Document Type

Article

Publication Date

1982

Publication Information

3 Cardozo L. Rev. 529 (1981 - 1982)

Abstract

Article V of the United States Constitution sets forth the respective powers of the states and Congress in the amendment process. At first blush, the amendment process outlined in article V appears uncomplicated and straightforward. Congress can propose amendments and determine whether ratification will be accomplished by state legislatures or state conventions. Three-fourths of the state legislatures or state conventions must ratify a proposed amendment before it becomes part of the Constitution. The history of the amendment process confirms the apparent simplicity of that provision of article V which empowers Congress to propose amendments. To date, all twenty-six amendments have been proposed by Congress and all but one have been ratified by state legislatures.

Article V, however, also provides that Congress "on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments." This short statement raises important but heretofore unanswered questions about the calling and conduct of a national convention to propose amendments. For example, what constitutes a valid application by a state legislature for a national convention? What procedures must a state follow in submitting an application? Must the precise language of the proposed amendment be included within the application? How similar must the language be in the applications of various states in order to permit Congress to count them? How long does an application by a state remain valid? May a state rescind its application? If so, under what conditions? What is the extent of Congress' power to review state applications? What institution of government controls the agenda of the convention-the state legislatures, Congress, the convention itself? May Congress refuse to submit the work product of the convention to the states for ratification and, if so, under what circumstances? How will delegates to the convention be selected? How will votes at the convention be counted? How will other procedures for the conduct of the convention be established? How will the convention be financed? If Congress assumes the power to answer some or all of these questions, are its determinations subject to review by any other institution of government, such as the courts?

Comments

Reprinted with permission of the Cardozo Law Review.

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