In my last post, I described the procedure by which we have recovered the meaning of the Constitution’s “convention for proposing amendments.”
But agreement on the principal facts does not imply complete agreement on the details. A prime example: We know that the state legislatures may limit the agenda of the convention to a single topic. But does that mean a generic topic (such as “federal term limits”) only? Or may the legislatures limit the convention to an up-or-down vote on a specifically-worked amendment?
For a number of reasons, I think the courts would insist that the convention be given drafting discretion—that is, more discretion than allowed in an up-or-down vote on pre-set wording. I’ll discuss my reasons another time.
Some excellent scholars disagree with me. Michael Stern is the former Senior Legal Counsel for the U.S. House of Representatives, and the author of the “Point of Order” blog. He believes that the convention can be limited to considering specific wording. He bases his argument in part on the work of Prof. Michael Rappaport, one of the nation’s leading constitutional scholars. Professor Rappaport’s study of the original meaning of Amendment V concluded that that meaning at least permits the state legislatures to so limit the convention’s agenda.