Indiana’s Imminent Application for a Limited Convention

Over at Balkinization, Gerard Magliocca writes that Indiana “is poised to pass a resolution petitioning for a national constitutional convention.”  The resolution calls for a limited convention — one that is “strictly confined to consideration of amendments concerning the limitation of the commerce and taxing powers of Congress.”  Moreover, the resolution states that at the convention each state should have one vote.

Like all applications for a convention — whether limited or not — the odds are against this one.  But you never know.  There is always a first time.  It is too bad that this aspect of our Constitution works so poorly.  For elaboration on this argument, see here.

Over the years, many scholars have argued that the Constitution does not recognize limited conventions, usually relying on originalist or textualist arguments.  But I think they are mistaken.  Here is the syllabus of my recent paper on the subject:

This article revisits the classic question of whether the Constitution allows limited conventions. The Constitution provides two methods for proposing constitutional amendments: the congressional proposal method and the convention method. Under the convention method, when two thirds of the state legislatures apply for a convention, the Congress is required to call for a “Convention for proposing Amendments.” An issue much debated over the years has been whether the state legislatures can apply for a limited convention – either a convention limited to proposing an amendment on a specific subject or, even more restrictively, a convention limited to deciding whether to propose a specifically worded amendment. A long line of leading constitutional scholars, such as Bruce Ackerman, Alexander Bickel, Charles Black, Walter Dellinger, Gerald Gunther, and Michael Paulsen, have argued that the Constitution does not authorize limited conventions.

In this article, I argue that the Constitution’s original meaning allows for both types of limited conventions. In making this argument, I supply the first rigorous account of how the original meaning of the constitutional text permits such limited conventions. In particular, I show, based on evidence from contemporary dictionaries, from other parts of the Constitution, from conventions existing at the time, and from other evidence of word usage, that the original meaning of the Constitution’s phrase a “Convention for proposing Amendments” includes both limited and unlimited conventions. I also show that the Constitution’s authorization of state legislatures to apply for a “Convention for proposing Amendments” allows them to apply for limited conventions. Finally, the article critiques the leading theories arguing for the contrary view, focusing on the work of Charles Black and Walter Dellinger.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. says

    Interesting can of worms to open!

    Madison was likely in such a hurry to propose his amendments in part because he did not want to take a chance on another convention. He knew precisely what such gatherings were capable of doing! Surely, as you note in your longer, very intriguing essay, Madison and Hamilton believed in the special exigency of the situation. Certainly they felt that prior violations had given the Philadelphia Convention justification to go beyond its instructions, but just as certainly their opponents did not feel this way. The Address of the Minority of the Pennsylvania Convention made this an explicit part of their argument. (See: http://oll.libertyfund.org/title/669/206202 )

    It seems to me that once you open up issues of ultimate sovereignty in this regard, questions of proposing and ratifying will hold little control over what is in the offing. One person’s set of mere amendments will be another’s radical alterations. I like your efforts to cabin the Philadelphia experience, but it raises some very interesting questions for originalism indeed! One has to have a taste for sailing in high winds.

  2. Devin Watkins says

    5 states open: Indiana, Missouri, Ohio, Texas and Wisconsin have outstanding applications for a convention to propose amendments, with no accompanying issue.

    2 states mostly open: Alabama, South Carolina have outstanding requests that imply other amendments may be considered.

    24 states with a proposed amendment (but not limited): Arkansas, California, Colorado, Connecticut, Delaware, Illinois, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Mexico, North Dakota, Pennsylvania, Rhode Island, South Dakota, Vermont, Virginia and Washington

    Total of 31 states with outstanding request for a convention.

    Indiana would make 32, and that would mean we were only 2 states away from a constitutional convention. Might we see the first one ever in our life-times?

  3. Devin Watkins says

    Ah nevermind I guess Indiana’s isnt open (or just suggesting a proposed amendment), but limited to only consitering that amendment.

  4. Brett Bellmore says

    I tend to think that, unless the states all call for a convention with identical language, Congress has enough wiggle room to refuse to hold one, on the basis that there’s no majority for a particular sort.

    I also suspect that if enough states call for a convention WITH identical language, Congress will probably refuse to hold one, anyway, even without wiggle room. Nothing’s in it for them, except losing their strangle hold over constitutional change.

  5. Devin Watkins says

    @Brett Bellmore
    Well at that point I suspect one of the states with an application would sue. Do you think the Supreme Court and the Congress will both refuse?

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