the House, although the Subcommittee on Civil and Constitutional Rights of the
House Judiciary Committee held hearings on the general issue in 1985. As the prospect of an
Article V Convention receded in the 1990s, congressional interest waned. Between 1991 and the
time of this writing, no relevant legislation has been introduced. Although the content of these
bills evolved over time, most of them were broadly similar, sharing various common elements,
among which were the following.
State Application Procedures
All bills prescribed a standard format and content for state applications, provided delivery
standards for applications, and set schedules for submissions to Congress, and for congressional
159
160
Constitutional Convention Implementation Act of 1984, 98th Cong., 2nd sess. S.Rept. 98-594, p. 21.
Is There a Constitutional Convention in America’s Future?, pp. 28-29.
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declarations of receipt. Most proposals included a contemporaneity provision, essentially
establishing a time limit, usually seven years, after which state applications would expire.
Application, Receipt, and Processing in Congress
The Secretary of the Senate and the Clerk of the House of Representatives were generally
authorized to receive and retain applications, report them, and report to their respective chambers
if the constitutional requirement was met. Most bills required the adoption of a concurrent
resolution by the two chambers that valid applications had been received from two-thirds of the
states. The House and Senate, by concurrent resolution, would then call for a convention,
designating the place and time of the meeting, which would be not less than one year after the
adoption of the resolution, and the nature of the amendment or amendments to be considered.
Number and Apportionment of Delegates
Apportionment of convention delegates among the states was generally set at the formula
provided for the electoral college, with each state assigned a number equal to its combined Senate
and House delegations. Some bills included the District of Columbia, assigning it three delegates,
but others did not include the federal district. When combined with the per capita voting which
most bills provided, this formula gave greater weight to differences in state population; as with
the electoral college, it also recognized the federal system’s position on constitutional equality of
the states by providing each with an extra two delegates and votes, regardless of population.
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Funding
Most bills provided that delegates and convention staff were to be compensated from federal
funds, and delegates received immunity from arrest in most instances during the convention.
Various federal agencies were authorized to provide support for the convention as requested, and
convention expenses were to be covered by appropriated funds.
Convention Procedures
The Vice President was authorized in most versions to preside over the inaugural session and
swear in the convention officers, after which time the permanent officers would preside over later
sessions and the delegates would adopt their rules and procedures.
Most bills required that amendments were to be approved by two-thirds of the whole number of
delegates, and that amendments were required to be consistent with the issue which the
convention had been summoned to address. In most versions, as noted earlier, Congress reserved
to itself the right to decide whether proposed amendments met this criterion.
The President pro tempore of the Senate and the Speaker of the House were required to transmit
proposed amendments to the Administrator of General Services for circulation to the states unless
both chambers passed a concurrent resolution of disapproval. Valid grounds for disapproval
included departure from the policy issue for which the convention was called or failure to follow
procedures prescribed in the authorizing legislation. Amendments proposed by a convention
would be subject to standard constitutional requirements, that is, ratification by three-fourths of
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the states, either in their legislatures, or by ad hoc ratification conventions, as determined by
Congress.
A Defined Term for the Convention
The convention was given a limited term, generally either six months or one year.
State Authority to Rescind Ratification of Proposed Amendments
Most versions of the bill authorized the states to rescind ratification of proposed amendments at
any time before the constitutional ratification threshold of three-fourths of the states was attained.
Judicial Review
Later versions of constitutional convention procedures bills generally authorized judicial review
and set procedures for court consideration of proposed amendments.
In the event the number of state applications for an Article V Convention approached the twothirds constitutional requirement, Congress could choose to revisit this issue. If so, legislation
introduced during the later decades of the 20th century could provide a range of models for
procedures to provide for an Article V Convention.
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What Are the Current Procedures for Receipt and Processing of State
Applications by Congress?
The process by which the states currently register, and Congress acknowledges the receipt of,
applications for an Article V Convention, as well as the occasional application for a specific
amendment, is another area in which there are few established procedures. For this particular
activity, Congress performs an essentially ministerial function.
In the absence of guidance from Congress, the state legislatures have historically forwarded their
applications for an Article V Convention to an almost bewildering range of congressional officers
and offices. For practical purposes, this is an area where the Senate and the House of
Representatives, acting either jointly or individually, might choose to designate a single official or
office to whom such applications should be addressed, such as the Secretary of the Senate and the
Clerk of the House of Representatives, or, alternatively, the Speaker and the President pro
tempore of the Senate. The law governing the transmission of state electoral college proceedings
offers a potential example: in this instance, each state is required to transmit the vote of its
electors to the President of the Senate (recall that the Vice President presides over the joint
electoral vote count session in his capacity as President of the Senate), the secretary of state of
their state, the Archivist of the United States, and the judge of the federal court in the district in
which the electors assemble.110161 By designating specific officials, the statute avoids the uncertainty
faced by states as to whom their electoral college results should be addressed, and by specifying
multiple recipients, it ensures that the certificates will be safely delivered and retained.
161
3 U.S.C. 11.
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Once they are received by Congress, state applications for an Article V Convention are classified
as “Memorials.”111162 As such, they may be addressed to the House or Senate as a whole, to the
Speaker or the presiding officer of the Senate, or to individual Senators or Representatives.
Memorials are printed on an occasional basis in the Congressional Record after they have been
received.
The Senate assigns a “POM” (petitions or memorials) number to each memorial and prints the
full text of memorials received from state legislatures from time to time under the heading
“Petitions and Memorials” in the Record, as authorized by Rule VII of the Standing Rules of the
Senate.112163
House practice differs somewhat: Memorialsmemorials are customarily presented by the Speaker, in accord
with Rule XII, clause 3 of the Rules of the House. They are assigned a number, and printed and
recorded separately from other communications in the Congressional Record, under the heading
“Memorials.” Unlike the Senate, the House includes only a digest of the state measure.113
110
3 U.S.C. 11.
For additional information, see CRS Report 98-839, Messages, Petitions, Communications, and Memorials to
Congress, by R. Eric Petersen.
112
See Standing Rules of the United States Senate, Rule VII, paragraph 1, available at http://rules.senate.gov/public/
index.cfm?=Rule VII.
113
See Rules of the House of Representatives, Rule XII, clause 3, at http://www.rules.house.gov/singlepages.aspx?
NewsID=133&rsbd=165.
111
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164
Rescissions of applications for an Article V Convention, which in recent years have been more
common than new applications, are recorded the same way.114165
The Senate and House of Representatives both place the consideration of constitutional
amendments under the jurisdiction of their respective Committees on the Judiciary, and
Memorials containing state applications are customarily referred to these committees. Both
applications and rescissions are apparently retained by the Judiciary committees during the tenure
of the Congress in which they were received, after which time they are transmitted to the National
Archives and Records Administration for retention by the Center for Legislative Archives. There
does not, however, appear to be a central repository where these documents are retained for the
historical record. According to the National Archives, state applications are scattered through the
center’s various congressional document holdings.115166 Given this finding, and the fact that no
single legislative branch officer or entity currently is tasked with recording and retaining all state
applications for an Article V Convention, no definitive official list of such calls exists.
This is also an area in which the Senate and House of Representatives, acting jointly or
separately, might consider more systematic procedures for the treatment of state applications for
an Article V Convention, or for specific amendments, particularly with respect to retention of
state applications by a single, designated, repository, for a period longer than the life of the
current Congress in which they were received. Such action would also offer a corollary benefit
for the purposes of accurate historical record keeping in the future.
162
For additional information, see CRS Report 98-839, Messages, Petitions, Communications, and Memorials to
Congress, by R. Eric Petersen.
163
See Standing Rules of the United States Senate, Rule VII, paragraph 1, available at http://rules.senate.gov/public/
index.cfm?=Rule VII.
164
See Rules of the House of Representatives, Rule XII, clause 3, at http://www.rules.house.gov/singlepages.aspx?
NewsID=133&rsbd=165.
165
Friends of the Article V Convention (FOAVC) maintains what it claims is a complete online archive of
Congressional Record (and earlier congressional journals) images of state petitions, or digests thereof. This collection
begins with 1899 and continues to the present. It is available at http://foavc.org/file.php/1/Amendments/index.htm.
166
Letter from Rodney A. Ross, National Archives and Records Administration, Center for Legislative Archives, dated
March 12, 2007. Available from the author of this report.
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Could Senators and Representatives Serve as Delegates to an
Article V Could Senators and Representatives Serve as Delegates to an Article V
Convention?
An initial response to this query might be that Members of either house of Congress would be
prohibited from serving as delegates to an Article V Convention. The House Judiciary
Committee’s 1993 study makes note of this argument, which stems from the Constitution’s
provision that
No Senator or Representative shall, during the Time for which he was elected, be appointed
to any civil Office under the Authority of the United States, which shall have been created,
or the Emoluments whereof shall have been encreased [sic] during such time; and no Person
holding any Office under the United States, shall be a Member of either House during his
Continuance in Office.116167
The report also cites assertions that Members serving as delegates would constitute “great
potential for conflict of interest because Members would be viewed as acting both as regulators
and as persons regulated.”117168 Finally, it notes arguments also cited elsewhere in this report that the
founders intended the Article V mechanism to be a way around congressional unwillingness to
propose amendments.
114
Friends of an Article V Convention (FOAVC) maintains what it claims is a complete online archive of
Congressional Record (and earlier congressional journals) images of state petitions, or digests thereof. This collection
begins with 1899 and continues to the present. It is available at http://foavc.org/file.php/1/Amendments/index.htm.
115
Letter from Rodney A. Ross, National Archives and Records Administration, Center for Legislative Archives, dated
March 12, 2007. Available from the author of this report.
116
U.S. Constitution, Article I, Section 6, clause 2.
117
Is There a Constitutional Convention in America’s Future?, p. 20.
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At the same time, other observers have suggested that there is no constitutional prohibition
against Senators and Representatives serving as delegates to an Article V Convention. In a 1974
study, the American Bar Association determined that the constitutional mandate prohibits
Members from holding any additional office in one of the three branches of the U.S. government,
but concluded that service as a “state-elected delegate to a national constitutional convention does
not meet this standard.”118169 Another commentator agreed, suggesting that Members of Congress
could make a substantial addition to a convention: “in light of the delegates’ function and possible
impact on the constitutional scheme, it seems desirable that interested members of Congress be
allowed to participate.”119170 Finally, both the aforementioned sources cite as precedent the fact that
several incumbent Delegates to Congress under the Articles of Confederation, “the United States
in Congress Assembled,” served with distinction as delegates to the Philadelphia Convention of
1787.
Convention Procedures: Ancillary Issues for Congress
The Article V Convention carries with it a range of ancillary questions, several of which are
addressed in this section.
167
U.S. Constitution, Article I, Section 6, clause 2.
Is There a Constitutional Convention in America’s Future?, p. 20.
169
American Bar Association, Amendment of the Constitution by the Convention Method Under Article V, p. 37.
170
Forkosch, “The Alternative Amending Clause in Article V: Reflections and Suggestions,” p. 1073. Professor
Forkosch further suggested that federal judges would be able to serve as delegates to an Article V Convention, although
he advised Congress to exclude them.
168
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Would State Representation and Voting in the Would State Representation and Voting in the
Convention be Equal?
Proportional to Population? orOr Both?
AnotherOne issue would likely arise over the state representation formula at an Article V Convention.
As As
noted earlier, the most widely discussed model would establish a convention including 535 (or
538, depending on whether the District of Columbia is included) delegates, allocated to each state
according to the size of its electoral college delegation, that is, the combined total of each state’s
House of Representatives and Senate delegations.
A related question concerns vote allocation in an Article V Convention. Would delegates vote per
capita, or would each state cast a single vote, during the convention’s deliberations, and on the
final question of proposing amendments? Here again, contemporary democratic practice might
argue that the convention’s size or vote allocation formula should more accurately reflect the
great variations in state population.120 than does the electoral vote delegate allocation model.171
Expanding the number of convention delegates beyond the
535 or 538 previously contemplated
would be one response to such concerns; another might be
weighted voting, with the votes
assigned to each state’s delegation adjusted to reflect the
population differential, regardless of the
number of convention delegates. On the other hand, it
could be argued that the allocation of
electoral votes reflects the federal principal of fundamental
equality among the states,
notwithstanding the various population differentials. In fact, it could be
noted that each state cast
just a single vote in all deliberations at the Philadelphia Convention, and
that, moreover, Article V
also assigns equal weight to the various states in the ratification process,
notwithstanding their
population.
A subsidiary question would involve voting within delegations at the convention: if each state
casts a single vote, what form would internal state delegation balloting take? Would a majority of
delegate votes be required to cast the state vote in favor of a proposed amendment, or would a
plurality suffice?
118
American Bar Association, Amendment of the Constitution by the Convention Method Under Article V, p. 37.
Forkosch, “The Alternative Amending Clause in Article V: Reflections and Suggestions,” p. 1073. Professor
Forkosch further suggested that federal judges would be able to serve as delegates to an Article V Convention, although
he advised Congress to exclude them.
120
For instance, if delegates were apportioned according to the electoral college formula, each of California’s delegates
would represent 679,000 people, while each of Wyoming’s three delegates would represent 190,000, by this
measurement, providing a substantial arithmetical advantage to residents of the latter state. 2012 Census figures,
computed by CRS.
119
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Convention Procedures: for that
matter on any question before the convention, or would a plurality suffice?
Would the Convention Require a Super Majority of
State or Delegate Approvals
to Propose Amendments?
The Constitution is silent on the vote required to propose amendments in an Article V
Convention. It might be argued that since the Constitution offers no guidance, it would be
appropriate for the convention, or Congress, if it has passed an Article V Convention procedures
act, to set the standard for successful proposal to the states. A strong argument could be made for
adopting the two-thirds majority requirement already necessary for congressional proposal of
amendments. One commentator argued for approval by two-thirds of the delegates to an Article V
Convention, and suggested that Congress should include such a provision in any convention
procedures legislation it considered.
Congress should also provide that an affirmative vote of two-thirds of the delegates would be
required to propose any given amendment to the states. In this way, it would assure a
symmetry of concurrence in the bodies empowered to propose constitutional amendments ―
171
For instance, if delegates were apportioned according to the electoral college formula, each of California’s delegates
would represent 679,000 people, while each of Wyoming’s three delegates would represent 190,000, by this
measurement, providing a substantial arithmetical advantage to residents of the latter state. 2012 Census figures,
computed by CRS.
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amendments―whether the body was Congress or a convention.... A two thirds requirement
in such a
convention would also guarantee that no amendment, regardless of its means of
proposal, is
ever submitted to the states before an overwhelming consensus as to its
desirability is
evidenced in a nationally oriented body.121172
Proponents of a less restrictive requirement might suggest that, at two-thirds, the bar has been set
too high, especially considering the stringent constitutional requisite that any amendment be
approved by three-fourths of the states, and usually within seven years, in order to be ratified. The
convention, they might argue, should send the amendment to the states and let the people decide.
Moreover, they might note that while Article V sets two very specific super-majority
requirements for constitutional amendments (a two-thirds vote of both houses for congressionally
proposed amendments, and ratification by three-fourths of the states), it provides no supermajority for amendments proposed by an Article V Convention. The inference here is that since
the founders did not set a higher hurdle, they were satisfied that majority approval, or perhaps
even a plurality vote in the convention, would be sufficient to propose amendments to the states.
Convention Procedures: The Role of the District of Columbia and U.S.
Territories in
an Article V Convention
Article V itself is silent on membership in an Article V Convention, so it is arguable that
Congress, in summoning a convention to consider amendments, might choose to include the
District of Columbia and U.S. territories as either full members at a convention, or possibly as
observers. As noted previously, some versions of the Article V Convention procedures bills
introduced in the late 20th century did provide for delegates representing the District of Columbia.
,
although not for U.S. territories. There does not appear to be an impediment to participation by
representatives of the federal
district, although the ratification process for amendments is
obviously limited to the states. An
argument can be made for including Washington, DC, because
it is part of the continental United
States, is situated in the area of the original 13 states, and its
residents have always been
American citizens. Within this larger question, a further issue for
Congress would be whether
Washington should be accorded full membership in an Article V
Convention, or observer or
delegate status, as is the case with its representation in Congress. Here
again, it could also be
inferred that what the Constitution does not prohibit, it permits: since Article V does not set
121
Bonfield, “Proposing Constitutional Amendments by Convention: Some Problems,” p. 676.
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Article V does not set positive qualifications for the convention, the District of Columbia could
be provided full voting
membership. On the other hand, it could also be argued that Article V
vests authority over the
amendment process exclusively in Congress and the states, and that to
expand membership in an
Article V Convention to include delegates from the federal district was
never contemplated by the
founders, and is arguably extra-constitutional, if not unconstitutional.
The question of territorial representation at an Article V Convention is arguably more
problematic. None of the convention procedures bills introduced from the 1970s through the
1990s provided delegates for any of the unincorporated territories of the United
or other possessions of the
United States―American Samoa, Guam, the Commonwealths of the Northern Marianas and Puerto
Puerto Rico, and the U.S. Virgin Islands. A case for territorial representation at a convention
might turn
on the point that these jurisdictions are controlled by the United States, their
inhabitants are
American citizens or nationals, and that they enjoy the privileges and protections
of the
Constitution. By extension, it may be asserted that that the territories at least deserve a seat
at the
table, perhaps as observers or delegates, rather than voting members.
172
Bonfield, “Proposing Constitutional Amendments by Convention: Some Problems,” p. 676.
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However the question of District of Columbia and territorial representation at an Article V
convention was decided, it must be recalled that, in the final analysis, none of these jurisdictions
would take part in the ultimate process of ratifying any proposed amendments. Here the
constitutional language is prescriptive, specifying that amendments must be ratified by vote of
“the Legislatures of three fourths of the several States, or by Conventions in three fourths
thereof....”
Concluding Observations
The Article V Convention for proposing amendments was the subject of considerable debate and
forethought in the Philadelphia Convention of 1787. Clearly intended as a balance to proposal of
amendments by Congress, it sought to provide the people, through their state legislatures, with an
alternative method of offering amendments to the nation’s fundamental charter, particularly if
Congress proved incapable of, or unwilling to, initiate amendments on its own. It also enjoys
distinction as one of the few provisions of the U.S. Constitution that has never been implemented.
Under these circumstances, the Article V Convention presents many questions that Congress
would be called on to consider, and perhaps answer, in the event a convention became a serious
possibility. If so, Congress would not be without resources. It is perhaps fortunate that guideposts,
if not simple answers, exist in the broad range of sources cited in this report: the original intent of
the founders as preserved in the record; historical examples and precedents, particularly those of
the last decades of the 20th century; a large body of scholarly writing on the subject; and not least,
the work and products of two decades of serious congressional consideration, from the 1970s to
the 1990s, of the question of an Article V Convention.
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Author Contact Information
Thomas H. Neale
Specialist in American National Government
tneale@crs.loc.gov, 7-7883
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