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Legislative Instructions and the Article V Convention

In thinking about the question of whether an Article V convention may be limited, it is helpful to distinguish between two types of limitations. The first goes to a limitation on the authority of the convention itself—this limitation would hold that proposed amendments outside the scope of the convention’s authority (as established by the states in their applications) are invalid and therefore without legal effect. This might be termed a corporate limitation.

The debate over the “runaway convention” has focused almost entirely on whether an Article V convention may be subject to such a corporate limitation. If such a limitation is permissible, then various constitutional actors, such as Congress, the courts, and the state legislatures, may be permitted or required to declare an out-of-scope amendment invalid. This would be the basis, for example, of a congressional rule that would prohibit the submission for ratification of an out-of-scope amendment.

But there is a second type of limitation that relates not to the authority of the Article V convention as a body, but to the authority of individual state delegations. This might be termed a constituent limitation. The basis of this limitation would be the authority of state legislatures to instruct their delegations as to what matters they are permitted to consider.

Interestingly, there has been little debate over the power of state legislatures to instruct their delegates to a convention. As noted in my last post, even Professor Paulsen, one of the leading proponents of the unlimited convention theory, acknowledges that convention delegates “might well operate to some extent” pursuant to instructions. Moreover, there seems to be little question that instructing delegates was the common if not invariable practice of the founding era. As Professor Rob Natelson, who has written extensively on the Article V convention process, observes: “As in all prior federal conventions, delegates to a convention for proposing amendments are representatives of the state legislatures, and therefore subject to instructions.” R. Natelson, Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693, 747 (Spring 2011).

Denying the power of state legislatures to instruct their convention delegates would seem to be extremely difficult. After all, it was a common, if controversial, practice for state legislatures to instruct their U.S. Senators in the founding era and for many years afterward. See C. Terranova, The Constitutional Life of Legislative Instructions in America, 84 N.Y. L. Rev. 1331, 1332 (Nov. 2009). Indeed, “[f]rom the beginning, state legislatures instructed their senators to propose or support constitutional amendments.” J. Bybee, Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment, 91 Nw. U. L. Rev. 500, 565 (1996-97).

Although the power of state legislatures to instruct senators was vigorously debated and never conclusively resolved, it would be much more difficult to argue that state legislatures lack the power to instruct convention delegates. After all, none of the indicia of senatorial independence (namely the fact that the Constitution provides specific, and presumably exclusive, criteria for their qualifications, term limits and procedures for removal) apply in the case of convention delegates. There are thus no grounds to infer that the Framers intended to deprive state legislatures of their power to instruct convention delegates.

Of course, there no doubt will be debate over exactly how far state legislatures may go in instructing delegates, as well as how such instructions may be enforced (hence Paulsen’s reference to delegates operating “to some extent” pursuant to instructions). Some may argue that legislatures may give general instructions (ie, confine your deliberations to this subject), but not instruct on specific wording or votes. But I would question whether such a distinction can be drawn in either practice or principle. After all, an instruction to confine deliberations to a particular subject is effectively an instruction to refuse to consider or support particular amendments which are deemed to be outside that subject. Nor does this distinction appear to comport with the general history of legislative instructions. See Terranova, supra, at 1331 (“Under the Articles of Confederation, state legislatures often formally instructed their federal representatives on particular votes, continuing a practice common in England and the American colonies”) (emphasis added).

The one exception would be whether the legislatures may instruct their delegates to vote to propose a particular amendment. This can be distinguished in practice and principle from other votes, and it may be argued that delegates retain the discretion to refuse to vote for any amendment at all. But if the legislatures have the power of instruction, it must extend to instructing delegates to vote against particular amendments (or voting against all amendments with specified exception(s)).

One Comment

  1. A simple reading of Article V – with NO CONSTRUCTION – provides the answer. All else are just OPINIONS.

    Contact Bill Walker at FOAVC.org – he is more expert on Article V than others; he sued Congress twice in the Supreme Court to force them to call a convention as mandated by Article V of the U.S. Constitution.

    The Count: 750+ from 49 of the 50 States.

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