Can an Article V Convention be limited?
There are three theories about whether an Article V Convention may be limited in terms of what kinds of amendments it may consider and how applications may be counted⎯or aggregated⎯to determine whether and when the states have reached the 2/3 threshold established by the Constitution. States are advised to consider passing an application for a general convention as a means to expedite the process.
Theory: The only valid type of application is an application for a general convention; limited-subject applications have no force.
Proponents of this view maintain that Article V requires that Congress call “a convention for proposing amendments.” Period. Full stop. Michael Stokes Paulsen points out that if the text of Article V is to be construed to mean that Congress has the power to stipulate limitations on the Convention, that opens the door for Congress to attempt to control other aspects of the Convention, too, which flies in the face of the clear meaning of the Constitution, the notes of the Constitutional Convention, and the Federalist papers: the point of an Article V Convention is to bypass Congress. Expecting Congress to spell out in the convention call the boundaries of what may and may not be discussed amounts to an unconstitutional involvement of Congress in the states’ exercise of Article V.
Theory: Applications may contain limiting language to call a limited convention.
Rob Natelson explains that in the context of Article V, the states may be thought of as sovereign entities and thus have the power to set their own agenda. Michael Rappaport argues that contemporary usage of words like “convention” and “propose” give the states the implicit power to limit what’s on the table at a convention called under the authority of Article V. Both Natelson and Rappaport provide evidence of limited-subject conventions that occurred during the founding era. In response to Paulsen’s parity argument, Michael Stern argues that parity is found not in the scope of the Convention, but in the trigger: 2/3 of both chambers of Congress and 2/3 of the state legislatures. He adds that the Convention is limited right in the text of the Constitution (no state may be deprived of its suffrage in the Senate without its consent, e.g.), so there’s no reason to think that the states can’t impose limits of their own, as well.
Theory: Limited-subject applications may be used to call a general convention.
Limited-subject applications are those that contain both a preferred subject or subjects, and an explicit prohibition of any other topics. Rappaport argues that if there is limiting language in the applications used to call a convention, that language must be respected at the convention.
Some, on the other hand, advocate for using limited-subject applications to call a general convention; but as a practical matter, it strains credulity to think that Congress would aggregate limited-subject applications to call a general convention. Every time Article V applications have begun to accumulate, rather than preparing to issue a convention call, Congress has instead thwarted a convention by proposing an amendment of its own. This occurred with the Bill of Rights, abolition of slavery, direct election of Senators, and the repeal of Prohibition.
It’s clear that Congress will use any tool at its disposal to avoid being subjected to reforms imposed by the states. If Congress can call a limited-subject convention, it is absurd to argue that it will call a convention at which even more is on the table than what the states have asked for. If Congress does not have the constitutional authority to call a limited-subject convention, it will use the limiting language as an excuse to ignore this type of application.
A limited-subject convention is an effort to head-off a “run-away convention” by stipulating additional controls beyond those already found in the Constitution. Experts remain divided on whether Article V allows for this. The risk that even a general convention could “run away” is vanishingly small and must be weighed against the very real threat of an out-of-control federal government. States are well-advised to undertake a risk-reward analysis to determine whether an application for a general convention provides a comparatively safe and more expedient route to a convention.