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 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 1808 shall in any manner affect the (1 & 4 clauses in the 9.)

section of article I

"Mr. Sherman expressed his fears that three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate. He thought it reasonable that the proviso in favor of the States importing slaves should be extended so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate.

"Col: Mason thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.

"Mr. Govr. Morris & Mr. Gerry moved to amend the article so as to require a Convention on application of % of the Sts

"Mr Madison 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 saw no objection however 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.

"The motion of Mr. Govr Morris and Mr. Gerry was agreed to nem: con (see: the first part of the article as finally past)." [2 Farrand Records, 629-30] (footnotes omitted)

You will note that not only Mason but also Sherman objected to the amending article, as it then stood. The Bar Report mentions only Mason; I can't think why. While Mason, broadly, thought amendment was too difficult under the article as it stood, Sherman thought, broadly, that it was too easy, and therefore dangerous. He feared, specifically, the amending power of the States. Why does the Bar Committee think the immediately following alteration (which was to the present form) was proposed by Morris and Gerry to meet Mason's fears, and not to meet Sherman's fears. As Madison immediately saw and said, the Morris-Gerry proposal did not respond to Mason's fears at all, so far as Congress's role went. The proposal, instead, put another body, the convention, between the state legislatures and the passage of an amendment to the Constitution. This interposition of another, nationally-oriented body might more plausibly be seen as a response to Sherman's fears of "the States."

In only one way was this change possibly responsive to Mason's speech. He was, you will note, afraid that "the people" could not obtain amendments they wanted. If any one thing is certain about 1787 thinking, it is that "the people" and "the legislatures" were not thought to be the same thing-as some recent blusterings seem to assume they are. On the other hand, it was conventions that were seen as the organs of "the people." This is why the Constitution was sent out for ratification by conventions rather than by the legislatures. I am not guessing; this thought occurs at many points, but is best expressed by Madison, on June 5, 1787, in defending this submission to conventions: ". . [H]e thought it indispensable that the new Constitution should be ratified in the most unexceptional form, and by the supreme authority of the people themselves." [1 Farrand's Records 123] That is what he thought a convention embodied.

It is possible then, that the insertion of a convention mode of proposal may have been conceived as a partial satisfaction of Mason's concern about "the people." But if that is true, then the suggestion is not that such a body, the visible organ of "the people," was to be led in with blinders put on by the legislatures, who were contrasted with "the people" in the discussion of the mode of ratification to be chosen for the new Constitution. Mason's fears, if they concerned the power of "the people," would be best answered by a provision for a general convention, wherein "the people" would have most ample scope of authority.

It is to be noted, moreover, that Gerry (who co-proposed the present language) and Mason (whom it was supposed to mollify) were both, some minutes later on the same day, going to refuse to sign the new Constitution on the ground that a

new "general Convention" was not to be absolutely mandatory, as they thought it should be. How likely is it that people so minded would be pushing on the same day for subject-limited conventions? Is it not more likely that, disappointed in not getting an absolutely mandatory second general convention, they were pushing for the next best thing-the chance to get such a general convention by legislative applications?

The only other passages of any importance concern the Committee of Detail's August 6 provision (quoted by the Bar Report, above) and the September 10 change therein.

The Bar Report rightly sees that the August 6 proposal was for a convention, to be summoned on application of two-thirds of the legislatures, that would have final power to amend, without "ratification by anybody." [Bar Report p. 12] What the Bar Committee seems not to have seen is that, even if this provision did allow the legislatures to limit such a convention to a particular subject or proposal, the propriety of that dispensation, in the case of a convention with final power, needing no ratification, is a different thing, by light-years, from the propriety or necessity of limiting a convention whose proposals do have to be ratified. The two things have nothing to do with each other.

Above all, the Bar Committee does not seem impressed by the fact that this August 6 proposal, on which they seem to be placing some sort of reliance, was rejected and thrown out, on September 10, on the grounds that it gave too much power to two-thirds of the states (Gerry) and that "The State Legislatures will not apply for alterations but with a view to increase their own powers" (Hamilton). [2 Farrand's Reports 557-558] (Gerry, be it remembered, was a co-mover of the language now in Article V.)

The most curious thing, confounding confusion, is that the phrase "for an amendment of this Constitution" (see the August 6 provision, quoted in the Bar Report, above) probably meant "for a process of amendment of . . .”—using the word "amendment" to mean this process of amending or its general result, rather than what we would call, in a different phrase, “an amendment to" the Constitution. I have three contemporary examples of this usage. Williamson, a delegate, wrote James Iredell, on July 22, 1787, from Philadelphia, that he hoped the whole "system" agreed on in Philadelphia "may fairly be called an amendment of the Federal Government." [3 Farrand's Records 61] Charles Pinckney, in the South Carolina ratification debates, spoke of the aim in Philadelphia as "the formation of a new, or the amendment of the existing system." [3 Farrand's Records 248]. In Federalist No. 40, Madison refers to the Virginia proposal of the Annapolis Convention as being “toward a partial amendment of the confederation." The use of the word "partial" implies that "an amendment of the confederation," without that word, would have meant "an unlimited process of alteration." By no possibility does even the phrase "toward a partial amendment," applied to the Virginia initiative for Annapolis, refer to a specific alteration. "An amendment of the Constitution" did not mean the same thing to these people as "an amendment to the Constitution"; I would be interested in seeing examples to the contrary.

Now what does all this prove? Of course, next to nothing. I have been through all this material only because the Bar Committee seem somehow to be assuming it helps their case, without ever saying how or why. I submit that my discussion destroys that assumption. And I think that some of the points I have made may help my own case a little. But the over-riding fact is that, however desperately we would like to, we don't know very much about what underlay each vote in Philadelphia in 1787. The records are obviously fragmertary; it is known they became more so as the summer wore on, toward that September 15 on which the crucial vote was taken, two days before fatigued adjournment.

THE NINETEENTH CENTURY RECORD

In an earlier writing of mine on this subject, in the Yale Law Journal, I said that the notion that state legislatures may limit the subject-matter in their applications for conventions was nothing but a product of the creative imagination of the state legislatures themselves in the twentieth century. I used Brickfield's tables, there cited, to establish that, until around the turn of our cenury, through all the turmoils until that time, nothing but general-convention applications were transmitted to Congress by the States. This, if true, is very important, because it shows that, for more than a century after the Constitution went into effect, his

Article V provision was not generally understood to empower the state legislatures to set the agenda of any convention they applied for, or to apply for a convention so limited in agenda.

The Bar Report [pp. 59-69] presents data on former state applications that confirm my former statement. As far as these eyes can make out, all applications are classified as "general" by the Bar Report, until 1893. There was one that year for direct election of Senators, and another such in 1895. The next subjectmatter limited application was in our own century. (The Bar Report cites a source of their own, an unpublished thesis not previously known to me, which agrees with my own conclusion [82 Yale L.J. at p. 202] that the 1833 Alabama memorial, dealing with "nullification" was not really an Article V application at all. And for some reason they do not put a 1790 application for "revision of the Constitution" under the "general" category, where of course it belongs.)

Think what this means. Through the controversies over the Alien and Sedition Laws, over the Embargo, over the "internal improvements" bills, over the Bank of the United States, over the early fugitive slave laws, not one single state legislature acted as though it thought it had the power to force Congress to call a convention limited to one of these topics. It did not even occur to Kentucky and Virginia, in the 1780's, when they were busy with interposition" against what they felt to be unconstitutional actions of Congress, to go at the matter via a limited Article V convention. Even in the great nullification and slavery contests, of the 1830's and 1860's respectively, the states that submitted applications made them "general," according to the Bar Report's own sources and tabulations.

This is powerful evidence of an original and long-continued understanding, broken (except for the two 1890's applications mentioned above) only in this century, when some state legislatures thought up a bright (and entirely selfserving) notion.

CONCLUSION

There is no good argument and no solid evidence to support the Bar Report. Nothing so much as tends to sustain their conclusion except the prestige of the Committee's members, and that is not enough to be decisive on a fundamental question regarding ul ima e consti uɛional power.

Let me add one final word: I have argued here for the conclusion that an Article V convention must be entirely general, and that a state application asking for something other than that is void. I fully believe in this view. But it would be quite sufficient, for now, to hold to the far more modest proposition that, at the least, an application "for the purpose of proposing" a minutely described amendment is a mere travesty of grownup constitutionalism. Assembling a national convention for such a ministerial or rigorously channelled function is a bit of foolishness one can by no stretch of fancy think the Constitution calls for. It reminds me of Henry VIII's congés d'elire, which gave cathedral chapters the "right to elect" a bishop-namely, the bishop designated by Henry VIII. The difference between a directly quoted amendment to be "proposed," and a clearl described amendment to be "proposed," is trivial. Many of the current applications are of this kind. I hope at least Congress will not be intimidated by these. They cannot possibly be what Article V means, and should be regarded as obviously without force.

[All rights reserved by author]

THE PROPOSED AMENDMENT OF ARTICLE V: A THREATENED DISASTER

By

CHARLES L. BLACK, JR.

Copyright 1963 by
The Yale Law Journal Co., Inc.

Reprinted from the Yale Law Journal
Volume 72, Number 5, April 1963

THE PROPOSED AMENDMENT OF ARTICLE V:

A THREATENED DISASTER

CHARLES L. BLACK, JR.†

THREE proposals for amending the Constitution have recently come from the Council of State Governments, and are being propelled down the never before used alternative route of article V-the route via state applications to Congress for the calling of a convention.1 Of the three, one (which would establish a Court of the Union, composed of the state Chief Justices in all their multitude, to meet on extraordinary occasions to review judgments of the Supreme Court) is so patently absurd that it will probably sink without trace. Another, eradicating Baker v. Carr concerns a special subject, and hence does not generally affect the federal power or the whole shape of the Union. The third is of supreme interest to students of constitutional law. Its adoption would effect a constitutional change of a higher order of importance than any since 1787-if one excepts (and that only doubtfully) the de facto change implicit in the result of the Civil War.

It is wonderful that this proposal-which has already commended itself to a number of state legislatures —has been so little noticed. This is doubtless because the proposed change is in procedure. But a change in the procedure of constitutional amendment-unless it is purely formal, and this one is not—is a change in the distribution of ultimate power. The proposed article V, if adopted, would make it easily possible for a proportion of the American people no greater than that which supported Landon in 1936 to impose on the rest of the country any alteration whatever in the Constitution. The people who could do this would be, by and large, those inhabitants of the less populous states

†Henry R. Luce Professor of Jurisprudence, Yale Law School.

1. All are set out in full, with an account of their espousal by the Council, in Amending the Constitution to Strengthen the States in the Federal System, 36 STATE Gov't 10 (1963).

2. Id. at 13-14.

3. By abolishing all substantive federal guarantees against malapportionment, thus making action by Congress as well as by Court impossible, and by withdrawing the subject entirely from federal judicial power. 36 STATE Gov't at 12.

4. 369 U.S. 186 (1962) (fourteenth amendment claim against state legislative malapportionment held within federal judicial jurisdiction).

5. According to information informally received, the legislatures of Arkansas, Florida, Missouri, Oklahoma, Kansas, and Wyoming have already passed the Resolution set out in text accompanying note 13 infra. In about an equal number of states, one house has passed it.