Title: Article V Process
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Article V | A HANDBOOK for STATE LAWMAKERS
1
Article
HANDBOOK
for STATE LAWMAKERS
V
ALEC.ORG
BY ROBERT G. NATELSON
FOREWORD
BY SPEAKER LINDA UPMEYER
PROPOSING
CONSTITUTIONAL AMENDMENTS
BY A CONVENTION OF THE STATES
A
Article
V
The Congress, whenever two thirds of both Houses shall
deem it necessary, shall propose Amendments to this
Constitution, or, on the Application of the Legislatures of
two thirds of the several States, shall call a Convention
for proposing Amendments, which, in either Case, shall
be valid to all Intents and Purposes, as Part of this Con-
stitution, 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; Provided that no Amend-
ment which may be made prior to the Year One thousand
eight hundred and eight shall in any Manner affect the first
and fourth Clauses in the Ninth Section of the first Article;
and that no State, without its Consent, shall be deprived
of its equal Suffrage in the Senate.
* * * * *
An Article V Handbook for State Lawmakers is published
by the American Legislative Exchange Council, America’s
largest nonpartisan, voluntary membership organization
of state legislators. Made up of nearly one-third of Ameri-
ca’s state elected officials, ALEC provides a unique oppor-
tunity for state lawmakers, business leaders and citizen
organizations from around the country to share experi-
ences and develop state-based, pro-growth models based
on academic research, existing state policy and proven
business practices.
The American Legislative Exchange Council is classified by
the Internal Revenue Service as a 501©(3) nonprofit and
public policy and educational organization. Individuals,
philanthropic foundations, corporations, companies or
associations are eligible to support ALEC’s work through
tax-deductible gifts.
About the Center to Restore the
Balance of Government
Genuine accountability to hardworking taxpayers results
when state and local legislators work with members of the
community to determine a plan of action that is right for
each individual state, city or town. Real solutions to Amer-
ica’s challenges can be found in the states—America’s fifty
laboratories of democracy—not in one-size fits all federal
government policies that disregard regional differences
and local community needs. The Tenth Amendment to the
U.S. Constitution encapsulates these ideas and serves as
a Constitutional linchpin for federalism, one of the ALEC
guiding principles.
“The powers not delegated to the United States by the Con-
stitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.”
About the American Legislative
Exchange Council
America has drifted away from our Founding Fathers’ vision
and has concentrated more power with national govern-
ment structures. The amassing of power with the federal
government has led to overregulation and redundant bu-
reaucracy hindering economic growth and free markets; a
ballooning national debt that threatens U.S. security; and
federal mismanagement of this nation’s most precious re-
source—the lands within America’s borders. The solution
to restoring the balance between the federal government
and state and local governments is to return control over
matters that appropriately and constitutionally rest with
the states and municipalities back to them.
Chairman: Iowa Speaker of the House Linda Upmeyer
Center Vice President: Michael Bowman
Task Force Director: Karla Jones
Published by the American Legislative Exchange Council
2900 Crystal Drive, Arlington, VA 22202
Phone: (703) 373-0933
Fax: (703) 373-0927
Proposing Constitutional Amendments by a Convention of
the States: A Handbook for State Lawmakers
© 2011, 2013, 2016 American Legislative Exchange Council
All rights reserved. Except as permitted under the United
States Copyright Act of 1976, no part of this publication may
be reproduced or distributed in any form or by any means,
or stored in a database or retrieval system without the prior
permission of the publisher.
Nothing in this Handbook should be construed as legal advice;
seek competent counsel in your own state.
To access current Article V model policy adopted by ALEC,
please visit alec.org/article-v.
Article V | A HANDBOOK for STATE LAWMAKERS
5
Table of Contents
About the Author
Foreword
Acknowledgments
Executive Summary
I.
Introduction
II. The Article V Convention Process: The Background
III. Judicial Review
IV. The Article V Convention Process: Step-By-Step
A. Making an application
B. How long does an application last?
C. The applications in Congress and the “call”
D. Selection of commissioners
E.
The Convention
F.
Ratification
V. The Myth of a Runaway Convention
VI. Practical Recommendations for the Article V Convention Process
VII. Conclusion
Appendix A: Annotated Forms
Appendix B: Definitions of Terms
Appendix C: Responses to Frequently Asked Questions
Appendix D: Where Does this Handbook Get Its Information?
Endnotes
1
3
7
9
10
11
11
12
13
14
15
18
23
25
32
34
38
39
i
i
ii
iii
iv
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6
AMERICAN LEGISLATIVE EXCHANGE COUNCIL
Professor Robert G. Natelson is one of America’s best
known constitutional scholars. His meticulous studies of
the Constitution’s history and meaning have been quoted
repeatedly at the U.S. Supreme Court, both by parties and
by justices.
He served as a law professor for 25 years at three differ-
ent universities. Among other subjects, he taught Consti-
tutional Law, Constitutional History, Advanced Constitu-
tional Law and First Amendment. He became a recognized
national expert on the framing and adoption of the United
States Constitution and pioneered the use of source mate-
rial previously overlooked. Professor Natelson has written
for some of the most prestigious academic publishers, in-
cluding Cambridge University Press and the Harvard Jour-
nal of Law and Public Policy. He is also the author of a
book for the lay person: The Original Constitution: What
It Actually Said and Meant (3d ed., 2014), an overview of
the Constitution’s meaning immediately after adoption of
the Bill of Rights.
There are several keys to his success as a scholar. Unlike
most constitutional writers, he has academic training not
merely in law or in history, but in both, as well as in the Latin
About the Author
classics that were the mainstay of founding-era education.
He works to keep his historical investigations objective.
Also critical have been lessons and habits learned in the
“real world.” Before his academic career began, he served
as a journalist, practiced law for a decade, and ran two sep-
arate businesses. Later, he created and hosted Montana’s
first statewide commercial radio talk show and became the
state’s best known political activist—leading, among oth-
er campaigns—the most successful petition-referendum
drive in Montana history. He also helped push through sev-
eral important pieces of legislation. In June 2000, Professor
Natelson was the runner-up among five candidates in the
party primaries for Governor of Montana.
For recreation, he spends time in the great outdoors,
where he particularly enjoys hiking and skiing with his wife
and three daughters. He is also active in the Denver Lyric
Opera Guild.
Professor Natelson currently serves as Senior Fellow in
Constitutional Jurisprudence at the Independence Institute
in Denver, at the Montana Policy Institute in Bozeman and
at the Heartland Institute in Chicago. He directs the Article
V Information Center in Denver.
“The powers delegated by the proposed Constitution to the
federal government are few and defined. Those which are to
remain in the State governments are numerous and indefinite.”
– James Madison, The Federalist No.45
ii
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Article V | A HANDBOOK for STATE LAWMAKERS
7
The Standard & Poor’s credit downgrade of the U.S. that
occurred the year the Article V Handbook first appeared,
resulted not just from America’s fiscal crisis but from the
rating firm’s lack of confidence in, “the effectiveness, sta-
bility, and predictability of American policymaking and
political institutions” to correct the problem. The United
States’ political landscape has become even more frac-
tured since 2011 leading to the rise of “outsider” populist
candidates on both sides of the political spectrum pledging
to fix a broken Washington.
Fortunately, our Founding Fathers foresaw the possibility
that Congress would be the problem rather than a source
of solutions to the country’s problems and included with-
in Article V of the U.S. Constitution a method for states to
propose constitutional amendments bypassing Congress.
Americans realize that the nation is on the wrong path
and that Congress lacks the political courage to address
our challenges. Therefore, the time is right for the states
to exert the constitutional authority provided to them by
the Constitution’s framers and to propose amendments
that could set us on the right path again. For there is far
more to fear from state inaction against a dysfunctional
and overreaching federal government than there is to fear
from states banding together to address some of America’s
most pressing problems. This Handbook can serve as your
guide to correcting America’s course.
Sincerely,
Linda Upmeyer
Speaker of the Iowa House of Representatives
Chair, Center to Restore the Balance of Government
American Legislative Exchange Council
As the Chair of the American Legislative Exchange Council’s
Center to Restore the Balance of Government, I am
proud to present to you the newest edition of the Article
V Handbook. First published in 2011, the Handbook is an
invaluable guide for state lawmakers who recognize that
the states have the power and the duty to rein in a federal
government that is unable and unwilling to reform itself.
Much has been accomplished since this Handbook first ap-
peared, and it has been wonderful to witness this progress.
The idea of states serving as the catalyst to restore func-
tionality to Washington continues to gain traction. Article
V initiatives that got their start before the Handbook’s orig-
inal release are closing in on the 34-state threshold to call
an amendments convention, and new Article V initiatives
have launched. However, there is a lot more work to be
done, so the Handbook’s update could not have come at a
better time!
Americans of all political persuasions can generally agree
on one thing – dysfunction in Washington puts our nation’s
future at risk. A recent Gallup poll found that Congress’s ap-
proval rating has plunged to 11 percent, which comes as no
surprise to Americans living beyond the Beltway. National
priorities around which lawmakers on both sides of the
aisle once united are characterized by partisan bickering,
and congressional legislative activity has dropped to record
low levels as Members of Congress devote more time to
fundraising than legislating. Meanwhile, America’s prob-
lems grow. The national debt spirals upward on a course to
bankrupt subsequent generations and even poses a nation-
al security threat. Leadership to reduce the debt must take
place soon to prevent Social Security’s insolvency in fewer
than 20 years. And the debt is only one example of failed
governance at the federal level.
Foreword
iii
iii
The American Legislative Exchange Council wishes
to acknowledge the following parties who also
contributed to this Handbook:
We thank Iowa House Speaker Linda Upmeyer for
her leadership at ALEC on federalism, including the
establishment of the Center to Restore the Balance of
Government. We also want to express our gratitude
to Oklahoma Representative Gary Banz who has
been a longstanding leader and educator on Article V
in his state and at ALEC.
We thank Lisa B. Nelson, Michael Bowman, Karla
Jones and the rest of ALEC staff who helped make
this publication possible. The author would like to
extend special recognition to Karla Jones of ALEC,
for her tireless work in the cause of federalism.
Acknowledgments
iv
Article V | A HANDBOOK for STATE LAWMAKERS
9
The American people are deeply dissatisfied with the
federal government, and towering majorities favor fun-
damental reform. For example, polls by CNN, Fox News
and Mason-Dixon show that nearly three-fourths of
Americans favor a balanced budget amendment to the
U.S. Constitution. Similar majorities favor amendments
imposing term limits and other restraints.
Experience demonstrates that constitutional amendments
can be a powerful and long lasting cure for political prob-
lems. Many people have tried to induce Congress to for-
mally propose such amendments to the states for ratifica-
tion. However, Congress—under control of both major par-
ties—has consistently refused to approve limits on federal
power. Fortunately, the Founders, anticipating just such a
situation, provided a way to bypass Congress: Under Article
V of the Constitution, the state legislatures may require a
“Convention for proposing Amendments,” which in turn
may propose needed amendments for ratification. Thus, the
Founders gave the state legislatures a way to meet the na-
tion’s challenges when the federal government fails to do so.
This Handbook, written by constitutional scholar Robert
G. Natelson, provides state legislators with the tools to
use the Article V convention process legally, effectively
and safely.
In the first section of the book, Professor Natelson explains
the fundamentals of the procedure by which state legisla-
tures apply for a convention. He explains what the conven-
tion is: a diplomatic meeting of representatives from the
state legislatures, subordinate to the Constitution, with
the sole power of proposing one or more amendments on
subjects defined by the state legislatures. He explains that
it is not a “constitutional convention.”
Professor Natelson tells us what a convention would look
like today. He draws on the Founders’ understandings, two
centuries of amendment practice, extensive judicial case
law and the universal practices of the many previous “con-
ventions of the states.”
He then takes us through the process step-by-step, from
application to ratification. Readers will learn how best to
prepare applications in their states.
Next, Professor Natelson addresses “runaway convention”
fears. Those fears were first propagated widely during the
1970s by left-of-center spokesmen to insulate the feder-
al government from restraint. Later, some conservatives
bought into them. Professor Natelson explains in detail
why those fears are baseless no matter which side resorts
to them.
Finally, Professor Natelson provides practical recommen-
dations for state legislatures that choose to apply for a
convention. He encourages lawmakers to promote the
right amendments, use the right amount of specificity and
keep the process within state legislative control.
We hope that you will find this Handbook informative
and useful as you embark on a mission to reclaim the
American republic.
Executive Summary
v
v
10
AMERICAN LEGISLATIVE EXCHANGE COUNCIL
Article V
INTRODUCTION
I
Through Article V of the U.S. Constitution, our
Founders opened a pathway for the American
people, acting through their state legislatures,
to bypass Congress and promote constitutional
amendments. This is the Article V convention
process. Recent debate over proposals to reform
the federal government has provoked renewed
interest in that process.
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Article V | A HANDBOOK for STATE LAWMAKERS
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INTRODUCTION
This Handbook:
• Offers reliable information about the Article
V convention process, based on thorough and
objective scholarship;
• Corrects misinformation; and
• Makes it easier for state lawmakers to use the
process legally and effectively.
This Handbook is written for state lawmakers, support staff
and other interested Americans. Its goal is to help us employ
the Article V convention process as the Founders intended:
legally, effectively and safely. This Handbook offers well-
researched, accurate and objective information, and it
corrects common errors. Among those errors is the persistent
mischaracterization of the gathering the Constitution calls
the “Convention for proposing Amendments.”
Many Americans believe that the federal government has
become dysfunctional. Besides amassing a huge debt,
federal officeholders have disregarded individual liberty,
limits on their own power and the constitutional role of the
states. State lawmakers, on the other hand, increasingly
appreciate that federalism works only if the states respond
effectively when the central government exceeds or abuses
its powers. They increasingly understand that the Founders
gave us Article V as a crucial tool for state response.
The first edition of this Handbook was published in
2011. The time since has witnessed intense Article V
activity. Several campaigns have arisen. State legislatures
have approved a multitude of applications. The American
people are now debating amendments to balance the
federal budget and impose other fiscal restraints on the
federal government; amendments imposing term limits on
Congress, judges and other federal officials; an amendment
to establish a “single subject” rule for Congress; and
amendments to reverse overreaching court decisions.
Most Americans favor some or all of these changes. But
why should we resort to the Article V convention process to
adopt them? Won’t other methods work?
Part of the answer is that experience shows that reform
requires more than electing the right people. It requires
strengthening the basic rules. The Founders themselves
understood this, which is one reason they created the
amendment procedure. They saw amendments as more
Introduction
than a way to keep the Constitution up to date. They
also saw amendments as a way to resolve constitutional
disputes and correct excesses and abuses. As history
illustrates, Americans have adopted amendments for all of
those reasons, and with very good results.1
All amendments must be ratified by three-fourths (now
38 of 50) of the states. But before they can be ratified,
they must be formally proposed. Because the Founders
recognized that excesses and abuses could come from
either the states or the federal government, they opened
two alternative paths for proposal:
• A resolution adopted by two-thirds of both houses of
Congress, and
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AMERICAN LEGISLATIVE EXCHANGE COUNCIL
• A resolution adopted by an assembly consisting of
representatives from the state legislatures, and formally
called a Convention for proposing Amendments. (Other
acceptable names are amendments convention,
convention of the states and Article V convention.)
The first proposal method has been used several times
to correct state abuses. For example, Congress proposed
the 14th, 15th, and 24th Amendments to restrain state
oppression of minorities.2 However, the state legislatures
have never exercised their corresponding power to correct
federal abuses. This is one reason the structure of American
federalism has become so unbalanced.
To correct this imbalance, the American Legislative Exchange
Council has recommended constitutional amendments
to limit some of the worst abuses of federal power.3 But
Congress has refused to propose these or any other decent
reforms. In fact, aside from repeal of Prohibition, since
1789 Congress has never proposed an amendment curbing
its own power. That is the other part of the answer: If
Congress proves recalcitrant, the American people, acting
through their state legislatures, must do the job—just as our
Founders expected them to do.
Urged on by the American people, state lawmakers have
initiated the Article V convention process many times,
but have never carried it to completion. One reason
has been misinformation spread about the process by
opponents, academics and other writers who failed to
do their homework.
The information and recommendations in this Handbook
are based on more reliable sources. (See Appendix D).
Taken together, they re-open the pathway the Founders
blazed for us.
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Article V | A HANDBOOK for STATE LAWMAKERS
3
Article V
THE ARTICLE V
CONVENTION PROCESS:
THE BACKGROUND
II
Article V further empowers the convention to for-
mally propose, and grants conditional ratification au-
thority to, state legislatures and state conventions.
When an assembly acts under Article V, the courts
say that it exercises a “federal function.” However, it
does not do so as a part of the federal government.
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AMERICAN LEGISLATIVE EXCHANGE COUNCIL
A convention of the states was (and is) an assembly based
on international diplomatic practice. It is composed of
state delegations (“committees”) of “commissioners” re-
sponsible to their respective state legislatures and select-
ed, chosen and instructed as their state legislatures de-
termine. As in other diplomatic meetings among multiple
sovereignties, the convention is bound to a pre-set agenda.
Because sovereigns are formally equal, it decides issues on
the basis of one state/one vote. It is assigned one or more
problems and asked to produce recommendations—much
like a modern task force. The convention adopts its rules,
deliberates about solutions and considers whether and
what to recommend.
The pre-set agenda is fixed by the participating state legisla-
tures. The agenda for most conventions of states has been
fairly narrow. In fact, the agenda for the 1781 interstate
convention held in Providence, Rhode Island was limited
to military supplies for a single year. Most of the Founders
expected the agenda for amendments conventions to be
somewhat narrow as well. As James Madison made clear, it
was not to have “plenipotentiary” (very wide) powers. This
is one reason it is incorrect to refer to a convention for pro-
posing amendments as a “constitutional convention.” They
are very different creatures.5
The 55 Framers who met in Philadelphia during the spring
and summer of 1787 understood that they were drafting
a Constitution to last a very long time. “We are not form-
ing plans for a Day Month Year or Age,” delegate John
Dickinson wrote, “but for Eternity.”
Of course, a document designed to last a very long time
must include a method of amendment. In crafting their
amendment procedures, the Framers resorted to two
mechanisms widely employed at the time: legislatures and
conventions.
During the founding era, a “convention” was usually an
ad hoc assembly designed to pinch-hit for a legislature.
Today when we think of a convention we tend to think
of a constitutional or political convention, but during the
founding era most conventions served entirely different
purposes. Ratifying conventions were called to approve or
reject policy or legal recommendations. The Constitution
authorizes ratifying conventions to approve or reject the
Constitution itself and to approve or reject amendments.
Proposal conventions were task forces designed to work
out the initial recommendations. The Constitution autho-
rizes one kind of proposal convention: the “Convention
for proposing Amendments.”
The Constitution does not explain the role, composition or
procedures for a convention for proposing amendments.
This was not because the matter was unclear. It was be-
cause it was too clear to need explanation. Everyone knew
that a convention for proposing amendments was a con-
vention of the states. (The Supreme Court confirmed this
understanding in Smith v. Union Bank, decided in 1831.)
Everyone knew exactly what that meant, because over the
previous century there had been at least thirty conventions
among states or (before Independence) among colonies.4
States met in convention an average of every three to four
years.
The Article V Convention Process:
The Background
II
Article V | A HANDBOOK for STATE LAWMAKERS
5
To obtain a convention for proposing amendments, Article
V of the Constitution lays out two steps: (1) state legisla-
tive application and (2) congressional call. Once a sufficient
number of state legislatures have applied, the call is man-
datory; Congress has no choice.
This procedure was based on several precedents. For ex-
ample, Article 63 of the 1777 Georgia Constitution granted
to a majority of the state’s counties the power to petition
for an amendment. Once a majority had so petitioned, “the
assembly [legislature] shall order a convention to be called
for that purpose, specifying the alterations to be made, ac-
cording to the petitions preferred to the assembly by the
majority of the counties as aforesaid.” Thus, the Georgia
Constitution enabled the counties to designate what kind
of amendment they wanted, ordered the legislature to call
the convention and empowered that convention to write
the specific language.
The Framers adapted the Georgia procedure to federal
purposes. Instead of a majority of counties petitioning the
state legislature, two-thirds of state legislatures (now 34 of
50) would make “Application” to Congress. Notice that the
Framers changed “petition” to “Application.” We are not
certain why. However, during the founding era, to “apply”
to a person was merely to address that person, while to
“petition” could suggest a request from an inferior to a su-
perior. The Founders may have used “Application” instead
of “petition” to avoid implying that in this process the state
legislatures were inferior to Congress, or that Congress
could ignore their demand. Hence the Article V language:
The Congress . . . on the Application of the Legislatures
of two thirds of the several States, shall call a Convention
for proposing Amendments . . . 6
After the new Constitution was ratified, the new federal
government rendered it unnecessary for states to meet
in convention quite so often. Nevertheless, states did
meet several times. The New England states gathered in
Hartford, Connecticut in 1814 to discuss a response to the
then-current war with Great Britain. Most of the Southern
states met in convention in Nashville, Tennessee in 1850
and again in Montgomery, Alabama in 1861. A general (na-
tional) convention of the states gathered in Washington,
D.C., also in 1861. Seven Western states convened in 1922
In summary, please note:
• Just as other parts of the Constitution grant
Congress certain listed (“enumerated”) powers,
Article V also grants enumerated powers. Arti-
cle V grants them to named assemblies (conven-
tions and legislatures) and not to states or the
federal government as a whole.7 The executive
branch of federal and state governments does
not have any role in the amendment process.
• Proposing amendments through a convention,
as in Congress, is still only a method of propos-
ing amendments. No amendment is effective
unless ratified by three-fourths of the states
(now 38 of 50).
• To be duly ratified, an amendment first must be
duly proposed by Congress or by an interstate
convention called at the behest of two-thirds
(now 34) of the state legislatures.
• A convention for proposing amendments has
precisely the same power that Congress has to
propose amendments. Its power to propose is
limited by the subject matter specified in state
applications—but by no other authority what-
soever. The convention is a deliberative body
whose members answer to the state legisla-
tures they represent.
• The convention for proposing amendments is
basically a drafting committee or task force,
convened to reduce one or more general ideas
to specific language.
to negotiate the Colorado River Compact. Most of the 1922
sessions were held in Santa Fe, New Mexico.
All of these gatherings followed the same basic protocols
used by conventions before and during the founding era.
The Washington Convention of 1861 is a particularly use-
ful precedent because it was a national conclave that, in
all respects but constitutional authority, was identical to a
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AMERICAN LEGISLATIVE EXCHANGE COUNCIL
Why Not Just Leave Amendments
to the Discretion of Congress
Alone?
“Convention for proposing Amendments.” Under very diffi-
cult circumstances, the Washington Convention succeeded
in recommending an amendment that, if adopted, might
have prevented the Civil War.
Only in recent times have people become confused about
the nature and protocols of interstate conventions. Until
the mid-twentieth century, no one would have claimed, as
so many uninformed writers have, that the 1787 constitu-
tional convention is our “only precedent,” or that the states
cannot limit their convention to a preset agenda.
In addition to the lessons of history, we have nearly 50 re-
ported court cases interpreting the Constitution’s Article
V amendment procedure. The courts tell us that Article V
grants specific roles to Congress, state legislatures, state
conventions and to the convention to propose amend-
ments. Article V gives Congress authority to propose
amendments and to choose among two modes of ratifica-
tion. It also commands Congress to call a convention for
proposing amendments when two-thirds of the state legis-
latures tell it to. Article V thus empowers state legislatures
to force Congress to call an amendments convention.
Article V further empowers the convention to formally
propose, and grants conditional ratification authority to,
state legislatures and state conventions. When an assem-
bly acts under Article V, the courts say that it exercises a
“federal function.” However, it does not do so as a part of
the federal government.
In fact, the cases affirm that when Article V grants author-
ity to Congress or to a state legislature, it does not grant
that authority to the federal government or to the states
as such.8 Article V instead empowers specific assemblies—
legislatures and conventions—as freestanding entities.9
Thus, when Congress proposes amendments and selects
a mode of ratification it acts as a freestanding body, not
as a branch of the federal government. Similarly, when a
convention or state legislature acts under Article V, it does
so as an independent assembly, not as a branch of any
government. For that reason, Article V resolutions are not
subject to the veto of the president or of any governor, and
no Article V power may be transferred to another body, in-
cluding the people acting through the initiative and refer-
endum process.10
In a convention of the states, the “commissioners” (del-
egates) represent the state legislatures. The state leg-
islatures instruct them and specify the majority of the
state’s delegation necessary to cast that state’s vote at
the convention. In an Article V convention of the states,
the legislatures and the commissioners are subject to the
Constitution, but their procedures or conclusions may not
be dictated by pre-existing federal or state laws.
The records of the Constitutional Convention show that
the delegates initially considered a plan under which only
an interstate convention drafted and ratified amendments.
On the suggestion of Alexander Hamilton of New York, the
Framers altered the scheme so that Congress became the
sole drafter and the states became ratifiers. Hamilton ar-
gued that Congress should have the power to propose be-
cause its daily activity would suggest needed changes.
However, George Mason of Virginia observed that Congress
might become oppressive and refuse to propose corrective
amendments—particularly amendments limiting its own
power. So by a unanimous vote of the states, the delegates
added an amendments convention to allow the states to
bypass Congress. The final wording of Article V is mostly
the work of James Madison.
In summary, please note:
• The principal reason for the Article V conven-
tion process is to enable the states to check an
oppressive or runaway federal government—
although the Constitution does not actually
limit the process to that purpose.
• The Framers explicitly designed the process
to enable the states to substantially bypass
Congress.
Article V
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Article V | A HANDBOOK for STATE LAWMAKERS
7
Article V
JUDICIAL REVIEW
III
The courts, including the U.S. Supreme Court, gener-
ally have interpreted the language and procedures of
Article V to accord with historical practice. That means
that even if an issue has not yet been litigated, the
lengthy history of interstate conventions may tell us
how the judiciary will resolve it.
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AMERICAN LEGISLATIVE EXCHANGE COUNCIL
Despite some language to the contrary from an old
Supreme Court decision,11 it is now clear that the courts
can and will resolve Article V disputes. There are, in fact,
nearly 50 reported Article V cases from state and federal
tribunals, including several decided by the Supreme Court.
Possible judicial issues in the Article V convention process
include whether a legislative resolution qualifies as an
“application,” whether the number of applications on a
particular topic is sufficient to require Congress to call a
convention and whether a convention resolution is a valid
“proposal” that can be ratified.
For state lawmakers, the bad news in judicial review is that
groups opposed to amendments may sue to block them.
The good news outweighs that, because it is preferable
that the courts, rather than Congress, define and enforce
the amendment procedure. If Congress refuses to carry
out the duties mandated by Article V, the courts can order
Congress to do so. In addition, judicial review should pro-
tect the constitutional role of the state legislatures. Recall
that the central purpose of the Article V convention pro-
cess is to enable state legislatures to bypass Congress in
proposing amendments. Courts routinely construe legal
provisions to further their central purposes.
A further piece of good news associated with judicial re-
view is this: The courts, including the U.S. Supreme Court,
generally have interpreted the language and procedures of
Article V to accord with historical practice. That means that
even if an issue has not yet been litigated, the lengthy his-
tory of interstate conventions may tell us how the judiciary
will resolve it.
Judicial Review
III
Article V | A HANDBOOK for STATE LAWMAKERS
9
Article V
THE ARTICLE V CONVENTION
PROCESS: STEP-BY-STEP
IV
A. Making an application
B. How long does an application last?
C. The applications in Congress and the “call”
D. Selection of commissioners
E. The Convention
F. Ratification
IV
10
AMERICAN LEGISLATIVE EXCHANGE COUNCIL
What is an application? A state legislature seeking an
amendments convention adopts a resolution called an
“application.” The application should be addressed to
Congress. It should assert specifically and unequivocally
that it is an application for a convention pursuant to Article
V. The resolution should not merely request that Congress
propose a particular amendment. It should not merely re-
quest that Congress call a convention.
An example of effective language is as follows:
The legislature of the State of ______ hereby applies
to Congress, under the provisions of Article V of the
Constitution of the United States, for the calling of a
convention of the states . . .
Who may apply? The Constitution grants the right to apply
exclusively to the state legislatures. Applications need not
be signed by the governor, and may not be vetoed, any-
thing in the state constitution or laws notwithstanding.
Moreover, applying cannot be delegated to the people via
initiative or referendum, anything in the state constitution
or laws notwithstanding. However, the signature of the
governor does not invalidate an application, nor does an
initiative or referendum that is purely advisory in nature.
The scope of the convention sought. A legislature may ap-
ply for an open or unlimited amendments convention—
that is, not limited as to subject matter. Such an application
might read:
The legislature of the State of ______ hereby applies
to Congress, under the provisions of Article V of the
Constitution of the United States, for the calling of a
convention of the states for proposing amendments to
the Constitution.
Few people, however, want an open convention or a con-
vention for the sake of a convention. Generally, the goal is
to advance amendments of a distinct type, with the con-
vention limited to that purpose. An application for a limited
convention might read:
The legislature of the State of ______ hereby applies
to Congress, under the provisions of Article V of the
Constitution of the United States, for the calling of
a convention of the states limited to proposing an
amendment to the Constitution of the United States re-
quiring [here state general nature of the amendment].12
Although applications may limit a convention to one or
more subjects, the existing case law strongly suggests
that an application may not attempt to dictate particular
wording or rules to the convention nor attempt to co-
erce Congress or other state legislatures. The courts have
ruled repeatedly that assemblies acting under Article V
(Congress, state legislatures and conventions) are enti-
tled to some deliberative freedom. An application may
suggest particular language or rules for the convention,
but to avoid both confusion and potential claims that the
application does not aggregate with others, it is better
practice to place suggestions only in separate, accompa-
nying resolutions.
Some applications, while not attempting to impose specific
language on the convention, attempt to dictate the details
of the amendment’s terms. The more detail the application
mandates, the more likely a court will void it as attempting
to restrict unduly the convention’s deliberative freedom.
Additionally, the more terms an application specifies, the
less likely it will match the terms of other applications,
resulting in congressional or judicial refusal to aggregate
them together toward the two-thirds threshold.
A. Making an application
The Article V Convention Process:
Step-By-Step
IV
Article V | A HANDBOOK for STATE LAWMAKERS
11
Thus, a pair of complementary rules governs legislatures
applying under Article V: (1) Legislatures may limit the sub-
ject matter of the convention but (2) they may not dictate
particular wording. These boundaries make sense if you
think of the convention’s mission: It is a committee or task
force charged with recommending solutions to designat-
ed problems. In business or government, when you charge
a task force you inform its members of the problems you
want them to address. You do not tell them to investigate
anything they wish. And unless the task force is a sham,
you do not dictate their recommendation in advance. Nor
do you tell them, “Here’s what we want, decide only ‘yes’
or ‘no.’” To serve its purpose the task force has to be given
specific problems to address and be free to consider differ-
ent solutions.
In summary, please note:
• An “application” is a state legislative resolution
directing Congress to call a convention for pro-
posing one or more amendments.
• Applications may limit the scope of the conven-
tion to particular subject matter.
• Applications may recommend, but not dictate,
particular wording to the convention.
• Applications setting forth detailed terms for the
amendment are inadvisable both on legal and
practical grounds.
• Recommendations are best stated in accompa-
nying resolutions.
Although some have argued that older applications grow
“stale” after an unspecified time and lose their validity,
an application probably lasts until it is duly rescinded. The
power to rescind continues until the two-thirds threshold
is reached, or perhaps shortly thereafter.13
B. How long does an
application last?
An application probably may provide that it is automatical-
ly terminated as of a particular date or on the occurrence
of a specific event—as long as the terminating condition
is not an effort to coerce Congress, other states or the
convention. Thus, a provision is most likely valid if it says,
“This application, if not earlier rescinded, shall terminate
on December 31, 2019.” Also valid would be this language:
“This application, if not earlier rescinded, shall be null and
void if Congress shall propose an amendment to the U.S.
Constitution limiting the scope and jurisdiction of the fed-
eral government.” On the other hand, courts may deem
some kinds of automatic terminations to represent efforts
to coerce the convention, and therefore void. A clear ex-
ample would be a provision automatically terminating the
application unless the convention followed specified rules
or adopted an amendment in specified language.
“Aggregation” of applications. When 34 state legislatures
have submitted applications on the same subject, the
Constitution requires Congress to call a convention for
proposing amendments. Both the historical and legal
background of Article V and modern commentary clarify
that the congressional role at this point is merely “min-
isterial” rather than “discretionary.” In other words, the
Constitution assigns Congress a routine duty it must per-
form. Note that the congressional receipt of 34 applica-
tions is not sufficient; those applications must relate to the
same subject matter.
In past years, some members of Congress have floated ex-
cuses for refusing to call a convention under any circum-
stances.14 Congress may refuse to “aggregate” toward the
two-thirds threshold any applications that try to dictate to
the convention different ways of solving the same problem.
If 17 states have applied for a convention to consider term
limits generally and another 17 have applied for a conven-
tion limited to considering term limits for no more than
12 years, Congress may refuse to treat both groups as ad-
dressing the same subject. The more differences exhibited
by the applications, the more justification Congress has in
refusing to aggregate them.
C. The applications in
Congress and the “call”
IV
12
AMERICAN LEGISLATIVE EXCHANGE COUNCIL
One way to forestall this behavior is to specify in the ap-
plication that it be aggregated with certain other state
applications. For example, an application may include the
following language:
This application is to be considered as covering the
same subject matter as any other application for con-
gressional term limits, irrespective of the terms of those
applications, and shall be aggregated with them for the
purpose of reaching the two thirds of states necessary
to require the calling of a convention.
An alternative might be to name applications already sub-
mitted by other states:
This application is to be considered as covering the same
subject matter as presently-outstanding balanced bud-
get applications from Nebraska, Kansas and Arkansas,
and shall be aggregated with them for the purpose of
reaching the two-thirds of states necessary to require
the calling of a convention.
This process is for the states, not Congress. In the past,
well-meaning members of Congress have introduced bills
to resolve issues properly within the discretion of the
state legislatures or the convention. These bills would
have dictated how delegates are selected, how many
each state may choose and the convention’s voting and
procedural rules.
Several factors render that kind of legislation unconstitu-
tional. First, congressional efforts to control the conven-
tion would handicap its fundamental purpose as a way for
the state legislatures to amend the Constitution without
congressional interference. Second, the historical record
shows that such prescriptions exceed the scope of author-
ity incidental to the constitutional power to “call.”15 That
authority encompasses power to count and categorize the
applications by subject matter, announce the subjects on
which the two-thirds threshold has been reached and set
the time and place of the gathering. It does not empower
Congress to control the convention further.
The Founders modeled the convention of states on inter-
national diplomatic practice. As in diplomatic meetings,
each sovereignty decides how to select its own commis-
sioners and how many to send. Of course, the size of the
delegation does not alter a sovereignty’s equal vote. The
records of the founding-era interstate conventions tell us
that states selected commissioners in several ways:
1) Election by one house of the state legislature, subject
to concurrence by the other;
2) Election by joint session of both houses of the state
legislature;
3) Designation by the executive, pursuant to legislative
authorization and
4) Selection by a legislatively-designated committee.
The 1861 Washington Convention served as a “dry run” for
an amendments convention. Although some state legisla-
tures selected their own commissioners for that gathering,
because of the very limited time available (the convention
was called hastily to try to stave off the Civil War), some
authorized the executive to appoint commissioners, with
or without approval by the state senate. In states in which
the legislature was not in session, the governor made the
appointment.16 Without legislative authorization, guber-
natorial appointment is probably not permissible under
Article V.
Election by legislative joint ballot has several advantages.
First, it makes sense for the legislature to select commis-
sioners, because they serve as legislative agents subject
to legislative instruction and removal. Second, joint ballot
elections are less prone to deadlock than election by each
chamber seriatim. Third, because the basic policy ques-
tions are defined largely by the applications and legislative
instructions, a commissioner’s principal roles are to per-
suade, negotiate and draft. These roles call for diplomatic
skills and technical ability. State lawmakers will know which
individuals possess those abilities.
Each commissioner is empowered to act by a document
called a “commission,” issued in such manner as the state
legislature directs.
D. Selection of commissioners
IV
Article V | A HANDBOOK for STATE LAWMAKERS
13
All states, not merely the applying states, are entitled to
send committees to a convention for proposing amend-
ments. The convention is, as James Madison once asserted,
“subject to the forms of the Constitution.” In other words,
it is not “plenipotentiary” (or “constitutional”) in nature.
Accordingly, a convention for proposing amendments has
no authority to violate Article V or any other part of the
Constitution. Article V prescribes that the convention may
not propose a change in the rule that each state has “equal
Suffrage in the Senate.”17 Nor may the convention alter the
ratification procedure, as some alarmists have suggested.18
Prior rules and practice governing interstate conventions
tell us that conventions must limit themselves to the scope
of the subject matter they are charged with addressing. In
the case of an Article V proposal convention, the scope of
the subject matter is set by the limits in the applications.
Congress should reflect that scope in its call, but the con-
vention is so limited whether or not Congress does so.
American conventions generally may elect their own offi-
cers and adopt their own rules. This has been universal-
ly true of conventions of the states. These rules govern
the standards of debate, daily times of convening and
adjourning, whether the proceedings are open or secret
and other procedural matters. A convention generally will
specify a source of “default rules” that govern questions
outside adopted rules. Possible sources of default rules are
Mason’s Manual of Legislative Procedure, Robert’s Rules
of Order and Thomas Jefferson’s Manual of Parliamentary
Practice. Additional questions are governed by the par-
liamentary common law, a body of rules long embedded
in American jurisprudence.19 The American Legislative
Exchange Council (ALEC) has adopted a Model Policy that
offers principles to underlie convention rules.20 Your au-
thor has written a more complete set of rules,21 which he
prepared for the “Convention of States” project of Citizens
for Self-Governance—a project supported by ALEC.22 A few
aspects of those rules are tailored for the “Convention of
States” application, but most are usable for a convention
on any subject.
E. The Convention
Interstate conventions always have determined substan-
tive issues according to “one state/one vote.” Although
in theory a convention could, by a one state/one vote roll
call, alter the rule of suffrage, none has ever done so. The
convention may limit how many commissioners from each
state can occupy the floor at a time.
Like other diplomatic personnel, convention commission-
ers are subject to instruction from home—in this case from
the legislature or the legislature’s designee.23 The designee
could be a committee, the executive, or another person
or body. Although state applications cannot require exact
wording for an amendment, a state may instruct its com-
missioners to refuse to agree to any amendment that does
not include certain language. In accordance with tradition-
al practice and the convention’s purpose, each state should
pay its own commissioners.
The convention may opt to propose one or more amend-
ments within the designated subject matter or it may ad-
journ without proposing anything. Unless altered by con-
vention rule, proposal requires only a majority vote. Some
have argued that a formal proposal requires a two-thirds
convention vote—or that Congress may impose such a
rule—but there is nothing in law or history to support this
argument. On the contrary, adding supermajority votes in
addition to those required by Article V improperly clogs the
process and upsets the constitutional balance.24
The Constitution does not require that a proposal be
transmitted to Congress or to any other particular enti-
ty; the proposal is complete when the convention says it
is. Because Congress must choose a mode of ratification,
however, the convention should officially transmit the pro-
posal to Congress.
Once the commissioners decide definitively what amend-
ments to propose—or when it becomes clear that the con-
vention will propose none at all—the purpose of the con-
vention is served. It must adjourn.
IV
14
AMERICAN LEGISLATIVE EXCHANGE COUNCIL
In summary, please note:
• Each state sends a committee of commissioners
to the convention, chosen by the state legisla-
ture or as the state legislature directs.
• The convention elects its own officers and sets
its own rules. To the extent the rules do not
answer the question, it is answered by the con-
vention’s designated source of default rules or
by parliamentary common law.
• Initial suffrage is one state/one vote with deci-
sions made by a majority of states, but the con-
vention theoretically could change both rules
by a simple majority of states voting.
• The convention must follow the rules of the
Constitution, including those in Article V. The
convention cannot change the ratification pro-
cedure.
• The commissioners must remain within the
charge as set by the applications and (deriva-
tively) by the congressional call.
• Within the charge and during the convention,
each committee is subject to instruction from
its home state legislature or the legislature’s
designee and is subject to recall as well.
• Within the charge, the commissioners may pro-
pose one or more amendments, or may pro-
pose none at all. Once that decision is made,
the convention must adjourn.
Ratification of convention-proposed amendments is the
same as that for congressionally-proposed amendments.
If the convention validly proposes one or more amend-
ments, Article V requires Congress to select one of two
“Mode(s) of Ratification” for each. Congress may decide
that the amendments be submitted to state conventions
elected for that purpose (the mode selected for the 21st
Amendment, repealing Prohibition) or to the state legisla-
tures (selected for all other amendments). The obligation
of Congress to select between the two modes should be
enforceable judicially. However, Congress has unfettered
discretion to choose between them. Neither the applying
state legislatures nor the convention may dictate which
method Congress selects.
The congressional duty to choose a mode does not arise
until there is a valid “proposal.” A proposal would not be
valid if, for example, it exceeded the scope of the subject
matter defined by the applications or if it altered equal
suffrage in the Senate or the Constitution’s rules of rati-
fication. Congress would be under no obligation to select
a mode for such a “proposal.” Nor would it have the legal
right to do so.
F.
Ratification
IV
Article V | A HANDBOOK for STATE LAWMAKERS
15
Article V
THE MYTH OF A RUNAWAY
CONVENTION
V
The runaway convention scenario was conjured up in the
early 20th century to dissuade state lawmakers from using
the Article V convention process to bypass Congress. The
scenario became famous during the 1970s, when liberal
activists, legislators and academics used it to defeat ap-
plication campaigns for a balanced budget amendment
and for amendments reversing activist Supreme Court
decisions. In one of the ironies of history, some deeply
conservative groups now promote the scenario as well.
V
16
AMERICAN LEGISLATIVE EXCHANGE COUNCIL
of reputation and probably compromise their political fu-
tures. This may explain why, in the long history of the hun-
dreds of American state and interstate conventions, only
an odd handful of delegates actually have suggested “go-
ing rogue.” Even Congress—which, unlike a convention,
may propose amendments at any time—has refrained
from offering amendments of the kind envisioned by the
runaway scenario.
Alarmists do not dispute this, but argue that the 1787
Constitutional Convention disregarded its instructions. This
charge, however, is substantially false. (See endnote 35.)
Alarmists also evoke memories of “stampedes” at national
party conventions. However, a convention of states shares
nothing with a national party convention but the name
“convention.” A national party convention consists of a
mob of thousands of, mostly unsophisticated, delegates.
The commissioners at a convention of states will consist of
The runaway convention scenario was conjured up in the
early 20th century to dissuade state lawmakers from us-
ing the Article V convention process to bypass Congress.
The scenario became famous during the 1970s, when lib-
eral activists, legislators and academics used it to defeat
application campaigns for a balanced budget amendment
and for amendments reversing activist Supreme Court de-
cisions.25 In one of the ironies of history, some deeply con-
servative groups now promote the scenario as well.26
In the runaway convention scenario, state legislatures at-
tempt to limit the convention through their applications,
but once the convention meets the commissioners disre-
gard the applications and their subsequent instructions.
Heedless of their reputations, their political futures and
all ties of honor, the commissioners propose amendments
that are ultra vires—that is, beyond their legal authority.
These amendments may reinstate slavery, abolish all or
parts of the Bill of Rights or otherwise fundamentally al-
ter the American form of government. Even though those
proposals are outside the convention’s scope, a compli-
ant Congress nevertheless chooses a mode of ratification
and sends the proposals to the states. Three-fourths of
the states proceed to ratify amendments they did not au-
thorize and do not want. No one challenges any of this in
court, or if they do, the courts refuse to intervene.
Believe it or not, that is the more moderate version of
the runaway scenario. In the more extreme versions ped-
dled by some lobbying groups, the convention alters the
method of ratifying to prevent the states from blocking its
proposals. While the Congress, the president, the courts
and the military all inexplicably sit by and permit this coup
d’état to unfold, the convention imposes a new, more au-
thoritarian, government on America.
Both versions of the runaway convention scenario reveal
slender regard for political reality. At the very least, com-
missioners who betray their trust would suffer severe loss
The Myth of a Runaway Convention
V
Article V | A HANDBOOK for STATE LAWMAKERS
17
perhaps 250 state legislative nominees instructed and se-
lected for their political skills.27
In addition to the constraints of practical politics, there are
redundant legal protections against ultra vires proposals:
1) Because convention commissioners are subject to
state legislative instruction and recall, legislatures
can remove any who attempt to exceed their power.
2) If, nevertheless, legislatures fail to do this AND the
convention purports to adopt an ultra vires amend-
ment, it would not be a constitutionally valid “pro-
posal.” Hence Congress would not be obligated to
select a mode of ratification—and, indeed, would
have no right to do so. (Recall that Congress is an in-
stitutional rival of the convention and has no motive
to encourage it.)
3) If state legislatures fail to stop commissioners from
acting beyond their powers, AND if the convention
reports an ultra vires amendment, AND if Congress
nevertheless selects a mode of ratification, the courts
could declare Congress’s decision void. (Recall that
the courts actively adjudicate Article V issues.)
4) If the state legislatures do not stop their commis-
sioners from acting beyond their powers, AND if the
convention reports an ultra vires amendment, AND
if Congress still selects a mode of ratification AND if
the courts fail to declare Congress’s decision void,
then the states could refuse to ratify it. Of course,
refusal to ratify by only 13 states (or perhaps by only
13 legislative chambers) kills the proposal.
5) In the unlikely event that the states insist on ratify-
ing a proposal (i) for which they did not apply, and
(ii) made contrary to their instructions, the courts—
or, indeed, any government agency—could treat the
“amendment” as void.
In sum: Those who promote the runaway scenario are ei-
ther uninformed of Article V law and convention history or
are preying on those who are. In the real world, there are
far more political and legal constraints on a runaway con-
vention than on the runaway Congress.
V
18
AMERICAN LEGISLATIVE EXCHANGE COUNCIL
Article V
PRACTICAL RECOMMENDATIONS
FOR THE ARTICLE V
CONVENTION PROCESS
VI
The constitutional amendment procedure can be
messy. Indeed, people occasionally argue that one or
more existing amendments never were approved prop-
erly. Nonetheless, lawmakers employing the Article
V convention process must try to follow the rules as
closely as possible. There are too many politicians, lob-
bying groups and judges willing to seize on technical
mistakes to block amendments they do not favor.
VI
Article V | A HANDBOOK for STATE LAWMAKERS
19
The constitutional amendment procedure can be messy.
Indeed, people occasionally argue that one or more existing
amendments never were approved properly. Nonetheless,
lawmakers employing the Article V convention process
must try to follow the rules as closely as possible. There are
too many politicians, lobbying groups and judges willing to
seize on technical mistakes to block amendments they do
not favor.
Here are some practical rules to follow:
• Promote the right amendments
Most people have one or more causes dear to their hearts
that they would love to see written into the Constitution.
But the Article V convention process is no place for un-
popular, ineffective or idiosyncratic causes. Each potential
amendment should comply with at least four criteria:
1) Like most amendments already adopted, it should
move America toward more compliance with
Founding principles.
2) It should promise substantial, rather than merely
symbolic or marginal, effect on public policy.
3) It should be widely popular.
4) It should be a subject that most state lawmakers, of
any political party, can understand and appreciate.
The most successful application campaign ever—for direct
election of U.S. Senators—met all of these criteria. The
cause was widely popular and well understood by state
lawmakers because, year after year, legislative election of
Senators had fostered legislative deadlocks, corruption,
and submersion of state elections by federal issues. Direct
election advocates represented the campaign as necessary
to restore Founding principles and predicted substantial
improvement in the quality of government.
As of this writing, all four criteria probably are met by a
balanced budget amendment and a proposal to term-limit
federal judges. An amendment to return Senate elections
to the state legislatures, whatever its theoretical merits,
probably does not meet the popularity criterion.
• Don’t work alone
Some of America’s most successful reform campaigns were
based on close cooperation among states. For example,
the American Revolution was coordinated first through
interstate “committees of correspondence.” In the appli-
cation campaign for direct election of U.S. Senators the
legislatures of a few states coordinated the national effort
by erecting standing legislative committees that prepared
common forms and assisted the common effort.
Future application campaigns will succeed only if state
legislatures work together. Due to modern communica-
tions, this is much more practical than it was during the
direct election campaign. Applications should follow stan-
dard forms. (See Appendix A.) Applications should be sent
to as many recipients as possible, especially (of course)
Congress. Legislatures should communicate with each oth-
er on issues such as choice of commissioners, convention
rules and the size of state delegations. This enables law-
makers to address differences in advance of the conven-
tion, maintain momentum, control the process and protect
it from congressional interference.
Fortunately, all this is happening now, through groups
like the American Legislative Exchange Council, the State
Legislators’ Article V Caucus and the Assembly of State
Legislatures.
Practical Recommendations for the
Article V Convention Process
VI
20
AMERICAN LEGISLATIVE EXCHANGE COUNCIL
• Don’t make applications too
general
A convention for proposing amendments is basically a
problem-solving task force, and it rarely makes sense to tell
a task force to find any problems anywhere they choose.
Moreover, few lawmakers want a convention merely for the
sake of a convention or because they think the Constitution
needs a complete overhaul. Applications should specify the
subject of the proposed convention. If the legislature wish-
es to address several subjects, those subjects should be
in separate applications, or at least follow an established
form. In that way, the defeat of one application will not
compromise others.
• Don’t make applications too
specific; let the convention
do its work
Once a task force is told the problem to address, it should
be allowed to do its job. In other words, although the task
is preset, the precise solution cannot be. Both founding-era
practice and modern court decisions tell us that it is un-
constitutional for some assemblies working under Article
V (such as legislatures) to try to dictate solutions to others
(such as conventions). The courts almost certainly will in-
validate applications that require the convention to adopt
specific wording and may well void applications that re-
quire an up or down vote on specific wording.28
There also are practical reasons for avoiding too much de-
tail. The more specific an application is, the more difficult
it is to garner the broad coalition necessary to induce 34
states to approve it. Further, the more specific it is, the
more likely it deviates enough from other applications to
give Congress a reason to refuse to aggregate it with oth-
er applications. Finally, the convention probably will do a
better job of drafting an amendment than dispersed state
lawmakers. Comprised of experienced personnel from all
states, the convention may very well craft a solution more
deft—and more politically palatable—than any recited in
the applications.
Consider a balanced budget application as an example. An
application could seek to dictate detailed terms to the con-
vention (spending caps, rules for tax increases, planning or
appropriation details) or it could call simply for a balanced
budget amendment prescribing “that Federal outlays for
any fiscal year may not exceed the total of all estimated
Federal revenues for that fiscal year.” If a state legislature
adopts the more specific route, the legislature may find it
difficult to persuade other state legislatures to follow suit.
Moreover, Congress or the courts may treat the application
as invalid. If the state legislature passes the more gener-
al application, other legislatures are more likely to join in.
Neither Congress nor the courts will have any excuse for
holding the application invalid. Representatives from the
state legislature seeking the specific language can advocate
for it at the convention. The convention is free to adopt
that language—or, perhaps, wording that is even better.
• Don’t make applications
conditional
Some applications are conditional on a prior event (e.g.,
congressional failure to report a similar amendment).
These are probably valid, but in the absence of a court de-
cision on point, we cannot be certain. Applications that use
conditions to try to coerce other bodies in the Article V pro-
cess are more surely invalid. Thus, the application should
not assert that it is void unless the convention adopts
particular wording or a particular rule, or unless Congress
adopts a particular mode of ratification.
An application stating that it is void after a particular date
or if a particular (non-coercive) event has occurred is prob-
ably acceptable legally. However, it would be better to
leave out conditions entirely. The legislature can rescind
the application later, if necessary.
• Move fast
America is deeply in debt, and sinking deeper. Congress is
often deadlocked. In some respects, the executive and ju-
dicial branches are out of control. These situations call for
corrective action now.
Do not allow alarmism to dissuade you. Do not delay
in the hope that Congress may propose an amendment
limiting its own power. Experience shows this is exceed-
ingly unlikely.
VI
Article V | A HANDBOOK for STATE LAWMAKERS
21
Older applications should be renewed from time to time.
Some people have argued that applications automatically
expire or “grow stale” over time. There is little constitu-
tional basis for this argument, but some in Congress have
advanced it to weaken the Article V convention process. If
possible, an entire application campaign should be planned
for completion in three to four years.
• Keep the application as simple
as possible
As previously noted, an application should not be overly spe-
cific: State the problem and let the convention do its job. Do
not try to dictate particular wording or specific approaches.
Do not include recommendations or statements of under-
standing in your legislature’s applications. If you wish to is-
sue a non-binding recommendation to Congress, other state
legislatures or the convention, do so in a separate resolution.
Admittedly, a recommendation or statement of under-
standing in an application does not necessarily void that
application. In fact, several of the state conventions rati-
fying the Constitution included recommendations and
declarations without affecting the validity of their ratifica-
tions. But recommendations and similar wording are not
always clearly distinguished from substance. Opponents
may claim that they invalidate the application or prevent it
from being aggregated with other applications toward the
two-thirds threshold.
Therefore, recommendations, declarations and statements
of understanding should be adopted in resolutions sepa-
rate from the application. Appendix A provides a form res-
olution for that purpose.
• Retain state control over
the convention
The Article V convention process was designed specifi-
cally as a way for state legislatures to bypass Congress.
Unfortunately, some past members of Congress have ex-
pressed willingness to interfere with or control the process.
For the sake of the Constitution, this must not be allowed
to happen.
State legislators applying for a convention must send a clear
message to Congress that this procedure is within the con-
trol of the states. Congress’s obligations are to count the
applications, call the convention on the states’ behalf and
choose a mode of ratification. Congress has no authority to
define the convention’s scope, its rules or the selection of
its commissioners. Those are the prerogatives of the state
legislatures and of the convention commissioners respon-
sible to the state legislatures.
• The state legislature should
choose its own commissioners
The founding-era record, supplemented by subsequent
practice, tells us that when an interstate convention is
called, each state legislature decides how many commis-
sioners will make up its delegation or “committee,” and
how they are selected.
Legally, the legislature may delegate selection to a popular
vote or to the executive. In the case of a convention for
proposing amendments, however, such delegation makes
little sense. Since the policy agenda for the convention is
fixed by the applications and by subsequent legislative in-
structions, convention service requires more diplomatic,
negotiation and drafting skill than passion or popular po-
litical appeal. Ideally, commissioners will be seasoned and
tested leaders of unquestioned probity.
Another reason for legislative selection is that the commis-
sioners are subject to state legislative instructions and recall.
Some state legislatures will encounter pressure for popu-
lar election. If a legislature does opt for popular election,
it must clarify that a commissioner’s failure to follow leg-
islative instructions could lead to his or her removal. This
discipline is required to accomplish the core purpose of
the Article V convention process—that is, to enable state
legislatures to promote amendments targeted at problems
those legislatures have identified.
Some have suggested that states adopt statutes providing
that commissioners who exceed the scope of the conven-
tion or disregard legislative instructions are deemed imme-
diately recalled. Court decisions suggest that those laws
may not be completely enforceable. They can, however,
VI
22
AMERICAN LEGISLATIVE EXCHANGE COUNCIL
serve educational functions; and if not overridden explic-
itly during the Article V process, they may be deemed as
accepted implicitly.29
• Don’t get caught in the
supermajority trap
Some argue that votes at a convention, or on applications
or ratification, should be determined by supermajorities
(e.g., two-thirds) rather than by simple majorities. This is a
constitutional and practical error.
Article V already provides for supermajority votes at sev-
eral decision points—two-thirds of the states to consider,
two-thirds of Congress to propose and three-fourths of the
states to ratify. Article V’s silence on other decision points
is not the result of oversight: The Founders expected res-
olution by a simple majority. This is part of a carefully bal-
anced procedure.
The proposal process illustrates that balance: If Congress
wishes to offer an amendment, it may take up the subject
by only a majority vote. But it requires two-thirds of each
house for Congress to propose. In the convention process,
the requirements are reversed, but balanced against those
applicable to Congress: It requires two-thirds of the states
for a convention to consider an amendment, but only a ma-
jority to propose.
Impeding Article V with additional supermajorities upsets
that balance. Hindering the Article V convention process
also undercuts the Founders’ objective of allowing state
legislatures to offer amendments as readily as Congress
may. Adding additional supermajorities to the states’
amendment procedure would severely disadvantage the
states vis-à-vis Congress.
• Respond to the “minority rule”
argument
James Madison famously stated in Federalist No. 39 that
the Constitution is partly national and partly federal (a
point he actually borrowed from John Dickinson). That
means the Constitution is partly based on popular majori-
ties and partly based on the states. As Madison also wrote,
Article V is a good example of this duality. For example,
amendments may be proposed either by Congress (mostly
a popular method) or by a convention of the states (mostly
a federal method).
Despite the fact that the Constitution empowers state
legislatures in this way, if history is any guide opponents
will judge the Article V convention process exclusively by
“popular” standards. They will claim it promotes minority
rule. This is because, in theory, states with a minority of the
American population could trigger a convention.
Advocates may respond that we already have another way
of proposing by popular majority (Congress) and this is the
“federal” (state) alternative. But it is probably more per-
suasive to point out that any amendment will require over-
whelming public support to pass.
At the application stage, two-thirds of all states are re-
quired. Political realities place some larger states on the
same side as smaller ones. A heavily populated state like
Texas is much more politically akin to a sparsely populated
state like South Dakota than to another heavily populat-
ed state like New York. This renders it highly unlikely that
even the first step—an application campaign—can succeed
without wide ranging national popular support.
Further, the application stage is only an initial step in a
three-step process. The convention will meet in the glare of
publicity. The commissioners are unlikely to propose mea-
sures most Americans find distasteful and that, therefore,
are unlikely to be ratified. After all, ratification requires 38
states—including, in all probability, some states that failed
to apply. Again, heavily and lightly populated states will fall
on both sides. Any amendment that succeeds at ratifica-
tion will almost certainly be supported by a supermajority
of the American people.
VI
Article V | A HANDBOOK for STATE LAWMAKERS
23
Article V
CONCLUSION
VII
It is the federal analogue to the initiative process at
the state level: Just as the voter initiative enables the
people to make reforms the state legislature refus-
es to make, the Article V convention process enables
the state legislatures to propose reforms Congress
refuses to propose.
VII
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AMERICAN LEGISLATIVE EXCHANGE COUNCIL
ism—that the states are increasingly mere administrative
subdivisions for the convenience of Washington, D.C. After
we related the situation, those Founders doubtless would
ask, “Well, have you ever called an amendments conven-
tion under Article V?” And when we admitted we never
had, they might well respond, “In short, you refused to use
the very tools we gave you to avoid this situation. The sad
state of American federalism is clearly your own fault.”
They would tell us that responsibility for reclaiming constitu-
tional government is very much our own.
The Framers did not insert the Article V convention pro-
cess in the Constitution merely to increase the document’s
length. It was an important component—perhaps the most
important component—in the federal balance between
states and the central government. It was, in Madison’s
terms, the ultimate constitutional way for curbing an abu-
sive or out-of-control federal government. It is the federal
analogue to the initiative process at the state level: Just as
the voter initiative enables the people to make reforms the
state legislature refuses to make, the Article V convention
process enables the state legislatures to propose reforms
Congress refuses to propose.
If we could address one or more of the Founders today, we
might tell them what has happened to American federal-
Conclusion
VII
Article V | A HANDBOOK for STATE LAWMAKERS
25
Appendix
A
This Appendix offers forms for state legislative resolutions for
the Article V and convention process. Among the forms are
applications for a convention, separate resolutions for legis-
lative declarations and recommendations, and commissioner
credentials.
These forms are not intended to be definitive and certainly
do not represent legal advice. They are designed to serve as a
starting point for legislative drafters familiar with the law and
usages in each state.
Annotated Forms
A
26
AMERICAN LEGISLATIVE EXCHANGE COUNCIL
Application under Article V of the U.S. Constitution
for a Convention to Propose a Balanced Budget Amendment and
Further Fiscal Restraints
Application under Article V of the U.S. Constitution For a Convention to Propose a
Balanced Budget Amendment and Further Fiscal Restraints
Summary
The resolution will address a specific amendment to be voted on at an Article V Convention. The amendment would
require that in the absence of a national emergency, total federal appropriations made by Congress for any fiscal year
may not exceed the total of all estimated federal revenues for that fiscal year. The presently outstanding applications in
many states regarding balanced budget applications are considered of the same subject matter. They shall be included
with those outstanding amendments for the purpose of attaining two-thirds of states necessary to require the calling of
a convention.
Model Resolution
Section 1. The legislature of the State of [INSERT STATE] hereby applies to Congress, under the provisions of Article V of
the Constitution of the United States, for the calling of a convention of the states limited to proposing an amendment
to the Constitution of the United States requiring that in the absence of a national emergency the total of all Federal ap-
propriations made by the Congress for any fiscal year may not exceed the total of all estimated Federal revenues for that
fiscal year, together with any related and appropriate fiscal restraints.
Section 2. The Secretary of State is hereby directed to transmit copies of this application to the President and Secretary
of the Senate and to the Speaker and Clerk of the House of Representatives of the Congress, and copies to the members
of the said Senate and House of Representatives from this State; also to transmit copies hereof to the presiding officers
of each of the legislative houses in the several States, requesting their cooperation.
Sample Form: The Application in General
(With a Balanced Budget Amendment (BBA) application to Illustrate)
An application should be kept as simple as possible. Extra language may lead to confusion, invalidity, or congressional
refusal to aggregate the application with those from other states. If a state legislature wishes to make recommendations
or issue declarations or statements of understanding, those items should appear only in an accompanying resolution.
Credentialing of and instructions to commissioners also should be placed in separate resolutions.
One of the applications recommended by ALEC is a form for a convention to consider a balanced budget amendment.
When it was prepared, the drafter (your author) based it on one of two forms commonly employed by state legislatures
during their highly successful application campaign for direct election of U.S. Senators.30 The BBA wording is similar to
that used in some currently outstanding states’ BBA applications from the late 1970s and early 1980s. Additional material
has been added. The language in italics is optional.
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Article V | A HANDBOOK for STATE LAWMAKERS
27
Section 3. This application is to be considered as covering the same subject matter as the presently-outstanding bal-
anced budget applications from other states, including but not limited to previously-adopted applications from Alabama,
Alaska, Arkansas, Colorado, Delaware, Florida, Indiana, Iowa, Kansas, Maryland, Mississippi, Missouri, Nebraska, New
Hampshire, New Mexico, North Carolina, Pennsylvania, and Texas; and this application shall be aggregated with same for
the purpose of attaining the two-thirds of states necessary to require the calling of a convention, but shall not be aggre-
gated with any applications on any other subject.
Section 4. This application constitutes a continuing application in accordance with Article V of the Constitution of the
United States until the legislatures of at least two-thirds of the several states have made applications on the same subject.
It supersedes all previous applications by this legislature on the same subject.
Note the following:
• For completeness, the word “appropriations” in this form should be changed to “outlays.”
• Observe how simple this application is. It does not include a lengthy preamble (“whereas” clauses), which
might be construed as creating limitations or qualifications on the application.
• Although the application provides that the convention is to be limited to the subject of a balanced budget
amendment, it does not require the convention to adopt, or reject, particular wording. If it did, it might be
void.31
• This application also avoids listing other specific terms. Insertions of additional requirements—such as a
two-thirds requirement for Congress to raise taxes—may critically reduce support among lawmakers and
the public.
• Adding additional terms also reduces the chances of obtaining 34 matching applications, thereby offering
Congress a reason not to call a convention.
• This application refers to the convention as a “convention of the states.” This was a common way of referring
to a convention for proposing amendments during the founding era and for many years after. The phrase clar-
ifies that the convention is a federal meeting of delegations from the several states rather than a “national,”
popularly-elected convocation.
• The resolution does not have a condition stating that it is void if the convention is called for any other subject.
Such condition may compromise the legality of the application. Moreover, applications probably cease to exist
(and therefore are not terminable) once the convention is called. A limitation on subject matter appears in
Section 1 and can be enforced, if necessary, through instructions to commissioners, by the decision of Con-
gress not to choose a mode of ratification, by public opinion and by legal action.
• Section 4 clarifies the legislative intent that the application shall not grow “stale” with the passage of time. The
application always can be rescinded.
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AMERICAN LEGISLATIVE EXCHANGE COUNCIL
• The italicized wording is an option for lawmakers desiring to “clear the deck” of previous BBA applications
from their state.
• The language “together with any related and appropriate fiscal restraints” enables the convention to consider
limits on taxes, spending and the like.
• We do not recommend that the application cite specific caps on federal spending as a share of the economy.
This is because:
– It raises the odds that different state applications will vary in wording and therefore not be aggregated
toward the required 34.
– If the percentage expenditure limit is as high as what the federal government has spent during any year in
recent decades (e.g., 18 percent or more of GDP), courts may read the amendment as “constitutionalizing”
all federal spending programs in force as of when the Congress was last spending that percentage of GDP.
In other words, such an amendment might forestall future challenges to the validity of programs otherwise
outside federal authority.
Sample Form: Resolution of Declarations, Statements of Understanding
and Recommendations
Sometimes legislatures submitting applications decide to insert declarations or understandings of how they expect the
Article V convention process to work. For example, the legislature may wish to state that it expects the convention to ap-
ply the rule of “one state/one vote.” It may wish to make recommendations pertaining to the convention, to the language
of the amendment or to the mode of ratification.
For reasons discussed earlier, a legislature desiring to issue recommendations or declarations should do so in resolutions
separate from the application.
Following is a sample declaratory and recommendatory resolution:
ALEC Article V Model Policy:
The model policies in this Handbook are samples to illustrate the author’s guidelines for Article V applications. For a
comprehensive portfolio of Article V model policy adopted by the American Legislative Exchange Council, please visit
alec.org/article-v.
A
Article V | A HANDBOOK for STATE LAWMAKERS
29
Declaratory and Recommendatory Resolution to Accompany Application
for a Convention to Propose a Balanced Budget Amendment
Whereas, the legislature of the State of _______ has applied to Congress under Article V of the United States Constitution
for a convention to propose an amendment to the Constitution requiring a balanced budget;
Whereas, a convention for proposing amendments has not previously been held;
Whereas, in the interest of clarifying uncertainties it is desirable for the legislature to declare its understandings and ex-
pectations for the convention process;
Whereas, if the convention decides to propose a balanced budget amendment, then the convention will have the task of
drafting same; and
Whereas, it is desirable for the legislature to issue recommendations as to the content of any such proposed amendment,
Be it resolved by the legislature of the State of _____________:
Section 1. The legislature hereby declares its understanding that:
a) A convention for proposing amendments is a device included in the Constitution to enable the state legislatures to
advance toward ratification amendments without the substantive involvement of Congress;
b) the convention is a gathering of representatives appointed pursuant to state law or practice, with an initial suffrage
rule of one vote per state;
c) the convention’s delegates are commissioners commissioned by the state legislatures that send them and are subject
to instructions therefrom;
d) the scope of the convention and of any proposals it issues are limited by the scope of the applications issued by the
states applying for the convention; and
e) commissioners from the State of _______ will be recalled from any convention that purports to exceed the scope de-
fined in the applications.
Section 2. The legislature hereby recommends that:
a) Each state send not more than five commissioners to the convention;
b) The convention retain the suffrage rule of “one state/one vote” throughout its proceedings, with decisions made by a
simple majority of states present and voting;
c) Any proposed amendment include provisions as follows:
(i) requiring that total outlays not exceed total estimated receipts for any fiscal year;
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AMERICAN LEGISLATIVE EXCHANGE COUNCIL
(ii) requiring the setting of a fiscal year total outlay limit;
(iii) providing that, for reasons other than war or other military conflict, the limits of this amendment may be waived by
law for any fiscal year if approved by at least two thirds of both houses of Congress;
(iv) allowing for the provisions of the amendment to take effect within specified time periods;
(v) providing for the waiver of the provisions of the amendment for any fiscal year in which a declaration of war is in effect
or the United States is engaged in military conflict that causes an imminent or serious military threat to national security;
(vi) allowing for congressional enforcement; and
(vii) preventing the courts from ordering Congress to raise any taxes or fees as a method of balancing the budget.
Section 3. This declaratory and recommendatory resolution is not a part of the application, and shall not be deemed
as such.
Note to Declaratory and Recommendatory Resolution:
• The “Whereas” clauses form a preamble setting forth the reasons for the application. Lengthy preambles are
best kept out of the applications.
• Section 1 sets forth the legislature’s general understanding of the nature of the convention.
• Section 2 includes items inappropriate for an application, but recommendations for the convention to con-
sider. They are only examples. ALEC does not endorse them.
• Items © (i) – (vi) in Section 2 are taken from a proposed application known as Florida Senate Concurrent Reso-
lution No. 4 (2011), adopted by the Florida Senate but not by the House. That resolution attempted to include
these items as mandates; in this form, however, they are restated as recommendations. Item (vii) is another
often-recommended provision.
Sample Form:
Resolution Electing Commissioners
(with “trap door”)
As noted earlier, the mode of commissioner selection is determined by the state legislature, with the best alternative
probably selection by joint ballot of the legislature itself. Some lawmakers have suggested that one way to reassure those
skeptical of a convention is for an applying state to announce in an accompanying resolution who its commissioners will
be. Hence the following form:
A
Article V | A HANDBOOK for STATE LAWMAKERS
31
Resolution Electing Commissioners to Convention
for Proposing a Balanced Budget Amendment
Whereas, the legislature of the State of _______ has applied to Congress under Article V of the United States Constitution
for a convention to propose an amendment to the Constitution requiring a balanced budget; and
Whereas, the legislature has decided to select its commissioners to the convention, if such is held:
Be it resolved by a joint session of the Senate and the House of Representatives of the State of _______,
That (commissioner 1), (commissioner 2), (commissioner 3), (commissioner 4), and (commissioner 5) are hereby elected
commissioners from this state to such convention, with power to confer with commissioners from other states on the
sole and exclusive subject of whether the convention shall propose a balanced budget amendment to the United States
Constitution and, if so, what the terms of such amendment shall be; and further, by the decision of a majority of the
commissioners from this state, to cast this state’s vote in such convention.
Be it further resolved that, unless extended by the legislature of the State of ________ voting in joint session of the
Senate and House of Representatives, the authority of such commissioners shall expire at the earlier of (1) December 31,
2019 or (2) upon any addition to the convention agenda or convention floor consideration of potential amendments or
other constitutional changes other than a balanced budget amendment to the United States Constitution.
Note to Electing Commissioners Resolution:
• No legislature can bind a later legislature in this way; therefore this resolution can be rescinded later.
• The selection method in this resolution is by a joint vote of both houses.
• The resolution limits the length of the commissioners’ terms.
• The resolution also includes a “trap door” by which designation ceases if the convention goes beyond the
specified purpose.
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AMERICAN LEGISLATIVE EXCHANGE COUNCIL
Amendments convention
a common synonym for convention for proposing amend-
ments, which is the official name used by the Constitution.
Application
the legislative resolution whereby a state legislature tells
Congress that if it receives applications on the same sub-
ject from two-thirds of the state legislatures (34 of 50),
Congress must call a convention for proposing amend-
ments on the subject.
Article V
the Constitution, not counting amendments, contains sev-
en principal divisions called “articles.” Article V is the divi-
sion that prescribes the amendment procedure. The term
“Article V” today often refers specifically to efforts to con-
vene a convention for proposing amendments.
Article V convention
a common synonym for convention for proposing amend-
ments, which is the official name the Constitution gives
to that gathering. Technically, state conventions to ratify
amendments also are Article V conventions because Article
V is the part of the Constitution that authorizes them.
Commissioner
the formal title of a delegate to a convention for propos-
ing amendments, so named from his or her empowering
commission.
Committee
a state’s delegation to a convention for proposing amend-
ments.
Constitutional convention
a convention charged with writing a new Constitution; a
kind of plenipotentiary convention.
Convention
originally just a synonym for “meeting.” As used by the
Founders and in the Constitution itself, convention means
a legal assembly that pinch-hits for a legislature in perform-
ing designated tasks.
Convention for proposing amendments
a general convention of representatives of the state leg-
islatures meeting to propose one or more amendments
on one or more subjects specified in the state legislative
applications and (derivatively) in the congressional call. A
Appendix
B
Definitions of Terms
B
Article V | A HANDBOOK for STATE LAWMAKERS
33
convention for proposing amendments is a limited conven-
tion serving as an ad hoc substitute for Congress proposing
amendments.
Convention of [the] states
a generic term referring to any general or regional con-
vention of three or more states or state legislatures. There
were numerous inter-colonial conventions held before
1776, eleven conventions of states held between 1776 and
1787 and at least five conventions of states since 1787.
Since 1787, the term “convention of the states” has been
commonly used as a synonym for a convention for propos-
ing amendments.
General Convention
the founding-era term for a convention of the states (or,
before Independence, of the colonies) to which states from
all regions of the country are invited. General conventions
met in 1754, 1765, 1774, 1780, 1786, 1787 and 1861. A
gathering limited to states from one region can be called a
regional or partial convention; about 30 of those have been
held. A convention for proposing amendments is a general
convention.
Interstate convention
a convention of the states.
Mode of ratification
Article V permits Congress to select between ratification
of amendments by state legislatures or by specially-elected
in-state conventions. Article V calls each method a “Mode
of Ratification.”
Plenipotentiary convention
a founding-era term borrowed from international diplo-
matic practice. It refers to a convention where the commis-
sioners have unlimited or nearly unlimited power to rep-
resent their respective sovereignties. The First Continental
Congress was a plenipotentiary convention. As to most of
the commissioners, the 1787 Constitutional Convention
was close to plenipotentiary. Most interstate conventions
have been more restricted.
Propose
in Article V, propose can mean either (1) the power of
Congress or a convention for proposing amendments to
validly tender a suggested amendment to the states for rat-
ification, or (2) the power of Congress to designate wheth-
er proposed amendments will be sent to the state legisla-
tures or to state conventions for ratification.
Ratify, ratification
in Article V, ratification refers to the process by which
state legislatures or state conventions convert a proposed
amendment into a legally-effective part of the Constitution.
Approval by three-fourths (38 of 50) of either state legisla-
tures or state conventions is necessary for ratification.
B
34
AMERICAN LEGISLATIVE EXCHANGE COUNCIL
Appendix
C
A tactic employed by promoters of the “runaway convention scenar-
io”32 is to challenge lawmakers with a list of supposedly unanswer-
able questions.33 Several lists are used and they vary somewhat, but
all appear to be based on questions published in 1979 by Professor
Lawrence Tribe of Harvard Law School, a liberal opponent of conven-
tions for proposing amendments.34
Although it is claimed the questions are unanswerable, most actu-
ally do have good answers. Because state lawmakers may encoun-
ter them while considering Article V applications, those questions,
supplemented by a few others, are listed in this Appendix. They are
organized by topic, although the questions can be presented in any
order. The questions are reproduced verbatim. Where the phrasing is
odd or the depictions inaccurate, this is not attributable to Professor
Tribe, but to the unfamiliarity of those who re-stated them. An an-
swer immediately follows each question.
Responses to Frequently
Asked Questions
C
Article V | A HANDBOOK for STATE LAWMAKERS
35
Questions Pertaining to Applications
Q1. How is the validity of applications from the states to
be determined?
A.
Initially by Congress, although congressional decisions
are subject to judicial review.
Q2. How specific must the state legislatures be in asking
for an amendment?
A.
The legislatures may apply either for an unrestricted
convention or one devoted to particular subject matter.
There is no ironclad rule as to specificity, except that the
more a legislature tries to dictate the specific language
of the amendment (as opposed to the general topic), the
more it endangers the application’s validity.
Q3. Must all the applications be in identical language?
A.
No. It is enough that they identify the same problem(s)
or subject(s). However, prudence suggests that state legis-
latures coordinate with one another.
Q4. Within what time period must the required number
of applications be received?
A.
Adoption of the 27th amendment—proposed over 200
years earlier—has convinced most observers that there is
no time period. Because, however, some still claim that
applications can go “stale,” prudence suggests that a cam-
paign be completed within a few years. The application
campaign for direct election of senators took 13 years.
Questions Pertaining to Congress
Q5. Can Congress refuse to call a convention on demand
of two-thirds of the states, and if it does, can it be
compelled to act by the courts?
A.
Congress may not refuse. Supreme Court precedent
strongly suggests that the courts can compel it to act.
Q6. Would Congress decide to submit Con Con [sic]
amendments for ratification to the state legislatures or
to a state constitutional convention as permitted under
Article V of the constitution?
A.
There is an error in the question: The convention that rat-
ifies an amendment is a “state ratifying convention,” not a
“state constitutional convention.” Article V specifies that—
as is true of any amendment—Congress determines wheth-
er ratification is by state legislatures or state conventions.
Q7. Can Congress use its power under the Constitution’s
Necessary and Proper Clause to control how delegates
are selected or otherwise set rules for the convention?
A.
No. By its specific terms, the Necessary and Proper
Clause applies only to certain enumerated powers, and the
powers delegated by Article V are not among them. Even
if Congress could use the Necessary and Proper Clause,
its authority still would be limited to specifying the topic
based on the applications and fixing the initial time and
place for the convention.
Questions Pertaining to Delegates
and Delegate Selection
Q8. Who are the delegates, and how are they to be
chosen? (Other versions of this are (1) How would
Delegates be selected or elected to a Constitutional
[sic] Convention? and (2) What authority would
be responsible for electing the Delegates to the
convention?)
A.
Delegates (more properly called “commissioners”) are
representatives of their respective state legislatures and
are chosen as the state legislature directs.
Q9. What authority would be responsible for
determining the number of delegates from each state?
A.
This and related questions are determined in each state
by that state’s legislature—just as is true for delegates to
other conventions, such as state conventions for ratifying
amendments.
Q A
& Responses to Frequently Asked Questions
C
36
AMERICAN LEGISLATIVE EXCHANGE COUNCIL
Q10. Would delegates be selected based on population,
number of registered voters, or along party lines?
A.
See the answer to Q9.
Q11. Would delegates be selected based on race,
ethnicity or gender?
A.
The Due Process Clause of the Fifth Amendment and
the Supreme Court cases interpreting it forbid election
on these grounds. The Equal Protection Clause of the
Fourteenth Amendment probably does not apply, but if it
does, then it would have a similar effect.
Questions Pertaining to Convention
Organization and Procedure
Q12. Can the convention act by a simple majority
vote, or would a two-thirds majority be required, as in
Congress, for proposing an amendment? (Other versions
are (1) Would proposed amendments require a two-
thirds majority vote for passage? and (2) How would
the number of votes required to pass [or propose] a
Constitutional Amendment be determined?)
A.
The convention acts by a simple majority of the repre-
sented states. The convention may, by a simple majority
of the represented states, alter that voting rule, although
history shows this to be highly unlikely.
Q13. How is a convention to be financed, and where
does it meet? (Related versions are (1) What authority
would be responsible for selecting the venue for the
Convention? and (2) Where would the Convention be
held? and (3) Who will fund this Convention?)
A.
A convention for proposing amendments is a conclave
of state “committees,” each made up of state commission-
ers. It therefore is financed by the states. Congress, in the
convention call, specifies the initial meeting place, but the
convention may alter that meeting place.
Q14. May the convention propose more than one
amendment?
A.
Yes—but only if they are all within the agenda of the
convention, as prescribed by the applying states.
Q15. Is there a time limit on the proceedings, or can the
convention act as a continuing body?
A.
The convention can meet until it decides whether to
propose amendments and which ones to propose. But a
convention is, by definition, not a continuing body. It has
no authority beyond deciding whether to propose amend-
ments within the subject matter prescribed in the applica-
tions. Once that is performed, it must adjourn. Additionally,
states may recall and/or replace their commissioners at
any time.
Q16. What authority would be responsible for
organizing the convention, such as committee selection,
committee chairs and members, etc.? (A related question
is, How would the Chair of the Convention be selected or
elected?)
A.
Organizational details such as these are fixed in rules ad-
opted by the convention itself, in accordance with nearly
universal American convention procedures. Conventions
universally elect their own permanent officers.
Q17. How would the number of delegates serving on
any committee be selected and limited?
A: See answer to Q16.
Q18. What authority will establish the Rules of the
Convention, such as setting a quorum, how to proceed if
a state wishes to withdraw its delegation, etc.?
A.
See answer to Question 16. To the extent the adopted
rules do not cover a situation, they will be governed by the
convention’s source of default rules, or by parliamentary
common law.
Q19. Would non-Delegates be permitted inside the
convention hall? (A related version is, Will demonstrators
be allowed and/or controlled outside the convention
hall?)
A.
Just as with a legislature, the assembly’s rules govern
inside the convention hall. The outside environment is
subject to the same rules governing the space outside any
public body, convention or legislature.
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Q20. What would happen if the Con Con [sic] decided to
write its own rules so that two-thirds of the states need
not be present to get amendments passed?
A.
This question is confused. First, nothing requires the
convention to follow a two-thirds adoption or quorum rule
for proposing an amendment. In accordance with universal
practice, adoption and quorum rules are set by each con-
vention. Most conventions of states have decided principal
questions by a majority of states present and voting. As for
the ratification procedure: According to both the consti-
tutional text and the U.S. Supreme Court, the convention
receives all its power from the Constitution. So it cannot al-
ter the rules in the Constitution that specify the ratification
procedure. See also the preceding answers.
Q21. Could a state delegation be recalled by its
legislature and its call for a convention be rescinded
during the convention?
A.
The legislature may recall its commissioners. The rest
of the question inaccurately assumes the states “call” the
convention; actually, the states apply and Congress calls. It
is unlikely a state could withdraw its application after two-
thirds of the states have acted on it. However, if a state
disagrees with amendment language crafted during the
convention, it can instruct its commissioners to oppose it
and can vote against it during the ratification process.
A Question Pertaining to the Courts
Q22. Can controversies between Congress and the
convention over its powers be decided by the courts?
A.
This question also is based on a false premise. The states,
not Congress, fix the scope of the convention’s powers.
Controversies in this area may be decided by the courts.
The most likely area of controversy between Congress
and the convention would be if the convention suggests
an amendment that Congress believes is outside the con-
vention’s agenda as defined in the state applications. If (as
is proper) Congress then refused to prescribe a “Mode of
Ratification” for the suggested amendment, the courts
could resolve the dispute.
Questions Based on Historical
Claims Made About James Madison
and the 1787 Convention
Q23. Didn’t James Madison express uncertainty about
the composition of an Article V convention, and wasn’t he
“horrified” at the prospect of one?
A.
Quite the contrary. Madison later promoted the conven-
tion idea as a reasonable way to resolve constitutional dis-
putes. It is true that during the Constitutional Convention
debate he initially expressed uncertainty as to how amend-
ments conventions were to be constituted. But he must
have been satisfied with the answer he received, since he
dropped his objections. It is also true that he was “horri-
fied” by a 1789 New York proposal for an unlimited conven-
tion to rewrite the entire Constitution with over 30 amend-
ments. Who wouldn’t be? However, Madison repeatedly
asserted that his objection was directed only at that partic-
ular proposal at that particular time.
Q24. Isn’t it true that the 1787 Constitutional
Convention was a “runaway”—that Congress convened
it under the Articles of Confederation only to propose
amendments to the Articles, but it ended up drafting an
entirely new Constitution?
A.
The truth is quite to the contrary: Most commissioners
had full authority to recommend a new Constitution, as ex-
plained in the article cited in this endnote.35
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As observed in Part I (Introduction), most writing on the
Article V convention process has been poorly-researched,
agenda-driven or both. Fortunately, though, not every-
thing published on the subject has been biased or shallow.
Serious scholarship began in 1951 with an extraordinary
Ph.D. thesis written by the late William Russell Pullen, then
a political science graduate student at the University of
North Carolina and later a distinguished academic librari-
an. The Pullen study suffered from the author’s lack of legal
or historical training (Pullen was a political science gradu-
ate student, not a historical or legal scholar), but his study
presented an excellent and thorough summary of applica-
tions and history up to that time.36
More recent scholarship (defined as work that makes
a serious attempt to marshal the historical and legal
evidence) falls chronologically into two groups. The
first group of studies was published during the 1970s
through the 1990s. It included a research report from the
American Bar Association; a lengthy legal opinion com-
posed by John M. Harmon at the Office of Legal Counsel
at the U.S. Department of Justice; and Russell Caplan’s
book, Constitutional Brinksmanship, published by Oxford
University Press.37 Although the findings of these studies
differed in detail, they all agreed on some important con-
Appendix
D
Where Does this Handbook
Get Its Information?
clusions—including the conclusion that state legislative ap-
plications could limit the scope of the convention.
The latest group of studies includes articles published be-
tween 2011 and 2014. Written by several scholars including
this author, they report extensive new research findings.
This author’s work, for example, encompasses full-length
articles published by Florida Law Review and Tennessee Law
Review, a chapter in an academic book, an essay for the
Harvard Journal of Law and Public Policy and a legal treatise
on Article V, at articlevinfocenter.com. This is in addition to
numerous shorter works available at articlevinfocenter.com.
This new research takes into account (1) convention histo-
ry, including re-discovered journals of 17th, 18th and 19th
century conventions of colonies and states, (2) records
from the Constitution’s ratification debates, (3) the records
of the Continental and Confederation Congresses, (4) oth-
er formerly-neglected historical information and (5) more
than two centuries of judicial decisions.
The latest research partly corroborates the conclusions of
the better work published in the 1970s, ’80s and ’90s, but
also makes many corrections. The accompanying endnote
tells the reader where to obtain this research.38
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Appendix
{Endnotes}
1 The success of the amendment process is discussed in Robert G. Natelson, The Lamp of Experience: Constitutional
Amendments Work, at http://articlevinfocenter.com/the-lamp-of-experience-constitutional-amendments-work/.
2. The Fourteenth Amendment extended certain federal guarantees to all citizens; the Fifteenth Amendment protected
the right to vote, despite “race, color, or previous condition of servitude;” and the Twenty-Fourth Amendment elim-
inated the poll tax system sometimes used to suppress voting by minorities.
3 ALEC has recommended, among others, (1) various balanced budget approaches including one advanced by a
state compact, (2) the Vote on Taxes Amendment (2010), (3) the National Debt Relief Amendment (2011) (which
requires approval by a majority of the state legislatures before the federal government can go deeper into debt),
(4) the Repeal Amendment (2011) (permitting two thirds of state legislatures to invalidate federal laws and regu-
lations), (5) An Accountability in Government Amendment (1996) (limiting federal mandates on states), (6) a Gov-
ernment of the People Amendment (1996) (similar to the Repeal Amendment, but with a seven-year repeal limit),
(7) a States’ Initiative Amendment (1996) (permitting three quarters of the states to propose amendments without
a convention, subject to congressional veto) and (8) the application proposed by the “Convention of States” proj-
ect of Citizens for Self-Government. The application calls for a convention to impose fiscal restraints on the federal
government, reduce its size and jurisdiction, and impose term limits.
4 For a survey of 18th century conventions, including the rules that governed them, see Robert G. Natelson, Found-
ing-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments,” 65 Fla. L. Rev.
615 (2013), available at https://www.i2i.org/wp-content/uploads/2013/09/Conventions-FLR-2.pdf.//
5 The founding-era evidence for distinguishing an Article V convention from a “constitutional convention” is over-
whelming. See Robert G. Natelson, Amending the Constitution by Convention: A More Complete View of the Found-
ers’ Plan (Independence Institute, 2010) (updated and amended version of an earlier paper published by the Gold-
water Institute), available at http://constitution.i2i.org/files/2010/12/IP_7_2010_a.pdf.
6 U.S. Const., Art. V.
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7 Article V is not unique in this regard: The Constitution grants various powers to persons and entities that are not
federal departments or officers, including state governors, state legislatures, and the Electoral College. Ray v. Blair,
343 U.S. 214 (1952) (holding that presidential electors, who ultimately derive their power from the Constitution,
exercise a federal function but are not federal officers or agents). Two articles at the Article V Information Center
clarify this further:
• The Constitution’s Grants To Persons and Entities Outside the U.S. Government, at http://articlevinfocenter.com/
the-constitutions-grants-to-persons-and-entities-outside-the-u-s-government/, and
• No, the Necessary and Proper Clause Does NOT Empower Congress to Control an Amendments Convention, at
http://articlevinfocenter.com/the-necessary-and-proper-clause-grants-congress-no-power/.
8 The courts, including the Supreme Court, have affirmed this repeatedly.
Note that Article V grants eight distinct enumerated powers, four powers at the proposal stage and four at the ratifi-
cation stage. At the proposal stage, the Constitution (1) grants to two-thirds of each house of Congress authority to
propose amendments; (2) grants to two thirds of the state legislatures power to require Congress to call a convention
to propose amendments; (3) then empowers (and requires) Congress to call that convention and (4) authorizes that
convention to propose amendments.
At the ratification stage, (1) the Constitution authorizes Congress to select whether ratification shall be by state
legislatures or state conventions; (2) if Congress selects the former method, the Constitution authorizes three-
fourths of state legislatures to ratify; (3) if Congress selects the latter method, the Constitution empowers (and
requires) each state to call a ratifying convention and (4) the Constitution further empowers three-fourths of those
conventions to ratify.
9 There are numerous cases so holding. See Robert G. Natelson, A Treatise on the Law of Amendment Conventions:
State Initiation of Constitutional Amendments: A Guide for Lawyers and Legislative Drafters §3.7 (2014), available at
http://constitution.i2i.org/files/2014/11/Compendium-3.01.pdf.
10 Some people have wondered whether the Supreme Court’s recent decision in Arizona State Legislature v. Arizona
Independent Redistricting Comm’n, 135 S.Ct. 2652 (2015) changes this rule, thereby allowing the people to use the
initiative and referendum process to apply for a convention or to ratify amendments. The answer is “no.” In that case,
the Court pointed out that the term “legislature” has two separate meanings in the Constitution. Although it means
the general legislative power (and therefore includes initiative and referendum) in some parts of the document, it
continues to mean “the state representative assembly” in Article V. For an explanatory essay, see Robert G. Natelson,
Although Chief Justice Roberts’ Dissent in the Arizona Legislature Case Cited My Research, I Actually Agree With the
Majority!, at http://articlevinfocenter.com/although-chief-justice-roberts-dissent-in-the-arizona-legislature-case-cit-
ed-my-research-i-actually-agree-with-the-majority/.
11 Coleman v. Miller, 301 U.S. 483 (1939). That language was not part of the ruling, but only dicta (non-authoritative
side comments) by four justices.
12 Appendix A contains model resolutions that can be used to apply for a convention to consider a balanced budget
amendment.
13 Congress proposed what became the Twenty-Seventh Amendment in 1789 and some state ratifications came shortly
thereafter. Both the proposal and the initial ratifications remained alive until three-fourths of the states had ratified,
over 200 years later. This precedent has convinced most observers that, unless an Article V resolution (proposal,
application, or ratification) contains an expiration date, it remains in effect until rescinded. Exactly when the power to
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rescind an application terminates has not been determined judicially, but presumably it terminates when the applica-
tion triggers larger legal consequences—i.e., when the 34-state threshold is reached, Congress calls the convention,
or the convention actually meets. Once the 34-state threshold is reached, the call and meeting become merely “min-
isterial” (not discretionary), which would suggest that the power to rescind ends as soon as 34 states have applied.
14 The late Senator Sam Ervin (D-NC) reported disapprovingly on the obstructionism of some of his senatorial col-
leagues during the 1960s. Sam J. Ervin, Jr., Proposed Legislation to Implement the Convention Method of Amending
the Constitution, 66 Mich. L. Rev. 875, 878 (1968-68).
15 An “incidental” power is an unmentioned and subordinate power implicitly granted along with a power expressly
granted. The link is created by the intent behind the document, generally shown by custom or necessity. When the
Constitution grants a specified power it generally grants incidentals as well. The Constitution’s direction to Congress
to call a convention of the states includes authority to set the time and place because that authority is properly
incidental. On the other hand, some powers are too substantial to be incidents of a mere power to call, such as
prescribing convention rules and methods of delegate selection. On incidental powers and the Constitution, see
Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, and Guy I. Seidman, The Origins of the Necessary and Proper
Clause (Cambridge University Press, 2010). Chief Justice Roberts followed this analysis of incidental powers in NFIB
v. Sebelius, 132 S.Ct. 2566, 2591-93 (2012) (the “ObamaCare” case). Note, however, that the doctrine of incidental
powers inheres in Article V because of the nature of the Constitution, not because of the Necessary and Proper
Clause. Strictly speaking the Necessary and Proper Clause does not apply to the enumerated powers in Article V. See
Robert G. Natelson, No, the Necessary and Proper Clause Does NOT Empower Congress to Control an Amendments
Convention, at http://articlevinfocenter.com/the-necessary-and-proper-clause-grants-congress-no-power/.
16 Robert G. Gunderson, The Washington Peace Conference: The Selection of Delegates, 24 J. Southern Hist. 347 (1958).
17 U.S. Const., Art. V. (“Provided that . . . no State, without its Consent, shall be deprived of its equal Suffrage in the
Senate.”). This means that an amendment may not alter the Constitution’s rule that each state has equal weight in
the U.S. Senate. An amendment could increase the number of Senators from each state to three, or require voting by
state delegations. But it could not, for example, give New York more voting power than Nebraska.
18 Id. (“which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the
Legislatures of three fourths of the several States, or by Convention in three fourths thereof”).
19 Robert G. Natelson, A Treatise on the Law of Amendment Conventions: State Initiation of Constitutional Amend-
ments: A Guide for Lawyers and Legislative Drafters §3.14.4 (2014), available at articlevinfocenter.com.
20 https://www.alec.org/model-policy/rules-for-an-article-v-convention-for-proposing-amendments/.
21 The rules are available at https://www.i2i.org/wp-content/uploads/2015/01/proposed-rules-2015-1206-clean.pdf.
22 Application for a Convention of the States under Article V of the Constitution of the United States, https://www.alec.
org/model-policy/article-v-convention-of-the-states/.
23 State legislative authority to instruct state commissioners has been universal to all interstate conventions, both
during the founding era and at subsequent conventions. See also Ray v. Blair, 343 U.S. 214 (1952) (upholding state
authority to instruct members of the Electoral College).
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24 Robert G. Natelson, Trying to Alter the Traditional Amendments Convention Voting Rule is a Mistake, http://articlev-
infocenter.com/trying-to-alter-the-traditional-amendments-convention-voting-rule-is-a-mistake/.
25 Notable among those publicizing the scenario were Yale’s Charles Black and Harvard’s Lawrence Tribe; Supreme
Court Justices Warren Burger and Arthur Goldberg; Senators Joseph Tidings (D-MD) and Robert F. Kennedy (D-NY);
and individuals within the “Kennedy circle,” such as Goldberg and speechwriter Theodore Sorensen. The story is told
in Robert G. Natelson, The Liberal Establishment’s Disinformation Campaign Against Article V—and How It Misled
Conservatives, available at http://constitution.i2i.org/files/2015/03/Campaign-Against-Article-V.pdf.
26 The 2011 edition of this Handbook predicted, “One can expect both liberal and conservative opponents to promote
[the runaway scenario] again if another application campaign begins to gain traction.” This is precisely what has hap-
pened in the interim.
27 Historically, the average number of commissioners per state has been between four and five. In no convention have
all states participated, but if all 50 participate in the next one and each sends five commissioners, the attendance
would be 250. Moreover, convention rules may limit the number of commissioners from any state on the floor at the
time.
28 The cases emphasizing that assemblies (legislatures and conventions) meeting under Article V must have a certain
amount of deliberative freedom are legion. See, e.g., Hawke v. Smith, 253 U.S. 221 (1920); In Re Opinion of the Jus-
tices, 132 Me. 491, 167 A. 176 (1933); State ex rel. Harper v. Waltermire, 213 Mont. 425, 691 P.2d 826 (1984); AFL-CIO
v. Eu, 36 Cal.3d 687, 206 Cal. Rptr. 89 (1984), stay denied sub nom. Uhler v. AFL-CIO, 468 U.S. 1310 (1984); Donovan v.
Priest, 931 S.W. 2d 119 (Ark. 1996), cert. denied, 117 S.Ct. 181 (1997) (no official report) (requiring an assembly that
can engage in “intellectual debate, deliberation, or consideration”); League of Women Voters of Maine v. Gwadosky,
966 F.Supp. 52 (D. Me. 1997); Barker v. Hazetine, 3 F. Supp. 2d 1088, 1094 (D.S.D. 1998) (“Without doubt, Initiated
Measure 1 brings to bear an undue influence on South Dakota’s congressional candidates, and the deliberative and
independent amendment process envisioned by the Framers when they drafted Article V is lost.”); Gralike v. Cooke,
191 F.3d 911, 924-25 (8th Cir. 1999), aff’d on other grounds sub nom. Cook v. Gralike, 531 U.S. 510 (2001); Miller
v. Moore, 169 F.3d 1119 (8th Cir. 1999). Cf. Kimble v. Swackhamer, 439 U.S. 1385, appeal dismissed, 439 U.S. 1041
(1978) (Rehnquist, J.) (upholding a referendum on an Article V question because it was advisory rather than manda-
tory); Dyer v. Blair, 390 F.Supp. 1291, 1308 (N.D. Ill. 1975) (Justice Stevens) (upholding a rule of state law on an Article
V assembly, but only because the assembly voluntarily adopted it).
Two scholars have argued that the original understanding of the Constitution permits the state legislatures to direct
an up-or-down vote on specific wording. I do not think this is accurate, but even if it were, the modern cases militate
against it. See my two part essay, May state legislatures limit an Article V convention to a specifically-worded amend-
ment? Part I is available at http://constitution.i2i.org/2013/09/04/may-state-legislatures-limit-an-article-v-conven-
tion-to-a-specifically-worded-amendment-part-i/ and Part II at http://constitution.i2i.org/2013/09/12/may-state-
legislatures-limit-an-article-v-convention-to-a-specifically-worded-amendment-part-ii-answer-probably-not/.
29 See Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (Stevens, J.)
30 The form was developed by the Minnesota legislature, and originally read as follows:
SECTION 1. The legislature of the State of Minnesota hereby makes application to the Congress, under the provi-
sions of Article V of the Constitution of the United States, for the calling of a convention to propose an amendment
to the Constitution of the United States making United States Senators elective in the several States by direct vote
of the people.
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Notice how simple and direct the italicized wording is; drafting details are left to the convention. As it turned out,
however, Congress rather than a convention drafted the details. After nearly two-thirds of the states had approved
similar applications, the U.S. Senate, which had resisted the change, finally consented to congressional proposal of
what became the 17th Amendment.
31 In proposing other amendments, it is equally important to avoid trying to mandate particular wording. Consider the
proposed National Debt Relief Amendment, for which ALEC has model policy. Constitutional Amendment Requiring
State Approval for Increases in Federal Debt at https://www.alec.org/model-policy/a-constitutional-amendment-re-
quiring-state-approval-for-increases-in-federal-debt/. It provides that “An increase in the federal debt requires
approval from a majority of the legislatures of the separate States.” An application might describe the subject matter
as “an amendment to the Constitution of the United States forbidding increases in the debt of the United States
unless approved by a specified proportion of state legislatures.”
32 See Part V: “The Myth of a Runaway Convention.”
33 Thus, one list trumpets: “If these questions cannot be answered (and they CANNOT!), then why would any state
legislator even consider voting for such an uncertain event as an Article V Constitutional Convention?”
34 Lawrence H. Tribe, Issues Raised by Requesting Congress to Call a Constitutional Convention to Propose a Balanced
Budget Amendment, 10 Pac. L.J. 627 (1979) (republishing earlier legislative testimony). Although the author is very
distinguished, in this article he offers little supporting evidence from the historical record or case law.
35 The facts appear in Robert G. Natelson, Proposing Constitutional Amendments by Conventions: Rules Governing
the Process, 78 Tenn. L. Rev. 693, 719-23 (2011), available at http://constitution.i2i.org/files/2011/08/Rules_for_
Art_V_Conventions.pdf and Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution’s
“Convention for Proposing Amendments,” 65 Fla. L. Rev. 615 (2013), available at https://www.i2i.org/wp-content/
uploads/2013/09/Conventions-FLR-2.pdf. More detailed discussions of the “runaway scenario” and claims that the
Constitutional Convention exceeded its powers appear in the following articles:
• A Response to the “Runaway” Scenario, at http://articlevinfocenter.com/a-response-to-the-runaway-scenario/.
• The Constitutional Convention Did Not Exceed Its Power and the Constitution is not “Unconstitutional,” at
http://articlevinfocenter.com/the-constitutional-convention-did-not-exceed-its-power-and-the-constitu-
tion-is-not-unconstitutional/.
36 William Russell Pullen, The Application Clause of the Amending Provision of the Constitution (Univ. of North Carolina,
1951) (unpublished). Pullen worked largely from the long-collected files of his mentor, Professor W.S. Jenkins.
37 The citations of the studies are as follows: Amendment of the Constitution by the Convention Method Under Article
V (American Bar Ass’n, 1974); John M. Harmon, Constitutional Convention: Limitation of Power to Propose Amend-
ments to the Constitution, 3 Op. Off. Legal Counsel 390 (1979); Russell Caplan, Constitutional Brinksmanship (Oxford
University Press, 1988).
38 The studies by the author of this Handbook are available at / http://constitution.i2i.org/articles-books-on-the-consti-
tution-by-rob-natelson/ (second topic). See also Michael B. Rappaport, The Constitutionality of a Limited Convention:
An Originalist Analysis, 28 Const. Comment. 53 (2012).
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