4. The bill's plan of representation at the convention is wholly indefensible. S. 250, Section 7(a) rests on analogy with the electoral college, which I have strongly de ended in its own field of operation, but which has no contribution to make here. Generally, this bill fails to provide for that heavily preponderant consensus which ought to precede amendment of the Constitution.

5. The exclusion of the President from the process of calling a convention is flatly and obviously unconstitutional under Article I, Section 7, and the only question about this is how it could be that some who claim to be "strict constructionists" could espouse such a position.

6. The exclusion of state governors from the application process has no rational basis, and invades the normal powers of the states over their own procedures. (S. 520, Section 3 (a))

7. The bill's withdrawal of questions of law from the judiciary is unwarranted, dangerous, impractical, and inconsonant with our system of government. Sections 3(b), 5(c), 10(b) and 13 (c).

8. The provision for virtually automatic submission of amendments is reckless. Section 11(b) not only makes submission automatic unless within 90 days both Houses direct otherwise, but goes to the astounding length of providing that even this contrary direction shall be valid only if rested on the ground of the amendment's touching the wrong subject, or the convention's not following this one Act. Under this provision, however grossly and notoriously defective and corrupt the proceedings of a convention might have been, however catastrophic the effect of submission might be, the Congress can do nothing at all about it. If you doubt this reading of Section 11(b) in S. 520, please read it for yourself. Now of course no sensible Congressman or Senator of the future would regard such a provision as binding on him or her. The 96th Congress has no power to bind the 99th Congress. But the Administrator of General Services, to whose usually harmless routines this ticking atom bomb is committed by this bill, might very well feel obliged to act, if a resolution could be blocked for just ninety days, or perhaps even if the wrong ground were assigned by the Congress for its action. I ask you, Senators, to consider whether a bill that, after many drafts, over many years, contains such a reckless provision, can be looked on as anything but an attempt to strew flowers in the path of amendments taking this convention route, and to make their passage much easier than passage through the Houses of Congress by two-thirds votes.

I will permit myself one more word. I don't want to win this fight on any other ground than rightness. But it is fair to point out to you the solemn importance of the questions here. The national House of Representatives is the only body, anywhere on earth, wherein the whole American people are represented in proportion to their numbers. The waves of pseudo-populist rhetoric, that would somehow identify the state legislatures with "the people," break against this rock. (This identification, moreover, would have seemed absurd to the delegates in 1787 Philadelphia, who often, in their deliberations, contrasted the legislatures and the people.) About half the American people live in nine states. Three-quarters of the states (the ratifying number) can contain as few as forty percent of the people, and a ratifying combination might therefore easily contain less than half the people. Anything that builds up the power of the state legislatures, counted one by one, is not a facilitation of democracy but strongly in derogation of the American national democracy.

I am not attacking the senatorial system, which I believe in, and have recently defended against attack from another quarter. Nor do I wish to deny to the state legislatures any power that is legitimately theirs. But the populationratio among states now runs as high as 65 or 70 to one, between five and six times as high as the highest ratio at the coming into effect of the Constitution. A nation believing in democracy ought to think a long time, and weigh evidence and argument very carefully, before it makes a new precedent, or passes a new law, that moves further toward equating the one to the 65. And a nation that believes itself to be a nation ought likewise to hesitate before acquiescing in the flow of new and crucially important power, as to national concerns, out to 50 legislatures meeting in 50 places.

There exists now, as I have shown, not the faintest hint of precedent for this step, whether as to this bill or as to action upon the pending applications. For the reasons I have given, I intensely hope that Congress will not now, after almost 200 years, proceed to make one.

I should be glad to try to deal with any questions anyone may have.
Thank you, Mr. Chairman and Senators.

STATEMENT ON CONSTITUTIONAL CONVENTION APPLICATIONS

(By Charles L. Black, Jr.)

(Excerpt from "The Constitution and the Budget", American Enterprise Institute (1980))

INTRODUCTORY

The Constitution's Article V provides for a method of amendment never till now used. "On Application of the Legislatures of two-thirds of the States... Congress shall call a Convention for proposing Amendments . . ." These proposals, to become effective, must be ratified by three-fourths of the States, just as is true of proposals passing through Congress, the method of proposing always used up to now.

Recently, many State Legislatures have passed resolutions asking Congress to call a Convention "for the purpose of proposing" some specific amendment, spelled out in detail. It now seems possible that one or more of these proposals will be the subject of convention applications from 34 States, the magic twothirds.

We must separate our judgment on the merits of any particular amendment from our judgment on the legitimacy of the procedure. If we make a wrong precedent now, as to the meaning of Article V, we will open wide a door probably never to be closed. Before we pack our bags for this Convention, let's stop and ask "Is this trip really necessary?"

I think that the applications now on file are nullities, imposing no obligation on Congress. I think the Article V language means a "general Convention," to propose such amendments as seem good to that Convention. And I think that the state applications, to be effective, have to ask for that, and not for something radically different—a severely limited Convention. Applications asking for something other than what is meant by Article V are nullities, and thirty-four times zero is zero.

At the very least-and this is all that really must be decided now-each pending application for a Convention "for the purpose of proposing" some minutely described amendment is a travesty of anything the Framers of Article V could have conceived. Absolutely nothing faintly supports such an absurd distortion of a provision for a deliberative process. I hope Congress will not be intimidated by such "applications"; they place Congress under no obligation whatever.

The state of the controversy on these matters has been heavily affected by a Report by a Special Constitutional Convention Study Committee of the American Bar Association, "Amending of the Constitution by the Convention Method Under Article V" (1974) [hereinafter cited as Bar Report]. This Report commits itself to the view that applications for a subject-limited convention are valid.

I have reason to believe that this Report now exerts a powerful influence. It is my view that it is deeply flawed, and entirely fails to make its case on this issue. I shall cast this statement partly in the form of answers to some of its points. All the most important issues will thus be raised, and their current status indicated.

"PLAIN MEANING" AND CONTEXT

The question, first and last, is what is meant, in Article V, by the words, ". . . a Convention for proposing Amendments The best approach to ascertaining the plain meaning of these words is to ask what they would mean, without modification, in the procedural context in which they are intended to be used. Lawyers sometimes "track the statute," phrasing allegations or prayers in the exact statutory language. Suppose a state legislature, "tracking" Article V, were to transmit to Congress a paper saying: "Application is hereby made that Congress call a convention for proposing amendments"-the exact language of Article V. Two and only two questions could arise: First, would such an application be valid? Secondly, what would it mean?

I am tempted to say that these critical questions answer themselves. But there has been so much confusion on this that I will-though embarrassed by the obviousness of what I shall have to say-go a little further.

First, the application, so worded, would of course be valid. Thirty-four such applications would oblige Congress to call a convention (provided Congress could agree on the procedural and constituency specifications and there would be a duty resting on each member of Congress to try so to agree). That would be true exactly because Article V is "tracked." How could it be that an application for the very thing the Article mentions, in the very words of the Article, would not be valid?

Secondly, the words used would mean "a general, unlimited convention, to 'propose' such amendments as it thinks proper." Since I can think of no possible basis for doubting this, I cannot know how to support this conclusion, beyond pointing to its obviousness. Perhaps one might go so far as to ask, “If not that, what would they mean?

Observe how putting the matter this way transforms the "plain meaning" and contextual issues. We are not talking, any longer, about which of two “plain meanings" the Article V language has. Unless one is prepared to contest the answers to my two questions regarding this "tracking" application, one must start from the position that the Article V language has one plain meaning that is beyond doubt-that "a Convention for proposing Amendments," whatever else it may mean, plainly means "a general, unlimited convention."

Establishment of this crucial point 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 a very significant 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 Vthe power to force the call of a 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 plain meaning, another meaning far from plain.

The Bar Committee Report adopts, perhaps unconsciously, the rhetorical device of conceding that the general, unlimited convention is a possibility, but of doing so rather off-handedly, after having fully stated its case for the limited convention. But this order of presentation has to be reversed. We start with the plain fact that Article V means at least "a general convention." Seen from that perspective, the Report brings forth nothing near sufficiently weighty to support the addition of a second and far from plain meaning.

The Report invokes the concept of equality: "[T]he convention method. was intended to stand on an equal footing with the congressional method." But so it stands, even if Article V be taken to refer only to a general convention. Such a convention, as one of the two "proposing" bodies under Article V, would stand exactly on an "equal footing" with Congress, the other "proposing" body under Article V. The equality to be sought, as to national concerns, is an equality between the two national bodies to which the "proposing" function is given.

The Bar Report [p. 16] puts forward a "greater includes the less" argument, seeing "no sound reason as to why they [the state legislatures] cannot 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-that a general convention and a 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 one of two or three people designated by somebody else.

The Report argues [p. 16] that Article V must mean a limited convention, because otherwise the state legislatures would be "discouraged" from applying for conventions. This argument rests on a poorly concealed begging of the question. Only if we assume in advance that limited conventions are meant by Article V is there anything improper or regrettable in legislatures' being "discouraged" by their not being available. We are all "discouraged" in some ways by the state of the law.

But-more fundamentally-what are the legislatures being "discouraged" from doing? From asking for a general convention? But the assumption of the Bar Report is that they are "discouraged" from that already, by the very nature of the general convention. From asking for limited conventions? But if that is what is meant the argument is a squirrel-cage; the very thing we are talking about is whether the legislatures are entitled at all, as a matter of law, to force the call of limited conventions. The Committee seems to be saying that, if it be held that

the sound law of the matter is that Article V does not empower the legislatures to force the call of limited conventions, they will be discouraged from asking for these. Quite.

Rember, too, that the supposed "discouragement" is to arise from a fear of the very thing-a general convention—that is incontestably meant by the Article V language, provided one agrees with the arguments with which I began this section.

(There is, by the way, a startling paradox here. Since three-quarters of the state legislatures must, under the usual procedure, ratify any amendment "proposed" by a general convention, it is a little hard to explain a great fear, on the part of these same legislatures, that they may be overwhelmed by unwanted amendments. Whom are they afraid of? I leave the resolving of this paradox to those who are so vigorously supporting these state-legislature applications. The problem is only shifted by the thought, doubtless not likely of frequent realization, that state conventions may be designated by Congress as the ratifying bodies; fear of the headlong folly of such conventions is a fear of the people who will elect them. Why, indeed, is one so afraid of the general national convention? Is it well to trust any part at all of the amendment process to people who, you think, would go wild if you turned them loose?)

These Bar Report arguments are poor stuff in themselves. To put them in the context I believe to be established by the opening paragraphs of this section they are obviously not of a weight sufficient to support a second meaning, far less than plain, in addition to the quite plain meaning of the phrase, ". . . a Convention for proposing Amendments . . ."

I stress once again that, if I am right about the meaning of the Article V language, applications for a limited convention are not application for the thing meant by Article V, are therefore not valid Article V applications, and so impose no obligation on Congress.

THE DEBATES IN THE 1787 CONVENTION

The Bar Report's treatment of these should be set out in full : "The debates at the Constitutional Convention of 1787 make clear that the convention method of proposing amendments was intended to stand on an equal footing with the congressional method. As Madison observed: Article V 'equally enables the general and the state governments to originate the amendment of errors as they may be pointed out by the experience on one side or on the other.' The 'state' method, as it was labeled, was prompted largely by the belief that the national government might abuse its powers. It was felt that such abuses might go unremedied unless there was a vehicle of initiating amendments other than Congress.

"The earliest proposal on amendments was contained in the Virginia Plan of government introduced in the Convention on May 29, 1787 by Edmund Randolph. It provided in resolution 13 "that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislatiure ought not to be required thereto." A number of suggesstions were advanced as to a specific article which eventuated in the following clause in the Convention's Committee of Detail report of August 6, 1787:

"On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a Convention for that purpose."

"This proposal was adopted by the Convention on August 30. Gouverneur Morris's suggestion on that day that Congress be left at liberty to call a convention 'whenever it pleased' was not accepted. There is reason to believe that the convention contemplated under this proposal 'was the last step in the amending process, and its decisions did not require any ratification by anybody.'

"On September 10, 1787 Elbridge Gerry of Massachusetts moved to reconsider the amending provision, stating that under it 'two thirds of the States may obtain a Convention, a majority of which can bind the Union to innovations that may subvert the State-Constitutions altogether.' His motion was supported by Alexander Hamilton and other delegates. Hamilton pointed to the difficulty of introducing amendments under the Articles of Confederation and stated that 'an easy mode should be established for supplying defects which will probably

appear in the new System.' He felt that Congress would be 'the first to perceive' and be 'most sensible to the necessity of Amendments,' and ought also to be authorized to call a convention whenever two-thirds of each branch concurred on the need for a convention. Madison also criticized the August 30 proposal, stating that the vagueness of the expression 'call a convention for the purpose' was sufficient reason for reconsideration. He then asked: 'How was a Convention to be formed? by what rule decide? what the force of its acts?' As a result of the debate, the clause adopted on August 30 was dropped in favor of the following provision proposed by Madison:

"The Legislature of the U.S. whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several states, or by Conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the U.S."

"On September 15, after the Committee of Style had returned its report, George Mason strongly objected to the amending article on the ground that both modes of initiating amendments depended on Congress so that 'no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive. . . .' Gerry and Gouverneur Morris then moved to amend the article 'so as to require a convention on application of' two-thirds of the states. In response Madison said that he 'did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a Convention on the like application.' He added that he had no objection against providing for a convention for the purpose of amendments 'except only that difficulties might arise as to the form, the quorum &c. which in Constitutional regulations ought to be as much as possible avoided.'

"Thereupon, the motion by Morris and Gerry was agreed to and the amending article was thereby modified so as to include the convention method as it now reads. Morris then successfully moved to include in Article V the proviso that 'no state, without its consent shall be deprived of its equal suffrage in the Senate.'

As to the first paragraph: I have already dealt with the "equal footing" point. I don't know of anything in the 1787 debates at Philadelphia that supports the statement with which the above quotation opens. I dare say the Bar Committee didn't either, for the Madison quote is not from the Philadelphia records, but from the Federalist. Nor does it weigh very much on either side of the present controversy; the origination "of the amendment of errors" might be accomplished by forcing the call of a general convention. As to what "prompted" the "state" method, or who on earth "labeled" it that, there is little or no evidence; the Bar Report cites none. The last sentence of the paragraph weighs nothing on the present scale; a general convention would of course be a "vehicle of initiating amendments other than Congress," quite as well as would a limited convention. More so.

For whatever reason, the Bar Report, in mentioning the Virginia Plan's provision for amendment without the assent of the "National Legislature, does not tell us that this latter provision, excluding Congress, was repeatedly postponed, by vote after vote, and never passed, so that the Committee of Detail went into session with nothing resolved on except that there should be "Provision . for the Amendment of the Articles of Union . . ." [2 Farrand's Records 133]. The suggestion that any policy at all emerges from all this would be (or is?) simply ridiculous.

The rest of the Bar Report's just-quoted treatment of the 1787 Philadelphia debates is of a not unknown genre of "legislative history"-the kind that tells you a few things here and there, but never quite gets down to explaining why they prove what they are obviously put forward to prove. Marching on my own feet, I will discuss first the most critical juncture, the action on September 15, 1787, by which the language now under scrutiny was added. I think it well to put before your eyes the whole (very short) episode, as reported by Madison, beginning with the provision as it stood before the final change:

"Art- V. The Congress, whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States shall propose amendments to this Constitution, which shall be valid to all intents