This doubt is reinforced by the fact that the delegates who approved this language at Philadelphia were just completing the work of a "convention" of their own. Is it not likely that to them the phrase "convention for proposing amendments" meant a convention with a mandate somewhat like the one under which they had worked-a mandate to consider a set of problems and seek solutions?

The difference here is not merely formal, but sounds the deeps of political wisdom. The issue is whether it is contemplated that measures dominantly of national interest should be malleable under debate and deliberation at a national level, before going out to the several states. Such a conception of the “convention" contemplated by article V makes the second route to amendment symmetrical with the first, in the vital respect that, under both, the national problem must be considered as a problem, with a wide range of possible solutions and an opportunity to raise and discuss them all in a body with national responsibility and adequately flexible power. The Congressman or Senator persuaded by this distinction would be justified in concluding that the present "applications," even if two-thirds of the states joined, was not of the sort that obliged Congress to call a convention.15

Assuming these "applications" are not within article V, it may still be suggested that a sort of "reformation" might be applied-that Congress, even if not persuaded that the present applications asked for the thing contemplated by article V, ought to call such convention as it thinks it would have been obliged to call if the applications had been of the right sort. This seems clearly wrong, for several reasons. Generally, a high degree of adherence to exact form, at least in matters of importance, is desirable in this ultimate legitimating process; a constitutional amendment ought to go through a process unequivocally binding on all. Congress is given no power to call a constitutional convention when it wants to, or thinks that on the general equities perhaps it should; if Congress desires an amendment, article V very clearly tells how that desire is to be made known. Congress' power as to conventions is not discretionary but strictly conditional, and if the condition is not met Congress not only need not but may not call a valid convention.

It is, moreover, illegitimate to infer, from a state's having asked for a "convention" to vote a textually-given amendment up or down, that it desires some

15. It should be noted that another and quite independent defect might be thought to vitiate these "applications." They demand the calling of a convention "for the purpose of proposing" an amendment which is, by its own text, to be ratified by the state legislatures; Congress can be under a duty to comply with these applications, then, only if such applications in sufficient number can place it under a duty to abdicate its own discretionary function, as clear as anything in the Constitution, of choosing between the modes of ratification, whatever may have been the mode of proposal. It is certain, on the face of Article V, that no applications from any number of state legislatures can put Congress under a moral or legal obligation to do that. This quite patent error ought to lead to some suspicion of the whole theory on which these applications are drawn-the theory that Congress and the desired "convention" can be very narrowly confined in function, and that their work can be done for them in advance by the state legislatures.

other sort of convention. It is not for Congress to guess whether a state which asks for the one kind of "convention" wants the other as a second choice. Altogether different political considerations might govern.

On the whole, then, no member of Congress could be held to have disregarded a conscientious obligation if he took the view that the "application" quoted above, even if sponsored by two-thirds of the state legislatures, did not make obligatory a convention call. Indeed, he might conclude that Congress would be exceeding its powers in calling such a "convention," the condition to such a call, on a fair construction of article V, not having been met.

If Congress is Obligated to Call a Convention, What Sort Must it Call?

The short fact here is that neither text nor history give any real help. When and if the article V condition is met, Congress "shall call a Convention . . ."; that is all we know. Fortunately, that is all we need to know, for the "necessary and proper" clause,10 and the common sense of McCulloch v. Maryland,1 give all the constitutional guidance required. Since Congress is to call the convention, and since no specifications are given, and since no convention can be called without specifications of constituency, mode of election, mandate, majority necessary to "propose," and so on, then Congress obviously may and must specify on these and other necessary matters as its wisdom guides it. (It may be noted that continuing control by Congress of the whole amendment process must have been contemplated, for Congress is given, under article V, the option between modes of ratification, no matter what the method of proposal.)

If this is accepted, then no Senator or Representative is bound to vote for a convention call which in its form fails to safeguard what he believes to be vital national interests. Specifically, insistence would be thoroughly justified on an allocation of voting power by population rather than by states, on the election at large of a state's delegation or its choice in fairly apportioned districts, and on federal conduct of the election of delegates, to prevent racial and other discrimination. Provision for a "two-thirds" rule might well be thought wise, in order to ensure the same kind of consensus on this branch of article V as on the other. Since the adoption of this proposed amendment would make easily possible the future amendment of the Constitution without anything like popular consent, it is thoroughly reasonable for Congress to insist that this surrender be fully voluntary for at least this generation, unless (as is not true) some positive constitutional command to the contrary prevents.

It will probably be argued that the voting in any convention must be by states, since the voting in the original Constitutional Convention was by states. On this point, the analogy is not persuasive. The states then were in a position of at least nominal sovereignty, and were considering whether to unite. The result of the Convention would have bound no dissenting state or its people; the same was true of the acceptance of the new Constitution by the requisite nine. All these conditions are now reversed. We are already in an indissoluble

16. U.S. CONST. art. I, § 8.

17. 17 U.S. (4 Wheat.) 316 (1819).

union; there is a whole American people. The question in an amending convention now would be whether innovations, binding on dissenters, were to be offered for ratification. The propriety of a vote by states in the one convention surely cannot settle its rightness in the other.

Has the President a Part in the Convention Call Process?

Article I, section 7, clause 3 is as plain as language can be:

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States, and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Clearly, this language literally applies to actions of Congress taken under

article V.

In Hollingsworth v. Virginia,18 it was contended that the eleventh amendment had not been validly proposed, since the resolution proposing it had not been sent to the President. Against this and other arguments, the Court, in a brief opinion not touching substance, upheld the amendment. In the course of argument, Justice Chase remarked: "The negative of the president applies only to the ordinary cases of legislation; he has nothing to do with the proposition or adoption of amendments to the constitution."19

Since that time, the practice has been not to send amendment proposals to the President. These precedents apply, of course, only to the first method prescribed by article V, since that is the only method that has been used. Hollingsworth v. Virginia is inherently weak, as the unreasoned decision must be. It introduces an exception by fiat into the entirely clear language of article I, section 7. But it need not be unfrocked in its own parish, since it is possible that the Court may have had in mind a ground for taking the first alternative of article V out of the veto process; since the congressional proposal must be by two-thirds in each house, it may have been thought that the requirement for overriding the veto was already met. This is not perhaps a very good ground, but the point about it here is that it would not exist at all if Congress, by simple majorities, called a "convention" under article V. Unless some other ground (better than Justice Chase's mere assertion) be stated for holding the contrary, it would seem that such a congressional action would fall as clearly as may be under the terms of article I, section 7, clause 3.

If this is right, then the grounds upon which the President might exercise his veto need be no less than those proper in the case of a Congressman voting on a convention call. If the President believed the structure and mandate of the "convention" significantly wrong, and dangerous to the national well-being, then he would surely be justified in vetoing the Resolution.

18. 3 U.S. (3 Dall.) 378 (1798).

19. Id. at 380 n.a.

SUMMARY

This proposal for amending article V is dangerous. It is to be hoped that it will be defeated in the state legislatures, but they are, after all, voting for or against increasing their own powers. If "Applications," in the form quoted above, reach Congress in sufficient number to force the issue, there is still authentic constitutional ground on which to stand. It may be that these "applications" call for something not contemplated by the second alternative in article V, and hence need be treated, at most, only as memorials to Congress to propose this amendment, a plea addressed entirely to discretion. It is as certain as any such matter can be that no Congressman or Senator is bound to vote for a convention call, even on impeccably proper application, wherein prudent conditions as to mandate, structure, constituency, voting, proper selection of delegates, and all the rest, are not met. There is no real reason why Presidential veto, on the same grounds, is not proper in this matter.

If all this terrain is fought over, then the American people will surrender this ultimate power into the hands of a minority only if they want to, and if they want to nobody can stop them.

The Yale Law Journal

Volume 82, Number 2, December 1972

Amending the Constitution: A Letter to a Congressman*

Charles L. Black, Jr.t

There was introduced in the Senate, in the 92d Congress, a bill (S.215)1 dealing with the procedures to be followed on state applications for a national constitutional convention pursuant to Article V of the Constitution. The bill passed the Senate2 but was still in the House Judiciary Committee when Congress adjourned.

While it was there, I wrote the following letter to Congressman Emanuel Celler, then Chairman of the Committee, giving my reasons for believing that the passage of a bill such as S.215 would be a national calamity. The letter is reproduced here because I believe the profession ought to be exposed to a full spectrum of opinion on this major question.

There is another reason for its reproduction at this time. The Harvard Law Review, in a student Note, has taken issue with some of the conclusions expressed in the letter. On full reconsideration, I must say that I do not think the authors of this Note have laid a finger on me, but I prefer that the profession be the judge of that, by having access to my own expression of my views, rather than by seeing them through the semi-opaque pane of paraphrase and selective quotation.

I consider it inappropriate at this time to accompany the letter with specific answers to the Harvard Note; in sum, I feel the

Ed. Note: The Journal is reproducing this letter not only because we believe it to be a significant constitutional commentary, but also because we believe its contents should be disseminated as widely as possible before a new version of S. 215 (which has been inching ever closer to passage since it was first introduced in 1967) is submitted to the 93d Congress. The letter is reproduced as written and sent, save for the addition of footnotes consisting of citations formerly in the text and the relevant portions of the Bill and Senate reports in question.

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

1. S. 215, 92d Cong., 1st Sess. (1971) (Senator Ervin) [hercinafter referred to by scction number only]. All citations refer to the version of the Bill which passed the Senate and was before the House Judiciary Committec.

2. 117 CONG. REC. S 16569 (daily ed. Oct. 19, 1971).

3. Note, Proposed Legislation on the Convention Method of Amending the United States Constitution, 85 HARV. L. Rev. 1612 (1972).