Senator HATCH. Our second witness today will be Mr. John Feerick of the American Bar Association.

John, we are happy to welcome you here, and we appreciate the effort you have put forth in preparing to come here and assist us on these issues.

TESTIMONY OF JOHN D. FEERICK, ESQ., REPRESENTING THE

AMERICAN BAR ASSOCIATION, NEW YORK, N.Y.

Mr. FEERICK. Thank you. I would like to say that the American Bar Association is deeply privileged to be invited to appear before this committee once again to speak on an issue which we believe is of considerable importance.

I would like, with the subcommittee's permission, to file with the committee my written statement and, in my testimony, to present brief highlights of the written statement.

Senaor HATCH. Your statement will be admitted to the record.
Mr. FEERICK. Thank you very much, Senator.

In 1971, members of the committee, the American Bar Association set up a special committee to examine the many questions of law associated with the subject of a National Constitutional Convention.

This particular study committee was established as a result of experiences we had had in the late 1960's with respect to the subject of legislative reapportionment that focused considerable attention on the National Constitutional Convention provision of the Constitution.

The American Bar Association, as it has done from time to time, called together a committee of people to give objective and careful study to the subject with a view to developing a position to the bar.

This particular study committee consisted of two Federal judges. Our chairman was Federal Judge Clyde Atkins from Florida. We also had Federal Judge Sarah Hughes from Texas, and the committee included two law school deans, Dean Albert Sacks of Harvard and David Dow, former dean of the Nebraska Law School. We had the benefit of two former presidents of State constitutional conventions, Adrian Foley of New Jersey, and Sam Witwer of Illinois.

We also had as a member of the committee, a former Deputy Attorney General of the United States, who now serves as Deputy Secretary of State, Warren Christopher. In addition, we had the assistance of a judge here in the District of Columbia, Judge William Thompson. I rounded out the committee.

The committee met for 2 years, met often, to study the questions associated with this particular article of the Constitution. We were aided in our study by a dozen law students from six or seven law schools. Those law school students put together several volumes of work papers on these issues before the committee, and I would like to say to the committee that we would be more than welcome to make available those unpublished work papers to the committee and its staff as it proceeds with its study of this issue.

Senator HATCH. We would be very grateful if you would. We would appreciate that.

Mr. FEERICK. Our study concluded in the summer of 1973. It eventuated in a printed report. It was presented to the house of delegates

of the American Bar Association and it was approved as a position of the American Bar Association in the summer of 1973 and remains the position of the Bar Association at this point in time.

I realize it is a rather lengthy document, but it may be of use to the committee, and I would like, with the committee's permission, to offer as part of the committee record, a copy of our final printed report on this subject.

Senator HATCH. Without objection, it will be admitted.

Mr. FEERICK. Thank you, Senator.

Getting to the conclusions reached by the American Bar Association on this subject, we concluded, Senators, that it would be highly desirable for the Congress to enact legislation with respect to this alternative method of amending the Constitution. I might add, parenthetically, that in terms of our study, we took as a given article V. It was not part of our study to deal with the issue of whether or not there should be an alternative method of amending the Constitution. We took it as a given, and we tried to understand it and tried to cope with legal issues that were put before us concerning this particular provision, and it was our conclusion that it would be highly desirable for the Congress to adopt legislation to regulate this particular process, as Congress had done in a number of other areas, such as handling contested elections to the Congress, with respect to the treatment of the electoral vote returns from the States, and with respect to certain ministerial functions of the amending article in terms of the Office of General Services Administration.

It is our view that it is better governmental technique, and more faithful to the integrity of the amending process, to avoid the type of crisis we could have in the absence of procedures to deal with the issues of the alternative method of amending the Constitution.

It was our view that if we don't have legislation, we could be faced with a very serious crisis where applications were put before the Congress on a particular issue and a debate ensued as to how those applications should be dealt with in terms of the obligations that this body has under article V of the Constitution.

In addition to concluding that there should be legislation on the subject, we then approached one of the basic issues, and that is whether or not a convention called pursuant to article V, could be limited.

It was the view of our committee that if two-thirds of the States called for a National Constitutional Convention, limited to a particular subject matter, that that Constitutional Convention had to be called by the Congress and that Constitutional Convention had no more authority than to deal with the subject matter giving rise to the call for a convention.

In other words, it was our conclusion that legislation could limit a Constitutional Convention to a particular subject matter. We felt that the State legislatures that have the power under article V to call for a Constitutional Convention, could exercise a limited amount of its authority and call for a limited-purpose convention, and we felt that if two-thirds of the States concurred in a particular limited way, that Congress duty under article V was clear, and that was to call such a limited convention.

We felt that article V, when the conditions giving rise to such a call were present, imposed on the Congress a mandatory duty to call a convention, and we set forth in our report the evidence that we found to support that conclusion.

We also felt that if a limited purpose convention was called by the Congress, Congress had the power to limit that convention to such a call, and we suggested in our report that if a convention exceeded the limitations placed on it, Congress had the power to refuse to submit that excess to the States for ratification as a proposed constitutional amendment.

We also dealt with a number of important subsidiary issues that we believe have to be confronted in the context of legislation, such as the content of applications.

We felt that under article V, Congress had the power not only to call a convention, but to make a judgment as to whether or not the conditions for such a call were present, and we felt that there was power in the Congress to make a judgment with reference to the validity of applications, at least initially.

That is not to say-it is not our conclusion-that Congress could get involved in the substantive aspects of applications, but could make a judgment as to whether or not a proper application was present under article V.

It seemed to us that an application which simply expressed the States' position on a given problem or requested Congress to propose an amendment would not be sufficient for purposes of article V, nor would, in our view, an application be proper if it called for a convention with no more authority than to vote a specific amendment set forth therein up or down, since as we saw it, the convention under such circumstances would be effectively stripped of its deliberative function with respect to that particular subject.

As we saw it, a convention should have latitude to amend, as the Congress does, by evaluating the problem, as Congress does.

Our committee felt that an application expressing the results sought by amendment should be proper. We also felt that another issue that should be confronted is the timeliness of an application. We have no view as to what time limit should be placed in such legislation concerning the timeliness of an application, although our report reflects the view that if there was a rule of 4 or 7 years for States to file applications on a particular subject, that that time certainly would be consistent with our view of what is reasonable.

We also felt that legislation should deal with the subject of whether or not a State can withdraw an application once submitted, and it was our conclusion that a State could withdraw an application that was submitted if it subsequently felt that for any reason it should not have been submitted.

We also expressed the view that with reference to the delegates to a National Constitutional Convention, such delegates should be elected by the people rather than appointed.

With reference to the subject of apportionment, with respect to delegates, it was our conclusion that the Constitutional Convention would perform a governmental function, and that the one-person-one

vote standard would be applicable to the selection of delegates to a Constitutional Convention.

With respect to what vote would be required at a Constitutional Convention for purposes of proposing an amendment, we felt that that issue should be decided by the convention itself, because it would involve very much an essential deliberative type of aspect of the function of the convention.

We have set forth in our report more detail as to our conclusions on that subject. With reference to the involvement of the President and the Governors in the process, we felt that under article V, the President and the State Governors did not have a constitutional role to play with respect to the substantive functioning of the amendment process, and our report contains considerable detail on our conclusions on those subjects.

Finally, and very importantly, we felt that if legislation were adopted, as we hope this Congress will adopt on this subject, that that legislation should provide for limited judicial review of determinations made in the process.

Finally, and reflecting, Senator, the comments that you made earlier, we feel that if legislation is adopted, the legislation should strike a balance between not making it too easy to amend the Constitution, but not making it impossible to amend the Constitution, if the States feel that they must resort to the alternative method on a paricular subject.

I would be very happy to answer, perhaps in a little more detail, any of the subjects that I have commented on and any of the other subjects that our association has taken a position on. Thank you.

Senator HATCH. We thank you for your testimony. I would like to congratulate you and your committee for the landmark work that you have done in this particular area. Although there are differences, as you know, between your committee's proposal and my own, I have to acknowledge that I am deeply indebted to your committee for many of the ideas that are in this bill.

Mr. FEERICK. Thank you, Senator.

Senator HATCH. Could you please comment upon the relationship between the alternative amending processes in the Constitution? Is it your view that the provisions in article V were designed to be symmetrical in their application?

Mr. FEERICK. We pointed out that the framers intended that the two methods be equal methods. How far you carry that equality, when we get into the area of procedure, I think can be debated. I can see certain types of legislation, or obstacles, that would render the convention method unequal with respect to the congressional method, and would seem to do violence to at least the spirit of what was intended by the Constitution.

What I am really saying is that we certainly had a view that there was to be equality with respect to the methods, which is not to say that every aspect of the congressional method has to be mirrored in every aspect of how you deal with the alternative method.

For example, the Constitution specifically provides for a two-thirds vote on a congressional proposal, and it has no provision as to what the vote should be at the Constitutional Convention in terms of proposing

an amendment. So we have internal evidence in the Constitution itself of inequality, so to speak. The Constitution doesn't specify in that particular procedural, substantive area, the same vote it does specify with respect to the congressional method.

So I would not want to leave the committee with our view as that whatever the rule is under the congressional method, that that should be the rule under the alternative method.

Senator HATCH. You suggest that "consensus" is the critical consideration in calling a convention, as it has traditionally been in ratifying congressionally proposed amendments.

Would you say that Congress, in making its aggregation decisions, should, in effect, be asking itself, "Is this State application part of the same consensus that is being expressed in other State applications?" How do we translate this into statutory language? How do we develop criteria by which we can give meaning to all this?

Mr. FEERICK. I think we are suggesting that Congress initially make a judgment whether or not the applications before it concur on a particular purpose. In terms of the type of standard that should be placed in legislation, our report indicates that we gave a lot of thought to that and we felt that the standard of the same subject matter, was perhaps as best as we could achieve in terms of language. We also felt that, at least initially, Congress, under a same-subject type of standard, would have the responsibility-as it does in many other areas to make a judgment whether or not there is concurrence on a subject. Under our suggested scheme for legislation, that particular judgment would be subject to judicial review. We thought judicial review in this particular area would be particularly appropriate because here we have State legislatures and Congress in a relationship with each other, State legislatures presumably seeking a convention to make some change maybe opposed by Congress, and that type of potential confrontation can best, we think, be resolved by our judiciary. It can function in a very impartial, arbitrator type role with such questions. Senator HATCH. I believe that it is important we limit opportunities for potential congressional interference in the convention process based on nothing other than Congress' own policy preferences. Would you agree that this is something that merits significant attention? What suggestions would you have in this area as well?

Mr. FEERICK. We certainly expressed in our study the view that there are a number of areas where it would be inappropriate for the Congress to seek to dominate the States in the functioning of article V. And we did express in our report the sense that this particular method of amending the Constitution was intended as an alternative to the congressional method, and that it was important in terms of legislation that our approach not be congressionally dominated, because that would seem to us to run inconsistent with some of the thinking behind the alternative method with respect to having a means of dealing with abuse, perhaps, at the Federal level.

That is not to say that Congress doesn't have a very important role in the process. It certainly was our view that the Constitution gave Congress a very important managerial, supervisory role with respect to the integrity of the amendment process, and so under our approach, we would have a role for the Congress, an important role.