Can a state legislature take back a petition asking Congress to call a constitutional convention, once it has already sent it?

Plain-English summary

A Maryland state senator asked the Attorney General whether the General Assembly could constitutionally withdraw a 1975 petition it had sent to Congress under Article V of the U.S. Constitution, asking Congress either to propose a balanced federal budget amendment or to call a constitutional convention to propose one. The opinion distinguished this question from a related one it had answered in 1979: whether a state legislature could rescind its ratification of a proposed constitutional amendment, which the opinion had concluded it could not do, because ratification is a state's final, irrevocable act under Article V, functionally equivalent to the final vote of a ratifying convention. A petition asking Congress to call a convention, the opinion explained, is a different kind of act entirely, a routine legislative request rather than a final constitutional act, so ordinary legislative rules apply, including the basic principle that one legislature cannot bind a future legislature to keep a prior resolution in place. Reviewing the only federal appellate decision on point and the consistent practice of numerous states that had withdrawn similar petitions since 1940, the opinion concluded that Maryland's General Assembly could withdraw its 1975 petition, while flagging that a court might ultimately treat the question as a nonjusticiable "political question" left to Congress rather than the courts to decide.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could Maryland take back its 1975 request for a constitutional convention on a balanced budget amendment?
Yes, according to the opinion. It concluded the General Assembly had the authority to withdraw the petition it passed in 1975 (Joint Resolution 77), because a convention petition is an ordinary legislative act rather than a final, binding action under Article V.

Why was withdrawing a convention petition different from rescinding a ratification vote?
The opinion explained that when a state ratifies a proposed constitutional amendment, it is exercising a special power granted directly by Article V, and that act is meant to be final, just like the final vote of a ratifying convention would be. A petition asking Congress to call a convention, by contrast, is described in the opinion as "merely formal requests by state legislatures to Congress," a routine legislative device rather than the state's final constitutional act.

Did any court case address whether a state can withdraw this kind of petition?
Yes. The opinion relied heavily on Petuskey v. Rampton, a case in which the Tenth Circuit reversed a district court's attempt to invalidate Utah's convention petition, treating the petition as an ordinary act of state legislative policy. The opinion noted this was the only reported federal appellate decision addressing a state legislature's Article V convention petition.

Was there any risk a court would simply refuse to decide this question?
Yes, the opinion flagged that possibility. It noted an argument that the validity of a petition withdrawal could be treated as a nonjusticiable "political question" left for Congress alone to resolve, though it also pointed to a series of other Article V cases where federal courts had been willing to rule on similar questions, so it could not assume the issue would be left entirely to Congress.

Background and statutory framework

Article V of the U.S. Constitution provides two routes for constitutional amendment: Congress can propose amendments directly, or, on application of two-thirds of state legislatures, Congress must call a convention to propose amendments; either route requires ratification by three-fourths of the states. The opinion noted that although no amendment had ever originated from a convention, close to two-thirds of the states had by 1983 passed resolutions urging conventions on various subjects, including the balanced-budget question behind Maryland's 1975 Joint Resolution 77 (Laws of Maryland 1975, at 3921-24). Revisiting its own 1979 opinion on ratification rescissions (64 Opinions of the Attorney General 84), the current opinion reaffirmed that a ratification, once made by a state legislature or convention, is that state's final action under Article V and cannot be rescinded, a conclusion it found supported by judicial and Congressional precedent.

By contrast, the opinion characterized a convention petition as a "commonplace legislative device" rather than a final act (citing Bonfield, The Dirksen Amendment and the Article V Convention Process, 66 Mich. L. Rev. 949, 966-67 (1968)), and found that basic legislative procedure, specifically the rule that one legislature cannot bind its successors, supported a right to withdraw it (citing Fisher v. State and Montgomery County v. Bigelow). The opinion's central authority was Petuskey v. Rampton, in which the Tenth Circuit reversed a district court's invalidation of Utah's convention petition, holding that a state's petitioning action was a matter of state policy, not a "national" function beyond judicial review. The opinion also surveyed the practice of eighteen state legislatures that had withdrawn convention petitions on six different subjects since 1940 (citing the ABA Special Constitutional Convention Study Committee's 1974 report), and noted that the Maryland Senate itself had three times passed resolutions to withdraw an earlier reapportionment-related petition, though those withdrawals never became final Maryland action. Finally, the opinion flagged the possibility that a court could treat the validity of a withdrawal as a nonjusticiable "political question" for Congress alone, noting a split in authority (contrasting Idaho v. Freeman, holding ratification rescission justiciable, with earlier suggestions to the contrary), but pointed to a consistent line of other Article V cases in which federal courts had ruled on similar questions (citing Kimble v. Swackhamer, Leser v. Garnett, Hawke v. Smith, Hollingsworth v. Virginia, Dyer v. Blair, and Trombetta v. Florida) as evidence that at least some Article V issues remain within judicial reach.

Citations

Statutes:

• U.S. Const. art. V (constitutional amendment process, ratification and convention routes)
• Laws of Maryland 1975, at 3921-24 (Joint Resolution 77, petitioning Congress for a balanced budget amendment or convention)
• S.J.R. 29, 1971 Journal of the Senate 621
• S.J.R. 14, 1968 Journal of the Senate 239
• S.J.R. 64, 1967 Journal of the Senate 1642

Cases:

• Petuskey v. Rampton, 431 F.2d 378 (10th Cir. 1970), cert. denied, 401 U.S. 913 (1971)
• Petuskey v. Rampton, 307 F.Supp. 235, 250 (D. Utah 1969), rev'd on other grounds, 431 F.2d 378 (10th Cir. 1970)
• Fisher v. State, 204 Md. 307, 315 (1954)
• Montgomery County v. Bigelow, 196 Md. 413, 423 (1950)
• Opinion of the Justices to the Senate, 366 N.E.2d 1226, 1227-28 (Mass. 1977)
• Idaho v. Freeman, 529 F.Supp. 1107, 1123-46 (D. Idaho 1981), vacated as moot, 459 U.S. 809 (1982)
• Kimble v. Swackhamer, 439 U.S. 1385 (Rehnquist, J., Circuit Justice), appeal dismissed, 439 U.S. 1041 (1978)
• Leser v. Garnett, 258 U.S. 130 (1922)
• Hawke v. Smith, 253 U.S. 221 (1920)
• Hollingsworth v. Virginia, 3 U.S. 378 (1798)
• Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975)
• Trombetta v. Florida, 353 F.Supp. 575 (M.D. Fla. 1973)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1983/Volume68_1983.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Constitutional Law, Federal Constitutional Amendments, General Assembly, State Legislature May Withdraw its Prior Petition Asking Congress to Call a Constitutional Convention.

January 31, 1983

The Honorable Arthur Dorman
Senate of Maryland

You have requested our opinion on whether it would be constitutional for the General Assembly to withdraw a petition asking Congress to call a constitutional convention. In 1975, the General Assembly passed Joint Resolution 77, petitioning Congress to prepare and submit to the states an amendment to the United States Constitution that would require a balanced federal budget or, alternatively, to call a constitutional convention to propose such an amendment. See Laws of Maryland 1975, at 3921-24. You have asked whether the General Assembly may now, by subsequent Joint Resolution, withdraw that petition.1

For the reasons given below, we have concluded that such a withdrawal would be constitutional.2

1 In your letter of inquiry, you refer to a "rescission" by the General Assembly of its petition to Congress. Although "rescission" and "withdrawal" have substantially the same meaning, we use the word "withdrawal" when referring to actions to nullify a petition for a constitutional convention and the word "rescission" when referring to actions to nullify state ratifications of proposed amendments. We believe that using these words in this distinct manner comports with widely accepted practice and would facilitate clarity in our discussion of the issue.

2 We do not address the question of whether a state may withdraw a petition even after the requisite number of states have petitioned for a convention. That particular problem is not now before us.

I
Article V

The process of amending the Constitution is governed by Article V of the United States Constitution, the pertinent provisions of which are as follows:

"The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress[.]"

Under Article V, state legislatures participate in the amendment process in one of two distinct ways: (i) by petitioning Congress to call a constitutional convention to propose amendments; and (ii) by ratifying amendments proposed either by the Congress itself or by a convention called by Congress.

Until now, every amendment to the Constitution has been originally proposed by Congress. There have, however, been several attempts over the years by state legislatures to compel Congress to call a constitutional convention for various purposes. Since 1940, close to two-thirds of the states have passed resolutions urging conventions to propose amendments that would limit the federal income tax, reverse in part the Supreme Court's reapportionment decisions, and, spurring your present inquiry, require a balanced federal budget. See generally American Bar Association Special Constitutional Convention Study Committee, Amendment of the Constitution by the Convention Method under Article V Appendix B (1974) (referred to below as "ABA Report"). The ABA Report is reprinted in Bills to Provide Procedures For Calling Constitutional Conventions For Proposing Amendments To The Constitution of the United States, On Application of the Legislatures of Two-Thirds of the States, Pursuant To Article V of the Constitution; Hearings on S3, S520, and S1710 Before The Subcomm. on the Constitution of the Senate Comm. on the

Judiciary, 96th Cong., 1st Sess. 69-165 (1979) (referred to below as "1979 Hearings").

In recent years, there has been much debate as to whether a legislature can either rescind a previous ratification of an amendment or, as in your inquiry, withdraw a petition for a constitutional convention.3

II
Rescinding A Ratification

In 1979, we considered whether the General Assembly could rescind its ratification of a constitutional amendment. We concluded that it could not do so. 64 Opinions of the Attorney General 84 (1979).

Our conclusion rested primarily on our determination that, when a state legislature ratifies a constitutional amendment, it is not exercising its inherent legislative powers but is, instead, "exercising power as a ratifying assembly which is conferred by Article V of the United States Constitution". Id. at 92. This determination, in turn, was based on our finding that the framers of the Constitution intended the two procedures provided for in Article V for state ratification of constitutional amendments, by a state convention or by the state legislature, to be functional equivalents.

Because the ratification of an amendment by a state convention would be the final, irrevocable act of such a convention, ratification by a state legislature similarly should be final and irrevocable. Id. at 85-87. We found support for our conclusion in judicial and Congressional precedents. Id. at 87-89, 90-92.

3 There is no question whatever that the General Assembly may withdraw that portion of its 1975 petition which requested Congress to itself propose a balanced budget amendment. Article V of the U.S. Constitution does not address such a request at all.

III
Withdrawing A Petition

We reach a different conclusion, however, with respect to petition withdrawals. In our view, the General Assembly has the authority to withdraw a petition.

The crucial difference between ratifications and petitions is that a state ratification, whether by the state legislature or by a state ratifying convention, is that state's final action under Article V. By contrast, Article V relies entirely on the legislature in each state to initiate a constitutional convention through a commonplace legislative device, the petition. Although ratifications are the "final act by which sovereign bodies confirm a legal or political agreement", petitions for a constitution convention are "merely formal requests by state legislatures to Congress" to call a convention. Bonfield, The Dirksen Amendment and the Article V Convention Process, 66 Mich. L. Rev. 949, 966-67 (1968). See also 1979 Hearings at 297-98 (prepared statement of professor William W. Van Alstyne, Duke University Law School); Fensterwald, Constitutional Law: The States and the Amending Process, A Reply, 46 A.B.A.J. 717, 719 (1960).

The one reported federal court case concerning a state legislature's petition for a constitutional convention strongly supports our characterization of this procedure. In Petuskey v. Rampton, 431 F.2d 378 (10th Cir. 1970), cert. denied, 401 U.S. 913 (1971), the U.S. Court of Appeals reversed a district court decision that had invalidated Utah's petition for a constitutional convention. Despite a federal statute that then barred single federal judges from overturning state statutes, the district court held that it was authorized to invalidate the petition.4 According to the judge, the action by a legislature in petitioning for a constitutional convention was a "national" rather than a "state" function and, therefore, the petition was not a statute. 431 F.2d at 383. The circuit court disagreed, holding that:

"The argument that [the action of petitioning Congress] was national, rather than state, does not persuade us. The national action, if any, would be the

4 At the time the Petuskey case was decided, only a three-judge panel could invalidate state statutes. 431 F.2d at 383.

calling of the convention [by Congress]. Utah has announced as a matter of state policy it favors such a call. Its action was that of a state and does not partake of a national flavor." Id.5

Because the General Assembly's withdrawal of a petition for a constitutional convention is not restricted by Article V, normal rules of legislative procedure apply. One of the most basic of these rules is that one legislature may not bind its successors by its legislative acts. See Fisher v. State, 204 Md. 307, 315 (1954); Montgomery County v. Bigelow, 196 Md. 413, 423 (1950). Thus, the General Assembly is free to withdraw a previous petition for a constitutional convention. Our conclusion is concurred in by virtually every constitutional scholar who has addressed this point.6

The position that a state may withdraw a petition to Congress is also supported by state and Congressional practice. Since 1940, eighteen state legislatures have withdrawn petitions concerning six different calls for a constitutional convention. ABA Report at Appendix B.7 Further, the Senate of the United States, by twice unanimously passing legislation that would provide for petition withdrawals, has recognized the

5 But see Opinion of the Justices to the Senate, 366 N.E.2d 1226, 1227-28 (Mass. 1977) (dicta).

6 In addition to the authorities cited above, see also 1979 Hearings at 308 (statement of Gerald Gunther, Professor of Law, Stanford University); ABA Report at 32-33; Sam Ervin, Jr., Proposed Legislation to Implement the Convention Method of Amending the Constitution, 66 Mich. L. Rev. 875, 889-90 (1968); A Bill To Provide Procedures For Calling Constitutional Conventions For Proposing Amendments To The Constitution Of The United States, On Application Of The Legislatures Of Two-Thirds Of The States, Pursuant To Article V Of The Constitution; Hearings on S. 2307 Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 90th Cong. 1st Sess. 64 (1967) (testimony of Alexander M. Bickel, Professor of Law, Yale University); Staff Of House Comm. On The Judiciary, Problems Relating To State Applications For A Convention To Propose Constitutional Limitations On Federal Taxes, 82nd Cong., 2nd Sess. 13-14 (Comm. Print. 1952). But see Packard, Rescinding Memoralization Resolutions, 30 Chi.-Kent L. Rev. 339 (1952).

7 Although Maryland has never withdrawn a petition, the State Senate has passed, in three different sessions, resolutions for withdrawal of Maryland's petition for a constitutional convention to partially overturn the Supreme Court's reapportionment decisions. S.J.R. 29, 1971 Journal of the Senate 621; S.J.R. 14, 1968 Journal of the Senate 239; S.J.R. 64, 1967 Journal of the Senate 1642.

constitutionality of permitting states to withdraw constitutional convention petitions. See S. 1272, 93rd Cong., 1st Sess., 119 Cong. Rec. 22731-37 (1973); S. 215, 92nd Cong., 1st Sess., 117 Cong. Rec. 36804-06 (1971). See also Graham, The Role of the States in Proposing Constitutional Amendments, 49 A.B.A.J. 1175, 1177 (1963) (claim that the requisite thirty-four states had petitioned Congress to call a constitutional convention to limit federal income taxes was rejected by Senate Judiciary Committee staff, in part because twelve of those states had withdrawn their petitions).

IV
"Political Question" Doctrine

Although we are confident of our legal conclusion that the General Assembly is empowered to withdraw its petition to Congress, and that the courts would so hold were the General Assembly's action challenged, we must add one note of caution.

An argument can be made that determining the validity of a petition withdrawal is ultimately a "political question" on which Congress, and not the courts, would be the final arbiter. In our 1979 Opinion on ratification rescissions, we concluded that a determination on the validity of such rescissions is probably such a political question. 64 Opinions of the Attorney General at 89. Since that Opinion, however, a federal district court has ruled that the validity of ratification rescissions is a justiciable issue on which the courts may rule, and not a political question. Idaho v. Freeman, 529 F.Supp. 1107, 1123-46 (D. Idaho 1981), vacated as moot, 459 U.S. 809 (1982).

Regardless of whether the validity of ratification rescissions is justiciable, the fact that, since 1798, federal courts have consistently ruled on other Article V issues demonstrates that at least some Article V issues are justiciable and not political questions. See, e.g. Kimble v. Swackhamer, 439 U.S. 1385 (Rehnquist, J., Circuit Justice), appeal dismissed, 439 U.S. 1041 (1978); Leser v. Garnett, 258 U.S. 130 (1922); Hawke v. Smith, 253 U.S. 221 (1920); Hollingsworth v. Virginia, 3 U.S. 378 (1798); Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975); Trombetta v. Florida, 353 F.Supp. 575 (M.D. Fla. 1973).

Indeed, the only court that has been faced with the political question doctrine in the context of a legislature's petition for a constitutional convention held that a series of Supreme Court cases supported the justiciability of the issues before it. Petuskey v. Rampton, 307 F.Supp. 235, 250 (D. Utah 1969), rev'd on other grounds, 431 F.2d 378 (10th Cir. 1970), cert. denied, 401 U.S. 913 (1971). Thus we cannot assume that the validity of a withdrawal of a legislature's petition is solely a matter for Congress to decide.8

V
Conclusion

In summary, we conclude that the General Assembly may withdraw its 1975 petition asking Congress to call a constitutional convention to propose a balanced budget amendment. If the courts rule on this issue, we believe they will determine that such a withdrawal is permitted by Article V of the United States Constitution. Unlike ratification of a proposed constitutional amendment, the General Assembly's petition for a constitutional convention is a legislative act that may be withdrawn.

Stephen H. Sachs, Attorney General
Jack Schwartz, Assistant Counsel, Opinions and Advice
Vincent DeMarco, Staff Attorney
Avery Aisenstark, Chief Counsel, Opinions and Advice

8 For discussions of the applicability of the political question doctrine to the withdrawal issue, see Ripple, Judicial Review of Congressional Determinations Pursuant to the Convention Method of Amending the Constitution, reprinted in 1979 Hearings at 431-35; 1979 Hearings at 503 (prepared statement of Laurence H. Tribe, Professor of Law, Harvard University); ABA Report at 20-25; Note, Proposed Legislation on the Convention Method of Amending the United States Constitution, 85 Harv.L.Rev. 1612, 1634-41 (1972).