How to Count States’ Applications for an Article V Convention

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Published on: December 10, 2014

The issue of how to count the applications from the States is confused by the practice of States to apply for “limited conventions” to propose this specific amendment or that specific amendment.

So, how is Congress to count such applications? Does it need 34 applications all asking for a convention only to propose a Balanced Budget Amendment? Or may Congress combine applications for a convention only to propose a BBA with applications for a convention only to propose an amendment to repeal the First amendment?

Well, the Constitution doesn’t expressly say!

However, Article V delegates to Congress the power to “call” a convention – and Art. I, Sec. 8, last clause, delegates to Congress the power to make all laws necessary & proper to carry out its power to “call” the convention.

Since this power is delegated to CONGRESS – this is a “political question” which the supreme Court should refuse to decide. SCOTUS may not properly second guess how CONGRESS exercises a power delegated to it alone.

This is something a person is not likely to know unless he is a litigation attorney: But there are several doctrines of “judicial abstention” which federal courts have historically invoked to decline to decide an issue. One such doctrine is that federal courts won’t hear cases involving “political” questions.

So, since the power to “call” a convention is delegated to Congress alone, and since Congress alone has the power to make the laws to carry out its power to call the convention; it is a POLITICAL QUESTION for Congress alone to decide.

The above is first year constitutional law stuff.

Contrast the above with the situation where SCOTUS overturns, as unconstitutional, a law made by Congress. The Constitution doesn’t delegate to Congress the power to make unconstitutional laws, so SCOTUS properly acts as a check on Congress’ usurpations when it overturns unconstitutional laws.

Of course, we have no idea whether SCOTUS would still adhere to the principle of “judicial restraint” which in the past has caused it to decline to meddle in “political questions.”

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