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 That’s because a number of states have rescinded after initially applying for a convention.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.