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02/28/2013

Indiana's Imminent Application for a Limited Convention
Mike Rappaport

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.