Last week the Michigan Legislature voted to call for a constitutional convention under Article V to propose a Balanced Budget Amendment. This means that 34 states have now issued such a call. Or maybe it’s less than that. Let me explain.
The problem is that some states have repealed their prior calls for a Balanced Budget Amendment. Thirty-four is the right count only if none of those repeals are valid. But are they valid? I think it’s up to Congress. Coleman v. Miller held that Congress gets to decide whether a state has ratified an Article Five Amendment. During Reconstruction, Congress counted some states as “yes” votes for the Fourteenth Amendment (e.g., Ohio) even though they had repealed their ratification. Coleman concluded from this precedent that the question of state ratification was a political question. The same logic applies, in my view, as to whether a state has asked for a constitutional convention.
Giving Congress discretion over this question, of course, does not answer the question of whether a state repeal is valid. There are good reasons to think that a state should be able to issue a repeal of a convention summons. Insisting on the opposite view would mean that one legislature could bind all of its successors, which is generally a no-no in Anglo-American law. On the other hand, the Fourteenth Amendment precedent takes the opposite stance–those repeals were not allowed. It’s fair to say, though, that Congress will probably bend over backwards (as long as Democrats control the Senate anyway) to find a way to not count in enough states for a constitutional convention.