The Committee on the Judiciary, to which was referred the bill (S. 215) 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, reports favorably thereon with one amendment and recommends that the bill as amended do pass.

EXPLANATION OF THE AMENDMENT

The committee has adopted the following amendment to S. 215: In section 5(a), on line 10, strike "g" and insert "6".

PURPOSE OF THE BILL

The purpose of this bill is to provide the procedural machinery necessary to effectuate that part of article V of the Constitution of the United States which authorizes a convention called by the States to propose specific amendments to the Constitution. The bill does not purport to deal with the situation in which the States have issued call for a convention to propose a general revision of the Constitution. This limited purpose of the bill derives from two considerations. First, American history since shortly after the adoption of the Constitution reveals no expression of a desire on the part of the American people for any general constitutional revision. It does reveal sporadic expressions by the people of the States of a desire to

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provide limited changes in the Constitution. Second, it is the committee's opinion that the machinery appropriate for a convention undertaking a complete rewriting of the Constitution calls for a greatly different procedure from that which would be appropriate for a convention called for the more limited purposes contemplated by this bill. The committee is of the opinion that a call from the States for a general constitutional convention is so remote that there is no need, at this time, for providing the machinery for such a convention. It is the committee's view that a convention call for proposing specific amendments has from time to time, and especially recently, come near enough to fruition to make it appropriate for the provision of the necessary machinery in order to avoid the chaos that would result in the event that the call came and the procedures were not spelled out in advance.

The bill offered here is not intended to effectuate or preclude the proposing for submission to the States of any particular amendment that may, at the moment, be the subject of debate. Although the impetus for this legislation was initially provided by the public concern over accumulating petitions for a convention to consider an amendment regarding reapportionment, the committee has not considered the legislation in the narrow light of any single issue. The com mittee 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 adop tion of any particular constitutional change.

In recommending S. 215 to give effect to article V, the committee has been deeply conscious that this is "constitutional legislation" which will have to meet the unforeseen circumstances of our country's future. Its concern has been with the long-term needs of America.

The committee urges passage of this bill now in order to avoid what might well be an unseemly and chaotic imbroglio if the question of procedure were to arise simultaneously with the presentation of substantive issue by two-thirds of the State legislatures. Should article V be invoked in the absence of this legislation, it is not improbable that the country will be faced with a constitutional crisis the dimensions of which have rarely been matched in our history.

LEGISLATIVE HISTORY

This legislation was first introduced by Senator Ervin, Chairman of the Senate Committee on the Judiciary, Subcommittee on Separation of Powers, on August 17, 1967. Hearings on the bill, S. 2307 of the 90th Congress, first session, were held by the subcommittee on October 30 and 31, 1967, and subsequently published. Thereafter the bill was r vised and reintroduced in the 91st Congress, first session, as S. 623: the Subcommittee reported S. 623 to the full Committee on the Judiciary on June 19, 1969, where no action was taken on the measure dur ing the 91st Congress. The legislation was reintroduced in the 92d Congress on January 26, 1971, as S. 215. On April 27, 1971, the Subcommittee on Separation of Powers reported the measure to the full Com mittee on the Judiciary.

CONSTITUTION OF THE UNITED STATES

Article V

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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

BACKGROUND OF ARTICLE V

Because so much confusion has been disseminated about the origins of article V, it is not inappropriate to set forth here, in capsule form, the development in the Convention of 1787 of the provisions of article V. In the words of Philip B. Kurland:

However natural it may now seem for the Constitution to provide for its own amendment, we should remember Holmes's warning against confusing the familiar with the necessary. There are other, more recent, national constitutions that make no such provision. The nature of the political compromises that resulted from the 1787 Convention was reason enough for those present not to tolerate a ready method of undoing what they had done. Article V, like most of the important provisions of the Constitution, must be attributed more to the prevailing spirit of compromise that dominated the Convention than to dedication to principle.

Although the original Virginia plan provided for a method of amendment, the first essential question resolved by the Convention was whether any method of amendment should be provided. Despite strong opposition from men such as Charles Pinckney of South Carolina, the Convention soon agreed in principle to the desirability of specifying a mode for amendment, with Mason, Randolph, and Madison of Virginia, Gouverneur Morris of Pennsylvania, Elbridge Gerry of Massachusetts, and Hamilton of New York leading the Convention toward accepting the necessity of such a provision. The Virginia plan not only specified an amendment process but provided also that the National Legislature be excluded from participation in that process. And it was on the question of the proper role of Congress that the second major conflict was fought. When first reported by the Committee of Detail, the provision called for amendment by a convention to be called apparently as a ministerial action-by the National

Legislature on application of the legislatures of two-thirds of the States. Although this plan was first approved, the issue was again raised on Gerry's motion for reconsideration, seconded by Hamilton, and supported by Madison. On reconsideration, Sherman of Connecticut sought to have the power given to the National Legislature to propose amendments to the States for their approval. Wilson of Pennsylvania suggested that the approval of two-thirds of the States should be sufficient, and when this proposal was lost he was able to secure consent to a requirement of three-fourths of the States. At this point Madison offered what was in effect a substitute for the Committee of Detail's amended recommendation. It read, as the final draft was to read, in terms of alternative methods. Two-thirds of each House of Congress or two-thirds of the State legislatures could propose amendments. The amendments were to be ratified when approved either by threefourths of the State legislatures or by conventions in threefourths of the States. This compromise eventually overcame the second difficulty. By providing for alternative methods of procedure, the Madison proposal also made possible the compromise between those who would, from fear of the reticence of the National Legislature to correct its own abuses, utilize the convention as the means of initiating change, and those who, like Mason, wanted the National Legislature to be the sole sponsor of amendments **

Article V, which resulted from these deliberations, must be attributed largely to Madison, with the obvious active participation of Hamilton ("Article V and the Amending Process," by Philip B. Kurland, in 1, An American Primer 130-131 edited by Daniel J. Boorstin (1966)).

Although constitutional conventions, as used by the States, gener ally have been reserved for wholesale, as distinguished from piecemeal constitutional revision, there is nothing in the record of the debate at the Philadelphia Convention which discloses any comparable inter tion on the part of the Framers. On the contrary, the latter refrained from any evaluation or differentiation of the two procedures for amend ment incorporated into article V; they tended to view the conventio merely as an alternative safeguard available to the States wheneve Congress ceased to be responsive to popular will and persisted in a refusal to originate and submit constitutional amendments for rati fication.

The history of the use of the amendments process was also shorth stated by Professor Kurland:

Although the Constitution has been the subject of 24* different amendments, resort has never once been made to a national convention to initiate the process. And only once, in the case of the 21st amendment, was the State-convention process utilized for purposes of ratifying an amendment.

For the most part, the amendments have been minor rather than major rearrangements of the constitutional plan. The

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first 10 amendments, the Bill of Rights, came so hard on the heels of the original document that they must be treated, for almost all purposes, as part of it. The only truly basic changes came in the Civil War amendments, the 13th, 14th, and 15th. Although intended primarily for the benefit of the Negroes, who ultimately were the beneficiaries, the amendments have proved to be the essential vehicles for the tranfer to power from the States to the National Government and, within the National Government, to the Supreme Court, which has since exercised a veto power over the actions of the State legislatures, executives, and judiciaries * * * [T]here can be little doubt of the truth of Felix Frankfurter's observation that there has been throughout our history an "absence of any widespread or sustained demand for a general revision of the Constitution."

On the other hand, it should be noted that some of the amendments have been attributable solely to the need to correct a Supreme Court construction of the Constitution. Thus, the 11th amendment was promulgated to overrule the case of Chisholm v. Georgia, 2 Dall. 419 (1793), in which the Court held that sovereign immunity was not available as a defense to, suit by a citizen of one State against another State. The neces-," sity for the Civil War amendments derived in no small measure from the awful case of Dred Scott v. Stanford, 19 How. 393 (1857). The 16th amendment, authorizing the income tax, was a direct consequence of the Court's highly dubious decisions in Pollock v. Farmers' Loan and Trust Co., 157 U.S. 429 (1895), 158 U.S. 601 (1895).

The other major category of amendments includes those relating to the mechanics of the National Government itself. These are due, first, to the need to eliminate ambiguities that became apparent through experience and, second, to the tendency toward extension of the franchise, a movement notable in all democratic countries during the 19th and 20th centuries. In the first group fall the 12th amendment, made necessary by the tied vote for Jefferson and Burr in the 1800 election; the 20th amendment, a response to the increased efficiency of communications and transportation that made it possible to provide for the succession of the newly elected government at a date much closer to the election, as well as to the need to eliminate the ambiguities about filling a presidential vacancy; the 22d amendment, which adopted George Washington's notion that two terms were enough for any man to occupy the Presidency, an unwritten constitutional tradition broken by Franklin Delano Roosevelt's election to the office for four successive terms. In the second category, the amendments that enhance popular sovereignty, fall the 17th, providing for popular election of Senators; the 19th, providing for women's suffrage; the 23d, giving a voice to citizens of the District of Columbia in the election of the President; and the 24th* elim

The 25th amendment, providing for the filling of a vacancy in the omees of President The President; and the 28th, providing for the "18-year-old vote", were adopted subt to the writing of the work quoted.