Page images
PDF
EPUB

ments, it also would alter the parallelism and intended equality between the two methods of initiating amendments. Also supporting the conclusion is the Supreme Court's decision in Hollingsworth v. Virginia, 3 Dallas 378 (1798), which held that Article I, Section 7 (the veto provision), applies to "ordinary cases of legislation" and "has nothing to do with the proposition or adoption of amendments to the Constitution." The Court ruled the Eleventh Amendment to be valid although it had not been presented to the president.

For somewhat similar reasons, the committee concluded that the state governor is not assigned a role in the process by which a state legislature applies for a convention or ratifies a proposed amendment. This conclusion is supported by the Supreme Court's decision in Hawke v. Smith, 253 U.S. 221 (1920), and Leser v. Garnett, 258 U.S. 130 (1922).

In Hawke the Court held that it was improper for a state to subject the ratification of a proposed amendment to a popular referendum, declaring that ratification was not ordinary legislation but rather an expression of assent in which "no legislative action is authorized or required." The Court emphasized that the agency for ratification was the "state legislature," that is, the representative lawmaking body of the state. The lawmaking procedures of the state, the Court held, were not applicable to the act of ratification. If the act of ratification does not invoke these procedures, which customarily include the governor's veto, it is hard to see why the application, a task specifically assigned to the legislatures by the Constitution, would do so.

TIME LIMIT COULD AVOID CONFUSION

On other questions, such as the length of time during which an application remains valid, the committee recommended that a limitation of some period should be adopted in the interests of certainty, to avoid the type of controversy and confusion that surrounded the apportionment applications, and to help determine the existence of a consensus of purpose among the states. The committee also expressed itself in favor of a statutory rule allowing a state the opportunity to withdraw an application before two thirds have submitted applications on the same subject, as well as a rule permitting a state to rescind a ratification of a proposed amendment so long as three fourths of the states have not ratified. These are desirable, given the relative permanency of an amendment, and they help assure that an amendment will be the result of a "contemporaneously felt need" existing from the inception of the process through its conclusion.

Although the ratification rule would represent a departure from precedents established in connection with the Fourteenth Amendment, the committee believed that the principle of seeking an agreement of public support reflected in Dillon v. Gloss, 256 U.S. 368 (1921), favored the rule. In Dillon the Court held that Congress has the power to fix a reasonable time for ratification of an amendment proposed to the state legislatures.

LEGISLATION SHOULD REFLECT INTENT OF ARTICLE V

The committee took the present text of Article V as the foundation for its study. While members of the committee expressed individual preferences for the congressional method of initiating amendments, the committee was strongly of the conviction that regardless of preferences, fidelity to democratic principles required wholly objective consideration of the subject entrusted to it. The committee unanimously agreed with these views of the Senate Judiciary Committee in 1971 in Senate Report No. 336:

"The committee believes that the responsibility of Congress under the Constitution is to enact legislation which makes Article V meaningful. This responsibility dictates that legislation implementing the article should not be formulated with the objective of making the convention route a dead letter by placing insurmountable procedural obstacles in its way. Nor on the other hand should Congress, in the guise of implementing legislation, create procedures designed to facilitate the adoption of any particular constitutional change."

So long as Congress continues to be responsive to the people, there is little likelihood of a convention's being called. But if there should come a time in our history when two thirds of the states apply for a convention on the same subject, the process should be allowed to function as intended. If special circumstances cause that event to occur, there is no reason why a convention, functioning pursuant to the Constitution and in the context of appropriate federal legislation, cannot be an orderly mechanism for constitutional change.

[The National Law Journal, March 2, 1979]

CONSTITUTIONAL LAW

(By John D. Feerick)*

ABA REPORT: RULES NEEDED TO GOVERN CALLING OF CONSTITUTIONAL CONVENTION

If we fail to deal now with the uncertainties of the convention method, we could be courting a constitutional crisis of grave proportions. We would be running the enormous risk that procedures for a national constitutional convention would have to be forged in time of divisive controversy and confusion when there would be a high premium on obstructive and result-oriented tactics.

"It is far more prudent, we believe, to confront the problem openly and to supply safeguards and general rules in advance... So long as the Constitution envisions the convention method, we think the procedures should be ready if there is a 'contemporaneously felt need' by the required two-thirds of the state legislatures. Fidelity to democratic principles requires no less."1

These views were expressed several years ago in a 100-page report by a special Constitutional Convention Study Committee of the American Bar Association. The committee was composed of two federal judges, one superior court judge, a present and a former law school dean, two former presidents of state constitutional conventions, a former deputy attorney general of the United States, and a practicing attorney."

After a two-year study, the committee, whose recommendations were adopted by the ABA, concluded that it is desirable for Congress to establish procedures to govern the process for amending the Constitution by the convention method. Although the Senate twice unanimously passed measures that would have established procedures for the calling of a national constitutional convention,3 no action was ever taken by the House of Representatives, with the result that our nation must deal on an ad hoc basis with the growing number of state applications calling for a convention to propose an amendment regarding a balanced federal budget.

Article V of the Constitution sets forth two methods of initiating and of ratifying constitutional amendments: "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 prosposing 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 threefourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress."

In Federalist No. 43, James Madison explained the reasons for Article V: "That useful alterations [in the Constitution] will be suggested by experience, could not but be foreseen. It was requisite therefore that a mode for introducing them should be provided. The mode preferred by the Convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. It moreover equally enables the general and the state governments to originate the amendment of errors as they may be pointed out by the experience on one side or on the other."

The Virginia Plan of government introduced in the Convention on May 29, 1787 provided "that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto."

[ocr errors]

After a number of suggestions were advanced, the following clause was included in the Committee of Detail's report of Aug. 6, 1787: "On the application of the Legislatures of two-thirds of the States in the Union for an amendment of this Constitution, the Legislature of the United States shall call a Convention for that purpose.”

998

This clause for amending the Constitution was adopted by the Convention on Aug. 30, which rejected a suggestion that day by Gouverneur Morris that Congress be free to call a convention "whenever it pleased." It appears that the

*Mr. Feerick was a member of the ABA's Special constitutional convention study committee (1971-73).

For footnotes, see "References" on pp. 175-76.

Convention contemplated under the proposal adopted on Aug. 30 "was the last step in the amending process, and its decision did not require any ratification by anybody."

On Sept. 10, Elbridge Gerry moved to reconsider this action. He observed that under the Aug. 30 proposal "two-thirds of the States may obtain a Convention, a majority of which can bind the Union to innovations that may subvert the StateConstitutions altogether." Alexander Hamilton and other delegates agreed with Mr. Gerry's motion. Mr. Hamilton noted that it was difficult to introduce amendments under the Articles of Confederation and suggested that "an easy mode should be established for supplying defects which will probably appear in the new System."" Mr. Hamilton stated that Congress would be the "first to perceive" and be "most sensible to the necessity of Amendments," and ought, therefore, to be authorized to call a convention whenever two-thirds of each House agreed on the need for a convention.

Also critical of the Aug. 30 proposal was James Madison. During the debate of Sept. 10 he asked: "How was a Convention to be formed? by what rule decide? what the force of its acts?" Mr. Madison thereupon successfully proposed the following provision in lieu of that adopted on Aug. 30: "The Legislature of the U.S. whenever two-thirds of both Houses shall deem necessary, or on the application of two-thirds of the Legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three-fourths at least of the Legislatures of the several States, or by Conventions in three-fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the U.S."

10

The debate on the amending article, however, was not over. On Sept. 15, George Mason expressed his objection to the Sept. 10 proposal. He stated that both modes of initiating amendments depended on Congress so that "no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive. ." Mr. Mason's draft of the Constitution, as it stood at that point in the Convention, contained the following notations:

"Article 5th-By this article Congress only have the power of proposing amendments at any future time to this constitution and should it prove ever so oppressive, the whole people of America can't make, or even propose alterations to it; a doctrine utterly subversive of the fundamental principles of the rights and liberties of the people."

18

As a result of Mr. Mason's attack on the amending article, Messrs. Gerry and Morris moved to modify the provision "so as to require a convention on application of" two-thirds of the states." In response, Mr. Madison said that he "did not see why Congress would not be as much bound to propose amendments applied for by two-thirds of the States as to call a Convention on the like application." He added that he had no objection against providing for a convention for the purpose of amendments "except only that difficulties might arise as to the form, the quorum, etc., which in Constitutional regulations ought to be as much as possible avoided."

9914

The Gerry-Morris motion, however, was passed so as to include the convention method as it now reads.

Little discussion of Article V occurred in the state ratifying conventions. In Federalist paper 85, Mr. Hamilton referred to Article V as contemplating "a single proposition." Congress would be obliged to call a convention, he stated, whenever two-thirds of the states concurred. He added: "The words of this article are preemptory. The Congress 'shall call a convention.' Nothing in this particular is left to the discretion of that body."

In the first Congress, surrounding receipt of the first state application, Mr. Madison stated that when two-thirds of the state had concurred in an application, it would be "out of the power of Congress to decline complying, the words of the Constitution being express and positive relative to the agency Congress may have in case of applications of this nature."

16

Through the present time all amendments have been proposed on single subjects by the Congress and all but the 21st Amendment (repealing Prohibition) were ratified by the state legislative method. Although there has never been a national constitutional convention since the adoption of the federal constitution, there have been several hundred applications from state legislatures calling for a convention on various subjects." Rarely have the applications on any specific subject been sufficient to raise the question of whether Article V has been triggered.

[blocks in formation]

In the aftermath of the Supreme Court's one person, one vote decisions, however, an effort was made for a constitutional convention to modify this principle of representative democracy, which culminated in more than 30 states submitting applications calling for a convention of the question of apportionment. Although the effort failed, it served to emphasize the existence of the constitutional convention vehicle of proposing amendments.

In earlier periods of American history the application clause of Article V was resorted to by the states primarily to encourage Congress to propose specific amendments. Particularly effective was a campaign at the turn of the century for an amendment providing for the direct election of U.S. Senators. It is reported that more than 30 states submitted applications for the call of a convention on that subject. The issue, however, was rendered academic when Congress proposed the 17th Amendment. In the 1930's and 1940's an effort was made to pressure Congress for an amendment to limit the federal taxing power; but it failed. Almost invariably whenever the application clause of Article V has been resorted to by the states in any significant manner questions have been raised as to the meaning of Article V, Including among these questions are the following: 1. Is Congress under a duty to call a convention when two-thirds of the state legislature apply for one on a specific matter?

2. If called, is the convention limited to that matter or free to propose amendments on other matters?

3. What constitutes a valid application which Congress must count?

4. What rules apply as to the selection of convention delegates and as to the voting at a convention?

5. What are the roles of the President, state governors and courts in the process?

6. Can a state withdraw an application once it has been submitted to Congress? 7. How much power does Congress have as to the scope of a convention? In its study of the subject, which was aided by 12 law students, the ABA Study Committee attempted to answer these questions. It took the present text of Article V as the foundation for its study. While members of the committee expressed individual preferences for the congressional method of initiating amendments, the committee was strongly of the conviction that regardless of preference, fidelity to principle required wholly objective consideration of its assignment from the ABA's governing body. In seeking the answers to the questions of law raised, the committee studied, among other things, the text and origins of the amending provision, the intent of the Framers, and the history and workings of the amending Article since 1789. Since I am in complete agreement with the conclusions of the Committee, of which I was a member, the ensuing discussion focuses on those conclusions."

After concluding, as previously noted, that legislation governing the convention process is highly desirable, the ABA committee addressed the question of whether an Article V convention can be limited to a specific subject. Answering in the affirmative, the committee noted that the text of Article V authorizes only the state legislatures to initiate the process and that the origins of the Article indicate that the authority of the state legislatures reaches as far as calling for a convention general in scope.

On the other hand, the committee expressed its view that the state legislatures could exercise only a portion of their authority by calling for a convention limited to a specific subject. In this regard, the committee noted that at the state level, at which there have been more than 200 constitutional conventions, it seemed settled that the electorate may choose to delegate only a portion of its authority to a state convention and so limit it substantively."

With respect to the view that Article V sanctions only general conventions, the committee stated: "Such an interpretation would relegate the alternative method to an 'unequal' method of initiating amendments. Even if the state legislatures overwhelmingly felt that there was a necessity for limited change in the Constitution, they would be discouraged from calling for a convention if that convention would automatically have the power to propose a complete revision of the Constitution."

19 19

The committee found support in both the text and history of Article V for its conclusion that a convention could be limited. The text of Article V evidences an intent that there be a national consensus in order to amend the Constitution. A two-thirds vote is necessary in each house of Congress to propose an amendment; there must be applications from two-thirds of the states to call a conven

tion; ratification by three-fourths of the states is necessary to ratify an amendment proposed under either method of initiation. This suggests that there must be a consensus of purpose among the states to hold a convention. When the states are at odds on the purpose of a convention, it seems wholly inconsistent with Article V to call one. Conversely when two-thirds of the states are in agreement on a particular, limited purpose, the conclusion is strong that a convention should be called, limited to that purpose.

[ocr errors]

As for the history of Article V, the amendment articles of a number of state constitutions adopted before the U.S. Constitution also suggested to the committee that a constitutional convention can be limited substantively. The language of the earliest draft of Article V submitted to the Constitutional Convention by the committee on detail indicates that a convention limited substantively was within its contemplation. That provision read: "On the application of the Legislatures of two-thirds of the States in the Union, for an amendment of the Constitution, the Legislature of the United States shall call a convention for that purpose (emphasis supplied).

Sometimes the Constitutional Convention of 1787 itself is cited for the proposition that an Article V convention may not be limited, but that premise seems wholly inapposite. As the ABA report noted: "While the Constitutional Convention of 1787 may have exceeded the purpose of its call in framing the Constitution, it does not follow that a convention convened under Article V and subject to the Constitution can lawfully assume such authority.

21

The 1787 convention took place before the adoption of the Constitution when the states were independent and there was no effective national government. In addition, its work was submitted to the Continental Congress, consented to by that congress, and transmitted by it to the states for ratification. Moreover, as Thomas Cooley has observed, the 1787 convention was "a revolutionary proceeding, and could be justified only by the circumstances which had brought the Union to the brink of dissolution."

[ocr errors]

As for whether Congress is obliged to call a convention when the requisite number of applications have been submitted, the committee had little doubt. The language of Article V is mandatory and the intent of the Framers was made clear in the debate of Aug. 30, 1787, the Federalist, in the First Congress upon receipt of the first state application, and during other discussions.

Once a convention is called for a particular purpose, the committee concluded that the convention would have no authority to act with respect to other subjects. Were it to deviate from the subject that brought it into being and propose amendments on other subjects, the committee suggested that Congress could deal with the deviation by exercising its power over choosing the method of ratification and refusing to submit the amendments to the states. Judicial relief might also be appropriate under such circumstances.

Content. Article V explicitly gives Congress the power to call a convention upon receipt of applications from two-thirds of the state legislatures. As a necessary incident of the power to call, the committee reasoned, Congress has the power to determine initially whether the conditions requiring a call have been satisfied. not every state application, of course. is necessarily valid.

As the committee stated: “A reading of Article V makes clear that an application should contain a request to Congress to call a national convention that would have the authority to propose an amendment to the Constitution. An application which simply expressed a state's opinion on a given problem or requested Congress itself to propose an amendment would not be sufficient for purposes of Article V. Nor would an application seem proper if it called for a convention with more authority than to vote a specific amendment set forth therein up or down, since the convention would be effectively stripped of its deliberative function. A convention should have latitude to amend, as Congress does, by evaluating and dealing with a problem." 22

The committee added that an application which expressed the result sought by an amendment (i.e., direct popular election of the President) should be proper since the convention would have the freedom to decide on the terms of the specific amendment. The committee also felt that it should not be necessary that each application be identical or propose similar changes in the same subject matter.

Timeliness.-In Dillon v. Gloss, the Supreme Court stated that "the fair inference or implication from Article V is that the ratification must be within some

« PreviousContinue »