How to count to thirty-four: the constitutional case for a constitutional convention.

• Author: Paulsen, Michael Stokes

INTRODUCTION

Thirty-four is a magic number. A mathematician might explain that thirty-four is the smallest whole number greater than two-thirds of fifty. A political scientist, or a first grader, might explain that fifty has been the number of states in the United States since 1959. A constitutional law professor would note that thirty-four--the smallest whole number greater than two-thirds of fifty--is therefore the number of state legislatures that, under Article V of the Constitution, must have asked Congress to call a convention in order to trigger Congress's constitutional duty to call such a convention.

The basics are familiar to all: Article V provides that amendments to the Constitution may be proposed either by two-thirds vote of both houses of Congress or by "a Convention for proposing Amendments." (1) The latter method was designed as an alternative permitting the people to circumvent possible congressional intransigence in proposing needed constitutional reforms--perhaps including such things as reforms limiting national government power, something that Congress as an institution might not be inclined to propose. The former method has been employed, successfully, twenty-seven times--the significance of the twenty-seventh such occasion will become important to a proposition I advance later in this Essay. (2) The latter method--the convention route--has never successfully been employed. Yet.

Article V provides that, "on the Application of the Legislatures of two thirds of the several States," Congress "shall" call such a convention. (3) The obligation of Congress to call a convention, once the legislatures of two thirds of the states have asked for one, is constitutionally mandatory; it is not committed to Congress's discretionary judgment. Congress has no choice in the matter. It has a nondiscretionary ministerial duty to call a constitutional convention when the magic number has been reached. This raises some truly fascinating collateral constitutional questions: May a federal court order Congress to call a convention if Congress refuses to do so, and who would have standing to bring such an extraordinary lawsuit? Where and when would such a convention meet and what rules would govern its proceedings? Does Congress have any legislative power in this regard, incidental to its duty simply to call a convention?

These questions have ready answers, and I will address them, however briefly, at the end of this Essay. But I want to focus here on the most important, logically prior, issue: Under precisely what circumstances does Congress have a duty to call a constitutional convention?

In this Essay, I take up the question of "How to Count to Thirty-four"--constitutionally--so as to trigger the obligation of Congress under Article V to call a constitutional convention for considering amendments. Thirty-four what? What counts as a valid constitutional convention application? What happens when a state has submitted multiple convention applications, some valid and some invalid? Thirty-four when? Can constitutional convention applications be cumulated over time? Thirty-four says who? Who judges whether a particular convention application is valid and what the counting rules are?

The big question of when Congress has a duty to call a constitutional convention can be broken down into several smaller ones, each one intriguing and important in its own right (and providing the organizational structure for this Essay):

First: The "Limited" Convention Question. Can there be such a thing as a "limited" constitutional convention--that is, a convention limited to the consideration and proposal of amendments only of a certain prescribed text or on a certain prescribed subject? The answer is no, as I will explain presently. Though, as I will also explain, less turns on this than may meet the eye, because everyone agrees that there certainly may be a general, unrestricted amendment-subject convention.

Second: How Should One "Count," and Cumulate, SubjectSpecific Applications? If a constitutional convention may not properly be limited in what it chooses to propose, what is one to make of state legislatures' convention applications that specify a particular subject for amendments? Are they valid or invalid? Can they count toward the number needed for a constitutionally proper, general convention? Interestingly, this question arises even if a convention could be limited: Everybody acknowledges that a convention may be unrestricted. (It is only the notion of a limited convention that is constitutionally questionable.) Thus, subject-specific applications might well count toward the two-thirds of states needed to apply for a "general" convention, whether or not they could validly count toward a limited convention. The answer here is that some such applications count as valid applications for a general constitutional convention and some of them do not count. It all depends, naturally enough, on what the applications actually say.

Third: The Question of Multiple Applications. Granting that some subject-specific applications for conventions are invalid (or valid only toward the total needed for a limited constitutional convention, if such a thing were possible), what is one to make of multiple state applications, some of which are invalid and some of which are not? The answer, I submit, again depends on what the applications say. Some invalid applications operate to rescind all prior valid applications. But most would leave prior valid applications in place.

Fourth: The Question of Cumulation over Time. Can valid, un-repealed applications for an unrestricted constitutional convention be cumulated over time and across subjects? The answer to this question is a simple, straightforward yes. And that is where the interesting case of the Twenty-seventh Amendment, concerning congressional pay raises, comes into play. (4) That amendment was proposed in 1789 and ratified in 1992. If the Twenty-seventh Amendment is valid--and I believe it is--it is because an amendment proposal, if not rescinded or extinguished, can live on until ratified. There is no reason a state's constitutional convention application, if not rescinded or extinguished, cannot do likewise.

The answers to these four questions about the meaning and application of Article V as a matter of law suggest a fifth, punchline question of fact: Has anyone ever taken the trouble to gather all the constitutional convention applications, look at them all, apply the appropriate counting rules, add them up, and see what the answer is? The answer is yes: I did so, with the help of an intrepid research assistant, when I was a young pup of a law professor, and published the results in 1993 in a widely-ignored article in the Yale Law Journal. (5) I returned to the issue again in the fall of 2010 and, with the help of a small cadre of research assistants and librarians at the University of St. Thomas School of Law, updated the 1993 research conclusions. Others have done their own counts, but with lots of errors, duplications, and omissions, and often applying manifestly unsound counting rules. So, applying the appropriate counting rules, have enough states submitted applications for an unrestricted convention so as to trigger Congress's constitutional obligation to call one? I will save my dramatic, earth-shaking, heart-pounding, keep-you-on-the-edge-of-your-seat conclusions for the end of this Essay.

1. QUESTION ONE: CAN THERE BE SUCH A THING AS A LIMITED CONSTITUTIONAL CONVENTION.'?

   A repeated infatuation of would-be constitutional reformers is the idea that a constitutional convention could be convened to consider one specific topic or proposal--perhaps even specific language--only. The convention could deliberate on proposals only concerning a certain topic, or perhaps could not deliberate at all but merely serve as a pass-through for proposing language for a specific amendment agreed to in advance by identically worded state applications for a convention. The object seems to be that the "Convention for proposing Amendments" not be enabled to propose much of anything of its own accord, but be tightly limited by constraints imposed by the applications submitted by state legislatures.

   Much has been written on the subject of whether such an arrangement is consistent with the text, structure, logic, and historical intention of Article V. (I entered the fray eighteen years ago.) (6) I believe the correct answer is that Article V does not contemplate "limited" constitutional conventions, in the sense that limitations on what the convention is allowed to propose may be imposed from outside the convention either by the Congress in calling the convention or by the state legislatures that have applied for one.

   I will be brief on this point, both because that ground has been so thoroughly plowed and because--in the end--the point ends up being of surprisingly little direct relevance to my overall proposition. For even if Article V permits externally "limited" conventions for proposing amendments, it certainly also permits unlimited conventions. Thus, the real issue, as we shall see, ends up being whether an application that might appear to contemplate a convention devoted to a particular topic might nonetheless also count toward the total needed for a general, unlimited convention. (There are not enough state applications for a limited convention on any particular topic or proposal to meet Article V's threshold for calling such a convention, even if that were one possible correct counting rule for Congress to employ in deciding whether it was obliged to call a convention.) Still, the question of whether Article V permits limited constitutional conventions remains an interesting one, and its answer (or potential range of answers) might supply a background principle against which to construe state applications identifying a particular topic for amendments. (Then again, as we shall see...