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Addition and Subtraction in Article V Counting

Yesterday Representative Duncan Hunter (R-Ca.) sent a letter to the Speaker asking for the House to determine how many states have applied for an Article V convention to propose a balanced budget amendment. Hunter’s letter was prompted by Michigan’s passage last week of a resolution applying for such a convention. With the addition of Michigan, 34 states have applied for a convention limited to this purpose at one point in time. If one counts all of these applications, Congress would be obligated to call a convention under Article V.

Most observers, however, would not count all of these applications. That’s because a number of states have rescinded after initially applying for a convention. If these rescissions are valid, then only 23 states currently have applied for a convention, or, in Professor Michael Paulsen’s phrase, have their lights “on” for an Article V convention. Another 11 states would have to apply in order to trigger a convention call by Congress.

Although the question of whether states may rescind their applications is a legal question, I am not sure how much lawyers can add to common sense here. To prohibit state legislatures from rescinding their applications would mean that any applying state would be bound forever (since the Constitution provides no expiration date on applications). If this were the case, no sensible state would apply for a convention except simultaneously with the requisite number of other states needed to trigger a convention call; to apply “early” would leave all of the discretion in the hands of the non-applying states. This seems like an exceedingly odd result, to say the least. And general legal principles, such as the contract law doctrine of offer and acceptance, would tend to support the conclusion that states may withdraw their applications until Congress actually calls the convention (or, perhaps, until the magic two-thirds number is reached).

Note, however, that if Congress wanted to call a convention today (which it most certainly does not), it could easily do so. First, Congress might disagree with my (admittedly cursory) analysis and conclude that the requisite number of states have in fact applied for a convention. Second, Congress might find that it has discretionary authority to call a convention under Article V even under circumstances when it is not compelled to do so. Article V, after all, does not say anything about when Congress may call a convention, only when it must.

Indeed, there would seem to be little doubt that Congress, or for that matter the states themselves, may call a convention even if the technical requirements of Article V are not (or arguably not) satisfied. The Washington Peace Conference of 1861, called to consider potential constitutional amendments to avoid civil war, was not initiated by Article V applications. If a convention does not qualify under Article V, however, it presumably could not propose amendments directly to the states, but only make recommendations to Congress, which would then have to use its own Article V power of proposal. As Professor Natelson explains, this is what happened in the case of the Washington Peace Conference.

3 Comments

  1. Seth Tillman says:

    Mike,

    I think the question of the validity of rescissions of state ratifications of propsed federal constitutional amendments is closer than Professor Paulsen or you acknowledge.

    The Constitution speaks to ratifications, not rescissions. Your analogy to contract law is not convincing. Article V has no federal or state or foreign precursors (as far as I know). It is not clear why common law contract law provides appropriate background principles.

    Also, any theory permitting rescission distinguishes ratification by state legislative action from ratification by state conventions. The latter cannot rescind — such bodies close down and disperse after completing their business (agreeing or failing to agree to proposed amendments). But state legislatures are “continuing bodies” (eeww!, how I hate that phrase). It is difficult to believe that one process allows for rescission, but the other process does not. Yet that would seem to follow from Paulsen’s and your view — would it not? That is an odd result — very odd — it is hardly obvious from the text, and there is no record that it was intended by the Framers or understood by the public circa 1788.

    The better view (I believe) is that ratification is a one way street. A state legislature can opt-in, but it cannot opt-out — as a matter of original public meaning. I believe the same goes for congressional proposition of proposed amendments — once Congress sends the proposal to the States — neither that Congress nor a latter Congress can rescind. I should also point out that early acting states have a reliance interest in congressional proposals. Why should such early acting states ratify if Congress can rescind any time prior to reaching 3/4 of the states? Likewise, later acting states have a reliance interest in earlier ratifications. A state legislature’s willingness to act on a proposal may be contingent on the fact that its decision moves the process along. That reliance interest is threatened by allowing early to act states to rescind.

    I would be interested in your thoughts. Perhaps, you could invite Professor Paulsen, Professor Natelson, Professor Chafetz, and/or Professor Bruhl to chime in?

    Sincerely,

    Seth

    PS: Professor Bruhl and I discuss some of these issues and other similar issues in the papers listed below. And I think Professor Bruhl may also address similar issues in some of his post-2007 publications (particularly those touching on the continuity of the Senate and its rules).

    Seth Barrett Tillman, Noncontemporaneous Lawmaking: Can the 110th Senate Enact a Bill Passed by the 109th House?, 16 CORNELL J.L. & PUB. POL’Y 331 (2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=505822.

    Aaron-Andrew P. Bruhl, Response, Against Mix-and-Match Lawmaking, 16 CORNELL J.L. & PUB. POL’Y 349 (2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=932574.

    Seth Barrett Tillman, Defending the (Not So) Indefensible: A Reply to Professor Aaron-Andrew P. Bruhl, 16 CORNELL J.L. & PUB. POL’Y 363 (2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=956155.

  2. Rob Natelson says:

    Thanks to Mike Stern for the cite, and to Seth Tillman for the suggestion.

    One need not rely on the private law analogies that Mike relies on, but the fact is that the Constitution was written by people for whom those analogies were very powerful. They probably would have considered an “offer and acceptance” analogy as valid.

    The reasons one need not rely on such analogies, though, are several: First, the right to rescind better fits the policy of simultaneous consensus. Second, it better fits public law analogies (i.e., the right of legislatures to repeal prior acts and the inability of past legislatures to bind future ones).

    And third, in interpreting Article V, the courts have repeatedly resorted to historical practice as controlling. The practice as to rescissions, at least of calls and applications, is to allow rescission. During the Founding Era, Massachusetts rescinded an application/call (before Article V, the terms were largely interchangeable) for a regional convention. See http://constitution.i2i.org/files/2013/09/Conventions-FLR.pdf. And since the Founding Era, dozens of states have rescinded applications and, presumably, both the states and Congress have relied on those rescissions. If they had not, a BBA convention probably would have been callable well before now. Also, for a holding that a state can rescind a ratification, see Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981), judgment vacated as moot sub nom. Carmen v. Idaho, 459 U.S. 809 (1982).

  3. Seth and Rob- thanks very much for your comments. As I indicate in the post, I haven’t tried to research or analyze all the legal arguments that might be made for or against rescission. I merely state my gut reaction, which is that a rule prohibiting rescission defies common sense and would be a trap for the unwary. Perhaps further reflection would convince me otherwise, but this is my going in position. As Rob points out, both private and public law principles buttress this conclusion, and so does historical practice.

    So what’s on the other side? Seth suggests that the validity of rescission is a close question in the context of ratification. Maybe so, but it seems to me that there are distinct issues in that context. If Congress can set a time limit for ratification, it makes some sense to say that it could also prohibit rescission within that time period. As Seth indicates, this would create some symmetry between ratification by state legislature and convention (since in the latter case rescission would be extremely difficult, if not impossible). Even in the case of ratification, though, my inclination is to think rescission permissible unless explicitly prohibited by Congress. But I have thought about this even less than rescission of applications.

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