Rogers’ legal opinion about Paulson’s argument is misparaphrased in this article. He does not use the fact that no convention has been held yet as a reason to suppose that the convention has to be limited, indeed he acknowledges that the Philadelphia convention in 1787 ) (although not called under article V) and cites this as a reasonable concern.
He uses other arguments against this, mainly that it would defeat its purpose if it was unlimited because States would be reluctant to call such a convention out of fear of what other things it might decide. He also says that if they thought this would happen the States would immediately rescind their applications, so preventing the convention, something Idaho has already done.
He does say that if the convention was unlimited then all existing applications could be aggregated together to call a single convention to discuss them all but he does not use the fact that this has not happened as an argument to say that such a convention is impossible.
However, he says that the main protection is that 3/4 of States have to support any amendments made by any such convention. This would include a majority of the original 34 or more States that called for it (at most 12 of them could refuse to ratify).
The arguments are
- The aim of the clause is to allow states to circumvent a recalcitrant Congress, so must allow the States to limit the convention
- If States were unable to limit the scope of a convention, they would not want to apply for one because of the uncertainties of its results so the purpose of the clause would be frustrated
It then mentions this concern:
- If the States can't limit the scope, then all the applications would be counted in aggregate and based on this then a convention should be called as there are requests from more than two thirds of States already. It says however that if such a convention was about to be called the States would immediately rescind their applications, giving the example of Idaho that has done so already out of such concerns.
It then says
- If the arguments are valid that States can limit scope then the appliations for a convention for different subjects should be counted separately. And if the applications are talllied this way then the convention would be limited.
It gives the example of the Philadelphia Convention of 1787 which exceeded its mandate of revising the Articles of Confederation to show that there are well founded concerns about whether a modern convention with a limited mandate could exceed its original scope.
It says it would be difficult for a government to intervene as a constitutional convention could concievably claim independent authority.
However it goes on to say that any ammendments have to be ratified by 3/4 of the States. So, if the convention proposes extra amendments the would only be accepted if ratified by 38 States. This would mean that most of the States that originally requested it would also ratify it thus legitimizing their actions.
(This is the maths here: 38 out of 50 have to ratify so that means up to 12 could refuse to ratify, and a convention requres 2/3 of 50 or 34 States to be initiated. If the ones that don't ratify are all from the original States, then that would make it 22 that ratify of the original 34 or over 64% of them)
The section concludes that
> The ratification process itself is thus the States' means of enforcing a subject-matter limitation. If the States determine that the convention exceeded its scope, they can refuse to ratify the proposed amendments.
The part of the passage that was misparaphrased by this article is this one:
The second argument—that the States have no power beyond initiating a convention—is partially correct. They do, however, have indirect authority to limit the convention. Congress’s obligation to call a convention upon the application of two thirds of the States is mandatory, so it must call the convention that the States have requested. Thus, Congress may not impose its own will on the convention. As argued above, the purpose of the Convention Clause is to allow the States to circumvent a recalcitrant Congress. The Convention Clause, therefore, must allow the States to limit a convention in order to accomplish this purpose. The prospect of a general convention would raise the specter of drastic change and upheaval in our constitutional system. State legislatures would likely never apply for a convention in the face of such uncertainties about its results, especially in the face of a hostile national legislature. [73] States are far more likely to be motivated to call a convention to address particular issues. If the States were unable to limit the scope of a convention, and therefore never applied for one, the purpose of the Convention Clause would be frustrated.
A related concern is whether States’ applications that are limited to a particular subject should be considered jointly regardless of subject or tallied separately by subject matter to reach the twothirds threshold necessary for the calling of a convention. [74] This is an important question because if all applications are considered jointly regardless of subject matter, Congress may have the duty to call a convention immediately based on the number of presently outstanding applications from states on single issues[74].
If the above arguments about the States’ power to limit a convention are valid, however, then applications for a convention for different subjects should be counted separately. This would ensure that the intent of the States’ applications is given proper effect. An application for an amendment addressing a particular issue, therefore, could not be used to call a convention that ends up proposing an amendment about a subject matter the state did not request be addressed. [76]
Footnote
73
These fears, however, are mitigated by the States’ own powers over ratification.
74 . Paulsen, supra note 3, at 737–43.
75 . Id. at 764. Paulsen counts forty ‐ five valid applications as of 1993.
76
If it were established that applications on different topics are considered jointly when determining if the twothirds threshold has been reached, states would almost certainly rescind their outstanding applications to prevent a general constitutional convention. Some states have already acted based on fears of a general convention. For example, in 1999 the Idaho legislature adopted a resolution rescinding all of its outstanding applications for a constitutional convention. S.C.R. 129, 1999 Leg. (Idaho 1999). Georgia passed a similar resolution in 2004. H.R. 1343, Gen. Assemb. 2004 (Ga. 2004). Both resolutions were motivated by a fear that a convention could exceed its scope and propose sweeping changes to the Constitution.
pdf here