Article Five Handbook 1

3
A HANDBOOK FOR STATE LAWMAKERS .I

About the American Legislatve Exchange Council
Proposing Consttutonal Amendments by a Conventon of the
States: A Handbook for State Lawmakers has been published
by the American Legislatve Exchange Council (ALEC) as part of
its mission to discuss, develop, and disseminate public policies,
which expand free markets, promote economic growth, limit
the size of government, and preserve individual liberty. ALEC
is the natons largest non-partsan, voluntary membership or-
ganizaton of state legislators, with 2,000 members across the
naton. ALEC is governed by a Board of Directors of state leg-
islators, which is advised by a Private Enterprise Board, repre-
sentng major corporate and foundaton sponsors. ALEC is clas-
sifed by the Internal Revenue Service as a 501(c)(3) nonproft,
public policy and educatonal organizaton. Individuals, philan-
thropic foundatons, corporatons, companies, or associatons
are eligible to support ALECs work through tax-deductble gifs.
About ALECs Tax and Fiscal Policy Task Force
The mission of ALECs Tax and Fiscal Policy Task Force is to ex-
plore policy solutons that reduce excessive government spend-
ing, promote sound tax policy, and enhance transparency of
government operatons.
Public Sector Chairman: Indiana Sen. Jim Buck
Private Sector Chairman: Bob Williams
Task Force Director: Jonathan Williams
Published by
American Legislatve Exchange Council
1101 Vermont Ave., NW, 11th Floor
Washington, D.C. 20005
Phone: (202) 466-3800
Fax: (202) 466-3801
www.alec.org
Proposing Consttutonal Amendments by a Conventon of the
States: A Handbook for State Lawmakers
2011, 2013 American Legislatve Exchange Council
All rights reserved. Except as permited under the United
States Copyright Act of 1976, no part of this publicaton may
be reproduced or distributed in any form or by any means, or
stored in a database or retrieval system without the prior per-
mission of the publisher.
About the Author
Rob Natelson is one of Americas best known const-
tutonal scholars. He served as a law professor for 25
years at three diferent univer-
sites. Among other subjects, he
taught Consttutonal Law and
became a recognized natonal
expert on the framing and
adopton of the United States
Consttuton. He pioneered the
use of source material, such
as important Founding Era law
books, overlooked by other
writers, and he has been the
frst to uncover key facts about
some of the most signifcant
parts of the Consttuton. Rob
has writen for some of the
most prestgious academic publishers, including Cam-
bridge University Press, the Harvard Journal of Law and
Public Policy, and Texas Law Review.
There are several keys to Robs success as a scholar. Un-
like most consttutonal writers, he has academic training
not merely in law or in history, but in both, as well as in
the Latn classics that were the mainstay of Founding-Era
educaton. He works hard to keep his historical invest-
gatons objectve. Most critcal, however, have been les-
sons and habits learned in the real worldbefore his
academic career began, Rob practced law in two states,
ran two separate businesses, and served as a regular
real estate law columnist for the Rocky Mountain News.
Later, he created and hosted Montanas frst statewide
commercial radio talk show and became Montanas best
known politcal actvistleading, among other cam-
paignsthe most successful petton referendum drive
in the history of the state. He also helped push through
several important pieces of Montana legislaton, and in
June 2000, was the runner-up among fve candidates in
the party primaries for Governor of Montana. For rec-
reaton, Rob spends tme in the great outdoors, where
he partcularly enjoys hiking and skiing with his wife and
three daughters.
Rob currently serves as Senior Fellow in Consttutonal Ju-
risprudence at the Independence Insttute in Denver, Col-
orado, and Senior Fellow in Consttutonal Jurisprudence
at the Montana Policy Insttute in Bozeman, Montana.
Nothing in this Handbook should be construed as legal
advice; seek competent counsel in your own state.
i
A ME R I C A N L E G I S L A T I V E E X C H A N G E C O U N C I L
PROPOSING CONSTITUTIONAL AMENDMENTS
ii
Acknowledgements
The American Legislatve Exchange Council wishes to
acknowledge the following partes who also contrib-
uted to this Handbook:
First, we thank Jonathan Williams, Meaghan Archer,
Laura Elliot, Kat Siconolf, Kailee Tkacz, and Christne
Harbin for their work on this publicaton. We also
thank Ron Scheberle, Michael Bowman, and the rest
of the ALEC staf who helped make this publicaton
possible.
Finally, we thank Indiana Senator Jim Buck, Arizona
Senator Don Shooter, Bob Williams, Dr. Barry
Poulson, Lou Barnet, Pete Sepp, and Brent Mead for
their support and expertse.
A HANDBOOK FOR STATE LAWMAKERS
iii
Foreword
Sincerely,
Jim Buck
Indiana State Senator
Chair, Tax and Fiscal Policy Task Force
American Legislatve Exchange Council
conventon to propose a balanced budget amendment to
the Consttuton. Since then, many other states have fol-
lowed suit.
Balancing our budget transcends party politcs. No mat-
ter who controls Congress or the presidency, our $15
trillion dollar (and growing) natonal debt will remain an
ever-present hurdle to economic growth and recovery.
The problem wont be going away any tme soon, either.
More than 30 years of defcits cannot be solved with
only one year of policy.
Today America faces an uncertain economic future.
Millions of Americans are unemployed, and some even
suggest America faces a new normal in economic medioc-
rity. Spending ourselves into more debt wont solve that
problem; in fact, doing so will only make it worse. State
legislators must take the long-sighted view and exercise
our rights within the Consttuton to limit Congresss abil-
ity to drive our naton into further economic decay. This
Handbook is your guide to achieving that goal.
Dear ALEC Member,
Time is running out. Our naton is trillions of dollars in
debt without a credible plan to stop spending. The batle
in Congress has escalated to a point where politcs out-
weighs the cost of our economic future, and there is litle
hope our natons leaders will make the tough choices
that need to be made in order to reign in our debt and
revive our economy. Fortunately, there is a soluton out-
side of Congressa soluton that Professor Rob Natelson
outlines in this Handbook.
Our Founders knew the importance of checks and bal-
ances. In the United States Consttuton, they enumer-
ated one of the most important roles states have in
keeping the federal government in check. Under Artcle
V, states are granted the right to require Congress to call
a conventon of the states, during which states can pro-
pose amendments to the Consttuton. For decades we
have allowed Congress to run rampant, spending as it
pleases. In 30 years, Congress has managed to balance
the budget only twice.
It is far too easy for the appropriators of our natons
funds to spend without limit and outside of reason, but
that is something that can be remedied. The soluton is
an amendment to the Consttuton that imposes great-
er accountability on Congress and requires a balanced
budget. The stpulatons of such an amendment would
need to ensure spending does not exceed revenue and
prohibit borrowing money to make up for any shortalls.
In 1957, my state of Indiana was the frst to apply for a
iv
he balanced budget amendment is overwhelm-
ingly supported by the American people.Polls by
CNN, Fox News, and Mason-Dixon show that nearly
three-fourths of Americans favor a balanced budget
amendment to the U.S. Consttuton. With the natonal
debt reaching its peak of more than $15 trillion and ris-
ing, the tme to balance the budget is now. Nearly every
state in the naton is legally bound by their consttu-
tons to balance its budget. With experience in balanc-
ing budgets year afer year, states are most suited to
propose an amendment to the U.S. Consttuton that
requires a balanced federal budget. State legislators can
accomplish this by calling an Artcle V Conventon of the
states.
The Handbook you are about to read, writen by const-
tutonal scholar Robert G. Natelson, provides state legis-
lators the proper tools to use the Artcle V process legally
and efectvely. Additonally, it ofers reliable informa-
ton about the state applicaton and conventon process
based on thorough and objectve scholarship.
In the frst secton of the Handbook, Natelson lays the
groundwork for the Artcle V process. Importantly, he
explains what the conventon process is not: plenipo-
tentary, or the complete rewritng of our Consttuton.
Natelson also summarizes the Founders intenton be-
hind including Artcle V in the Consttuton and describes
how history can be a lesson for what a conventon
would look like today. Many questons about the process
concern the role of courts in Artcle V. Using both case
law and his extensive consttutonal law background,
Natelson highlights how the courts might be involved in
this process.
Afer discussing Artcle V history and its key players,
Natelson takes state legislators through the process step-
by-step. From making an applicaton to ratfcaton, state
legislators will learn the minuta of the Artcle V process
and how best to prepare an applicaton in their states.
Further, this Handbook debunks the myth of a runaway
conventon. Natelson makes a compelling argument for
why states should not worry about critcs fears that a
conventon of the states would result in a complete take-
over of the U.S. Consttuton.
Finally, Natelson provides practcal recommendatons
for states that choose to apply for a conventon through
the Artcle V process. Natelson encourages legislators to
promote the right amendments, use the right amount of
specifcity, and keep the process within the states con-
trol.
We hope that you will fnd this Handbook informatve
and useful as you embark on an adventure never before
accomplished in our natons history. We wish you the
best of luck.
T
Executive Summary
v
Table of Contents
I. Introducton
II. The Consttutons State Applicaton and Conventon Process
III. Judicial Review
IV. The State Applicaton and Conventon Process: Step-By-Step
A. Making an applicaton
B. How long does an applicaton last?
C. The applicatons in Congress and the call
D. Selecton of delegates (commissioners)
E. The Conventon
F. Ratfcaton
V. The Myth of a Runaway Conventon
VI. Practcal Recommendatons for the State Applicaton and Conventon Process
VII. Conclusion
Appendix A: Annotated Forms for a Balanced Budget Amendment
Appendix B: Defnitons of Terms
Appendix C: Answers to Critcisms
Appendix D: Where Does this Handbook Get Its Informaton?
6
8
11
12
12
13
13
14
15
16
17
19
23
24
31
32
36
6
I. Introduction
Many state lawmakers, like Americans generally, believe
that politcians in Washington, D.C. have not successfully
controlled spending in recent years. That helps to explain
strong public interest in a balanced budget amendment,
among other proposals. Besides amassing a huge debt,
federal ofceholders ofen have disregarded individual
liberty and consttutonal limits on their own power.
Moreover, many federal ofceholders seem to neglect
the consttutonal role of the states. Increasingly, state
lawmakers understand what the Founders said repeat-
edly: Federalism works only if the states respond efec-
tvely when the federal government exceeds or abuses its
powers.
This Handbook:
ofers reliable informaton about the state
applicaton and conventon process, based on
thorough and objectve scholarship;
corrects misinformaton; and
makes it easier for state lawmakers to use
the process legally and efectvely.
One reason the Founders inserted into the Consttuton a
method of amendment was to enable future generatons
hrough Artcle V, our American Founders added
a way for the states to promote amendments
to the Consttuton directly, rather than by merely
pettoning Congress. This is called the state applicaton
and conventon process. Recent debate over a balanced
budget amendment to the Consttuton has provoked
interest in this procedure. This Handbook is your guide to
understanding and using it.
This Handbook is writen for state lawmakers, support
staf, and other interested Americans. The goal is to en-
able state lawmakers to employ the state applicaton and
conventon process as the Founders intended: legally,
efectvely, and safely. This Handbook ofers accurate,
well-researched informaton about the process, including
how to trigger it, valuable safeguards, and legal forms.
This Handbook also corrects common myths about the
procedureperhaps the foremost of which is that the
conventon authorized by Artcle V is a consttutonal
conventon.
Federalism works only
if the states respond
efectively when the federal
government exceeds or
abuses its powers.
T
A HANDBOOK FOR STATE LAWMAKERS I
to keep our Basic Law up to datebut that was not the
only reason. The Founders also inserted the amendment
procedure as a tool for resolving consttutonal disputes
and for correctng excesses and abuses. Because they rec-
ognized that excesses and abuses could come from either
the states or the federal government, they fashioned two
alternatve ways for proposing amendments for state
ratfcaton:
by a resoluton adopted by two-thirds of both
houses of Congress, and
by a gathering of delegates of state legislatures
that the Consttuton calls a conventon for propos-
ing amendments.
Other acceptable names for a conventon for propos-
ing amendments are amendments conventon, conven-
ton of the states, and Artcle V conventon. (For reasons
explained in secton II it is inaccurate and misleading to
call a conventon for proposing amendments a consttu-
tonal conventon.)
The congressional-proposal method has been used sev-
eral tmes to correct state abuses. For example, Congress
proposed the 14th, 15th, and 24th Amendments to re-
strain state oppression of minorites.
1
But thus far the
states have never exercised their corresponding power
to correct federal abuses. As a result, the consttutonal
design has become unbalanced.
To correct for this imbalance, the American Legislatve
Exchange Council (ALEC) has recommended several
consttutonal amendments to limit some of the worst
abuses of federal poweramong these, a balanced bud-
get amendment (BBA).
2
Except for repeal of Prohibiton,
however, Congress has not forwarded to the states any
amendment limitng its own power since approving the
Bill of Rights in 1789. Thus, despite recurrent hopeful
talk about how Congress might adopt a BBA or other cor-
rectve amendments on its own, history suggests reform-
ers cannot depend on that. The states must do the job,
as our Founders expected them to do.
Although state lawmakers have initated the state appli-
caton and conventon process many tmes, they never
have carried it to completon. Historically, there are
many reasons for this, but since the 1960s a principal
reason for this neglect has been alarmism based on mis-
informaton (a topic explained later in secton V). Indeed,
many of the writngs published about the state applica-
ton and conventon process since the 1960s have been
based more on guesswork than on serious historical or
legal investgaton. Many more writngs on the subject
are simply briefs promotng an agenda rather than a
source of complete and accurate informaton. However,
there have been a few solid studies of the process, and
the recommendatons in this Handbook are based on
their research and conclusions (see Appendix D).
7
8
he 55 Framers who met in Philadelphia during the
spring and summer of 1787 understood that they
were drafing a Consttuton to last a very long tme.
We are not forming 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 tme
must include a method of amendment. In crafing their
amendment procedures, the Framers resorted to two
mechanisms widely employed at the tme: legislatures
and conventons.
During the Founding Era, a conventon was usually an
ad hoc assembly designed to pinch-hit for a legislature.
Today we tend to think of a conventon as a consttu-
tonal conventon, but during the Founding Era most of
those gatherings were not consttutonal at all. Most
were simply task forces assigned to recommend solu-
tons to pre-specifed problems. Others were established
to ratfy the work done by others. The Consttuton au-
thorizes three kinds of limited purpose conventons: One
kind to ratfy the Consttuton itself, another to ratfy
amendments, and a third to act as a task force to recom-
mend solutons to pre-specifed problems. The conven-
ton for proposing amendments is in the third category.
The historical record tells us what the Founders had in
mind when they authorized a conventon for proposing
amendments: They envisioned an interstate or fed-
eral conventonthat is, an assembly composed of
state delegatons (commitees) responsible to their
respectve state legislatures and operatng, at least ini-
tally, according to a rule of one state/one vote. Although
the fact is not widely known today, inter-colonial and
(afer Independence) interstate conventons were com-
monplace during the 18 century: There were well over
twenty of them.
3
They were modeled afer diplomatc
conventons among separate sovereigntes.
The agenda and powers of interstate conventons were
fxed by the partcipatng states, sometmes afer con-
gressional recommendaton, sometmes not. Usually the
agenda was fairly narrow. For instance, the interstate
conventon held in Yorktown, Pennsylvania in 1777 was
entrusted only with issues of price infaton. The 1781
interstate conventon held in Providence, Rhode Island
was restricted to military supply for a single year.
The scope of a conventon for proposing amendments is
similarly narrow. As James Madison made clear, it is not
what leading Founders called a plenipotentary conven-
ton. In other words, it is not an assembly with very wide
authority, such as one charged with drafing or adopt-
ing a Consttuton. Thus, it is simply incorrect to refer to
a conventon for proposing amendments as a consttu-
tonal conventon. They are diferent creatures entrely.
4

The conventon for proposing amendments was based
on comparable provisions in state consttutons that pre-
dated the U.S. Consttuton. One of these was Artcle 63
of the 1777 Georgia Consttuton. It granted to a major-
ity of countes the power to petton for an amendment,
T
II. The Constitutions State Application
and Convention Process: What It Is
9
In summary, please note:
Just as other parts of the Consttuton grant
Congress certain listed (enumerated) pow-
ers, Artcle V also grants enumerated powers.
Artcle V grants them to named assemblies
(conventons and legislatures) and not to
states or the federal government as a whole.
6

The executve branch of federal and state
governments does not have any role in the
amendment process.
Proposing amendments through a conven-
ton, as in Congress, is stll only a method of
proposing amendments. No amendment is
efectve unless ratfed by three-fourths of
the states (now 38 of 50).
To be duly ratfed, an amendment frst must
be duly proposed by Congress or by an inter-
state conventon called at the behest of two-
thirds (now 34) of the state legislatures.
A conventon for proposing amendments has
precisely the same power that Congress has
to propose amendments. Its power to pro-
pose is limited by the subject mater speci-
fed in state applicatonsbut by no other
authority whatsoever. The conventon is a
deliberatve body whose members answer to
the state legislatures they represent.
The conventon for proposing amendments is
basically a drafing commitee or task force,
convened to reduce one or more general
ideas to specifc language.
A HANDBOOK FOR STATE LAWMAKERS II
upon which the assembly [legislature] shall order a
conventon to be called for that purpose, specifying the
alteratons to be made, according to the pettons pre-
ferred to the assembly by the majority of the countes
as aforesaid. In other words, the Georgia Consttuton
enabled the countes to designate what kind of amend-
ment they wanted, ordered the legislature to call the
conventon, and empowered that conventon to write
the specifc language.
In the U.S. Consttuton two-thirds of state legislatures
(now 34 of 50) petton instead of a majority of countes:
The Congress, whenever two thirds of both
Houses shall deem it necessary, shall propose
Amendments to this Consttuton, or, on the
Applicaton of the Legislatures of two thirds of
the several States, shall call a Conventon for
proposing Amendments, which, in either Case,
shall be valid to all Intents and Purposes, as
Part of this Consttuton, when ratfed by the
Legislatures of three fourths of the several States,
or by Conventon in three fourths thereof, as the
one or the other Mode of Ratfcaton may be
proposed by the Congress; Provided that . . . no
State, without its Consent, shall be deprived of
its equal Sufrage in the Senate.
5
(Italics added.)

As in the Georgia prototype, the U.S. Consttuton grants
named assemblies (legislatures, conventons) designated
roles in the amendment process. The Consttuton gives
Congress authority to propose amendments and, for any
amendment (however proposed), to choose among two
modes of ratfcaton. The Consttuton also empowers
state legislatures to force Congress to call an amendments
conventon and empowers the conventon to propose.
The Consttuton further authorizes state legislatures and
state conventons to ratfy. This view of Artcle Vas a
grant of enumerated powers to named assemblieshas
been adopted by the U.S. Supreme Court.
We know the conventon process works as a practcal
mater, because long afer the Consttuton was adopted,
the states used essentally the same procedure for the
Washington Conference Conventon in 1861.
10
he records of the Consttutonal Conventon
show that initally the delegates consid-
ered a plan under which only an interstate con-
venton would draf and ratfy amendments.
On the suggeston of Alexander Hamilton of
New York, the Framers altered the plan so that
Congress became the sole drafer/proposer and
the states became ratfers. Hamilton argued
that Congress should have power to propose
because its daily actvity would suggest needed
changes.
This bothered George Mason of Virginia, who
observed that Congress might become oppres-
sive and refuse to propose correctve amend-
mentspartcularly amendments limitng its
own power. So by a unanimous vote of the states,
the delegates added an amendments conven-
ton to allow the states to bypass Congress. The
fnal wording of Artcle V is essentally the work
of James Madison.
Why Not Just Leave Amendments to the
Discretion of Congress Alone?
T
The principal reason for the state applica-
ton and conventon process is to enable the
states to check an oppressive or runaway
Congressalthough the Consttuton does
not actually limit the process to that purpose.
The Framers explicitly designed the process
to enable the states to substantally bypass
Congress.
11
III. Judicial Review

A HANDBOOK FOR STATE LAWMAKERS III
espite some language to the contrary from an old
Supreme Court decision,
7
it is now clear that the
courts can and will resolve Artcle V disputes. A court
might have to decide whether a legislatve resoluton
qualifes as an applicaton, applicatons are sufcient
to require Congress to call a conventon, or a conventon
resoluton is a valid proposal that can be ratfed.
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 bet-
ter that the courts, rather than Congress, defne and
enforce the state applicaton and amendment process.
If Congress refuses to carry out the dutes mandated by
Artcle V, the courts can order Congress to do so. In ad-
diton, judicial review should protect the consttutonal
role of the state legislatures. Recall that the central pur-
pose of the state applicaton and conventon process to
enable state legislatures to bypass Congress in proposing
amendments. Courts routnely construe legal provisions
to further their central purpose.
D
12
IV. The State Application and Convention
Process: Step-By-Step
What is an applicaton? A state legislature seeking an
amendments conventon adopts a resoluton called an
applicaton. The applicaton should be addressed to
Congress. It should assert specifcally and unequivocal-
ly that it is an applicaton to Congress for a conventon
pursuant to Artcle V. The resoluton should not merely
request that Congress propose a partcular amendment,
nor should it merely request that Congress call a conven-
ton. An example of efectve language is as follows:
The legislature of the State of ______ here-
by applies to Congress, under the provi-
sions of Artcle V of the Consttuton of the
United States, for the calling of a conven-
ton of the states . . .
Who may apply? The Consttuton grants the right to
apply exclusively to the state legislatures. Applicatons
need not be signed by the governor, and may not be ve-
toed, anything in the state consttuton or laws notwith-
standing. Moreover, applying cannot be delegated to the
people via initatve or referendum, anything in the state
consttuton or laws notwithstanding. However, the sig-
nature of the governor does not invalidate an applica-
ton, nor does an initatve or referendum that is purely
advisory in nature.
The scope of the conventon sought. A legislature may
apply for an open conventonthat is, not limited as to
subject mater. Such an applicaton might read:
The legislature of the State of ______
hereby applies to Congress, under the pro-
visions of Artcle V of the Consttuton of
the United States, for the calling of a con-
venton of the states for proposing amend-
ments to the Consttuton.
Few people, however, are interested in an open con-
venton or in a conventon for the sake of a conventon.
Generally, the goal is to advance amendments of a dis-
tnct type, with the conventon limited to that purpose.
An applicaton for a limited conventon might read:
The legislature of the State of ______
hereby applies to Congress, under the pro-
visions of Artcle V of the Consttuton of
the United States, for the calling of a con-
venton of the states limited to proposing
an amendment to the Consttuton of the
United States requiring [here state general
nature of the amendment].
8
Although applicatons may limit a conventon to one or
more subjects, the existng case law strongly suggests
that an applicaton may not atempt to dictate partcular
wording or rules to the conventon nor may the appli-
caton atempt to coerce Congress or other state legis-
A. Making an applicaton.
13
A HANDBOOK FOR STATE LAWMAKERS IV
latures. As the courts have ruled repeatedly, assemblies
(Congress, state legislatures, and conventons) are en-
ttled to some deliberatve freedom when involved in
Artcle V procedures. An applicaton may suggest par-
tcular language or rules for the conventon, but to avoid
confusion, suggestons should be placed only in sepa-
rate, accompanying resolutons.
Some applicatons, while not atemptng to impose spe-
cifc language on the conventon, atempt to dictate the
details of the amendments terms. The more detail the
applicaton mandates, the more likely a court will in-
validate it as atemptng to restrict unduly the conven-
tons deliberatve freedom. Additonally, the more terms
an applicaton specifes, the less likely it will match the
terms of other applicatons, resultng in congressional or
judicial refusal to aggregate them together toward the
two-thirds threshold.
Thus, a pair of rules governs legislatures applying un-
der Artcle V: (1) They may limit the subject mater of
the conventon but (2) they may not dictate partcular
wording. These boundaries make sense if you think of
the conventon as what it really is: A commitee or task
force charged with solving designated problems. When
charging a task force in business or government, you
inform its members of the problems you want them to
address. You dont tell them to investgate anything they
wish. Additonally, once you have given the task force an
assignment, you dont dictate a soluton. To serve its pur-
pose the task force has to be free to consider diferent
solutons. Otherwise there would be no good reason for
the task force.
An applicaton is a state legislatve resolu-
ton directng Congress to call a conventon
for proposing one or more amendments.
Applicatons may limit the scope of the con-
venton to partcular subject mater.
Applicatons may recommend, but not dic-
tate, partcular wording to the conventon.
Applicatons setng forth detailed terms for
the amendment are inadvisable both on legal
and practcal grounds.
Recommendatons are best stated in accom-
panying resolutons.
An applicaton probably lasts untl it is duly rescinded.
Some have argued that older applicatons grow stale
afer an unspecifed tme and lose their validity. However,
this argument probably does not have merit. The power
to rescind contnues untl the two-thirds threshold is
reached, or perhaps shortly thereafer.
9
An applicaton probably may provide that it is automat-
cally terminated as of a partcular date or on the occur-
rence of a specifc eventas long as the terminatng con-
diton is not an efort to coerce Congress, other states, or
the conventon. Thus, a provision is most likely valid if it
says, This applicaton, if not earlier rescinded, shall ter-
minate on December 31, 2015. Also valid would be this
language: This applicaton, if not earlier rescinded, shall
be null and void if Congress shall propose a balanced bud-
get amendment to the U.S. Consttuton. On the other
hand, courts may deem some kinds of automatc termina-
tons to be coercive, and therefore void. A clear example
would be a provision automatcally terminatng the ap-
plicaton unless the conventon followed specifed rules
or adopted an amendment in specifed language.
Aggregaton of applicatons. When 34 state legisla-
tures have submited applicatons on the same subject,
B.
How long does an applicaton last?
C.
The applicatons in Congress and the call.
14
the Consttuton requires Congress to call a conventon
for proposing amendments. Both the historical and le-
gal background of Artcle V and modern commentary
clarify that the congressional role at this point is merely
ministerial rather than discretonary. In other words,
the Consttuton assigns Congress a routne duty it must
perform. It is important to note, however, that congres-
sional receipt of 34 applicatons is not sufcient; those
applicatons must relate to the same subject mater.
Historically some members of Congress have tried to fnd
excuses for avoiding any duty to call a conventon.
10
One
possibility is that Congress may refuse to aggregate to-
ward the two-thirds threshold any applicatons that try
to dictate to the conventon diferent ways of solving the
same problem. Thus, if 17 states have applied for a clean
balanced budget amendment and another 17 have ap-
plied for a balanced budget amendment with a require-
ment of a two-thirds vote to raise taxes, Congress may
refuse to treat both groups as addressing the same sub-
ject. The more diferences exhibited by the applicatons,
the more justfcaton Congress will have in refusing to
aggregate them.
One way to forestall such obstructon is to specify in the
applicaton that it be aggregated with certain other state
applicatons. For example, an applicaton may include
the following language:
This applicaton is to be considered as cov-
ering the same subject mater as any other
applicaton for a balanced budget amend-
ment, irrespectve of the terms of those
applicatons, and shall be aggregated with
them for the purpose of reaching the two
thirds of states necessary to require the
calling of a conventon.
An alternatve might be to name applicatons already
submited by other states:
This applicaton is to be considered as cov-
ering the same subject mater as presently-
outstanding balanced budget applicatons
from Nebraska, Kansas, and Arkansas, and
shall be aggregated with them for the pur-
pose of reaching the two-thirds of states
necessary to require the calling of a conven-
ton.
This process is for the states, not Congress. In the past,
well-meaning members of Congress have introduced
bills to resolve issues that properly are for the state leg-
islatures or for the conventon to resolve. If adopted,
these bills would have dictated how delegates are se-
lected, how many delegates each state may have at the
conventon, and what votng and other rules the conven-
ton must follow.
That kind of legislaton is probably unconsttutonal for
several reasons. First, congressional eforts to control
the conventon would handicap its fundamental purpose
as a mechanism for the states to amend the Consttuton
without interference from Congress. Also, the historical
record shows that such provisions exceed the scope of
what the Consttuton means by calling an interstate
conventon. The power to call an interstate conventon
authorizes Congress only to count and categorize the ap-
plicatons by subject mater, announce on what subjects
the two-thirds threshold has been reached, and set the
tme and place of the conventon. Any further prescrip-
tons by Congress exceed the scope of powers reason-
ably incidental to the consttutonal power to call.
11
As noted above, the Founders modeled the interstate
conventon on internatonal diplomatc practce. As in
diplomatc meetngs, each sovereignty decides how to
select its own delegaton or commitee and how many
to send. The records of the Founding-Era interstate con-
ventons tell us that states selected delegates (commis-
sioners) in any of several ways:
(1) Electon by one house of the state legislature,
subject to concurrence by the other, with a joint
commitee negotatng any diferences;
D.
Selecton of delegates
(commissioners)
15
A HANDBOOK FOR STATE LAWMAKERS IV
(2) Electon by joint session of both houses of the
state legislature;
(3) Designaton by the executve;
(4) Selecton by a designated commitee.
Moreover, when selectng delegates to the Confederaton
Congress (which, strictly speaking, was a legislatve body
rather than a conventon), Rhode Island provided for di-
rect electon by the people.
For the 1861 Washington Conference Conventon, which
served as a sort of dry run for an amendments conven-
ton, most state legislatures selected their own commis-
sioners, but some authorized the executve to appoint
commissioners or nominate them subject to the consent
of the state senate.
Electon by legislatve joint ballot has several advantages.
First, it makes sense for the legislature to select commis-
sioners, because they serve as legislatve agents subject
to legislatve instructon and removal. Second, joint ballot
electons are less prone to deadlock than electon by each
chamber seriatm. Third, because the applicatons and
legislatve instructons will defne the policy behind the
amendment, the commissioners role at the conventon
is primarily to serve as a legal drafing commitee, calling
for technical abilites and diplomatc skills. Lawmakers are
likely to know which individuals possess those abilites.
Each commissioner is empowered to act by a document
called a commission, issued in such mater as the state
legislature directs.
All states, not merely the applying states, are enttled to
send commitees to a conventon for proposing amend-
ments. The conventon is, as James Madison once assert-
ed, subject to the forms of the Consttuton. In other
words, it is not plenipotentary (or consttutonal) in
nature. Accordingly, a conventon for proposing amend-
ments has no authority to violate Artcle V or any other
part of the Consttuton. According to the rules in Artcle
V, the conventon may not propose a change in the rule
that each state has equal Sufrage in the Senate,
12
nor
may it alter the ratfcaton procedure.
13
Prior rules and practce governing interstate conventons
show that conventons must honor the terms of their call
and limit themselves to the scope of the subject mater
they are charged with addressing. The scope of the sub-
ject mater is set by the scope of the 34 or more success-
ful applicatons, and ideally Congress should reproduce
that scope in its call.
Delegates to American conventons generally have had
power to elect their own ofcers and adopt their own
rules, and this has been universally true of interstate
conventons. These rules include the standards of de-
bate, daily tmes of convening and adjourning, whether
the proceedings are open or secret, and other maters of
internal procedure. Interstate conventons traditonally
have determined issues according to a one state/one
vote, although a conventon is free to change the rule of
sufrage. The conventon also may limit how many com-
missioners from each state can occupy the foor at a tme.
Like other diplomatc personnel, conventon commis-
sioners are subject to instructon from homein this
case from the legislature or the legislatures designee.
14

The designee could be a commitee, the executve, or an-
other person or body. Although state applicatons can-
not specify partcular wording for an amendment, a state
could instruct its commissioners to not agree to any
amendment that did not include partcular language. In
accordance with Founding Era practce and the conven-
tons purpose, each state should pay its own delegates.
The conventon may opt to propose one or more amend-
ments within the designated subject mater or it may
adjourn without proposing anything. Unless altered by
conventon rule, proposal requires only a majority vote.
Some have argued that a formal proposal requires a two
thirds conventon voteor that Congress may impose
such a rulebut there is nothing in law or history to sup-
port this argument.
E. The Conventon.
16
Once that decision is made, the conventon
must adjourn.
In general, ratfcaton of conventon-proposed amend-
ments is the same as for congressionally-proposed
amendments.
If the conventon validly proposes one or more amend-
ments, Artcle V requires Congress to select one of two
Mode(s) of Ratfcaton for each. Congress may decide
that the amendments be submited to state conventons
elected for that purpose (the mode selected for the 21
st

Amendment, repealing Prohibiton) or to the state legis-
latures (the mode selected for all other amendments).
The obligaton of Congress to select a mode should be
enforceable judicially, but it is completely up to Congress
which of the two modes it chooses. Neither the applying
state legislatures nor the conventon may dictate which
mode Congress selects.
Of course, the obligaton of Congress to choose a mode
depends on the measure qualifying as a valid proposal.
A proposal would not be valid if, for example, it exceeded
the scope of the subject mater defned by the applica-
tons or if it altered equal sufrage in the Senate or the
Consttutons rules of ratfcaton. Congress would be
under no obligaton to select a mode for such a pro-
posal, nor would it have the legal right to do so.
The Consttuton does not require that a proposal be
transmited to Congress or to any other partcular entty;
the proposal is complete when the rules of the conven-
ton says it is. Because Congress must choose a mode
of ratfcaton, however, the conventon should ofcially
transmit the proposal to Congress.
Once amendments are proposed or the delegates decide
not to propose any, the purpose of the conventon has
been served, and it must adjourn.
Each state sends a commitee of commission-
ers to the conventon, chosen by the state
legislature or as the state legislature directs.
The conventon elects its own ofcers and
sets its own rules.
Inital sufrage is one state/one vote with
decisions made by a majority of states, but
the conventon may change both rules.
The conventon must follow the rules of the
Consttuton, including those in Artcle V. The
conventon cannot change the ratfcaton
procedure.
The commissioners must remain within the
charge as set by the applicatons and (deriva-
tvely) by the congressional call.
Within the charge and during the conventon,
each commitee is subject to instructon from
its home state legislature or the legislatures
designee and is subject to recall as well.
Within the charge, the commissioners may
propose one or more amendments, or may
propose none at all.
F. Ratfcaton.
17
V. The Myth of a Runaway Convention
A HANDBOOK FOR STATE LAWMAKERS V
he runaway conventon scenario was conjured up
in the 19
th
century to dissuade state lawmakers
from bypassing Congress through the state applicaton
and conventon process. The scenario became famous
during the 1960s, when liberal actvists, legislators, and
academics raised it to defeat an applicaton campaign
for amendments that would have overturned some
Supreme Court decisions. Various groups have employed
the same tactc to defeat balanced budget amendment
proposals over the years.
15
In one of the ironies of his-
tory, some deeply conservatve groups now promote the
scenario as well. One can expect both liberal and conser-
vatve opponents to promote it again if another applica-
ton campaign begins to gain tracton.
In the runaway conventon scenario, state legislatures
atempt to limit the conventon through their applica-
tons, but once the conventon meets the commission-
ers disregard the applicatons and their subsequent in-
structons. Instead, heedless of their reputatons, their
politcal futures, and all tes of honor, the commissioners
issue proposed amendments that are ultra viresthat
is, beyond their legal authority.
In the more extreme versions of the runaway scenario,
the conventons proposed amendments reinstate slav-
ery, abolish the Bill of Rights, or otherwise completely
alter the American form of government. To prevent the
states from blocking their proposals, the conventon also
changes the method of ratfying to a method it fnds
more congenial. While the Congress, the President, the
courts, and the military all inexplicably sit by and permit
this coup dtat to unfold, the conventon imposes a new,
more authoritarian, government on America.
In the more moderate versions of the runaway scenario,
the conventon is unable to change the ratfcaton pro-
cess, but three-fourths of the states nevertheless ratfy
amendments they did not authorize and do not want.
Of course, even the more moderate version of the run-
away conventon scenario shows a slender regard for po-
litcal reality. At the very least, commissioners who will-
fully disregarded limits on their authority would sufer se-
vere loss of reputaton and probably compromise fatally
their politcal futures. This may explain why, in the long
history of the hundreds of American state and interstate
conventons, only an odd handful of delegates have actu-
At the very least, commissioners
who willfully disregarded limits
on their authority would sufer
severe loss of reputation and
probably compromise fatally
their political futures.
T
18
ally suggested going rogue. Advocates of the runaway
scenario do not dispute this, but argue that the 1787
Consttutonal Conventon disregarded its instructons.
Unfortunately for their positon, the widespread claim
that the 1787 Consttutonal Conventon disregarded its
instructons is substantally false (for artcles document-
ing what actually happened, see Appendix C). Another
practcal politcal factor is that Congress, and to some
extent the President, are insttutonal rivals of the con-
venton, and unlikely to remain inactve while it runs
wild.
In additon to the constraints of practcal politcs, there
are redundant legal protectons against ultra vires pro-
posals:
(1) Because conventon commissioners are subject to
state legislatve instructon, legislatures can correct
or recall any atemptng to exceed their power.
(2) If, nevertheless, legislatures failed to do this AND
the conventon purported to adopt an ultra vires
amendment, it would not be a consttutonally
valid proposal. Hence Congress would not be
obligated to select a Mode of Ratfcatonand,
indeed, would have no right to do so.
(3) If state legislatures failed to stop commissioners
from actng beyond their powers, AND if the con-
venton reported an ultra vires amendment, AND if
Congress nevertheless selected a mode of ratfca-
ton, the courts could declare Congresss decision
void.
(4) If the state legislatures did not stop their commis-
sioners from actng beyond their powers, AND if
the conventon reported an ultra vires amendment,
AND if Congress stll selected a mode of ratfcaton,
AND if the courts failed to declare Congresss deci-
sion void, then the states could refuse to ratfy it.
(5) In the unlikely event that the states insisted on
ratfying a proposal they (1) did not apply for, and
(2) was issued contrary to their instructons, then
the courtsor, indeed, any government agency
could treat the amendment as void.
In sum, there are far more politcal and legal constraints
on a runaway conventon than on a runaway Congress.
There are far more
political and legal
constraints on a runaway
convention than on a
runaway Congress.
19
A HANDBOOK FOR STATE LAWMAKERS VI
he consttutonal amendment process can be
messy. Indeed, people occasionally argue that one
or more existng amendments never were approved
properly. Nonetheless, lawmakers employing the state
applicaton and conventon process must try to follow
the rules as closely as possible. There are too many polit-
cians, lobbying groups, and judges willing to seize on pro-
cedural mistakes to block amendments they dont like.

Promote the right amendments.
Most people have one or more causes dear to their
hearts that they would love to see writen into the
Consttuton. But the state applicaton and conventon
process is no place for unpopular, inefectve, or idiosyn-
cratc causes. Each potental amendment should comply
with at least four criteria:
(1) Like most amendments already adopted, it
should move America back toward Founding
principles.
(2) It should promise substantal, rather than merely
symbolic or marginal, efect on public policy.
(3) It should be widely popular.
(4) It should be a subject that most state lawmakers,
of any politcal party, can understand and appre-
ciate.
The most successful applicaton campaign everfor
direct electon of U.S. Senatorsmet all of these crite-
ria. The cause was widely popular and well understood
by state lawmakers because, year afer year, legislatve
electon of Senators had fostered legislatve deadlocks,
corrupton, and submersion of state electons by federal
issues. Direct electon advocates represented the cam-
paign as necessary to restore Founding principles and
predicted substantal improvement in the quality of gov-
ernment.
As of this writng, a balanced budget amendment prob-
ably meets all four criteria; an amendment to abolish the
income tax probably does not.

Dont work alone.
Some of Americas most successful reform campaigns
were based on close cooperaton among states. For ex-
ample, the American Revoluton was coordinated frst
through interstate commitees of correspondence.
Congress proposed direct electon of Senators only af-
ter 31 of the then-48 states (one shy of two-thirds) had
submited closely similar applicatons for a conventon.
In the later instance, the legislatures of several states
coordinated the natonal efort by erectng standing leg-
islatve commiteesthat is, funded command centers
VI. Practical Recommendations for the State
Application and Convention Process
Here are some practcal rules to follow:
T
20
that prepared common forms and assisted the common
efort.
Future applicaton campaigns will succeed only if state
legislatures work together. They should establish stand-
ing commitees of correspondence to further the
cause. Each applying legislature should designate a
contact person for ofcial communicatons to and from
other states. Each applying legislature should notfy all
other state legislatures of its actons. Applicatons should
follow certain standard forms. Examples of such forms
appear in Appendix A.
All applicatons should be sent to as many recipients as
possible, especially (of course) Congress. As the cam-
paign builds, state legislatures should communicate with
each other on such issues as how they will choose their
commissioners, what the conventon rules will be, and
the size of state delegatons. The exchange of informa-
ton will enable states to address diferences in advance
of the amendments conventon, maintain momentum
and control over the process, and protect it from con-
gressional interference.

Dont make applicatons too general.
A conventon for proposing amendments is basically a
problem solving task force, and it rarely makes sense to
tell a task force to fnd any problems in anything they
choose. Moreover, few lawmakers want a conventon
merely for the sake of a conventon or because they think
the Consttuton needs a complete overhaul. Therefore,
applicatons should specify the subject of the proposed
conventon. If the legislature wishes to address several
subjects, those subjects should be in separate applica-
tons. In that way, the defeat of one applicaton will not
compromise others.

Dont make applicatons too specifc; let
the conventon 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 soluton cannot be. Both
Founding Era practce and modern court decisions tell us
that it is unconsttutonal for some assemblies working
under Artcle V (such as the legislatures) to try to dictate
a soluton to others (such as the conventon). The courts
may invalidate any applicatons that limit the conventon
to an up or down vote on specifc wording.
16
There also are some practcal reasons for avoiding too
much specifcity. The more specifc an applicaton is, the
more difcult it is to garner the broad coaliton neces-
sary to induce 34 states to approve it. Further, the more
specifc it is, the more likely it will deviate enough from
other applicatons to give Congress a reason for refus-
ing to aggregate it with other applicatons. Finally, the
conventon probably will do a beter job of drafing an
amendment than dispersed state lawmakers. Consistng
as it will of experienced personnel from all states, the
conventon may very well craf a soluton more def
and more politcally palatablethan any specifed in the
applicatons.
Consider a balanced budget applicaton as an example.
An applicaton could seek to dictate detailed terms to the
conventon (spending caps, rules for tax increases, plan-
ning or appropriaton details) or it could call simply for a
balanced budget amendment with any appropriate limi-
tatons on revenue and/or expenditures. If the former
route is followed, not only does it become difcult to
garner sufcient politcal support for the applicaton, but
Congress or the courts may treat it as invalid. If the later
route is followed, neither Congress nor the courts have
any such excuse, but the conventon stll may include the
desired terms in any amendment it proposes.

Dont make applicatons conditonal.
Some applicatons are conditonal on a prior event (e.g.,
congressional failure to report a similar amendment).
These are probably valid, but in the absence of a court
decision on point, we cannot be certain. Applicatons
that use conditons to try to coerce other bodies in the
Artcle V process are more surely invalid. Thus, the ap-
plicaton should not assert that it is void unless the con-
venton adopts partcular wording or a partcular rule, or
unless Congress adopts a partcular mode of ratfcaton.
21
A HANDBOOK FOR STATE LAWMAKERS VI
An applicaton statng that it is void afer a partcular
date or if a partcular (non-coercive) event has occurred
is probably acceptable legally. However, it would be bet-
ter to leave out conditons entrely. The legislature can
rescind the applicaton later, if necessary.

Move fast.
America is in serious trouble; dont be sidetracked by
alarmism or by hope that Congress may propose an
amendment limitng its own power. History shows this
is unlikely.
Older applicatons should be renewed from tme to tme.
Some people have argued that applicatons automatcal-
ly expire or grow stale with the passage of tme. There
is litle consttutonal basis for this argument, but some
in Congress have advanced it to weaken the state appli-
caton and conventon process. If possible, an entre ap-
plicaton campaign should be planned for completon in
three to four years.

Keep the applicaton as simple as possible.
As previously noted, an applicaton should not be overly
specifc: State the problem and let the conventon do its
job. Do not try to dictate partcular wording or specifc
approaches to the problem.
Also, dont put recommendatons or statements of un-
derstanding in your legislatures applicatons. If you wish
to issue a non-binding recommendaton to other legisla-
tures, Congress, or the conventon, then do so in a sepa-
rate resoluton.
To be sure, a recommendaton or statement of under-
standing in an applicaton does not necessarily void it.
In fact, several of the state conventons ratfying the
Consttuton included recommendatons and declaratons
without afectng the validity of their ratfcatons. But rec-
ommendatons and similar wording are not always clearly
drafed, and opponents may challenge them with the
claim that they really are terms or conditons that invali-
date the applicaton or prevent it from being aggregated
with other applicatons toward the two-thirds threshold.
Therefore, recommendatons, declaratons, and state-
ments of understanding always should be adopted in
resolutons separate from the applicaton. Appendix A
provides a form resoluton for that purpose.

Retain state control over the conventon.
The state applicaton and conventon process was de-
signed specifcally as a way for state legislatures to by-
pass Congress. Unfortunately, some past members of
Congress have expressed willingness to interfere with or
control the process. For the sake of the Consttuton, this
must not be allowed to happen.
State legislators applying for a conventon must send a
clear message to Congress that this procedure is within
the control of the states. Congresss obligatons are to
count the applicatons, call the conventon on the states
behalf, and choose a mode of ratfcaton. Congress has
no authority to defne the conventons scope, its rules,
or the selecton of its commissioners. Those are the pre-
rogatves of the state legislatures and of the conventon
commissioners responsible to the state legislatures.

The state legislature should choose its own
commissioners.
The Founding Era record, supplemented by subsequent
practce, tells us that when an interstate conventon is
called, each state decides, under its own laws, how many
representatves will make up its delegaton or commit-
tee, and how they are selected.
Although selecton could be delegated to popular vote
or to the executve, in the case of a conventon for pro-
posing amendments such delegaton makes litle sense.
Since the policy agenda for the conventon will be fxed
by the applicatons and by subsequent legislatve instruc-
tons to the commissioners, service in the conventon
requires more in the way of negotaton skills and legal
drafing ability than popular politcal appeal or passion
on the issues. Ideally, commissioners will be seasoned
and tested leaders of unquestoned probity.
22
Another reason for legislatve selecton is that the com-
missioners will be subject to state legislatve instructons
and recall.
In some states there will be pressure for popular elec-
ton. If a legislature does opt for popular electon, it
stll must clarify that a commissioners failure to follow
legislatve instructons could lead to his or her removal.
This is required to serve the core purpose of the state
applicaton and conventon process: To enable state leg-
islatures to advance amendments targeted at problems
those legislatures have identfed. Unless a state legisla-
ture can control its own commitee at the conventon,
that core purpose is defeated.
Some have suggested that states adopt statutes pro-
viding that commissioners who exceed the scope of
the conventon or disregard legislatve instructons are
deemed immediately recalled. It is uncertain whether
such a law would be enforceable against a state legis-
lature actng within Artcle V. However, such a law can
serve an educatonal functon, and may act as an implicit
legislatve rule.
17

Respond to the minority rule argument.
If history is any guide, opponents will claim the state
applicaton and conventon process is a license for mi-
nority rule because, in theory, states with a minority
of the American populaton could trigger a conventon.
Advocates should respond by pointng out that this is im-
probable as a practcal mater because politcal realites
will place some larger states on the same side as smaller
states. A heavily populated state like Texas is much more
politcally akin to a sparsely populated state like South
Dakota than to another heavily populated state like
Massachusets. Further, the applicaton stage is only an
inital step in a three-step process. Once the conventon
meets, a majority of state delegatons will have to ap-
prove any amendment, and in the glare of publicity the
commissioners are unlikely to propose measures most
Americans fnd distasteful. Afer the conventon issues
the proposal, that proposal will have to be ratfed by
38 statesincluding, in all probability, some states that
failed to apply. The ratfying states will almost certainly
represent a supermajority of the American people.
23
A HANDBOOK FOR STATE LAWMAKERS VII
he state applicaton and conventon process was
not inserted in the Consttuton merely to increase
the length of the document. It was an important compo-
nentperhaps the most important componentin the
federal balance between states and central government.
It was, in Madisons terms, the ultmate consttutonal
way for curbing an abusive or out of control federal gov-
ernment. In more modern terms, it is the analogue to
the initatve process at the state level: Just as the inita-
tve enables the people to make reforms the state leg-
islature refuses to undertake, the state applicaton and
conventon process enables the state legislatures to ef-
fectuate reforms Congress refuses to propose.
If we could address one or more of the leading Founders
today, we might tell them what has happened to
American federalismthat the states are increasingly
mere administratve subdivisions for the convenience
of Washington, D.C. Afer we related the situaton,
those Founders doubtless would ask, Well, have you
ever called a conventon of the states under Artcle V?
And when we admited we never had, they might well
respond, In short, you refused to use the very tools
we gave you to avoid this situaton. The sad state of
American federalism is clearly your own fault.
Thus, the responsibility for reclaiming consttutonal gov-
ernment is very much ours.
VII. Conclusion.
T
Appendix A:
Annotated Forms
This Appendix ofers forms for state legislatve resolutons for the
state applicaton and conventon process. Among the forms are
applicatons for a conventon, separate resolutons for legislatve
declaratons and recommendatons, and commissioner credentals.
These forms are not intended to be defnitve and certainly do not
represent legal advice. They are designed to serve as a startng
point for legislatve drafers familiar with the law and usages in
each state.
24 A ME R I C A N L E G I S L A T I V E E X C H A N G E C O U N C I L
25
Sample Form:
The Application in General
(With a Clean Balanced Budget Amendment to Illustrate)
An applicaton should be kept as simple as possible. Extra language may lead to confusion, invalidity, or congressional
refusal to aggregate the applicaton with those from other states. If a state legislature wishes to make recommendatons
or issue declaratons or statements of understanding, those items should appear only in an accompanying resoluton.
Credentaling of and any instructons to commissioners also should be placed in separate resolutons.
The startng point for the following form was one of two forms commonly employed by state legislatures during their
highly successful applicaton campaign for direct electon of U.S. Senators.
18
The BBA wording is similar to that used
in some currently outstanding states BBA applicatons from the late 1970s and early 1980s. Additonal material has
been added. The language in italics is optonal.

Applicaton under Artcle V of the U.S. Consttuton
For a Conventon to Propose a Balanced Budget Amendment
Be it resolved by the legislature of the State of ______:
Secton 1. The legislature of the State of ______ hereby applies to Congress, under the provisions of Artcle V of
the Consttuton of the United States, for the calling of a conventon of the states limited to proposing an amendment
to the Consttuton of the United States requiring that in the absence of a natonal emergency the total of all Federal
outlays for any fscal year may not exceed the total of all estmated Federal revenues for that fscal year.
Secton 2. The secretary of state is hereby directed to transmit copies of this applicaton to the President and
Secretary of the Senate and to the Speaker and Clerk of the House of Representatves of the Congress, and copies to
the members of the said Senate and House of Representatves from this State; also to transmit copies hereof to the
presiding ofcers of each of the legislatve houses in the several States, requestng their cooperaton.
Secton 3. This applicaton is to be considered as covering the same subject mater as the presently-outstanding
balanced budget applicatons from other states, including but not limited to previously-adopted applicatons from
______________ and ______________; and this applicaton shall be aggregated with same for the purpose of
ataining the two-thirds of states necessary to require the calling of a conventon, but shall not be aggregated with
any applicatons on any other subject.
Secton 4. This applicaton consttutes a contnuing applicaton in accordance with Artcle V of the Consttuton of
the United States untl the legislatures of at least two-thirds of the several states have made applicatons on the same
subject. It supersedes all previous applicatons by this legislature on the same subject.
***

26
Notes to Clean BBA Form:
Observe how simple this applicaton is. For one thing, it does not include a lengthy preamble (whereas
clauses), which might be construed as creatng limitatons or qualifcatons on the applicaton.
Further, although the applicaton provides that the conventon is to be limited to the subject of a balanced
budget amendment, it does not require the conventon to adopt, or reject, partcular wording. If it did, it might
be void.
19
This applicaton also avoids listng other specifc terms. Insertons of additonal requirementssuch as a two-
thirds requirement for Congress to raise taxesmay critcally reduce support among lawmakers and the public.
Adding additonal terms also reduces the chances of obtaining 34 matching applicatons, thereby ofering Con-
gress a reason not to call a conventon. This form, on the other hand, is designed to be aggregated easily with
several relatvely simple applicatons adopted in the late 1970s and early 1980s.
This applicaton refers to the conventon as a conventon of the states. This was a common way of referring to
a conventon for proposing amendments during the Founding Era and for many years afer. The phrase clarifes
that the conventon is a federal meetng of delegatons from the several states rather than a natonal convo-
caton.
The resoluton does not have a conditon statng that it is void if the conventon is called for any other subject.
Such conditon may compromise the legality of the applicaton. Moreover, applicatons probably cease to exist
(and therefore are not terminable) once the conventon is called. A limitaton on subject mater appears in Sec-
ton 1 and can be enforced, if necessary, through instructons to commissioners, by public opinion, and by legal
acton.
Secton 4 clarifes the legislatve intent that the applicaton shall not grow stale with the passage of tme. Of
course, the applicaton always can be rescinded.
The italicized wording is optonal language for lawmakers desiring to clear the deck of previous BBA applica-
tons from their state.
27
This calls for a broader conventon agenda than the clean BBA form. The language together with any related
and appropriate fscal restraints enables the conventon to consider limits on taxes, spending, and the like.
We do not recommend that the applicaton cite specifc caps on federal spending as a share of the economy.
This is because:
It raises the odds that diferent state applicatons 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 consttutonalizing
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:
BBA with Option for Further Fiscal Restraint
If the legislature wishes to add additonal terms to a basic BBA, the legislatures should describe those terms in
general words. In this example, Sectons 2, 3, and 4 remain the same, but Secton 1 is re-writen to read as follows:
Applicaton under Artcle V of the U.S. Consttuton
For a Conventon to Propose a Balanced Budget Amendment
and Further Fiscal Restraints
Secton 1. The legislature of the State of ______ hereby applies to Congress, under the provisions of Artcle V of
the Consttuton of the United States, for the calling of a conventon of the states limited to proposing an amendment
to the Consttuton of the United States requiring that in the absence of a natonal emergency the total of all Federal
outlays for any fscal year may not exceed the total of all estmated Federal revenues for that fscal year, together with
any related and appropriate fscal restraints.
***
Notes to BBA with Opton for Further Fiscal Restraint:
28
Sample Form:
Resolution of Declarations, Statements of
Understanding, and Recommendations
Sometmes legislatures submitng Artcle V applicatons decide to insert declaratons or understandings of how they
expect the state applicaton and conventon process to work. For example, the applicaton might assert that the
applying legislature expects the conventon to apply the rule of one state/one vote. Similarly, the legislature might
include in the applicaton recommendatons pertaining to the conventon, to the language of the amendment, or to
the mode of ratfcaton.
For reasons discussed earlier, a legislature desiring to issue recommendatons or declaratons should do so in
resolutons separate from the applicaton.
Following is a sample declaratory and recommendatory resoluton:
Declaratory and Recommendatory Resoluton to Accompany Applicaton
for a Conventon to Propose a Balanced Budget Amendment
Whereas, the legislature of the State of ____ has applied to Congress under Artcle V of the United States
Consttuton for a conventon to propose an amendment to the Consttuton requiring a balanced budget;
Whereas, a conventon for proposing amendments has not previously been held;
Whereas, in the interest of clarifying uncertaintes it is desirable for the legislature to declare its understandings
and expectatons for the conventon process;
Whereas, if the conventon decides to propose a balanced budget amendment, then the conventon will have the
task of drafing same; and
Whereas, it is desirable for the legislature to issue recommendatons as to the content of any such proposed
amendment,
Be it resolved by the legislature of the State of _____________:
Secton 1. The legislature hereby declares its understanding that:
(a) a conventon for proposing amendments is a device included in the Consttuton to enable the
state legislatures to advance toward ratfcaton amendments without the substantve involve-
ment of Congress;
(b) the conventon is a gathering of representatves appointed pursuant to state law or practce,
with an inital sufrage rule of one vote per state;
(c) the conventons delegates are commissioners commissioned by the state legislatures that send
them and are subject to instructons therefrom;
(d) the scope of the conventon and of any proposals it issues are limited by the scope of the appli-
catons issued by the states applying for the conventon; and
29
A HANDBOOK FOR STATE LAWMAKERS [A]
(e) commissioners from the State of ___ will be recalled from any conventon that purports to
exceed the scope defned in the applicatons.
Secton 2. The legislature hereby recommends that:
(a) Each state send not more than fve commissioners to the conventon;
(b) The conventon retain the sufrage rule of one state/one vote throughout its proceedings;
(c) Any proposed amendment include provisions as follows:
(i) requiring that total outlays not exceed total estmated receipts for any fscal year;
(ii) requiring the setng of a fscal year total outlay limit;
(iii) providing that, for reasons other than war or other military confict, the limits of this
amendment may be waived by law for any fscal year if approved by at least two-
thirds of both houses of Congress;
(iv) allowing for the provisions of the amendment to take efect within specifed tme
periods;
(v) providing for the waiver of the provisions of the amendment for any fscal year in
which a declaraton of war is in efect or the United States is engaged in military con-
fict that causes an imminent or serious military threat to natonal security;
(vi) allowing for congressional enforcement; and
(vii) preventng the courts from ordering Congress to raise any taxes or fees as a method
of balancing the budget.
Secton 3. This declaratory and recommendatory resoluton is not a part of the applicaton, and shall not be
deemed as such.
Secton 4. The secretary of state is hereby directed to accompany all transmissions of the aforesaid applicaton for
a conventon with copies of this declaratory and recommendatory resoluton as well.
* * *
The Whereas clauses form a preamble setng forth the reasons for the applicaton. Lengthy preambles are
best kept out the applicatons.
Secton 1 sets forth the legislatures general understanding of the nature of the conventon.
Secton 2 includes items inappropriate to be mandated in an applicaton, but recommendatons for the conven-
ton to consider.
Items (c) (i) - (vi) in Secton 2 are taken from a proposed applicaton known as Florida Senate Concurrent Reso-
luton No. 4 (2011), adopted by the Florida Senate but not by the House. That resoluton atempted to include
these items as mandates; in this form, however, they are restated as recommendatons. Item (vii) is another
ofen-recommended provision.
Notes to Declaratory and Recommendatory Resoluton:
30
Sample Form: Resolution Electing Commissioners
(with Trap Door)
As noted earlier, the mode of commissioner selecton is determined by the state legislature, with the best alternatve
probably selecton by joint ballot of the legislature itself. Some lawmakers have suggested that one way to reassure
those skeptcal of a conventon is for an applying state to announce in an accompanying resoluton who its
commissioners will be. Hence the following form:

Resoluton Electng Commissioners to Conventon
for Proposing a Balanced Budget Amendment
Whereas, the legislature of the State of ____ has applied to Congress under Artcle V of the United States
Consttuton for a conventon to propose an amendment to the Consttuton requiring a balanced budget; and
Whereas, the legislature has decided to select its commissioners to the conventon, if such is held:
Be it resolved by a joint session of the Senate and the House of Representatves 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 conventon, with power to confer with commissioners
from other states on the sole and exclusive subject of whether the conventon shall propose a balanced
budget amendment to the United States Consttuton 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 states vote
in such conventon.
Be it further resolved that, unless extended by the legislature of the State of ____, votng in joint session
of the Senate and House of Representatves, the authority of such commissioners shall expire at the earlier of
(1) December 31, 2016 or (2) upon any additon to the conventon agenda or conventon foor consideraton
of potental amendments or other consttutonal changes other than a balanced budget amendment to the
United States Consttuton.
* * *
No legislature can bind a later legislature in this way; therefore this resoluton can be rescinded later.
The selecton in this resoluton is by a joint vote of both houses.
The resoluton limits the length of the commissioners terms.
The resoluton also includes a trap door by which designaton ceases if the conventon goes beyond the speci-
fed purpose.
Notes to electon-of-commissioners form:
A HANDBOOK FOR STATE LAWMAKERS [B]
31
Amendments conventon - a common synonym for
conventon for proposing amendments, which is the
ofcial name given to the gathering by the Consttuton.
Applicaton - the legislatve resoluton whereby a state
legislature tells Congress that if it receives applicatons
on the same subject from two-thirds of the state legis-
latures (34 of 50), Congress must call a conventon for
proposing amendments on the subject.
Artcle V conventon - a common synonym for conven-
ton for proposing amendments, which is the ofcial
name the Consttuton gives to that gathering.
Commissioner - the formal ttle of a delegate to a con-
venton for proposing amendments, so named from his
or her empowering commission.
Commitee - a states delegaton to a conventon for pro-
posing amendments.
Consttutonal conventon - a conventon charged with
writng an entrely new Consttuton; a kind of plenipo-
tentary conventon.
Conventon - originally just a synonym for meetng.
As used by the Founders and in the Consttuton itself,
conventon means a legal assembly that pinch-hits for a
legislature in performing designated tasks.
Conventon for proposing amendments - a conventon of
representatves of the state legislatures meetng to pro-
pose one or more amendments on one or more subjects
specifed in the state legislatve applicatons and (deriva-
tvely) in the congressional call. A conventon for propos-
ing amendments is a limited conventon serving as an ad
hoc substtute for Congress proposing amendments.
Interstate conventon - a generic term referring to any
conventon of delegates representng three or more
states or state legislatures. There were numerous inter-
state conventons held between 1776 and 1787, which
in turn were preceded by several inter-colonial conven-
tons.
Plenipotentary conventon - A Founding Era term bor-
rowed from internatonal diplomatc practce. It refers to
a conventon where the commissioners have unlimited
or nearly unlimited power to represent their respec-
tve sovereigntes. The First Contnental Congress was a
plenipotentary conventon. As to most of the commis-
sioners, the 1787 Consttutonal Conventon was close to
plenipotentary. Most interstate conventons, however,
have been more restricted.
Propose - In Artcle V of the Consttuton, propose can
mean either (1) the power of Congress or of a conven-
ton for proposing amendments to validly tender a sug-
gested amendment to the states for ratfcaton or rejec-
ton, or (2) the power of Congress to designate whether
proposed amendments will be sent to the state legisla-
tures or to state conventons for ratfcaton.
Ratfy, ratfcaton - In Artcle V of the Consttuton, rat-
fcaton refers to the process by which state legislatures
or state conventons convert a proposed amendment
into a legally efectve part of the Consttuton. Approval
by three-fourths of the states (38 of 50) is necessary for
ratfcaton.
Appendix B:
Defnitions of Terms
32 A ME R I C A N L E G I S L A T I V E E X C H A N G E C O U N C I L
Appendix C:
Answers to Criticisms
A tactc employed by promoters of the runaway conventon
scenario
20
is to challenge lawmakers with a list of supposedly
unanswerable questons.
21
Several lists are used and they vary
somewhat, but all appear to be based on questons published
over three decades ago by Professor Lawrence Tribe of Harvard
Law School, a liberal opponent of conventons for proposing
amendments.
22
Although it is claimed the questons are unanswerable, most do, in
fact, have good answers. Because state lawmakers may encounter
them while considering Artcle V applicatons, those questons,
supplemented by a few others, are listed in this appendix. They are
organized by topic, although the questons can be presented in any
order. The questons are reproduced verbatm, together with their
sometmes-odd phrasing and punctuaton. An answer immediately
follows each queston.
33
A HANDBOOK FOR STATE LAWMAKERS [C ]
Questons Pertaining to Applicatons
Q1. How is the validity of applicatons from the states
to be determined?
A. Initally by Congress, although congressional decisions
are subject to judicial review.
Q2. How specifc must the state legislatures be in ask-
ing for an amendment?
A. The legislatures may apply either for an unrestricted
conventon or one devoted to partcular subject mater.
There is no ironclad rule as to specifcity, except that the
more a legislature tries to dictate the specifc language
of the amendment (as opposed to the general topic), the
more it endangers the applicatons validity.
Q3. Must all the applicatons be in identcal language?
A. No. It is enough if they identfy the same problem(s)
or subject(s). However, prudence suggests that state leg-
islatures coordinate with one another.

Q4. Within what tme period must the required num-
ber of applicatons be received?
A. Adopton of the 27th amendmentproposed over 200
years earlierhas convinced most observers that there is
no tme period. Because, however, some stll claim that
applicatons can go stale, prudence suggests that a cam-
paign be completed within a few years. The applicaton
campaign for direct electon of senators took 14 years.

Questons Pertaining to Congress
Q5. Can Congress refuse to call a conventon on de-
mand of two-thirds of the states, and if it does, can it
be compelled to act by the courts?
A. Nearly all scholars have concluded that 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 ratfcaton to the state legislatures or
to a state consttutonal conventon as permited under
Artcle V of the consttuton?
A. Artcle V specifes that the queston is up to Congress
as is true of any amendment, whether proposed by
Congress or by a conventon. Incidentally, the conven-
ton that ratfes an amendment is called a state ratfy-
ing conventon, not a state consttutonal conventon.

Questons Pertaining to Delegates and Delegate
Selecton
Q7. 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 Consttutonal [sic]
Conventon? and (2) What authority would be respon-
sible for electng the Delegates to the conventon?)
A. Delegates (more properly called commissioners) are
representatves of their respectve state legislatures and
are chosen as the state legislature directs.
Q8. What authority would be responsible for deter-
mining the number of delegates from each state?
A. This and related questons are determined in each
state by that states legislaturejust as is true for del-
egates to other conventons, such as state conventons
for ratfying amendments.
Q9. Would delegates be selected based on popula-
ton, number of registered voters, or along party lines?
A. See the answer to Queston #8.
Q10. Would delegates be selected based on race, eth-
nicity or gender?
A. The Equal Protecton Clause of the Fourteenth
Amendment, the Due Process Clause of the Fifh
Amendment, and the Supreme Court cases interpretng
them forbid electon on these grounds.

Questons Pertaining to Conventon Organizaton
and Procedure
Q11. Can the conventon act by a simple major-
ity vote, or would a two-thirds majority be required,
34
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 Consttutonal Amendment be determined?)
A. The conventon acts by a simple majority of the repre-
sented states. The conventon may, by a simple majority
of the represented states, alter that votng rule.
Q12. How is a conventon to be fnanced, and where
does it meet? (Related versions of are (1) What author-
ity would be responsible for selectng the venue for the
Conventon?, and (2) Where would the Conventon be
held?, and (3) Who will fund this Conventon?)
A. A conventon for proposing amendments is a conclave
of state commitees, each made up of state commis-
sioners. It therefore is fnanced by the states. Congress,
in the conventon call, specifes the inital meetng place,
but the conventon may alter that meetng place.
Q13. May the conventon propose more than one
amendment?
A. Yesbut only if they are all within the agenda of the
conventon, as prescribed by the applying states.
Q14. Is there a tme limit on the proceedings, or can
the conventon act as a contnuing body?
A. There is no fxed tme limitthe conventon can meet
untl it decides whether to propose amendments and
which ones to propose. But a conventon is, by defni-
ton, not a contnuing body. It has no authority beyond
deciding whether to propose amendments within the
subject mater prescribed in the applicatons. Once that
is performed, it must adjourn. Additonally, states may
recall and/or replace their commissioners at any tme.
Q15. What authority would be responsible for or-
ganizing the conventon, such as commitee selecton,
commitee chairs and members, etc.? (A related ques-
ton is, How would the Chair of the Conventon be select-
ed or elected?)
A. Organizatonal details such as these are fxed in rules ad-
opted by the conventon itself, in accordance with nearly
universal American conventon procedures. Conventons
universally elect their own permanent ofcers.
Q16. How would the number of delegates serving on
any commitee be selected and limited?
A. See answer to Queston 15.
Q17. What authority will establish the Rules of the
Conventon, such as setng a quorum, how to proceed
if a state wishes to withdraw its delegaton, etc.?
A. See answer to Queston 15.
Q18. Would non-Delegates be permited inside the
conventon hall? (A related version is, Will demonstra-
tors be allowed and/or controlled outside the conventon
hall?)
A. Inside the conventon hall, conventon rules control.
The outside environment is subject to the same rules
governing the space outside any public body, conven-
ton, or legislature.
Q19. 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. Nothing requires the conventon to follow a two-thirds
adopton or quorum rule for proposing an amendment.
Adopton and quorum rules are set by each conventon
in accordance with universal practce. As for the ratfca-
ton procedure: According to both the consttutonal text
and the U.S. Supreme Court, the conventon receives all
its power from the Consttuton. So it cannot alter the
rules in the Consttuton that specify the ratfcaton pro-
cedure. See also the preceding answers.
Q20. Could a state delegaton be recalled by its legis-
lature and its call for a conventon be rescinded during
the conventon?
A. The legislature may recall its commissioners. The rest
of the queston inaccurately assumes the states call
the conventon; actually, the states apply and Congress
calls. It is unlikely a state could withdraw its applicaton
afer two thirds of the states have acted on it. However,
if a state disagrees with the amendment language that is
crafed during the conventon, it can instruct its commis-
sioners to oppose it, and can vote against it during the
ratfcaton process.
35
A HANDBOOK FOR STATE LAWMAKERS [C]
A Queston Pertaining to the Courts
Q21. Can controversies between Congress and the
conventon over its powers be decided by the courts?
A. Controversies over the scope of the conventons
powers may be decided by the courts. However, the
states, not Congress, fx the scope of such powers. The
most likely area of controversy between Congress and
the conventon would be if the conventon suggests an
amendment that Congress believes is outside the con-
ventons agenda as defned in the state applicatons.
If (as is proper) Congress then refused to prescribe a
Mode of Ratfcaton for the suggested amendment,
the courts could resolve the dispute.

Questons Based on Historical Claims Made About
James Madison and the 1787 Conventon
Q22. Didnt James Madison express uncertainty
about the compositon of an Artcle V conventon, and
wasnt he horrifed at the prospect of one?
A. Quite the contrary. Madison later promoted the con-
venton idea as a reasonable way to resolve consttu-
tonal disputes. It is true that during the Consttutonal
Conventon debate he initally expressed uncertainty
as to how amendments conventons were to be const-
tuted. But he must have been satsfed with the answer
he received, since he dropped his objectons. It is also
true that he was horrifed by a 1789 New York proposal
for an unlimited conventon to rewrite the entre con-
sttuton with over 30 amendments. Who wouldnt be?
However, Madison repeatedly asserted that his objec-
ton was directed only at that partcular proposal at that
partcular tme.

Q23. Isnt it true that the 1787 Consttutonal
Conventon was a runawaythat Congress convened
it under the Artcles of Confederaton only to propose
amendments to the Artcles, but it ended up drafing an
entrely new Consttuton?
A. The truth is quite to the contrary: Most commission-
ers had full authority to recommend a new Consttuton,
as explained in the artcle cited in this endnote.
23
36
s observed in Part I (Introducton), most writng
on the state applicaton and conventon process
has been poorly-researched, agenda-driven, or both.
However, not everything published on the subject has
been biased or shallow.
Serious scholarship on the topic began in 1951 with an
extraordinary Ph.D. thesis writen by the late William
Russell Pullen, then a politcal science graduate student
at the University of North Carolina. The Pullen study suf-
fered from the authors lack of legal or historical training
(Pullen was a politcal science graduate student, not a
historical or legal scholar), but it presented an excellent
and thorough summary of applicatons and history up to
that tme.
24
More recent scholarship (defned as work that makes a
serious atempt to marshal the historical and legal evi-
dence) falls chronologically into two groups. The frst
group of studies was published during the 1970s and
1980s. It included a research report from the American
Bar Associaton; a lengthy legal opinion composed by
John M. Harmon at the Ofce of Legal Counsel at the
U.S. Department of Justce; and Russell Caplans book,
Consttutonal Brinksmanship, published by Oxford
University Press.
25
Although the fndings of these stud-
ies difered in detail, they all agreed on some important
conclusionsincluding the conclusion that state legisla-
tve applicatons could limit the scope of the conventon.
Appendix D:
Where Does This Handbook Get Its Information?
The second group of studies includes several published
from 2011 to 2013 by the author of this Handbook, a
retred consttutonal law professor and consttutonal
historian. These encompass a three-part paper initally
writen for the Goldwater Insttute and updated for the
Independence Insttute; full-length artcles published by
Florida Law Review and Tennessee Law Review, and short-
er works for a book chapter and for the Harvard Journal
of Law and Public Policy. This research takes into account
(1) more recent court decisions, (2) formerly untapped
records from the Consttutons ratfcaton debates, (3)
the re-discovered journals of numerous 18th century fed-
eral conventons, (4) the journal and other writngs per-
taining to the Washington Conference Conventon, and
(5) other formerly-neglected informaton.
Also belonging in this later group is an artcle by Professor
Michael Rappaport that examines only the Founding Era
record.
This second group of studies largely corroborates the
conclusions of those datng from the 1970s and 1980s,
but they also make some correctons to earlier work. The
accompanying endnote tells the reader where to obtain
these studies.
26
A
38
(Endnotes)
1 The Fourteenth Amendment extended certain federal guarantees to all citzens; the Fifeenth Amendment protected the right to
vote, despite race, color, or previous conditon of servitude; and the Twenty-Fourth Amendment eliminated the poll tax system
sometmes used to suppress votng by minorites.
2 ALEC has also recommended, among others, (1) a general BBA applicaton (2011), (2) the Vote on Taxes Amendment (2010), (3) the
Natonal Debt Relief Amendment (2011) (which requires approval by a majority of the state legislatures before the federal govern-
ment can go deeper into debt), (4) the Repeal Amendment (2011) (permitng two-thirds of state legislatures to invalidate federal
laws and regulatons), (5) An Accountability in Government Amendment (1996) (limitng federal mandates on states), (6) a Govern-
ment of the People Amendment (1996) (similar to the Repeal Amendment, but with a seven-year repeal limit), and (7) a States
Initatve Amendment (1996) (permitng three quarters of the states to propose amendments without a conventon, subject to
congressional veto). To see model legislaton on any of these bills, contact Jonathan Williams at 202-466-3800 or jwilliams@alec.org.
3 For a survey of 18th century conventons, including the rules that governed them, see Robert G. Natelson, Founding-Era Conventons
and the Meaning of the Consttutons Conventon for Proposing Amendments, 65 Fla. L. Rev. 615 (2013).
4 The Founding-Era evidence for distnguishing an Artcle V conventon from a consttutonal conventon is overwhelming. See Rob-
ert G. Natelson, Amending the Consttuton by Conventon: A More Complete View of the Founders Plan (Independence Insttute,
2010) (updated and amended version of an earlier paper published by the Goldwater Insttute), available at htp://consttuton.i2i.
org/fles/2010/12/IP_7_2010_a.pdf.
5 U.S. Const., Art. V.
6 The courts, including the Supreme Court, have afrmed this repeatedly.
Note that Artcle V grants eight distnct enumerated powers, four powers at the proposal stage and four at the ratfcaton stage. At
the proposal stage, the Consttuton (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 conventon to propose amendments; (3) then empowers
(and requires) Congress to call that conventon; and (4) authorizes that conventon to propose amendments.
At the ratfcaton stage, (1) the Consttuton authorizes Congress to select whether ratfcaton shall be by state legislatures or state
conventons; (2) if Congress selects the former method, the Consttuton authorizes three fourths of state legislatures to ratfy; (3) if
Congress selects the later method, the Consttuton empowers (and requires) each state to call a ratfying conventon; and (4) the
Consttuton further empowers three-fourths of those conventons to ratfy.
7 Coleman v. Miller, 307 U.S. 433 (1939). That language actually was not part of the ruling, but only dicta (non-authoritatve side com-
ments) by four justces.
8 Appendix A contains model legislaton that can be used to apply for a conventon to discuss a balanced budget amendment.
39
9 Exactly when the power to rescind ends has not been determined judicially, but presumably it ends when the applicaton triggers
larger legal consequencesi.e., when the 34-state threshold is reached, Congress calls the conventon, or the conventon actually
meets. Once the 34-state threshold is reached, the call and meetng become merely ministerial (not discretonary), which would
suggest that the power to rescind ends as soon as 34 states have applied.
10 The late Senator Sam Ervin (D.-N.C.) reported disapprovingly on the obstructonism of some of his senatorial colleagues during the
1960s. Sam J. Ervin, Jr., Proposed Legislaton to Implement the Conventon Method of Amending the Consttuton, 66 Mich. L. Rev.
875, 878 (1968-68).
11 An incidental power is an unmentoned 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 Consttuton grants a specifed power
it generally grants incidentals as well. The Consttutons directon to Congress to call a conventon of the states includes authority to
set the tme and place because that authority is properly incidental. On the other hand, some powers are too substantal to be inci-
dents of a mere power to call, such as prescribing conventon rules and methods of delegate selecton. On incidental powers and the
Consttuton, see Gary Lawson, Geofrey P. Miller, Robert G. Natelson, and Guy I. Seidman, The Origins of the Necessary and Proper
Clause (Cambridge University Press, 2010). Chief Justce Roberts followed this analysis of incidental powers in NFIB v. Sebelius, 132
S.Ct. 2566, 2591-93 (2012) (the ObamaCare case).
12 U.S. Const., Art. V. (Provided that . . . no State, without its Consent, shall be deprived of its equal Sufrage in the Senate.). This
means that an amendment may not alter the Consttutons 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 votng by state delegatons. But it could not, for example,
give New York more votng power than Nebraska.
13 Id. (which, in either Case, shall be valid to all Intents and Purposes, as Part of this Consttuton, when ratfed by the Legislatures of
three fourths of the several States, or by Conventon in three fourths thereof).
14 State legislatve authority to instruct state commissioners has been universal to all interstate conventons, both during the Found-
ing Era and at the 1861 Washington Conference Conventon. See also Ray v. Blair, 343 U.S. 214 (1952) (upholding state authority to
instruct members of the electoral college).
15 Notable among those publicizing the scenario were Yales Charles Black and Harvards Lawrence Tribe; Supreme Court Justces War-
ren Burger and Arthur Goldberg; Senators Joseph Tidings (D.-Md.) and Robert F. Kennedy (D.-N.Y); and individuals within the Ken-
nedy circle, such as Goldberg and speechwriter Theodore Sorensen.
16 Among the cases emphasizing that assemblies (legislatures and conventons) meetng under Artcle V must have a certain amount
of deliberatve freedom are Hawke v. Smith, 253 U.S. 221 (1920); In Re Opinion of the Justces, 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 ofcial report) (requiring an assembly that can engage in intellectual debate, deliberaton, or consideraton); League of Women
Voters of Maine v. Gwadosky, 966 F.Supp. 52 (D. Me. 1997); Barker v. Hazetne, 3 F. Supp. 2d 1088, 1094 (D.S.D. 1998) (Without
doubt, Initated Measure 1 brings to bear an undue infuence on South Dakotas congressional candidates, and the deliberatve and
independent amendment process envisioned by the Framers when they drafed Artcle V is lost.); Gralike v. Cooke, 191 F.3d 911,
924-25 (8
th
Cir. 1999), afd on other grounds sub nom. Cook v. Gralike, 531 U.S. 510 (2001); Miller v. Moore, 169 F.3d 1119 (8
th
Cir.
1999). Cf. Kimble v. Swackhamer, 439 U.S. 1385, appeal dismissed, 439 U.S. 1041 (1978) (Rehnquist, J.) (upholding a referendum on
an Artcle V queston because it was advisory rather than mandatory); Dyer v. Blair, 390 F.Supp. 1291, 1308 (N.D. Ill. 1975) (Justce
Stevens) (upholding a rule of state law on an Artcle V assembly, but only because the assembly voluntarily adopted it).
17 See Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (Stevens, J.)
18 The form was developed by the Minnesota legislature, and originally read as follows:
SECTION 1. The legislature of the State of Minnesota hereby makes applicaton to the Congress, under the provisions of Artcle V of
the Consttuton of the United States, for the calling of a conventon to propose an amendment to the Consttuton of the United
States making United States Senators electve in the several States by direct vote of the people.
Notce how simple and direct the italicized wording is; drafing details are lef to the conventon. As it turned out, however, Con-
gress rather than a conventon drafed the details. Afer 31 states (one short of the needed 32 of the then 48) had approved similar
applicatons, the U.S. Senate, which had resisted the change, fnally consented to congressional proposal of what became the 17
th

Amendment.
19 In proposing other amendments, it is equally important to avoid trying to mandate partcular wording. For example, the proposed
Natonal Debt Relief Amendment (which ALEC has endorsed), provides that An increase in the federal debt requires approval from
a majority of the legislatures of the separate States. An applicaton might describe the subject mater as an amendment to the
Consttuton of the United States forbidding increases in the debt of the United States unless approved by a specifed proporton of
state legislatures.
20 See Part V: The Myth of a Runaway Conventon.
21 Thus, one list trumpets: If these questons cannot be answered (and they CANNOT!), then why would any state legislator even
consider votng for such an uncertain event as an Artcle V Consttutonal Conventon?
22 Lawrence H. Tribe, Issues Raised by Requestng Congress to Call a Consttutonal [sic] Conventon to Propose a Balanced Budget
Amendment, 10 Pac. L.J. 627 (1979) (republishing earlier legislatve testmony). This artcle ofers virtually no supportng evidence
from the historical record or case law.
23 The facts appear in Robert G. Natelson, Proposing Consttutonal Amendments by Conventons: Rules Governing the Process, 78 Tenn.
L. Rev. 693, 719-23 (2011), available at htp://consttuton.i2i.org/fles/2011/08/Rules_for_Art_V_Conventons.pdf.
24 William Russell Pullen, The Applicaton Clause of the Amending Provision of the Consttuton (Univ. of North Carolina, 1951) (unpub-
lished). Pullen worked largely from the long-collected fles of his mentor, Professor W.S. Jenkins. Pullen later became a distnguished
academic librarian.
25 The citatons of the studies are as follows: Amendment of the Consttuton by the Conventon Method Under Artcle V (American Bar
Assn, 1974); John M. Harmon, Consttutonal Conventon: Limitaton of Power to Propose Amendments to the Consttuton, 3 Op. Off.
Legal Counsel 390 (1979); Russell Caplan, Consttutonal Brinksmanship (Oxford University Press, 1988).
26 The studies by the author of this Handbook are available at htp://consttuton.i2i.org/artcles-books-on-the-consttuton-by-rob-
natelson/ (second topic). The Rappaport study is Michael B. Rappaport, The Consttutonality of a Limited Conventon: An Originalist
Analysis, 28 Const. Comment. 53 (2012).
40

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