under the Constitution. It provides for what, practically speaking, could and sometimes undoubtedly would amount to automatic submission of amendments proposed, or certified as having been proposed, by the "convention," however gross and palpable the defects in the convention procedures. There are other things wrong with this bill, but I believe I have identified its chief defects. I hope your Committee will do everything possible to see that it not become law. Respectfully, Charles L. Black, Jr. /s/ ENRICHMENT SERIES Amendment By National Constitutional Convention: A Letter to a Senator CHARLES L. BLACK, JR.* [Introductory Note: Article V of the United States Constitution provides that "the Congress,...on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments...." This language, seemingly clear in meaning on the surface, has spawned a constitutional controversy of significant dimensions. In short, does the Article V language authorize state applications for a national Constitutional Convention limited as to subject matter, or does the Article solely recognize state applications for a general convention, to propose such amendments as seem proper to the Convention? Recently, Professor Black wrote the following letter concerning the controversy to Senator Edward Kennedy (D. Mass.), Chairman of the Senate Judiciary Committee. The letter provides a valuable dissertation on the history and meaning of the applicable language of Article V, according to a leading constitutional scholar. In particular, the letter takes issue with the finding of a special committee of the American Bar Association that Article V authorizes Congress to establish procedures limiting a Constitutional Convention to the subject matter propounded in the state applications. The letter is reproduced as written, save for the addition of footnotes to sources cited in the manuscript.-Ed.) About seven years ago, Senator Sam Ervin's bill,' concerning the *B.A., 1935; M.A. 1938, Texas; LL.B., 1943, Yale; LL.D. (hon.) 1975, Boston. Sterling Professor, Yale Law School.- Ed. 1 S. 215, 92d Cong., 1st Sess. (1971) (Senator Ervin). For the version of the bill as it passed the Senate, see S. 215, 92d Cong., 1st Sess., 117 Cong. Rec. 36804 (1971). processing of state-legislative applications for a constitutional convention under Article V, had passed the Senate and was in the House Judiciary Committee. At that time, I wrote a letter to the late Congressman Celler, concerning this bill, which I thought a very bad one, both as to policy and as to constitutionality. This letter was afterwards published by the Yale Law Journal, under the title, Amending the Constitution: A Letter to a Congressman.' I enclose a copy of this composition as printed. That letter addressed itself to the whole Ervin bill; much of it is not therefore relevant to any pressing current issue, and will not become so relevant unless some version of this bill surfaces again. But the most important question raised by the bill was the question whether state applications for a convention limited as to subject-matter were valid, and so effectively imposed an obligation on Congress to call a convention. The Ervin bill rested on the assumption that they were valid; my contention was that they were not, and that consequently no number of them could create a legal or moral obligation on Congress's part.' This issue, as you have shown yourself to be aware, is today, or may shortly become, a live one. I have had occasion recently to go very carefully over what I then wrote on this issue, and I stand by every word I said. One very important development must be noted. The state of this controversy has been heavily affected by the appearance, since my letter to Congressman Celler was written, of 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 am sure you will agree that such a fateful question as this cannot be decided on the basis of the respective aggregate prestige of the sponsors of the respective views, but must at last be settled, rather, by the weight of argument. I intend, therefore, to give you my grounds for persevering in my former conviction. I shall not reargue the entire case, since my earlier writings are in your hands, but shall confine myself to considering new aspects either directly raised or suggested by the Bar Report. I shall, for clarity's sake, put headings over my principal topics. 2 Black, Amending the Constitution: A Letter to a Congressman, 82 Yale L.J. 189 (1972) (hereinafter cited as Black). 3 Id. at 196-204, especially 199. Introductory The Constitution's Article V provides for a method of amendment never till now used. "The Congress,...on the Application of the Legislatures of two-thirds of the several states, 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 two-thirds. 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. 66 "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 4 U.S. CONST. art. V. 5 Id. 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. Thirtyfour 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 V. In an inquiry concerning correct amendment procedure, where, more than anywhere else, very clear legitimacy is requisite, I should think that 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 |
