Does Article V Restrict the States to Calling Unlimited Conventions Only? – A Letter to a Colleague

13 Pages Posted: 12 Jan 2012 Last revised: 29 Dec 2014

William W. Van Alstyne

Duke University School of Law; William & Mary Law School

Date Written: March 9, 1979

Abstract

From time to time, various state legislatures have adopted resolutions designed to require Congress to call a limited convention in which one or another possible amendments to the Constitution might be proposed. In 1967, thirty-two states, two short of the requisite two-thirds filed such resolutions requesting a convention for the purpose of considering an amendment to "overrule" the Supreme Court's principal reapportionment decisions. In 1971, Senator Ervin of North Carolina introduced a bill to provide guidelines to be followed upon a state call for a convention. This year, approximately twenty-eight states have adopted some kind of resolution for the purpose of considering an amendment to impose fiscal restraint upon the federal government-to require a "balanced budget. "

Curiously, the convention mode of proposing amendments remains completely untested - no such convention has ever been assembled. Yet the amending convention obviously is contemplated by article V of the Constitution: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress...."

Several scholars, including Professors Charles L. Black, Jr. and Bruce A. Ackerman, both of Yale Law School, have argued that unless the state legislative resolution reflects a desire to convoke a constitutional convention having the authority to propose an unlimited variety of fundamental changes in the Constitution, Congress should treat the state resolution as a nullity. Recently, Professor Ackerman sent Professor Van Alstyne a reprint of his New Republic editorial and asked Professor Van Alstyne whether he had "any thoughts on this. " The following is Professor Van Alstyne's reply.

Keywords: amendment

Suggested Citation

Van Alstyne, William W., Does Article V Restrict the States to Calling Unlimited Conventions Only? – A Letter to a Colleague (March 9, 1979). Duke Law Journal, Vol. January, No. 6, 1979; William & Mary Law School Research Paper No. 09-202. Available at SSRN: https://ssrn.com/abstract=1983224

William W. Van Alstyne (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

William & Mary Law School ( email )

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P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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