The Constitution says that “on the Application of the Legislatures of two thirds of the several States, [Congress] shall call a Convention for proposing Amendments.” However, there has been relatively little credible research into what “the Application of . . . two thirds” means.
Most scholars who have investigated the issue agree that applications must address overlapping subjects before they are counted together. There is no historical precedent for adding an application for a term limits convention with an application for a balanced budget convention. On the contrary, founding-era practice—not to mention common sense—tells us that before Congress can call a convention, two thirds of the state legislatures (now 34) must agree in general terms on what they want the convention to be about.
On the other hand, founding-era practice also tells us that applications need not be identical to be added together.
The issue of when applications should be counted with each other sometimes is called the “aggregation problem.”
I examined some aggregation issues in my Article V treatise several years ago, I concluded that—
- Congress should not aggregate—count together—applications that are internally inconsistent with each other, even if they address the same general subject.
- Congress should not aggregate applications that address several unrelated subjects (such as balanced budget and term limits) with those that address only one or some of those subjects.
- But Congress should add applications covering a topic in broader terms with those addressing the same topic in narrower terms. They both should be counted toward a convention on the narrower topic. For example, an application for “fiscal restraints on the federal government” should be added to those calling for a balanced budget amendment, so as to add to the balanced budget count. At least this is true if the narrower topic is a foreseeable part of the wider topic.
There is a fourth issue I mentioned, but did not examine, in my treatise: Should Congress add the existing applications for an unlimited convention—a convention on any topic—to those calling for a narrower conclave?
My latest scholarly article answers that question in the affirmative. In other words, Congress should add the valid unlimited applications now outstanding to the 27 balanced budget applications. In part, that is because when a legislature adopts an unlimited application, it is telling Congress that it is willing to meet in convention to discuss any amendments other states wish to discuss. The result is that we now have 33 applications out of the 34 necessary for a balanced budget convention.
Of course, in keeping with historical practice—and also with common sense—Congress should not aggregate them together toward an unlimited convention. The article is called Counting to Two Thirds: How Close Are We to A Convention for Proposing Amendments to the Constitution?