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Volokh Conspiracy

The ratification of the Equal Rights Amendment could lead to an Article V Convention for Proposing Amendments

If states cannot rescind their ratification proposals, then 2/3 of the states may have already voted to call an Article V Convention for the Balanced Budget Amendment


Currently, the courts are considering whether the Equal Rights Amendment has been ratified. These cases turn on two important questions. First, has the deadline passed to ratify the amendment? Recently, Justice Ginsburg suggested that the ratification deadline-- which appears in the resolution, not in the text of the amendment--has indeed passed. The Office of Legal Counsel agreed with this position.

There is a second question that OLC did not opine on: should the five states that voted to rescind their ratification count towards the required 3/4 majority (38 states). In litigation, Virginia has argued that states cannot rescind their ratifications of the Equal Rights Amendment. If Virginia is correct, and ratifications cannot be rescinded, then we may be standing on the precipice of an Article V convention for proposing amendments.

According to the Balanced Budget Amendment task force, 28 states have passed resolutions calling for an Article V convention to propose a balanced budget amendment.

However, several states that voted to call for the convention subsequently repealed their resolutions. I cannot pin down a precise number here. According to the progressive Center on Budget and Policy Priorities, eight states have repealed their ratifications. The group lists Delaware, New Mexico, Maryland, and Nevada as states that recently rescinded. The group also lists Oregon, Idaho, Virginia, and South Carolina as other states that rescinded in the past. (Yes, Virginia has voted to rescind an amendment; this decision creates some tension with the Commonwealth's current litigation position.) The Center also states that they are working to rescind ratification in two more states: Colorado and New Hampshire.

Under Virginia's theory, the rescissions are not valid. As a result, we would have (by my count) 36 states that have voted to call for a convention--two more than the requisite 34 states. If Virginia is correct, then Congress is required to call a new convention to consider the Balanced Budget Amendment.

My numbers here are tentative, because some of these states approved resolutions that were worded slightly differently. I will leave to others the difficult question of how to interpret the requirements of Article V.

Rob Natelson recently wrote a book on the topic. Natelson writes that states can rescind their ratification applications:

Some have argued that states cannot rescind applications, and that once adopted an application continues in effect forever, unless a convention is called. In part, this is based on judicial deference to congressional suggestions that a ratification cannot be rescinded. However, the position that applications cannot be rescinded is contrary to the principles of agency the Founders incorporated into the process. An application is a deputation from the state legislature to Congress to call a convention. Just as one may withdraw authority from an agent before the interest of a third party vests, so may the state legislature withdraw authority from Congress before the two-thirds threshold is reached.

This theoretical conclusion is consistent with traditional multi-government convention practice. The power of a state to rescind its resolutions, offers, and ratifications was well-established by the time Article V was adopted, ending only when the culmination of a joint process was reached. The historical record contains specific examples of rescission of convention applications and calls.

Natelson has also put together an Article V handbook.

Update: In my prior post, I used the phrase "constitutional convention." Natelson wrote, and reminded me that the Constitution uses a different term: a "convention for proposing amendments." I'll try to be consistent with this usage. Moreover, the phrase "constitutional convention" conveys the image of starting from scratch with a brand new document.

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  1. None of the second question matters if it is concluded that the date has passed. The whole discussion seems a little odd.

  2. "My numbers here are tentative, because some of these states approved resolutions that were worded slightly differently."

    I think THAT is the real issue here. The states haven't just been calling for a convention, they've been calling for a convention to consider this amendment, calling for a convention to consider that amendment. It provides a ready made excuse not to add the calls together, when they're asking for different things.

    In order to get a convention, given the reality that Congress absolutely does NOT want one to happen, you'll need to wring out every last bit of ambiguity: The states will all have to call for a convention with the same language.

    There's no point in their specifying the topic of the convention, anyway: Once you have a convention, deciding what amendments are needed is its very job. You can't constrain it.

    1. Precisely why we don't want a convention = You can’t constrain it

      1. So what? You think a couple of outliar [sic] states are going to foist some bizarre amendment on the convention? If a proposed amendment isn't popular enough to get enough votes at the convention, or enough ratifying votes afterwards, it won't be an amendment. Big deal.

        1. Well, they might pass an amendment saying the second say exactly what it says, and ALL gun control laws are immediately rescinded.
          Or worse yet, they might say the first amendment protects religious views, and no federal or state law can force, say, a medical provider to provide certain elective surgery procedures.
          There is just no end to the mischief a convention could cause.
          Ideally, it would pass a resolution expelling California, Seattle, and Manhattan from the union.

          1. Getting your bigoted self stomped by your betters in the culture war has made you cranky, Longtobefree.

            Like every clinger (including the Conspirators), though, your obligation to comply with the preferences of your betters will end -- with your replacement.

          2. Yes, there is an end to that mischief. It still takes 38 states to RATIFY an amendment. It don't matter doodly squat what gets proposed at the convention.

            Unconstrained mischief my ass. You guys are blowing smoke.

            1. After the convention, standards for ratification will be whatever the convention decided. And those standards will be very much in play as soon as a hotly contested issue comes up: "I'll go along with your proposal, but only if you agree to my standards for ratification. Deal?"

      2. Even if unconstrained, anything a convention produces still has to be ratified by 38 states (though if legislators were unwilling, the convention could direct states to hold ratifying conventions as was done for the 21st). So I don't fear a convention.

        I fear much more a Supreme Court deliberately packed with people willing to distort what the Constitution means. Which we've had since FDR, and it will likely take another century to undo the damage if our nation lasts that long. A convention would help that happen.

        1. jdgalt1, you mistakenly suppose the constitution constrains the sovereign People. It does not. It only constrains the People's government. When the People convene a constitutional convention, that is sovereign power in action, and the existing constitution becomes a dead letter, unless and until the convention says otherwise. Anything can happen.

      3. I'm not terribly afraid: All the convention can do is propose amendments, the states still have to ratify them.

        1. And I doubt very much that some small minority of states can actually pass any proposed amendment out of the convention all on their lonesome.

          1. Each state gets one vote, and assuming none of the states boycott the convention, (Which would be a really stupid move, so I suppose one or two might.) that means you need 26 states voting for an amendment to send it out for ratification.

    2. The only requirement for a state application is that it has been cast. The reason the convention call of Article V is based on an objective numeric count, and not the constitutional dicta of an application is so it can't be lawyered. To argue that applications must be the same is to argue that the states must build consensus and come to an agreement, when that is the function of the convention itself. To allow rescissions would allow estoppel of the law. The USSC has ruled that the language of Article V is plain and does not allow for rules of construction or interpolation.

      1. Not that any ruling of the USSC would have a damned thing to say to a constitutional convention.

        You guys don't get it. Sovereigns make governments, at their own pleasure, without any constraints at all. If you think history, precedent, or the existing constitution has any effect on that, you are utterly mistaken. Call a constitutional convention, and the sovereign People will do what they want, period. Unless, somehow, some other sovereign forces its way into the mix and takes over. You can't rule that out either.

        1. Bullshit. We're a huge regionalized nation and none of the delegates will want to or have the guts to say they are going to do something different than what they said they would when they were being elected delegate in the first place.

          Just more smoke and mirrors without regard to practical politics and what happens when a bunch of humans are thrown into a chamber for a couple of weeks.

  3. I don't have any opinion on the question one way or the other as I haven't researched it at all, but there seems to me to be a difference between a ratification vote and a call for convention vote. I don't think it is at all clear that the ability to rescind must be the same for both types of votes. Maybe history says it is, but this post just assumes it is without even mentioning let alone discussing the proposition.

    1. I think it's defensible to say that rescinding is possible for ratification, but not for a call for convention, because calling for a convention has lower risks; If you change your mind, and get a convention anyway, you still have the option of refusing to ratify its product. Calling for a convention initiates the process, it isn't the final step.

      1. Adding on to that, it's kind of strange to focus on this "calling convention" business because who cares? If Congress demands that the states go to a convention, and the ones who rescinded don't show up, nothing will happen. There is no judiciable controversy here. And in the 21st century, we can communicate immediately to the entire polity effortlessly through the internet. To the extent a convention is just a place for human beings to gather and share ideas about what amendments should be proposed, the internet made that convention irrelevant. The states who have not enacted a balanced budget amendment have already answered the "convention". As have the ones who did vote in support.

        1. I think you're missing something important.

          "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; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate."

          Notice that Article V doesn't say that, once called, the Convention needs a supermajority to do business. So, no, it really does matter if rescinding counts, because once the convention goes forward, the threshold for originating amendments is, presumably, a bare majority of participating states. You can't block amendments from originating by refusing to participate, unless you have enough states agreeing to do it to prevent a quorum.

          1. But who cares? You still need a super majority to ratify the amendments. You don't need a super majority today to "originat[e] amendments". You don't even need a majority. I can originate an amendment with my keyboard. Since you don't need "a convention for proposing amendments" to ratify amendments at all, what's at stake?

            I get that the convention can shoot out all sorts of amendments, maybe even with a mere majority. But you still need 38 states to ratify. So what difference does it make? You will always need more states to ratify an amendment than you will to have a convention to propose them.

            1. "Since you don’t need “a convention for proposing amendments” to ratify amendments at all, what’s at stake?"

              Where did you get that idea? If an amendment isn't proposed by Congress or a convention, the states can't legally ratify it.

              That, in fact, is one of my proposed amendments for a convention: Amend Article V to state that any proposed amendment ratified with the same language by 2/3 of the states becomes valid, regardless of where it originated.

              That's not the law now.

              1. "Where did you get that idea?"

                It's in Article V. As you said, there is an alternative to a state proposing convention to proposing amendments. The other is Congress. And since if you have 38 states supportive of an amendment in the first place, you will always have sufficient states to have a proposing convention, the 34-state threshold for the latter is really of no moment. The point is, if you manage to convince 34 states to support a convention for an amendment, you just keep doing the same thing to convince 4 more states to actually ratify it. And once you get the 38, you'll either have the proposal through Congress, or you'll have the 34 states necessary to get the proposing convention.

        2. Reread Article V. Conventions are one of the formal processes that can be used to amend the Constitution. And it's not yet determined what will happen if 34 matching calls do come in from states but Congress ignores them.

          1. The BBA Task Force is not calling for the conventions by the states to amend the constitution. They're calling for the convention to propose amendments.

            If you have the 38 states you need to ratify an amendment, you will always, by necessity, have the 34 states you need to propose an amendment. (And in all likelihood will have enough support in Congress to propose without a proposing convention.)

            What do you mean by if "Congress ignores them"? If the states call for a convention, Congress doesn't have to do anything. The states show up or they don't. They don't need Congress's permission to have a convention. Or to ratify necessarily. What would a plaintiff be asking SCOTUS to force Congress to do?

            1. "If the states call for a convention, Congress doesn’t have to do anything. "

              That's certainly the way it should work if Congress were operating in good faith. But, Article V reads in relevant part, "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,"

              So, the Constitution actually does give Congress a role here: The states apply for a convention, and when 2/3s of them do it, Congress calls the convention.

              A purely ministerial role, except that it provides an opportunity for Congress to block the convention by refusing to act. Would the courts issue a writ of mandamus? I doubt it.

              1. Re: mandamus, if you're saying it is non-justiciable (or the federal judiciary will so conclude), I agree.

        3. Incorrect. We have INFORMAL discussion on the internet. The Article V Convention transforms it into FORMAL discussion, which is precisely what we need in order to propose things Washington DC never does.

    2. There's not much to research. The Article V Convention embodies our ultimate right of alter/abolish. It's our right to FORMALLY discuss OUR government. And, no you can't rescind because such an ability would place whether or not we have a convention in the hands of a single state.

  4. Didn't a few states vote to rescind their approval of the 16th Amendment before it was certified?

    1. Looks like far more states than necessary ratified it, although two that previously rejected it ratified it in the end finally 42 state ratified it.

  5. Bah. If a state has rescinded its vote either for a convention or amendment, it should be considered rescinded.

    1. Allowing for rescissions allows for estoppel of the law. It politicizes the process and prevents the Constitution from protecting the people from their government.

  6. Would somebody please drive a stake through the heart of the Balanced Budget Amendment?

    It's a terrible idea that won't die.

    1. Permitting unbalanced budgets outside of existential emergencies is a terrible idea that won't die. It's the classic vulnerability of democracies: Once you can buy votes with borrowed money, the government never balances the budget again, and the debt keeps going up until things crash.

      1. Permitting unbalanced budgets outside of existential emergencies is a terrible idea that won’t die.

        That's is sheer ignorance, Brett.

        1. It's sheer truth.

          It is always easier to buy votes now with promises of paying tomorrow. Always. Either party.

          1. What is it about modern America that clingers despise so much?

            Other than the tolerance, science, modernity, reason, education, and inclusivity, I mean.

            1. We "Clingers" just like for there to be a tomorrow for the children that hasn't been sold off into debt-slavery by "progressives" like you.

              1. A.L.,

                I don't think Trump fans (or actually Republicans in general) have any business complaining about the deficit. I mean there's sort of standard level hypocrisy and then there's the turbo-charged version. Those complaints are beyond turbo-charged. Where were you when his tax cuts passed?

                And no, they didn't pay for themselves. They never do.

                1. A clinger ranting about government debt. Charming, and illustrative of why and how better Americans win the culture war.

        2. Actually, it is a truism. Things always keep going until they crash (don't keep going).

    2. It has never gained more that 51% approval. The US Constitution Center did a poll last year, and it's at 43%. In other words, the BBA would never get ratified. 50% is a long way from 75%.

  7. The Supreme Court should declare the ERA an operative part of the Constitution.

    Then it should immediately "interpret" it, in the "living Constitution" tradition, with fifteen pages of sophistry that argue under modern circumstances its language prohibits women from being members of the Supreme Court, and thus give Trump and McConnell three immediate vacancies on the Court to fill.

    1. Arguably it could (and should) be done by virtue of the Fourteenth Amendment Equal Protection Clause. After all, women are "persons," and therefore may not be deprived of equal protection of the law. If the courts would simply apply that obvious principle, there would be no need for the ERA.

  8. Anyone arguing on behalf of forms and constraints which apply to a hypothetical constitutional convention—called for any alleged purpose whatever—needs a reality check. It is not a constitutional convention unless it convenes under sovereign authority—not constitutional authority.

    That means once a constitutional convention convenes, what happens next is unpredictable, including the rules by which the convention proceeds, and the standards (or not) for ratifying anything the convention may do.

    The standard for exercise of sovereign authority can never be anything except unlimited force. A sovereign is an entity wielding force sufficient to make a government according to the sovereign's pleasure, constrained by nothing.

    Please try to remember, the U.S. Constitution is no more than the sovereign People's decree. As such, it constrains the People's government; it does not constrain the sovereign People themselves. Nothing constrains them. That is what sovereignty means. Thus, when you convene a constitutional convention under sovereign authority, what you get next will be unpredictable, and held to account by no preexisting authority.

    That is why it is wiser to consider a constitutional convention amidst chaos than in any time of established peace and order. In the latter case, there is a lot more to lose, and maybe no way to get it back.

    1. We're at least partially in agreement: The very purpose of the convention is proposing amendments, you can't tell the convention what sort of amendments to propose, deciding that is exactly their job.

      But Article V clearly states that the mode of ratification is independent of whether the amendment originates from Congress or a convention, and so the convention is not free to change the standards of ratification.

      The reason the original constitutional convention got away with it is because the Articles of Confederation were a mess that wasn't working, and everybody knew it. And while what they did was unconstitutional under the Articles, the one thing a constitution can't control is the decision of everybody to give up on it and do something else.

      If an new convention proposed a replacement constitution, and dictated ratification by some means other than what Article V dictates, they'd have that precedent in their favor, but what they wouldn't have in their favor is that most people think the Constitution is actually working out pretty well, and just needs some tweaks.

      But, of course, that's exactly why a convention WOULDN'T go off and write a new Constitution.

    2. No it won't be unpredictable because 75%+ of the people/states are not going to agree it's time to re-write the Constitution. Looking at political polls of the past half-century we know very well what will be proposed--amendments concerned with limiting the federal government, i.e. breaking the current status quo so that it can be reformed. So-called Libertarians are idiots for not being behind the Article V Convention. It's the chance to formally discuss what mainstream is denied from discussing.

      1. You have no idea that it will be 75%, nor do you know whether the standard will be people or states. The convention will decide those questions, and in doing so, it will not be constrained by anything except what its members negotiate among themselves, just like last time.

        Call a constitutional convention and anything can happen. For instance, delegates representing more than half the people in America will surely want to get rid of the electoral college. That fact alone will empower them to hold hostage any other proposals. What novelties will log rolling over those issues deliver?

        What will happen after the convention, if the resulting new scheme of government satisfies most of the states, and notably less than half the people? Will ratification be per state, or by national popular vote, or something else? Nobody knows.

        1. Bullshit. You're assuming that if convention delegates attempt to re-write the rules of the game, the other players are going to sit back and allow it to happen. Congress nor the Courts are going to let state delegates do what they want.

          Once a convention is called, only one thing can happen, consensus is built among the states. But you go on living in a fear-mongered world while its destruction is normalized by the current players.

  9. I think the founders were familiar with the concept of 'elections' and that they happen frequently. One, at least happened while the bill of rights was being ratified.

    One would think if they thought rescinding was important, they might have mentioned it.

    AS we have found, the gov't does not run on laws, but on the respect of laws.

    trump has no respect of the law, do you really want him and a tiny right wing minority involved in changing the constitution

    even if it is your tiny right wing minority?

    1. You have it all wrong. Once the Article V Convention assembles, by that time we will have already had elections for delegates, and it will be clear that everyone wants electoral reforms. And that's the only issue that is likely to be ratified these days. Trump people and Dem people will be exposed for never having talked about what everyone wants to talk about.

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