in a time of "divisive controversy and confusion." An act should provide for validating the applications, for electing and paying delegates to a convention, and for other housekeeping matters.

For the record, even a faint prospect of a constitutional convention gives me the willies. Scholars disagree, but there is good reason to believe a convention could not be limited to proposing a single amendment on tax limitation. A convention could conceivably propose a complete rewriting of our fundamental law. The wisest course would be for Congress voluntarily to restrain its profligate impulses, and meanwhile, to revive the Ervin bill-just in case.

[From Christianity and Crisis, vol. 39, Apr. 16, 1979]

A NEW CONSTITUTIONAL CONVENTION?

HARNESSING THE TIGER

(By Frank Thompson, Jr., and Daniel H. Pollitt)1

Twenty-seven States have now enacted resolutions calling upon Congress to convene a constitutional convention to require a balanced Federal budget; often with lopsided margins, generally with bare minutes of debate. North Carolina Iowa and Utah joined this number in recent weeks. Similar measures have passed one of the houses in the legislatures of California, Indiana and South Dakota, and the issue is now calendared for legislative action in both Montana and Washington.

In short, it appears very likely that the requisite 34 states will have joined in the call within the near future. When and if this happens, we will have our second constitutional convention. It is time to think hard about this clear and present possibility.

Article V of the Constitution mandates the Congress "on the application of the legislatures of two-thirds of the several states" to "call a convention for proposing amendments." The amendments proposed at the convention "shall be valid to all intents and purposes, as part of this Constitution, when ratified" either 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."

Large majorities of Americans polled on the subject favor both a balanced budget (legally mandated) and a constitutional convention if need be to secure one. Simply put, they are fed up with high taxes, inflation and deficit spending, and they place the blame for these ills on wasteful government spending. California's Governor Jerry Brown urges a constitutional convention for more lofty reasons befitting a (still bashful) Presidential candidate a balanced budget, he contends, is a "philosophical symbol" for the "kind of discipline this country needs." Declared Presidential candidate John Connally of Texas sides with Governor Brown in the need for a constitutional convention. But most of the national leadership is opposed.

President Carter warned that a constitutional convention would be “completely uncontrollable, with multitudes of amendments originating therefrom." Senator Edward Kennedy labeled the current drive an "ominous development” and a "serious threat to the integrity of the Constitution." Senator Edward Muskie of Maine sees it as nothing less than a "constitutional crisis," and Senator John Stennis of Mississippi describes himself as "alarmed and frightened" by the prospect. Columnist James J. Kilpatrick declares that "even a faint prospect" of a convention "gives me the willies": Howard Jarvis, father of California's Proposition 13, fears that a convention would put the Constitution "back on the drawing board" where "radical crackpots" would "rewrite the supreme law of the land."

Is this fear of a "runaway convention" justified in fact? Equally important, if not more so, can this fear and opposition be justified in democratic political theory? To begin analyzing these questions one must consider why the Con

1 Frank Thompson, Jr., M.C., represents New Jersey's Fourth Congressional District and is chairman of the Committee on Administration in the House of Representatives. Daniel H. Pollitt is Kenan Professor of Law at the University of North Carolina at Chapel Hill. His previous contribution, "The Wilmington Ten: Carolina Closes the Door" (C&C Feb. 20, 1976) was reprinted in other publications including the Chicago Sun-Times and the Washington Star.

stitution includes two methods of amendment. The first and original process requires that amendments originate in the Congress by two-thirds votes in both the House and Senate, to take effect only when ratified by vote of three-fourths of the states. The second mode was accepted as a means of goading a reluctant Congress, and on at least one occasion was applied to achieve this very purpose. In the early 1900's there was a national clamor for the direct election of United States Senators. This clamor fell on deaf ears in the Senate (the incumbents were quite happy with the system that resulted in their being where they were), but then a number of states proposed a constitutional convention for this purpose. As this movement gained momentum-and not until then-two-thirds of the Senate joined the House in proposing what is now the 17th Amendment.

What, one may ask, is wrong with utilizing this constitutional road for constitutional amendment? Sanctioned by and in the Constitution, it rests on the democratic conviction that the ultimate power lies with the people acting directly through their elected representatives at the state level. Those who met in Philadelphia in 1787 to draft our Constitution realized that imperfections inevitably would appear as time wore on and conditions changed. That is why Article V makes change possible.

A FLAWED PROCESS

Against this argument, what is suggested here is that the second method of amendment is itself one of these imperfections. In historical fact it was proposed late in the hot summer months as a substitute for the earlier proposal, and not so much out of pure democratic preference as out of a desire to increase the power of the states over against that of the central government. Time and temper were running out, and in a spirit of compromise it was decided to adopt both methods of amendment. Accordingly, there were no sharp questions about the second mode, no explorations of consequence; above all, no guidance for procedures of operation. Obvious questions were ignored: How are convention delegates to be selected? Will all states have equal voting strength, regardless of population? Will a simple convention majority suffice to move an amendment to the states for ratification?

The failure to answer these questions in a democratic way means that what originally was intended as a safeguard against authoritarian Congressional arrogence might easily be used in an anti-populist, nti-majoritarian way. Consider the following scenario.

Thirty-four states (the required two-thirds) petition Congress for a constitutional convention. Congress, obedient to the Constitution, calls for a convention in Philadelphia and authorizes the necessary financing. In the call, Congress sets forth the number of delegates allocated to each state (one for each member of Congress), but otherwise it makes no procedural stipulations. The result could well be that the delegates, or many of them, are not elected on the one-personone-vote principle, but instead are selected by the Governor, by the legislature or by specially held conventions. The democratic process undergoes its first defeat.

Suppose further that upon arrival in Philadelphia the small states (Idaho, Wyoming, South Dakota, Rhode Island, etc.) hold a caucus and, fearing domination by a liberal coalition of large states (California, Massachusetts, Michigan, New York, New Jersey, Ohio, Pennsylvania, etc.), move that each state have one, and only one, vote. The roll is called (Alabama, Arizona, Arkansas, etc.), and the plan is adopted by the convention.

Once organized, the convention turns to its primary purpose "of proposing amendments." A majority of states (quite possibly representing a minority of the people) vote for the "balanced budget" amendment; and then (still on fiscal matters) vote to prohibit all public funding (Federal and state) of abortions; to prohibit all public funding of "busing" in connection with school integration; but in a spirit of fiscal generosity, vote to authorize tuition reimbursement for parents who send their children to parochial schools. This package of four amendments is then transmitted back to the states (from whence it originated). Who is so bold as to predict that three-fourths of them-again, perhaps including only a minority of the people would not give approval?

This is the specter of the "runaway" convention that haunts President Carter, Senators Kennedy, Muskie and Stennis, and the commentators.

Turning loose a constitutional convention is like riding a tiger. It is a reckless and unnecessary gamble. The traditional method for constitutional change is available, and it works with all deliberate speed.

We have amended the constitution by this process on 11 occasions in this century alone-approximately once every seven years. In 1913 we authorized a Federal graduated income tax (the 16th Amendment). Then we prohibited alcoholic beverages (18th Amendment), but on sober second thought repealed the prohibition (21st Amendment). Most of the amendments perfect our concept that the best governments rests on the consent of the governed. We have provided for the direct election of Senators (17th Amendment); and have extended the franchise to women (19th Ameriment), to residents of the District of Columbia (23rd Amendment), and to persons over 18 (26th Amendment). We abolished the poll tax that disenfranchised the indigent (24th Amendment). We have eliminated the "lame duck" President (20th Amendment), limited every President to two full terms in office (22nd Amendment) and provided for the transfer of Presidential authority to the Vice President when the Chief Executive is unable to perform the duties of the office (25th Amendment). In short, the people of the United States can and have worked their constitutional will through this time-tried process of amendment.

CONSTITUTIONAL SAFEGUARDS

It is a cautious process, but our whole constitutional system is a cautious one. We have built-in checks and balances. The two houses of Congress check each other, and their legislative power is balanced by that of the President, who can checkmate the Congress with a veto (good unless overruled by a three-fourths vote in each House). Finally, the judiciary can reverse them both in a process which generally takes several years. Those on our highest courts (our own Platonic Guardians) take a long second look when the heat and passion of the moment are forgotten, and ensure that the legislative and executive action conforms to our constitutional norm.

This process of deliberation permeates our form and system of government. It is implicit in all that we do. Clearly, the movement for a constitutional convention puts this spirit of deliberative caution greatly at risk. And yet we must face the very strong possibility that the movement will not be checked before it reaches the point at which Congress must acquiesce.

Like it or not, then, it may be that we will have to ride the tiger of a constitutional convention. If so, we must begin now to fashion a proper harness. And that can be done. If and when Congress issues its call for a convention, it will have to settle on a time and place, provide funding, define the convention's purpose and set up the procedures under which it is to act. It is in creating these procedures that the Congress-whose members, like the President and the Justices of the Supreme Court, are duty bound to respect the Constitution-can provide safeguards against ill-considered or anti-democratic action by the convention. The following are suggested as illustrative.

First, as already mentioned. Congress should establish the time and place for the convention (Philadelphia would be traditional) and provide the necessary financing.

Second, Congress should set the total number of delegates at a level which generates the strong possibility that women, youth and minorities will be elected. All views should be present for consideration when the Constitution is up for debate.

Third, Congress should apportion the delegates among the states on the basis of population. This should be a convention of and by the people, not a convention of and by the states.

Fourth, Congress should require that delegates be elected, not handpicked by the Governor, by the state legislative body or by a controlled state convention. Fifth, the delegates should be elected from Congressional districts, not on a statewide basis. This would ensure that differing elements within a state would all have a chance to be heard.

Sixth, a one-delegate-one-vote rule should be required. Congress should prohibit any kind of unit rule that gags minority views and votes within a state delegation. Seventh, Congress should require a two-thirds vote for the enactment of a proposed amendment. This is the requirement in both houses when constitutional amendments are proposed by the traditional route. The requirement of a supermajority approval is equally appropriate, no matter which route for constitutional change is followed.

Eighth, Congress should hold any proposed amendments for at least one year to provide ample opportunity for discussion and debate. Some minimum opportunity for second thought is a traditional safeguard in our system.

Ninth, Congress should restrict the convention agenda to the items listed in the state petitions, i.e., a balanced Federal budget. There have been many movements for a constitutional convention in our history. At the turn of the century, many states joined in a convention petition to ban polygamy. During the early decade, the subject was the direct election of United States Senators. During the depression years. Wisconsin proposed that Congress call a convention for a general reexamination of the entire Constitution. During and shortly after World War II, a number of states petitioned for a convention to authorize some form of world government. More recently, in direct revolt against Supreme Court decisions, there have been proposals for constitutional conventions to deal with such matters as one-person-one-vote, school prayer and busing. Currently, some 12 states have called on Congress to convene a convention to outlaw abortion.

These efforts failed. The people rejected them. They should not be swept into consideration now, under the umbrella of a balanced budget amendent. Should a convention be called to consider a balanced budget, and then adopt any of these previously rejected proposals (a runaway convention), Congress properly should refuse to refer them to the states for approval. Only thus can the constitutional requirement of prior approval by 34 states for consideration of an amendment be maintained.

Tenth, Congress should provide opportunity for judicial review. The law is somewhat confused on this subject. In 1871, the Supreme Court held that the issue of whether the Civil War Amendments had been properly ratified was a matter left exclusively to the political departments of the Government [see White v. Hart, 80 U.S. 646 (1871)]. Again, in 1939 the Supreme Court repeated the concept that matters of constitutional ratification are not subject to judicial review. It refused to consider the effect of a previous rejection of the Child Labor Amendment by the state of Kansas; and it refused to consider whether a proposed constitutional amendment died a natural death 13 years after proposal [Coleman v. Miller, 307 U.S. 433 (1939) ].

On the other hand, the Supreme Court has held that Congress has the power to set a reasonable time limit upon the ratification process [Dillion v. Gloss. 256 U.S. 368 (1921)], and has sustained the power of Congress to establish the manner of ratification [Hawke v. Smith. 253 U.S. 221 (1920)]. While the matter is not free from doubt, it seems that if Congress establishes procedural and substantive rights as suggested above, it should have the power to authorize jurisdiction in the Federal courts to hear any "case or controversy" alleging a denial or forfeiture of these congressionally created obligations.

HOW STRONG THE REINS?

Will any of the above proposals "work"? Scholars certainly are divided on the subject. The Constitution itself is vague, and we have almost no historical precedent. The last constitutional convention we had was called by the Continental Congress in 1787 "for the sole and express purpose of revising the Articles of Confederation." We can be grateful that it saw the need for larger action and gave us our nation.

Today, however, most Americans are profoundly committed to preserving the essence of our foundational law. Whatever the merits of the proposal for a constitutionally mandated budgeting policy, the movement in its support is not a popular call for radical tinkering with the Constitution, and surely it is not a call for Congressional abdication or for carelessness.

When the Founding Fathers finished their work of drafting the Constitution, South Carolina delegate Charles Pinckney looked back over the long hot summer months and observed that "conventions are serious things and ought not to be repeated." For almost 200 years we have taken this wisdom to heart. If we are now to depart from this admonition, we should do so with all deliberate caution. The time for safeguarding our heritage is now.

[From the Federal Bar News, April 1979]

BALANCED BUDGET AMENDMENT: CONGRESS VERSUS STATES?

(By Meredith McCoy)

Up until January when California Governor Edmund G. (Jerry) Brown announced in his inaugural address his support for the campaign to launch a constitutional convention for the purpose of proposing a constitutional amend

ment to require balancing of the federal budget, only a few groups such as the National Taxpayers' Union were paying serious attention to and keeping tabs on the slow trickle of petitions coming from the States. The constitutional convention drive actually started about four years ago and beggan to pick up steam last summer in the wake of the controversy surrounding California's Proposition 13. Brown's subsequent declaration of support 6 weeks aggo added new impetus to the drive and won for it national media attention.

The National Taxpayers' Union, the Washington-based lobbying group helping to coordinate the campaign, currently lists 28, and possibly 29 of the required 34 states as having approved a resolution. The group expects more to be passed within the coming weeks.

Of course, Congress will not begin to scrutinize the applications received unless the states continue to demand a convention on the budget issue, and once it does so, the campaign could suffer serious set backs because of unresolved questions surrounding the validity of some of the petitions. Even if the intent is clear, the existing applications represent a "hodge podge" of proposals, and at least 16 petitions call for a convention only in the face of congressional inaction on the subject. Whether such conditional requests remain valid is unknown, since the case of Hawke v. Smith, 253 U.S. 221 (1920), which held that a state may not condition its ratification upon the outcome of a binding popular referendum, is applicable to the proposing stages of the amending process only by analogy.

Although 5 states have passed resolutions since mid-January, the earlier gained momentum may have reached a peak partly due to the defeat of a resolution in Brown's own state, California, and partly due to a burgeoning congressional backlash, particularly by the leadership in both the House and the Senate. In addition to the hearings already held by Birch Bayh's subcommittee on the Constitution and those scheduled later by another Senate committee, chairman of the House Judiciary Committee, Peter W. Rodino, Jr., (D-N.J.), plans a cautious and very deliberate investigation into the legal, economic, and budgetary effects and ramifications of the various budget proposals introduced this year, particularly those which specifically emphasize a limit of federal spending.

As a result of the prodding effect of requests from the states, congressional repsonse has tended to take two directions. While many members of Congress are unhappy with the balanced budget movement, most members understand that voters are concerned about inflation, high taxes, and government spending. But if Congress is apprehensive about the economic problems besetting the country, many members perceive as far more serious the threat of a wide-open constitutional convention. Because the thought of a "runaway" convention that would rewrite the country's fundamental laws is such a fearsome prospect, and because the political futures of some might depend upon the response to the balanced budget issue, the States' action thus far may prompt serious consideration of the alternatives available. Even the wide divergence among legal scholars as to the nature of a constitutional convention may not detract from the motivating effect of a convention call.

The problem Congress will try to resolve is how to prevent the states from getting into the amending business by way of convention while offering them some means of assuring a curb on federal spending.

The special fears surrounding the use of the convention method have their source in the fact that the lack of historical and legal precedent gives rise to nothing but unanswered and unanswerable questions with respect to not only the procedural aspects of the convention method but also the knotty substantive issues such as the limits and sources of congressional power in the area.

Among the constitutional uncertainties which abound are a number of initial obstacles which would have to be overcome before Congress could call a convention. For example, it would have to determine whether the petitions as worded constitute a national consensus as to the necessity for an amendment; whether the requirement of timeliness is met; and whether an application is valid if conditionally phrased, or vetoed by the state governor, or improperly certified by state officials. The Constitution is silent on all these questions just as it is silent on the question of whether a state can withdraw its application once it is sent to Congress. The requirement of timeliness or contemporaneity is derived from the case of Dillon v. Gloss, 256 U.S. 368 (1921), which held that ratification under Article V must be within a reasonable time, and presumably, this standard would also apply to the proposing stage of the amending process. Although most commentators agree that Congress is impliedly delegated such "housekeeping" functions as setting the time, place, and financing of a conven