If two-thirds of the states petition for a constitutional convention to propose a balanced budget amendment, can that convention legally be limited to only that one amendment?

Plain-English summary

A member of the Maryland House of Delegates asked the Attorney General several procedural questions about the never-used Article V process for calling a national constitutional convention to propose amendments to the U.S. Constitution, prompted by Maryland's own petition (along with roughly two-thirds of the states) for a convention limited to proposing a balanced budget amendment.

The Attorney General concluded that Congress, not the convention itself or any state, would decide how delegates to a national convention are chosen and would also decide whether a proposed amendment gets ratified by state legislatures or state ratifying conventions, while each state would likely control how its own ratifying convention selects delegates. On the central question of whether a state's petition could keep a convention limited to a single subject, the opinion concluded that the validity of a single-amendment petition like Maryland's was itself questionable under Article V, and that even if such a petition were valid, it would not legally bind a national convention, or Maryland's own delegates, to consider only the balanced budget amendment once the convention actually convened.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could Maryland's 1975 petition for a constitutional convention have legally forced the convention to only consider a balanced budget amendment?
No, according to this opinion. The Attorney General concluded that the validity of a petition limited to a single proposed amendment was itself questionable under Article V, and that even a valid limited petition would not bind a national convention, once called, to propose only that one amendment.

If a national convention were called and proposed several amendments, would Maryland's legislature have been required to vote only on the balanced budget amendment?
No. The opinion concluded that Maryland's limited petition would not have bound the General Assembly or a state ratifying convention to consider only the single amendment named in the petition, because one legislature cannot bind a later one, and the petition itself was described as a nonbinding "formal request" to Congress rather than a limitation with legal force.

Who would decide how delegates to a national constitutional convention or state ratifying conventions get chosen?
The opinion concluded that Congress alone has authority to determine the method for selecting delegates to a national convention, since Article V is otherwise silent on the point, while the limited historical precedent from the 21st Amendment ratification suggested that each state would determine how delegates to its own ratifying convention are chosen.

Background and statutory framework

Article V of the U.S. Constitution provides two paths for amending the Constitution: proposal by two-thirds of both houses of Congress, or proposal by a convention called by Congress on the application of two-thirds of the states, with ratification in either case by three-fourths of the states, acting through their legislatures or through state conventions, whichever method Congress specifies. Every amendment adopted to that point had come through the congressional proposal route; no Article V convention had ever been called, leaving many procedural questions, including how convention delegates would be selected, unresolved by the constitutional text itself.

The opinion drew on historical precedent from the one prior use of the state-convention ratification method, the 21st Amendment repealing Prohibition, where each state independently determined its own ratifying convention's composition, and on inconsistent state court decisions from that era addressing whether states or Congress controlled that process. On the "runaway convention" question, the opinion incorporated the Attorney General's own 1983 legislative testimony urging Maryland to withdraw its convention petition, which canvassed three competing theories of how a convention might exceed the limits state legislatures tried to place on it, from acting as an unconstrained "revolutionary" body akin to the 1787 constitutional convention, to being bound only by broad subject-matter limits rather than the exact amendments named in state petitions, concluding that no theory reliably confined a convention to the single subject that prompted it.

Citations

Statutes:

• Article V of the United States Constitution (procedures for proposing and ratifying constitutional amendments)
• S. 40, 99th Cong., 1st Sess. (1985) (proposed federal legislation on convention delegate selection)
• Twenty-first Amendment to the United States Constitution (Prohibition repeal, the one historical instance of the state-convention ratification method)

Cases:

• Reynolds v. Sims, 377 U.S. 533 (1964)
• In re Opinions of the Justices, 148 So. 107, 110 (Ala. 1933)
• State ex rel. Donnelly v. Myers, 186 N.E. 918 (Ohio 1933)
• State ex rel. Tate v. Sevier, 62 S.W.2d 895, 898 (Mo. 1933)
• State v. Fisher, 204 Md. 307, 315 (1954)
• Montgomery County v. Bigelow, 196 Md. 413, 423 (1950)
• Sproule v. Fredericks, 69 Miss. 898, 904 (1892)
• McMullen v. Hodge, 5 Tex. 34, 73 (1849)
• Board of Supervisors of Anne Arundel County v. Attorney General, 246 Md. 417 (1967)
• Pryor v. Lowe, 523 S.W.2d 199 (1975)
• Snow v. Memphis, 527 S.W.2d 55

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1986/Volume71_1986.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CONSTITUTIONAL LAW

Federal Constitutional Amendments - Procedural Issues Concerning National Constitutional Convention and State Ratification Methods.

February 7, 1986

The Honorable Anne S. Perkins
Maryland House of Delegates

You have requested our opinion on several questions about procedures for amending the United States Constitution, including the relationship between the amendment procedures in Article V of the U.S. Constitution and Maryland's petition for a national constitutional convention to propose a balanced budget amendment. Specifically, your questions are:

1. How would the selection of delegates to a national constitutional convention be determined?

2. (a) If a national constitutional convention is called, will the determination of whether state legislatures or special state constitutional conventions are to ratify proposed amendments be made by Congress or by the national convention?
   (b) How would the selection of delegates to state ratifying conventions be determined?

3. (a) Is Maryland's petition for a national constitutional convention valid, inasmuch as it requests a convention for the purpose of proposing only a single amendment?
   (b) If Maryland's petition is valid, will it bind all delegates to the national constitutional convention so that they may consider only proposals for a balanced budget amendment?
   (c) If Maryland's petition is valid but is not binding on all convention delegates, will it bind Maryland delegates to the national constitutional convention so that they may vote only on proposals before the convention for a balanced budget amendment?
   (d) If Maryland's petition is valid, would it bind Members of the Maryland General Assembly or delegates to a state constitutional convention so that they may consider only a balanced budget amendment?

For the reasons stated below, we conclude as follows:

1. Congress would determine the method by which delegates to a national constitutional convention would be chosen.

2. (a) Congress alone is empowered to determine the mode of ratification for every proposed constitutional amendment.
   (b) The limited precedent suggests that each state would determine the delegate selection method for its own ratifying convention.

3. (a) The validity of Maryland's petition for a constitutional convention is questionable.
   (b) Maryland's and other states' limited petitions would not bind a national constitutional convention to the specific proposals in the petitions.
   (c) Maryland's delegates to a national convention would not be bound to vote only on the single amendment that was the object of Maryland's petition for a convention.
   (d) If the national convention proposed more than one amendment, the General Assembly or a State convention would not be bound to vote only on the single amendment that was the object of Maryland's petition for a convention.

I
Constitutional Provision on Amendments

Article V of the United States Constitution provides, in pertinent part, that:

"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."

Until now, every amendment to the Constitution has been proposed by Congress. However, nearly two-thirds of the states, including Maryland, have petitioned for a national convention to propose a balanced budget amendment. See generally 68 Opinions of the Attorney General 157 (1983). Your questions relate to various procedural issues that would arise should such a national convention be called.

II
National Convention Delegate Selection

Article V itself is entirely silent on the method by which delegates to a national constitutional convention are to be chosen. Further, the framers of the Constitution did not address this point during their deliberations on Article V.

For the last two decades, members of Congress have attempted to resolve this ambiguity by proposing procedural legislation that would set forth, among other things, precisely how delegates to a convention would be chosen. Although such legislation has at least once passed the United States Senate, it has never received favorable consideration in the House of Representatives. Under the proposed legislation presently before the Congress, each state would elect two at-large delegates and one delegate from each congressional district. S. 40, 99th Cong., 1st Sess. (1985).1 Indeed, even if a convention were to be called without general legislation such as S. 40 having been previously enacted, Congress nevertheless would have authority to prescribe a procedure for the selection of delegates to that convention.

However, questions might be raised if the procedure prescribed by Congress appeared to be inconsistent with established tenets of constitutional law. For example, the procedure proposed in S. 40 might be challenged on the grounds that allotting every state two delegates, regardless of population, violates the one-person-one-vote principle laid down by the U.S. Supreme Court in Reynolds v. Sims, 377 U.S. 533 (1964).2

III
Ratification Procedure

A. Choice of method

We conclude that Congress is empowered to determine whether an amendment proposed by a national constitutional convention would be ratified by state legislatures or state conventions. The pertinent language of Article V, "as the one or the other Mode of Ratification may be proposed by the Congress", assigns this responsibility to Congress and Congress alone.

The word "may" does not suggest that any entity other than Congress is authorized to determine the "Mode of Ratification" for proposed amendments. Rather, in its grammatical context, the word "may" merely serves to emphasize Congress' discretion in determining which of the two modes is to be used. Historically, Congress has determined the mode of ratification for each of the constitutional amendments proposed to date, and no one has suggested that any other entity could do so.

B. State convention delegate selection

Although Article V plainly permits Congress to decide that a proposed amendment is to be ratified by state ratifying conventions, it is entirely silent on the method by which delegates to those conventions are to be chosen. Further, the framers of the Constitution did not address this point during their deliberations on Article V.

Because Congress alone is authorized by Article V to determine the mode of ratification for amendments, we believe that a national convention would not have authority to determine the number and method of selection of delegates to state ratifying conventions. See Part III A above.

In 1933, when Congress proposed an amendment to repeal Prohibition, it required that the mode of ratification be by state conventions.3 In its resolution proposing what became the 21st Amendment, Congress did not instruct the states as to how delegates to state conventions were to be chosen. Each state determined the composition of its convention pursuant to its own constitution and laws.

It is not clear whether Congress could have done otherwise. State court decisions involving the ratifying conventions for the 21st Amendment are inconsistent on this issue. The Supreme Court of Alabama, in an advisory opinion to the Governor of Alabama, determined that the U.S. Constitution left it "to the sovereign state to frame its own laws" relating to ratifying conventions. In re Opinions of the Justices, 148 So. 107, 110 (Ala. 1933). On the other hand, the Supreme Court of Ohio concluded that determining how a ratifying convention should be chosen is a "federal function" under the U.S. Constitution, but that "in the absence of action by the Congress," the state's legislature can perform this function. State ex rel. Donnelly v. Myers, 186 N.E. 918 (Ohio 1933). See also State ex rel. Tate v. Sevier, 62 S.W.2d 895, 898 (Mo. 1933) (adopting reasoning of Donnelly).4

In sum, we regard it as likely that each state would determine the selection method for delegates to its own ratifying convention.

IV
"Single Amendment" Petition, Validity and Effect

A. Validity

You ask whether a state's petition for a constitutional convention is valid at all, that is, to be counted against the "two thirds of the several States" requirement in Article V, if, like Maryland's petition, it explicitly seeks a convention limited to proposing one amendment.

Yale law professor Charles Black argues forcefully that, because Article V provides for a convention to propose "amendments" to the Constitution, a state's petition is valid only if it calls for a convention that can propose whatever amendments to the constitution that it chooses. See Hearings on S. 3, S. 520 and S. 1710, Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 96th Cong., 1st Sess. 183-89 (1979) ("Hearings") (testimony of Professor Black). Professor Black contends that the framers of the Constitution intended the convention procedure in Article V to be used only when comprehensive revisions to the Constitution are needed; piecemeal revisions, such the adoption of a balanced budget amendment, are to be accomplished through congressional proposal.

Professor Black's position is, however, very controversial. Other commentators argue that the framers intended the two amending procedures set out in Article V to be co-equal, each available whether the proposed revision is piecemeal or comprehensive. See Hearings at 77-165 (1974) (Special Report of the American Bar Association). Hence, under this view, a petition limited to a single amendment is valid.

This debate between authoritative commentators over the basic purposes of an Article V convention highlights the great uncertainty that surrounds the unprecedented convention method of amending the Constitution. We can only conclude that, given this uncertainty, the validity of Maryland's petition, limited as it is to a specific proposed amendment, is questionable.

B. Effects

Your remaining questions deal with possible limitations on the agenda of a national constitutional convention, once it comes into existence.

First, you raise the basic issue of whether state legislatures can, in their petitions for a convention, limit it to consideration of a single proposed amendment to the Constitution. For the reasons stated in the enclosed testimony of the Attorney General, we conclude that state legislatures may not so limit a convention. Statement of Stephen H. Sachs, Attorney General, Before the Senate Constitutional and Public Law Committee in Support of SJR 17, at 49-52 (March 9, 1983).

We noted that "[t]here are three possible theories under which a convention could 'run away' from limits sought to be placed upon it by legislatures or Congress": 1) it could act as a "'revolutionary' convention ..., free to do essentially as it pleases," regardless of existing constitutional constraints on the amendment process; 2) it could view itself as free "to propose any amendments it chose regardless of limitations sought to be imposed by Congress or the state legislatures"; or 3) it could view itself as limited to the subject matter of the state petitions, but not limited "to considering only the precise amendment or amendments proposed in the state petitions." Id. at 5-7. Given these various possibilities, we concluded that, notwithstanding Maryland's and other states' limited petitions, "there is a substantial risk that a constitutional convention called to propose a balanced budget amendment would also propose other amendments to the Constitution." Id. at 52.

Second, you ask whether the General Assembly's limited petition would bind the State's delegates to a national convention to vote only on a balanced budget amendment. Because the convention as a whole would be independent of the state legislatures' purported limitations, so too would each individual delegate. We find no authority for the proposition that a state may limit the participation of its delegates to a convention. Once a convention convenes, its delegates are subject to the convention's, not their states', rules and authority.

Finally, we also find no support for the proposition that Maryland's limited petition would effectively prevent the General Assembly or a State ratifying convention from considering whatever amendments are proposed by a national convention. It is a well-established principle of law that one General Assembly may not, by its legislative acts, bind its successor. State v. Fisher, 204 Md. 307, 315 (1954); Montgomery County v. Bigelow, 196 Md. 413, 423 (1950). Further, we have previously concluded that such a petition is merely a "formal request" to Congress, which in no way binds the legislature that issued it. 68 Opinions of the Attorney General 157, 160-61 (1983). Because the petition is not binding, the General Assembly may withdraw the petition. Similarly, the body that ultimately will consider whether to ratify or reject proposed amendments is free to carry out its authority fully, notwithstanding the limitations in the petition.

IV
Conclusion

In summary, it is our opinion that:

1. Congress would determine the method by which delegates to a national constitutional convention would be chosen.

2. (a) Congress alone is empowered to determine the mode of ratification for every proposed constitutional amendment.
   (b) The limited precedent suggests that each state would determine the delegate selection method for its own ratifying convention.

3. (a) The validity of Maryland's petition for a constitutional convention is questionable.
   (b) Maryland's and other states' limited petitions would not bind a national constitutional convention to the specific proposals in the petitions.
   (c) Maryland's delegates to a national convention would not be bound to vote only on the single amendment that was the object of Maryland's petition for a convention.
   (d) If the national convention proposed more than one amendment, the General Assembly or a State convention would not be bound to vote only on the single amendment that was the object of Maryland's petition for a convention.

Stephen H. Sachs
Attorney General of Maryland
Vincent DoMarco
Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

STATEMENT OF STEPHEN H. SACHS
ATTORNEY GENERAL OF MARYLAND

In Support of SJR 17
March 9, 1983

Thank you for giving me this opportunity to speak on SJR 17, a resolution to withdraw Maryland's 1975 petition to Congress to call a constitutional convention for a balanced budget amendment. I strongly support the passage of this resolution.

Maryland's 1975 petition was passed pursuant to Article V of the United States Constitution, which provides that Congress must call a constitutional convention upon the application of two-thirds of the states. Under Article V, such a convention could propose constitutional amendments which would then have to be ratified by three-fourths of the states. This procedure is an alternative to the Congressionally-initiated amendment process where amendments are proposed by a two-thirds vote of both Houses of Congress for ratification by three-fourths of the states.

Before addressing the merits of the resolution to withdraw Maryland's 1975 petition, I would like to restate my position that a withdrawal of a petition for a constitutional convention is constitutional. As you know, I concluded in a 1979 opinion that a state could not rescind a prior ratification of a proposed constitutional amendment. But I believe that there is a "crucial difference" between a ratification of an amendment and a petition for a constitutional convention. While the former is a "final act" of a sovereign body which cannot be undone, the latter is merely a "formal request" to Congress which can be withdrawn. The overwhelming weight of legal authority on this issue supports my position. I have attached a copy of my letter to Senator Dorman which fully sets forth my position and the authority behind it.

I urge you to recommend passage of SJR 17 because, regardless of the merits of the balanced budget amendment itself, calling a constitutional convention to adopt it would create a substantial risk of a "runaway" convention which undermines basic constitutional protections. And, because thirty-one of the necessary thirty-four states have already petitioned for a convention, a convention may well be called, and soon, unless action is taken to withdraw petitions.

One of the most important features of our Constitution is the protection it gives through the Bill of Rights and the Fourteenth Amendment to individuals and to groups from a tyrannical majority of the moment. As we have occasionally learned through bitter experience, no nation, including this one, is immune from the curse of the many seeking to oppress the few. That is why we must do everything we can to preserve the rights and liberties guaranteed by the Constitution, and why we must avoid unnecessary risks to those rights and liberties.

One of the most effective protections we have against attempts to curtail our constitutional rights is the fact that amending the Constitution is a relatively difficult process. I believe, however, that this protection would be greatly eroded if, instead of utilizing the traditional Congressionally-initiated amendment process, we invoked, for the first time in our history, the provision in Article V of the Constitution for a national constitutional convention. Calling such a convention is a radical and unprecedented step we should not take.

Up until now, every amendment added to the Constitution was first approved by two-thirds of both the Senate and House of Representatives and then ratified by three-fourths of the states. Representatives of not only a majority, but of a substantial super-majority of the American people agreed to the amendments before they were adopted. It is, I believe, not coincidental that none of these amendments permanently curtailed constitutional rights or liberties. The passing passions which may compel a temporary majority of Americans to limit basic rights or liberties are unlikely to sway the super-majority necessary to amend the Constitution by this traditional method.

The untried constitutional convention method of amending the constitution offers no similar guarantee against a temporarily "tyrannical" majority. In the first place, it is possible under this method for an amendment to be adopted by the concurrence of persons representing a bare majority or less of the American people. Further, and even more important, there is a great risk that such a convention could ignore limits sought to be placed on it and propose amendments on any subject, including individual rights.

If the states of Hawaii, Montana, and Vermont joined the thirty-one states that have petitioned for a constitutional convention on the balanced budget, such a convention would be called on petition of thirty-four states comprising just less than half of the American people. Once a convention is called, there is nothing to prevent it from proposing constitutional amendments by a simple majority of its delegates. And, because there is no established procedure for choosing these delegates, it is not even clear that a convention majority would actually represent a majority of the American people. We in Maryland can have no guarantee that delegates in other states would be chosen in a fair and equitable manner. Finally, although Article V of the Constitution requires that amendments proposed by a convention must be ratified by three-fourths of the states, it is possible for an amendment to be ratified by the requisite thirty-eight states comprising only 42% of the total U.S. population. Thus, nowhere in the convention method of constitutional amendment is there a requirement similar to the requirement in the Congressional method that two-thirds of the House of Representatives approve a proposed amendment which would insure that before an amendment is adopted representatives of a substantial super-majority of the American people approve it.

This lack of a requirement of super-majority support would, of course, be especially troubling if a convention were to propose amendments in areas such as individual rights. Many of those who favor the call for a convention argue that we need not worry about this happening because the Maryland petition and petitions from many other states explicitly provide that the convention could only consider certain specific balanced budget amendments. The effectiveness of these purported limitations is, however, uncertain at best.

There are three possible theories under which a convention could "run away" from limits sought to be placed upon it by legislatures or Congress.

First, a constitutional convention could become what is known as a "revolutionary" convention. Under this theory, a constitutional convention would, once it is called, become the most sovereign entity in the nation, free to do essentially as it pleases. The highest courts in at least two states have viewed conventions in this manner. See Sproule v. Fredericks, 69 Miss. 898, 904 (1892); McMullen v. Hodge, 5 Tex. 34, 73 (1849).

There is an important precedent for this model in the 1787 Convention which framed our present Constitution. That convention was called "for the sole and express purpose of revising the Articles of Confederation." Further, the Articles of Confederation required that any amendments proposed by the Convention had to be ratified by all the states to be effective. The 1787 Convention, of course, ignored both of these limitations: it scrapped the Articles entirely by proposing a whole new Constitution and it made adoption of the Constitution contingent on ratification by only three-fourths of the states.

Thus, it is possible, though I believe unlikely, for a convention called under Article V of the Constitution to follow the "revolutionary" precedent set by the Founding Fathers in 1787. If so, such a convention could totally revamp the Constitution and, in order to make adoption of its product more likely, change the ratification procedure to require assent by less than three-fourths of the states.

A second, more probable, theory for an Article V Convention would be for it to consider itself bound by Article V, including the three-fourths ratification requirement, but for it to also interpret Article V as permitting it to propose any amendments it chose regardless of limitations sought to be imposed by Congress or the state legislatures. Under this scenario a convention called by two-thirds of the states to propose a balanced budget amendment could also propose amendments affecting abortion rights, a nuclear freeze, religious freedom, sexual preference, free speech, privacy interests, the right to bear arms, or any imaginable set of similar issues. As we have seen, such proposed amendments could then become part of the Constitution after approval by representatives of a bare majority or less of the American people.

There is substantial authority that a convention could run away in this manner. First, some of the most renowned constitutional scholars in the country, including Professor Charles Black of Yale, Walter Dellinger of Duke, Gerald Gunther of Stanford and Laurence Tribe of Harvard have concluded that neither State legislatures nor Congress can limit a constitutional convention to proposing only certain specific amendments. Second, there is a long history at the state level of conventions going beyond limits sought to be imposed on them by a state legislature. As recently as 1975, the Supreme Court of Arkansas held in Pryor v. Lowe, 523 S.W.2d 199, that because a constitutional convention exercises power "inherent in the people," its actions cannot be restricted by a legislature. Although it did not rule on this specific point, the Maryland Court of Appeals made the similar finding that delegates to a convention are "direct agents of the people, rather than agents of the organized government" to support its holding that such delegates are not "officers" under the pre-existing State Constitution. Board of Supervisors of Anne Arundel County v. Attorney General, 246 Md. 417 (1967).

Under a third possible theory, the State legislatures which petition for a convention could limit the subject matter which the convention can consider but could not constrain it to voting up or down specific amendments only. The Supreme Court of Tennessee adopted such a theory in Snow v. Memphis, 527 S.W.2d 55, where the court held that a provision in the Tennessee Constitution permitting "limitations" on constitutional conventions only authorized limits on the subject matter that a convention could address. Further, one of the most forceful advocates of the position that a convention could be limited, former Senator Sam Ervin, has also maintained that the states can only limit the subject matter of a convention and could not limit the convention to specific amendments.

In our case, this third possibility would mean that the state legislatures could require the convention to deliberate only on a balanced budget amendment to the federal constitution, but could not limit the convention to considering only the precise amendment or amendments proposed in the state petitions. In terms of protecting individual liberties, I find little comfort in such a partial limitation of a convention. There are an infinite number of ways by which a convention could curtail rights and liberties through the budget process. For example, the budget could be balanced in part by denying federal aid to states that did, or did not, depending on which viewpoint commended itself to the delegates, require prayer in public schools, or permit busing, or pass gun control laws, or restrict police searches.

After reviewing these three theories and the authority behind them, the conclusion I reach is that there is no way to limit a convention once it is called and that, therefore, a runaway convention could very well occur.

The most important legal authority I found taking the view that a convention could, in fact, be limited is a 1974 Special Report issued by the American Bar Association. This Report, I understand, was influential in convincing many Maryland legislators in 1975 that a runaway convention would not occur.

Substantial doubt, however, has been cast on the Special Report's conclusion by both a committee of the ABA and one of the authors of the Report itself. The ABA's Section on Individual Rights and Responsibilities agreed without dissent to reject the Special Report because of "its infirmly supported position that the Legislatures applying for the call of a convention could limit convention jurisdiction to one or more specific subjects." In response to a question by Senator Birch Bayh at a 1979 Senate hearing on constitutional conventions as to whether he had any doubts about the conclusion of the Special Report, co-author and leading ABA spokesman John D. Feerick stated that "it is a possibility, maybe more than a possibility under certain circumstances where there is strong emotion about a particular subject" that a convention could exceed the limits placed on it by state legislatures.

Further, even if one could make a persuasive argument that the framers of the Constitution intended to give state legislatures the right to limit conventions under Article V (and no one has), there would still be a substantial question as to whether the courts would enforce this right. Although the courts have ruled on many Article V questions, there is a judicial tradition of treating some particularly sensitive Article V issues as non-justiciable "political questions." A dispute among a "runaway" convention, the state legislatures that called it and Congress may be just the kind of issue on which the courts would decline to rule.

Thus, I believe that there is a substantial risk that a constitutional convention called to propose a balance budget amendment would also propose other amendments to the constitution. And, since under the convention method of amending the Constitution, an amendment could be adopted by representatives of a bare majority or less of the American people, the risk is heightened that amendments which curtail basic constitutional rights or liberties may result.

I urge those of you who desire a balanced budget amendment to work for its adoption through the tried and testing Congressionally-initiated process, and not to let this issue open the "Pandora's box" of a constitutional convention.

1 Section 7 of S. 40, which deals with the delegate selection process, provides as follows: "(a) In each State two delegates shall be elected on an at-large basis and one delegate shall be elected from each congressional district in the manner provided by State law. No Senator or Representative, or person holding an office of trust or profit under the United States, shall be elected as delegate. Any vacancy occurring in a State delegation shall be filled by appointment of the legislature of the State. (b) The secretary of state of each State, or, if there be no such officer, the person charged by State law to perform such function, shall certify to the President of the Senate and the Speaker of the House of Representatives the name of each delegate elected or appointed by the legislature of the State pursuant to this section. (c) The people of the District of Columbia shall elect as many delegates as the whole number of Senators and Representatives to which said District would be entitled in the Congress if it were a State. Any vacancy occurring in the delegation of the District of Columbia shall be filled by appointment of the District of Columbia Council. The Clerk of the District of Columbia Council shall certify to the President of the Senate and the Speaker of the House of Representatives the name of each delegate elected or appointed by the Council pursuant to this section. (d) Delegates shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at a session of the convention, and in going to and returning from the same; and for any speech or debate in the convention they shall not be questioned in any other place."

2 In the absence of any precedent concerning a national constitutional convention, we cannot predict how such principles would be applied.

3 For every other proposed amendment, Congress has mandated ratification by state legislatures.

4 Whatever body ultimately determines how state convention delegates are chosen, the selection procedure would presumably have to satisfy applicable principles of constitutional law. See note 2 above and accompanying text.