State: Disaster in 1967," 19 Syracuse L. R. 207 (1967).

Mosley, "Limited Constitutional Convention," 21 Tenn. L. Rev. 867 (1951).

Note, "Constitutional Revision by a Restricted Convention," 35 Minn. L. Rev. 283 (1951).

Note, "Judicial Reform Through Total Revisions of State Constitutions," 51 Amer. Soc. Jud. 347 (1968).

Note, "State Constitutional Change: the Constitutional Convention," 54 Va. L. Rev. 995 (1968). Note, "State Constitutional Conventions: Limitations on Their Powers," 55 lowa L. Rev. 244 (1969).

Note, "The Constitutional Convention, Its Nature and Powers-And the Amending Process," 1966 Utah L. Rev. 390 (1966).

Note, "The Powers of Constitutional Conventions," 29 Harv. L. Rev. 528 (1916).

Powell, "Constitutional Growth and Revision in the South," 10 J. Pol. 354 (1948).

Sandelius, "The Kansas Experience; State Constitutional Revision and the Moral Element,” 40 Neb. L. Rev. 575 (1961).

Shull, "Legislature and the Process of Constitutional Amendment,” 53 Ken. L. J. 531 (1964).

Sidman, "Constitutional Revision in Pennsylvania: Problems and Procedures," 71 W. Va. L. Rev. 306 (1969).

Sprague, Cornwell & Goodman, "Judicial Role in a Non-Judicial Setting: Some Survey Evidence," 4 Law and Soc. Rev. 371 (1970).

Sturm & Craig, "State Constitutional Commissions: Fifteen Years of Increasing Use," 39 State Govt. 56 (1966).

Sturm & Craig, "State Constitutional Conventions: 1950-1965," 39 State Govt. 152 (1966).

Sumner, "Constitutional Revision in California," 40 State Govt. 224 (1967).

Symposium on Constitutional Revision, 72 W. Va. L. Rev. 33: Frasure, "Constitutional Revision-The Legislature" 33; Howard, "Constitutional Revision-Virginia's Approach" 41; Shelton, "Con

stitutional Revision-The Counties" 60 (1969). Symposium on the 1964 New Hampshire Constitutional Convention, 6 N.H.B.J. 212 (1964).

Thomas, "The Electorate and State Constitutional Revision ... An Analysis of Four Michigan Referanda," 12 Midwest J. of Pol. Sci. 115 (1968). Wheeler, "Constitutional Reform Fails in the Free State: The Maryland Constitutional Convention of 1967-68," 26 Wash. & Lee 218 (1969).

White, "Amendment and Revision of State Constitutions," 100 Penn. L. Rev. 1132 (1952).

[American Bar Association Journal, March 1974]

AMENDING THE CONSTITUTION THROUGH A CONVENTION

(By John D. Feerick)

The murky procedures and processes of amending the Constitution by means of a convention requested by the states present many questions and could become the reason for a constitutional crisis. An American Bar Association committee has completed a two-year study of the legal and constitutional problems, and the Association has approved its report. Several of the key questions are dealt with in the report.

In times of confrontation and crisis a heavy strain is placed on our system of government. It is especially severe if there are no procedures for dealing with the problem at hand. The temptation is strong to be result oriented, sometimes at the risk of bending constitutional principles. Whether our constitutional system satisfactorily provides in advance for situations of fundamental stress is a basic measure of its ultimate viability.

One source of potential crisis that has not been dealt with is the provision of Article V of the Constitution "that Congress, on the application of the legislatures of two-thirds of the Several States, shall call a Convention for proposing amendments. . . ." Although Congress has never convened a convention, more than three hundred applications for a convention have been submitted to Congress since 1789. Every state has submitted at least one application. In the period since 1940 there have been almost two hundred applications. From 1940 to 1962 more than thirty states petitioned for a convention to deal with the federal taxing power, and between 1963 and 1969 thirty-three states, one less than two thirds, submitted petitions on the issue of legislative reapportionment, although one rescinded its application.

The reapportionment petitions in particular brought into sharp focus unsettled questions concerning the convention method of initiating amendments. Does Article V leave it to the discretion of Congress to call a convention? Can a convention be limited to a particular subject or would it be free to roam over the entire Constitution and propose an entirely new document? Do the executive and judiciary have, or should they have, a role in the process? What is a valid application? How long does it remain valid? Can it be withdrawn once it has been submitted?

Prompted by the controversy over the convention method generated by the reapportionment applications, the American Bar Association in 1971 established a special committee to look into the questions of law entailed in the calling of a national constitutional convention. The chairman of the committee was C. Clyde Atkins, a federal district judge, and the committee included two other judges, Sarah T. Hughes and William S. Thompson; a former deputy attorney general of the United States, Warren Christopher; two law school professors, David Dow and Dean Albert M. Sachs; two former presidents of state constitutional conventions, Adrian M. Foley, Jr., of New Jersey, and Samuel W. Witwer of Illinois; and the writer, a practicing lawyer.

The committee conducted a two-year study on the subject and rendered a series of recommendations that were adopted by the Association at its August, 1973, meeting. These recommendations, some of which take strong issue with features of the legislation that passed the Senate unanimously in October, 1971, and July, 1973, under the sponsorship of Senator Ervin, deserve the attention of Congress and the bar.

CONGRESS SHOULD ESTABLISH SAFEGUARDS AND GUIDELINES

First, the committee concluded that it was desirable for Congress to establish procedures governing the call of a convention. While recognizing that this would focus attention on the process and thereby possibly have the effect of encouraging states to resort to it, the committee felt that it was prudent and better governmental technique to confront the subject forthrightly and supply guidelines and safeguards in advance of specific petitions and their attendant political issues. To defer the establishment of procedures to a time when their use was imminent, it was felt, would court a constitutional crisis by encouraging result-oriented approaches.

As for the argument that procedures should not be adopted in advance because a subsequent Congress could change them, the committee was of the view that legislation, fashioned after objective and intensive study, would be entitled to great weight as a constitutional interpretation and be of considerable precedential value. It also would assist in focusing and channeling the discussion at a future time when many applications were pending. The committee also noted that Congress has adopted legislation in other areas of a similar type-for example, electoral vote disputes and contested elections to the House of Representatives. After concluding that legislation is highly desirable, the committee turned to the critical 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 and history 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 opinion that the state legislatures could exercise only a portion of their authority by calling for a convention limited to a specific subject. Under these circumstances, the committee reasoned, Congress is empowered-indeed obliged to convene a convention limited to the subject stated in the petitions. This conclusion finds support in both the text and history of Article V.

ARTICLE V SUGGESTS NEED FOR CONSENSUS

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 twothirds of the states to call a convention; ratification by three fourths of the states is necessary to ratify an amendment proposed under either method. 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 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.

As for the history of Article V, the amendment articles of a number of state constitutions adopted before the United States Constitution suggest 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 of 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. 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.

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 the framers in this regard was made clear in numerous ways. On August 30, 1787, the convention rejected a proposal that would have given Congress the discreation as to whether to call a convention. In the House of Representatives debate of May 5, 1789, surrounding receipt of the first state application, Madison stated that when two thirds of the states 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." In The Federalist (No. 85) Hamilton stated that the words of Article V "are peremptory. The Congress 'shall call a convention.' Nothing in this particular is left to the discretion of that body."

Once a convention is called for a particular purpose and delegates are elected by the people to that limited convention, it would seem unreasonable and out of line with Article V for the convention to have the power 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, Congress should be able to deal with the deviation by exercising its control over the ratification process and refusing to submit the amendments to the states. A mechanism to accomplish this is contained in the legislation that passed the Senate.

"IF THE GOVERNMENT SHOULD BECOME OPPRESSIVE . . .”

The debates at the Constitutional Convention are silent as to other matters concerning a convention. With his usual foresight, Madison noted that with the convention method “difficulties might arise to to the form, the quorum &c. which in Constitutional regulations ought to be as much as possible avoided."

From its study of the Article V process and conventions generally, the American Bar Association's committee was led to the conclusion that in order for a convention to be responsive to and representative of the people, its delegates must be elected by the people. This seems especially appropriate since the method was intended to supply the "people" with an alternative way of obtaining amendments "if the Government should become oppressive. . .," to quote George Mason's remark at the Convention of 1787.

On the question of the apportionment of delegates to an Article V convention, the committee was of the view that in light of he governmental functions to be performed, the one-person, one-vote standards should govern. It doubted that the formula contained in the pending federal legislation, which affords each state a number of delegates equal to its total representation in Congress, would be held constitutional, since under that formula fifteen states would be overrepresented at a convention by 50 percent or more. For example, Alaska would be overrepresented by close to 375 percent, and California would be underrepresented by nearly 20 percent. The committee stated its view that an apportionment scheme based on representation in the House of Representatives would be acceptable compliance, since it would respect existing state and district boundaries and assure each state at least one delegate.

As for the necessary vote at a convention, the committee felt it was unwise and of questionable validity for legislation to prescribe a minimum vote by which the convention might propose an amendment, as does S. 1272, since it would intrude into an area touching on the essential characteristic of a convention as a deliberative body and would be inconsistent with the framers' design that the convention process be as free as possible from congressional control. S. 1272 requires a two-thirds vote of the total number of delegates to the convention. It is noteworthy that the Constitutional Convention of 1787, the territorial conventions held under acts of Congress, and most state constitutional conventions have determined their own vote.

As for the involvement of the judiciary in the convention process, the committee was of the strong belief that legislation should provide for limited judicial review of congressional determinations made in the process. It recommended that review would be appropriate only if a congressional determination were "clearly erroneous" and relief would be limited to declaratory relief. It was influenced in this regard by the view that the convention process likely would be used to effect a constitutional change opposed by vested interests and against the backdrop of some congressional inaction. Under these circumstances, the committee believed, it was desirable to have our independent judiciary serve as the arbiter and thereby assure the legitimacy of the process.

The committee questioned both the wisdom and validity of the pending legislation's thrust excluding the courts from any involvement stating: "It is questionable whether the power [of Congress to withdraw matters from the jurisdiction of the federal courts] reaches so far as to permit Congress to change results required by other provisions of the Constitution or to deny a remedy to enforce constitutional rights. Moreover, we are unaware of any authority upholding this power in cases of original jurisdiction."

Since the convention process was intended to deal with situations involving an "oppressive Congress," to remove from judicial review congressional determinations such as whether to call a convention and whether a convention has proposed an amendment on another subject is contrary to the intent of the framers and dangerous.

On the question of whether a convention call is required to be presented to the president, the committee concluded that it was not. It was of the opinion that the submission of that question to the president would be inconsistent with the mandatory nature of Congress duty to call a convention when proper applications have been submitted from the requisite number of states. As the president historically has not had a role in the process by which Congress proposes amend