reasonable time after proposal, which Congress is free to fix." It stated that "as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the States, there is a fair implication that it must be sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do." "

The committee expressed its view that this reasoning also was applicable to state applications for a constitutional convention. As the committee observed, the convening of a convention to deal with a certain matter certainly should reflect the "will of the people in all sections at relatively the same period.

In the absence of a uniform rule, the timeliness or untimeliness of state applications would vary, it seemed to the committee, from case to case. It would involve, as the Supreme Court suggested with respect to the ratification area in Coleman v. Miller, a consideration of "political, social and economic conditions which have prevailed during the period since the submission of the [applications]." "

26

Withdrawal. Although there is uncertainty over whether a state may withdraw an application, the ABA committee reasoned that there should be a rule allowing withdrawal. "In view of the importance and comparatively permanent nature of an amendment, it seems desirable that state legislatures be able to set aside applications that may have been hastily submitted or that no longer reflect the social, economic and political factors in effect when the applications were originally adopted. We believe Congress has the power to so provide." "

Election of Delegates.—From its study of Article V and conventions generally, the ABA committee was led to the conclusion that in order for a convention to be representative of the people, its delegates should be elected by the people. It felt this was especially appropriate for the extraordinary happening of a national constitutional convention 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.

Apportionment of Delegates. On the question of the apportionment of delegates to an Article V convention, the committee was of the view that in light of the government function to be performed, the one-person, one-vote standards should govern. The committee stated its view that an apportionment scheme based on representation in the House of Representatives also would be acceptable compliance, since it would respect existing state and district boundaries and assure each state at least one delegate. It doubted that a formula which afforded 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.

Convention Vote.-As for the necessary vote at a convention, the committee felt it was unwise and of questionable validity for Congress to prescribe a minimum vote by which the convention might propose an amendment, since such action 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. It is noteworthy that the territorial conventions held under acts of Congress, most state constitutional conventions and the Convention of 1787 have determined their own vote.

Presidential Involvement.-On the question of whether a convention call is required to be presented to the President, the committee concluded that it was not. It believed 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 had been submitted from the requisite number of states. As the President historically has not had a role in the process by which Congress proposes amendments, 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, 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 11th Amendment to be valid although it had not been presented to the President.

Gubernatorial Involvement.-For somewhat similar reasons as above, 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. It believed this followed from the Supreme Court's decisions in Hawke v. Smith, and Leser v. Garnett.3

31

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 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 included 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. Judicial Involvement.—The committee, in its report, stated that it was desirable and feasible to have in any implementing legislation a limited judicial review of congressional determinations made in the convention process. 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.

82

The committee questioned both the wisdom and validity of legislation 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."

91 33

The committee suggested limits on judicial review in any legislation adopted on the subject. First, it suggested that a congressional determination should be overturned only if "clearly erroneous," which would acknowledge Congress' political role and at the same time guard against arbitrary action. Second, it recommended that judicial remedies be limited to declaratory relief so as to dimnish actual conflict between the branches of government. Finally, if stated that judicial review should not be allowed to delay the amending process unduly; accordingly, it recommended a short limitation period combined with expedited judicial procedures.

In my view, the confusion about the convention method strongly argues, as long as the convention method remains part of the Constitution, for the establishment of procedures governing the process-procedures which neither facilitate the adoption of any particular constitutional change nor make practically impossible any resort to the convention method. As the ABA Committee noted: "The integrity of our system requires that when the convention method is properly resorted to, it be allowed to function as intended." "

REFERENCES

(1) See Report of the ABA Special Constitutional Convention Study Committee, entitled "Amendment of the Constitution By the Convention Method Under Article V (1974), p. 8.

(2) The committee consisted of U.S. District Court Judge C. Clyde Atkins, as chairman; Warren Christopher, a former U.S. Deputy Attorney General and now Deputy Under Secretary of State; Professor David Dow, a former Dean of Nebraska Law School; Adrian M. Foley, Jr., President of the Fourth New Jersey Constitutional Convention; U.S. District Court Judge Sarah T. Hughes; Dean Albert M. Sachs of Harvard Law School; Judge William S. Thompson of the Superior Court of the District of Columbia; Samuel W. Witwer, President of the Sixth Illinois Constitutional Convention; and the writer of this article.

(3) 117 Cong. Rec. 36803-06 (1971) (84 to 0 vote); 119 Cong. Rec. S 12728 (July 9, 1973).

(4) The Records of the Federal Convention of 1787, at 22 (Farrand ed. 1937) (hereinafter cited as Farrand).

(5) 2 Id. 188 (emphasis added).

(6) 2 Id. 468.

(7) Weinfeld, "Power of Congress over State Ratifying Conventions," 51 Harv.L.Rev.473, 481 (1938).

(8) 2 Farrand 557-58.

(9) 2 Farrand 558. (10) Id. 559.

(11) Id. 629.

(12) Id. 629 and n. 8.

(13) Id. 629.

(14) Id. 629, 630.

(15) 1 Annals of Congress, Cols. 248-51 (1789). See also IV Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 178 (2d ed. 1836) (remarks of delegate James Iredell of North Carolina); 1 Annals of Congress, col. 498 (1796) (remarks of Rep. William Smith of South Carolina during debate on a proposed treaty with Great Britain); Cong. Globe, 38th Cong., 2d Sess. 630-31 (1865) (remarks of Senator Johnson).

(16) See ABA Report 60–61 for a tabulation by subject matter.

(17) I should note that I have adapted to this article parts of my article entitled "Amending the Constitution Through a Convention," 60 A.B.A.J. 285 (1974), and parts of the ABA Report.

(18) See ABA Report 16 and authorities cited.

(19) ABA Report 16.

(20) Thus, Georgia's Constitution of 1777 provided that "no alteration shall be made in this constitution without petitions from a majority of the counties, at which time the assembly shall order a convention to be called for that purpose, specifying the alterations to be made, according to the petitions referred to the assembly by a majority of the counties as aforesaid."

Pennsylvania's Constitution of 1776 provided for the election of a Council of Censors with power to call a convention "if there appear to them an absolute necessity of amending any article of the constitution which may be defective. But the articles to be amended, and the amendment proposed, and such articles as are proposed to be added or abolished, shall be promulgated at least six months before the day appointed for the election of such convention, for the previous consideration of the people, that they may have an opportunity of instructing their delegates on the subject."

For other precedents on the early awareness of the binding effect of a limitation on a convention, see ABA Report 15-16.

(21) ABA Report 14.

(22) T. Cooley, The General Principles of Constitutional Law in the United States of America 15 (2d ed. 1891).

(23) ABA Report 30.

(24) 256 U.S. 368, 375 (1921).

(25) ABA Report 31.

(26) 307 U.S. 433 (1939).

(27) 307 U.S. 433, 453-54 (1939).

(28) ABA Report 33.

(29) 3 U.S. (3Dall.) 378 (1798).

(30) 253 U.S. 221 (1920).

(31) 285 U.S. 355 (1932).

(32) ABA Report 24.

(33) ABA Report 20-21.

(34) ABA Report 40.

Senator BAYH. We will now move to our first panel, if I might. I will ask Prof. Charles Black of Yale Law School and Prof. Walter Dellinger of Duke University Law School to join us.

Professor Dellinger, is that your budding constitutional expert? Mr. DELLINGER. Yes, sir. That is my son, Hampton. He said, "Senator Bayh has been chairman of the committee for 16 years?" And I said. "Yes," and he said, "In all that time there wasn't a single constitutional convention?"

I explained to him that the committee had other duties.

Senator BAYII. I appreciate his perception.

Professor Black, it is good to have you with us. Why don't you start first since you have a constraint in time.

Mr. BLACK. Yes.

I have a statement, which I shall condense. I have it and copies of certain publications of mine for the record.

Senator BAYH. We will put them in the record at the end of your testimony.

TESTIMONY OF PROF. CHARLES L. BLACK, JR., YALE LAW SCHOOL, NEW HAVEN, CONN.

Mr. BLACK. Now, we all know what we are talking about, so I will not go through the preliminaries again, but I do want to talk to one point which I think is important; that is that, as far as I or anyone else has been able to discover, all of the few applications, pursuant to this provision we are talking about, that were submitted by State legislatures, for more than 100 years after the adoption of the Constitution, were drawn on the assumption that the provisions in article V authorized the legislatures to apply only for a general convention. At least that is all they applied for.

It was apparently not until 1893 that any legislature sent in an application based on the assumption that such applications were valid, when they sought to dictate the agenda, or perhaps I should say the agendum, in the singular, of the "convention for proposing amendments."

Mr. Chairman, think what this means. Through the controversies over the alien and sedition laws in the latter part of the 18th century, over the embargo, the War of 1812, the internal improvements bills, over the Bank of the United States, over the appellate jurisdiction of the Supreme Court, over the early fugitive slave laws-not one single legislature acted as though it had the power to force Congress to call a convention limited to one of those topics.

It did not even occur to Kentucky and Virginia, when they were busying themselves with attempted interposition against what they considered to be unconstitutional acts of Congress, to go after an article V convention. Even in the great nullification and slavery controversies in the 1830's and 1860's; the States that submitted applications made them general.

Just twice, in the 1890's, long after any original understanding, and then with growing frequency, as we know, down to our own times, legislatures have submitted applications so drawn as to reflect the assumption that the article V language authorizes the State legislatures to force the calling of a convention limited to a subject, or even an amendment whose text is dictated by the State legislatures. I shall soon go into my reasons for believing that this assumption, though obviously convenient for the State legislatures, is a wrong assumption, one that mistakes the meaning of the article V language, "for proposing amendments." But I bring this historical point up front, because, as I have fought tenaciously now for nearly 17 years on this very battlefield, I have found that the very hardest thing to overcome is the tacit-and I am afraid often unconsidered-assumption that applications to a subject-limited, or text-limited, convention would be valid and could so force Congress to call such a convention. This assumption, I wanted to stress at the very beginning, arises from and only from the actions of the State legislatures themselves, as good as entirely in our own century.

There is no precedent anywhere outside of that, no authoritative precedent. The assumption that this power lies in the State legislatures is based altogether on their own implied claims, which are obviously in the nature of self-serving declarations, and which began to be put forward 105 years after the going into effect of the Constitution on these and nothing else.

My hope is that this will clear the way for our seeing this question for what it is, a new question, coming before us in 1979, without any presumption.

Senate bill S. 3, now before you, is drawn on the theory that these limited applications are valid. My own position is that they are not valid, because they are not, in my view, applications for the thing that article V authorizes the States legislatures to apply for, and so they do not place Congress under any legal or moral obligation to do anything.

This view, if right, has two important and obviously connected consequences. First, it compels the judgment that S. 3 and similar bills are not in pursuance of the Constitution because that bill, in its crucial section 2 and throughout its length, rests upon and only upon the assumption that the article V language refers to a convention restricted as to the "the nature of the amendment or amendments to be proposed.

Second, my view means that most, if not all, the convention applications now pending before the Congress are nullities and that Congress, whatever their number, neither need nor constitutionally may act upon them. Thirty-four times zero is zero. That will be just as true in January, 1980, as it is now. The question whether S. 3 is in pursuance of the Constitution is therefore the very same question as the question whether the applications now before the Congress are valid article V applications. The bill and the applications are drawn exactly on the same theory, and stand or fall together.

I have defended this view in a number of published writings which I have placed on the record, but I will try orally, now, to hit the high spots.

Now, the question, first and last, alpha to omega, is "what is meant in Article V by the words, 'a convention for proposing amendments?'' I suggest to you, Mr. Chairman, and Senators, that the best approach to ascertaining the plain meaning of these words is to ask what they would mean without modification in the very procedural context in which they are intended and anticipated to be used.

Now, as you know, in their pleadings, lawyers sometimes do what we call "track the statute," phrazing allegations or prayers in the exact statutory language, and no more.

Suppose a State legislature, tracking article V in this way, were to transmit to Congress a paper saying, "Application is hereby made, by the legislature of this State that Congress call a convention for proposing amendments," period, end of application, signature of the officer, and stopping right there.

Now two and only two questions could be moved in that situation: First, would such an application be valid? Second, what would it

mean?