Frequently Asked Questions

In Article V of the U.S. Constitution, the framers ceded the states the power to propose and ratify constitutional amendments. Here’s how the process works:

1. Two thirds of the state legislatures (34) must apply for the convention to propose an amendment and then Congress MUST call for the convention by setting the time and place.
2. State selected convention delegations propose the amendment and then Congress selects the mode of ratification (state legislatures or state ratification conventions).
3. Three quarters of the States (38) must ratify the amendment.

This litigation does not advocate or rely on any legal argument or theory that would conflict in any way whatsoever with any position supporting or opposing the ERA, including as it relates to rescissions. FFSF takes the position that well over 2/3 of the states applied for an Article V convention before any states began rescinding their applications. Our position is that once the obligation on Congress to call the Article V convention existed, it could only be discharged by actually calling the convention. Thus the occurrence and possible legal significance of rescissions has no effect whatsoever on this case, and as such, does not conflict with any positions anyone may take related to the Equal Rights Amendment.

Many well-meaning policy makers have been dissuaded from using the several states’ most powerful tool to effect lasting, national change because of the fear of the hypothetical “runaway convention.” This myth gained notoriety in the 1970s as a strategy to defeat applications for a fiscal responsibility amendment. Below are some of the safeguards that make a runaway convention impossible. A more complete discussion can be found in ALEC’s Article V Handbook for State Lawmakers authored by constitutional scholar Rob Natelson.
A more complete list of safeguards is available here.

“The Congress…, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which … shall be valid … as part of this Constitution, when ratified by … three fourths of the several States.” The founders and contemporary scholars are essentially unanimous about this aspect of Article V: once valid applications from two thirds (34) of the states exist, Congress has no discretion in its ministerial duty to call the convention.

By 1979, 39 states have active applications, of which 30 were unambiguously limited to the subject matter of fiscal responsibility. That number peaked when, in 1983, 40 states had active applications of which 32 states had similarly worded applications unambiguously limited to the subject matter of fiscal responsibility. Since that time, some states have rescinded their applications or have passed new ones. However, a convention application is an agreement among the states. Like any other contract, once 34 states have applied for a convention, the right of all states to meet in convention vests and remains enforceable until it is fulfilled, making subsequent rescissions irrelevant. Debate among scholars over the validity of the “old” plenary applications, one dating to 1789, ceased as of 1992 with ratification of the 27th amendment. That amendment was proposed by Congress in 1789 and ratified by the states over the period from 1791 through 1992, a timeline highly analogous to this application counting.

In 1979 the count of valid applications for a convention for proposing amendments limited to the subject of fiscal responsibility surpassed 2/3. At that time, the right of all 50 states to meet in convention vested and remains enforceable. By 1983, the count peaked with 40 state legislatures having applied for this convention. All 40 of these state legislatures also have standing to sue, as their constitutional right to apply for a convention for proposing amendments was usurped by Congress. All 50 states and the legislatures from 40 of the 50 states have standing to enforce that right against Congress for failure to perform its ministerial duty.

Under the Declaratory Judgment Act, the court can declare the existence of a right. This Act has been used successfully to declare that plaintiffs have a right to Congressional action and to allow them to proceed as if Congress had performed its ministerial duties, even without ordering Congress to actually perform an action directly. The Supreme Court has acknowledged that actions assigned to a legislative body under Article V are not necessarily legislative in nature and that our founders were very clear that Congress has no discretion here. The typical bars against suing Congress, such as the Political Question Doctrine and the Speech and Debate Clause, do not apply in these circumstances.