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State Lawmakers! Don’t Put Extraneous Matter in Your Article V Application

State Lawmakers! Don’t Put Extraneous Matter in Your Article V Application

by Robert G. Natelson

State lawmakers sponsoring an Article V convention application often find that other lawmakers want to add extraneous matter to the application. This may include conditions beyond the mere subject-matter, instructions to commissioners, specific amendment language, convention rules, and pronouncements of various kinds.

Don’t agree! Adding such material is both unprofessional and unwise. At the very least, those offering the additional language should prove that their addition will not render the application void or incapable of being counted with other states’ applications.

Remember that there is a strong likelihood that a hostile judge will be reviewing this application—just looking for an excuse to strike it down. Don’t give the judge the tools to do so.

Adding material such as instructions to commissioners and convention rules is unprofessional because it is inappropriate in a document of this kind. An application is an address to Congress, not to the convention or to other states. What the convention rules are or how you instruct your commissioners is, frankly, none of Congress’s business.

Adding such material is unwise because a hostile judge or an unfriendly Congress may use it as an excuse to void the application. Remember that an Article V convention is a check on their power, and they are not likely to take kindly to it. If, for example, the necessary 34 state legislatures have applied for a balanced budget amendment but one or two of those applications are marred by conditions and requirements, judges or Congress can decide that:

* The applications with conditions and requirements are valid, but too different from the others to be “aggregated” with them, or

* the applications are void because they represent an unconstitutional effort to unduly control the discretion of the convention. (The courts have repeatedly struck down amendment procedures they view as overly restrictive.)

The correct way for a legislature to instruct commissioners and advise the convention is by separate resolutions—not by an application addressed to Congress.

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About the author. Professor Natelson is widely acknowledged to be the leading active scholar on the Constitution’s amendment process. He has served as adviser to the Montana legislature’s state-federal relations committee, and now is on the board of scholars of the American Legislative Exchange Council, a trade group of state lawmakers. Professor Natelson’s constitutional research is frequently quoted at the U.S. Supreme Court, both by justices and by parties. He is also the author of the leading handbook on Article V for state legislators.