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First, the application so worded would, of course, be valid. Thirtyfour such applications would oblige Congress to call a convention for proposing amendments, providing Congress could agree on constituency and so forth, and I think every Member of Congress would be under a duty to try so to agree.

That would be true exactly because article V is tracked. How could it be that an application in the very words of the article would not be valid?

Second, the words used would mean a general, unlimited convention, to propose such amendments as it thinks ought to be proposed. Since I see no possible basis for doubting this, I can't think how to support the contention other than by saying just that.

Observe, Mr. Chairman, how putting the matter this way transforms the plain meaning and textual issues. We are not talking any longer, if one buys my conclusion about this tracking application, we are not talking any longer about which of two plain meanings, among two mutually exclusive alternatives, the article V language has-unless one is prepared to contest these two conclusions regarding the tracking applications, and I don't see how anyone could. Then one must start with and stick with the position that article V language has one plain meaning that is beyond all doubt, that the words "a convention for proposing amendments," whatever else they may mean, plainly do mean a general, unlimited convention.

Let me put into the record the observation that there is here an important legislative fact. The astonishing fact is that S. 3, in its crucial section 2, and throughout, would actually make impermissible and ineffective the filing of the only kind of application that is certainly valid under article V of the Constitution; namely, an application that tracks the article verbatim.

I urge you to consider, Mr. Chairman, and Senators, whether such a glaring and plan constitutional defect in a bill that has been around as long as this one has does not suggest some respectful skepticism about the soundness of the constitutional counseling that went into its drafting?

Establishment of this crucial point, about the tracking application for a general convention, quite changes the focus of inquiry. When we inquire now whether a State application for a limited convention asks for what article V means, we are inquiring whether, in addition to its incontestably plain conferral, on the legislatures, of what is beyond all doubt a most significant power, very nearly an ultimate power, the power to force the call of a general constitutional convention, article V is to be taken to give them, as well, a different power, not at all obviously meant by article V-the power to force the call of a subject- or text-limited convention. In an inquiry concerning correct amendment procedure, where, more than anywhere else, very clear legitimacy is requisite, great clarity of justification should be looked for before one adds, to a fixed plain meaning, another meaning far from plain. There is, I submit, no justification at all for this addition of a second and different meaning, except the very late but now longcontinued self-serving assumptions of the legislatures themselves.

I think I might usefully refer here to the 1974 American Bar Association committee report on this subject, for a sampling of some of

the reasons that have been put forward for adding something else to the plain and obvious meaning of the article V words.

The prestigeful report, for example, invokes the always appealing concept of equality. The convention method, it says, was intended to stand on an "equal footing" with the congressional method. I don't know why they raise that issue, because so it stands, if and only if article V be taken to refer only to a general convention with full freedom of proposal. Such a convention, as one of the two proposing bodies in article V, would stand exactly on an "equal footing" with Congress, the other proposing body under article V. Is not the equality as to national concerns, an equality between the two national bodies to which the proposing function is given?

This symmetrical equality is exactly what my own view leads to. The bar report puts forward a "greater includes the lesser" argument, seeing "no sound reason as to why they-the State legislaturescannot invoke limitations on exercising * * *" their authority to procure a convention call. This argument ignores the fact-which underlies much of the bar report's other reasonings, and which underlies, indeed, the most crucial provisions of S. 3 itself-that a general convention on the one hand, and, on the other, a subject- or text-limited convention, are different not in degree but in kind. They are as different in kind as: (1) The freedom to marry; and (2) the freedom to marry 1 of 2 or 3 or even 100 people designated by somebody else. The power to force the call of a convention, and to dictate its agenda, is, if anything, a greater power than the power to force the call of a convention without dictating its agenda. That is exactly why the State legislatures are so eager to claim it.

Now, I urge upon you that these general considerations do not reach at all to the length of justifying an addition to the uncontestedly plain meaning of article V.

I would turn to another aspect of the bar committee report which has come to be a sort of "law and the prophets" in this field. They go through the records of the Constitutional Convention of 1787, and bring in some material from the State constitutions in the late 18th century. Quite obviously these historical matters are not for oral argument, even to such a patient committee as this. I am a man of mercy. But I do want to draw this committee's attention to my full, but I think not terribly prolix argument in my letter of June 1 to Senator Kennedy, to which I have already referred. This letter has been published in the Oklahoma Law Review, and is one of the documents which I have, with your permission, handed up for the record. These passages in that letter-and I, of course, invite you to read itdo, I think, succeed in justifying to the hilt my statement, elsewhere in the same letter, that the bar committee report, which now exerts a powerful influence, is "deeply flawed, and entirely fails to make its case." I stand firmly by that statement, and if you doubt its rightness, then I do invite your particular attention to those passages in my Kennedy letter in which I deal with their handling of the 1787 Convention, and particularly of the earlier State constitutions.

I believe you will be surprised. I believe that, after the first surprise is over, you never will feel quite the same about this bar committee report. And I make that statement, of course, with the material

in your hands. I am not simply boasting without having it there. I am simply omitting it through mercy given the time.

Neither "plain meaning," then, nor context nor history-as I have tried to develop it in the material which you have will permit our reading into these simple words, "a convention for proposing amendments," a power in the State legislature, a power unsuspected for a full century after the Constitution came to light, to propose amendments at which the nominally "proposing" body is merely to ratify.

But I think one thing more needs to be said. It is the genius of American constitutional interpretation to read our Constitution in a sensible way, as responsive to need. The following of this master maxim of interpretation is an expression of fidelity, the deepest possible fidelity, to the overriding and dominated intent of the summer of 1787 in Philadelphia, the intention that the document be so read as to work well.

It is not irrelevant, then, even as a matter of law, to point out how thoroughly all national needs for constitutional amendment are already provided for without our straining words to give the State legislatures the power, in effect, to "propose amendments."

The other House of Congress stands every 2 years for election, and represents the American people in their proportion. The Senate was so designed as to represent the States, one by one; each Senator represents and must answer to the people of a whole State.

These two bodies can set in motion and send out to the States any amendment their constituencies want. There is a strange mythical world-familiar to political cartoonists, for example-in which Congress so carefully built to represent the American people by numbers and by States, is looked on as though it were some kind of alien power. In fact, the constituencies of Congress and the State legislatures are exactly the same people by Constitutional command, and the difference and it is a distinct though an intangible one-is in the conception of office. The same people are represented here as in the State legislatures, but it would be utterly impossible for a constitutional amendment to be whooped and hollered through these two Houses as they have been in a great many State legislatures. The State legislator ought not to be expected to form just that blend of constituency concern and national concern which ideally characterizes the Congressman and the Senator, and which is, in my observation and judgment, often approximated in congressional and senatorial reality. But that difference between Congress and the legislatures suggests that by far the better place for the origination of piecemeal amendments is Congress, where the overall interest, as well as the constituency interest, is always in view. In refusing to put the new gloss that S. 3 would put on the words of article V, we would not be shutting off a road in any way demonstrated to be needed, or likely to be needed. The whole history of the country fails to show any serious trouble that resulted from difficulty about amending the Constitution.

The route opened up by S. 3 is one which it is very hard to think of as either symmetrical with the traditional route, and its broad consensus among the whole people-well, the way to talk in these high political questions is in numbers. Let's talk for a moment in numbers. States containing considerably less than 40 percent of the whole

population could force a convention limited to proposing a given amendment, if S. 3 is judged to be pursuant to the Constitution and passed.

Under the electoral college plan in the bill, delegates representing less than a majority of the people could implement these proposals. These delegates could be people who, unlike all of you here, and all those across the Capitol, never have to face another election.

Then States containing as few as 40 percent of the people could ratify a condition, by the way, which did not obtain in 1789, and which I find sometimes astounds people to whom you state it. Threequarters of the States can be put together that contain 40 percent of the people.

Of course these extremes would not probably ever be reached, but they mark the end of a continuous range of possibility, within which it could easily happen that amendment after amendment could be passed without anything like that heavy preponderance of affirmative desire that the other method, the always-used method, requires.

Of course, that is exactly why this method of amendment is being pressed so hard.

Now, these last considerations would not suffice to overcome a clearly-expressed constitutional command. But there is no such command.

I mention these things to show the utter fallaciousness of any argument that says that any text limitation must be imported in the words of article V, because the importation of such language is politically

desirable.

There is no historical warrant, no warrant in common sense, no warrant at all for our seeing in the article V language, which so plainly refers to a general convention, reference to limited conventions as well.

This conclusion, if you come to accept it, must lead not only to the rejection of S. 3, as not in pursuance of the Constitution, but also to the judgment that most of the pending applications are invalid, for the simple and sufficient reason that they do not ask what article V

means.

I have argued here for the conclusion that an article V convention must be entirely general, and that if a State application asks for something other than that, it is void. I fully believe in this view, and I have persevered in it a long time, Mr. Chairman. I think if I am wrong about it, it is what the theologians call "invincible ignorance." I am prepared to argue from any stump. Tom O'Neill asked me if I would go on the road, and I said I sure would.

But would be quite sufficient now to hold to the more modest, and I should think reasonably self-evident proposition that, at the least, an application for the assembling of a national constitutional convention for the purpose of proposing a textually set out or minutely described amendment is a mere travesty of grown-up constitutionalism. Assembling a national convention from Maine, Alaska, Florida, and Hawaii, and reserving the rooms and getting the requisite three chaplains, one from each of the major faiths, deciding who is going to get the gavel, or which pieces of it, after it is over, people coming in to perform such a ministerial or rigorously channeled function, is a bit of foolish pageantry that no one can think the Constitution calls

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It reminds me of Henry VIII's congés d'élire, which gave cathedral chapters leave to elect a bishop, namely, the bishop designated by Henry VIII.

The differences here since the tactics have changed somewhatthe differences between a directly quoted amendment to be proposed, and a minutely described amendment to be proposed, is utterly trivial. I hope at least that the Congress will not be intimidated by these. They cannot possibly be what article V means, because article V was drawn by serious people, and they should be regarded as without force. I have heard it said that, while these narrowly-drawn applications, for proposing one amendment described in advance may be invalid, in that their attempt at limitation fails, nevertheless, that Congress ought to treat them hospitably and call a convention anyhow. After all, what is constitutional law among friends? I think such thoughts must proceed from people who have not read the applications that are coming in.

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As to the applications with the words, "sole and exclusive purpose,' and a self-destruct clause in some of them, if that purpose is departed from at all, as to these, the suggested hospitality, Mr. Chairman, is the hospitality which says that we are strong for you and love you, and please come right in, but leave your left leg outside. It is the hospitality of the spider to the fly.

In the main, it is entirely clear that the applying legislatures very much desire not to have any but the severely limited convention applied for. That would be nothing but irony in the concept of deference to the State legislatures, when that deference consists in giving them what they have said they very much don't want.

I have in my statement a number of specific points which are of importance, but not of this dominating overall importance, concerning defects which I first noted in the bill that was one of Senator Ervin's bills, which was antecedent to this, and which still exist in this bill, but I believe I will stop there for time purposes.

I very gladly will answer, or deal with, any questions that anybody wants to ask.

Senator BAYH. Thank you very much, Professor Black, for your well thought out and enthusiastically given testimony.

Are you under a time limitation, so that we should perhaps ask questions now?

Mr. BLACK. I am not under that kind of time line. I have to be in New York at 6:30 for a testimonial dinner for Jack Greenberg of the NAACP defense funds. I will be there in plenty of time.

Senator BAYH. Is it all right to let Professor Dellinger go now, then?

Mr. BLACK. Certainly.

[Mr. Black's prepared statement and additional material follow:]

PREPARED STATEMENT OF PROFESSOR L. BLACK, JR.

Mr. Chairman and Senators, I thank you for the chance to appear before you on this occasion. My remarks will be directed formally at S. 3, but my scanning of the staff analysis of the House bills tells me they differ very little among themselves or from S. 3, and not at all on the principal point I shall try to make. The Constitution's Article V provides for a method of amendment never yet used. "On Applicaton of the Legislatures of two-thirds of the States *** Con

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