Convention To Propose Amendments To The United States Constitution - Permissible Scope of Applications To Congress

Permissible Scope of Applications To Congress

A frequent question is whether applications from the states can omit to mention subject matter, and instead request an unlimited convention. Past practice suggests that separate unlimited applications submitted to Congress at different times are not allowed. Article V itself calls for "the application of the legislatures" instead of calling for plural "applications".

States have requested that Congress convene an Article V convention to propose amendments on a variety of subjects. According to the National Archives, Congress has, however, never officially tabulated the applications, nor separated them by subject matter. On at least one occasion though, the Congressional Record has included such a tabulation, which indicated that, as of 22 September 1981 (1981 -09-22), thirty states had made a request for a balanced budget amendment. In 1993, Professor Michael Paulsen and his research staff assembled a listing of all state applications to date, but neither Paulsen's list, nor any other, can be safely characterized as "complete" since there may very well be state applications that have been overlooked and/or forgotten.

According to James Kenneth Rogers, the drafting history of Article V indicates that states may limit the subject matter of their applications, and that Congress has a duty to tally applications separately by subject matter. Moreover, Rogers asserts that states may not make a general application without specifying the subject or subjects to be addressed by the convention. Rogers points out that, during the drafting process, the Philadelphia Convention at one point adopted a version of Article V that gave power to Congress to propose amendments when two-thirds of both houses agreed, or to propose amendments without a congressional supermajority "on the application of two thirds of the Legislatures of the several states." This draft version of Article V lacked any provision for a constitutional convention requested by the states, and instead included language almost identical to the final version of Article V but giving states the power to apply to Congress for amendments without any convention. The draft language suggests that states applying to Congress for amendments would have to say what sort of amendments they were applying for, because a general petition (that is, one not limited by subject matter) asking Congress to propose amendments would serve little purpose "beyond notifying Congress that two‐thirds of the States thought that some unknown changes to the Constitution were desirable." Therefore, due to the similarity between the draft and final versions, Rogers contends that state applications to Congress must specify subject matter, and must be tallied individually by subject matter to determine whether the two-thirds threshold of state applications has been met.

A dissenting view has been expressed by Michael Stokes Paulsen, a professor at the University of St. Thomas School of Law. Paulsen has argued that state applications for an Article V convention limited to a particular subject matter are invalid and that only applications that include a call for an unrestricted convention are valid. If Paulsen's criteria that state applications must not be limited to particular subject matter and that rescissions by states are valid, as of 1993 a total of forty-five states had pending applications meeting this criteria. According to Paulsen, therefore, Congress has had a duty to call a convention for many years. The fact that Congress has not called such a convention, and that courts have rejected all attempts to force Congress to call a convention, has been cited as persuasive evidence that Paulsen's view is incorrect.