How to Count to Thirty-Four: The Constitutional Case for a Constitutional Convention
Paulsen, Michael Stokes, Harvard Journal of Law & Public Policy
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. …