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By Root 919 0

that we face today. When the convention first turned to the amending power, many thought Congress should have only a limited role in passing amendments, since it would be Congress that “would be the very occasion for moving to amend.”13 The insiders are not going to fix this mess. We need instead a movement from the outside. (The same insight motivated Lincoln, when he called for constitutional amendments through the convention procedure, because he wanted “amendments to originate with the people themselves.”)14 The convention clause was meant to channel such a movement. Again, not exclusively. The Framers did not intend to abolish the Declaration of Independence’s self-evident right “to alter or to abolish” a government, regardless of the procedures specified. Instead, they intended to provide at least one (relatively) regular procedure to complement that right.

But how this complement is to be invoked is famously uncertain. Who sets the rules for the convention? How are delegates selected? What defines the agenda? Are there any limits to what it can decide?

Answering these questions is of course a necessary and proper step to any responsible constitutional amending process. And the Constitution is quite explicit about how such “necessary and proper” means are to be specified: Article I, section 8, clause 18, says that it is Congress that has the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States or in any Department or Officer thereof.”

“All other Powers vested by this Constitution” certainly includes the power to call a convention. This simple and plain text at the core of our constitutional design gives to Congress all the power it needs to ensure an orderly and sensible procedure for initiating and conducting a convention.15

And indeed, Congress has come very close to exercising this sensible judgment precisely. When it seemed plausible that enough states would call for a convention to consider an amendment to require a balanced budget, Senator Orrin Hatch introduced an eminently sensible bill that would have provided all the procedure necessary to form and conduct a convention. This bill (Senate Bill No. 40, from the Ninety-ninth Congress16) specified the procedure by which a call by a state for a convention would be recognized. It specified the procedure by which a convention would be constituted—including how many delegates each state would elect and (my favorite bit of the bill) a requirement that no senator or representative “be elected as delegate.”17

Every reasonable question raised by scholars about how a convention would be constituted and run has been addressed by this very reasonable bill. Not all scholars, however, accept the answers that this bill would give. In particular, though Senator Hatch’s bill explicitly permits states to ask for the convention to narrow its agenda to particular topics, these scholars insist not only that the convention cannot be so limited, but that any call for a limited convention is invalid. As Walter Dellinger puts it, “[e]ven when the applying state legislatures seek only to limit the convention with respect to subject matter, the case against the validity of the applications is still persuasive.”18

This can’t be correct. The only convention America has ever seen was a convention called for a limited purpose: the convention that gave us the Constitution itself. And the consistent practice among states has always been to recognize the validity of a limited call for a convention.19 There is not a single sentence reported anywhere that suggests that the Framers intended to proscribe the manner in which a convention could be called. No doubt, they wanted that convention to be a national body. No doubt they wanted it to consider issues that affected the nation as a whole. But there is simply nothing to support the claim that they meant there to be an unwritten requirement that any call for a convention be made with the magic