TESTIMONY OF WALTER E. DELLINGER, PROFESSOR OF LAW, DUKE UNIVERSITY

Mr. DELLINGER. My mentor, Charles Black, has done such a fine job with this question that I do not think that I will recount, Senator, the historical review that is contained in my prepared statement. My view of that history was that the convention itself, and not Congress or the State legislatures, was granted the authority to determine the agenda of a convention and to determine the scope of its deliberations. Rather than re-cover that well-trod ground, I thought it would be useful to take a few minutes and examine these bills from a slightly broader perspective.

The bills before the committee, it seems, have one evident purpose: to control and to domesticate an article V Constitutional Convention. With all respect to the very laudatory intentions of Senator Hatch and former Senator Ervin and the others behind these efforts

Senator BAYH. I must confess that I must plead guilty here as being in that camp that is trying, as I am sure you observed from the question I asked John Feerick, I am trying, but I think it is important, of course, not to delude ourselves into recommending to people that which we are not quite sure we can deliver.

Mr. DELLINGER. I understand, Senator, that what you want to do is basically to domesticate and put some controls on a constitutional convention.

My belief that the legislation is ill considered is based on the notion that it threatens both to trivialize and to emasculate the convention method for proposing amendments.

I think the legislation is ill considered for two very different kinds of reasons.

First, I think it is unwise because it encourages State legislatures to make overfrequent resort to this mechanism by calling specialinterest conventions for inappropriately narrow and shortsighted purposes.

My second and quite different objection is that this legislation could establish a precedent for congressional power to frustrate and hamstring the work of a wholly legitimate and proper constitutional convention if and when one should ever be needed.

Now, I am convinced, unlike some others, that the constitutional convention mechanism is a salutary one, and even though added in the last days of the Philadelphia meeting, is an important addition to the Constitution.

Properly conceived, it is a very important safeguard of ultimate democratic control over the organic law of the Nation.

I also agree, however, with Charles Pinckney, who said that "Conventions are serious things and ought not often be repeated."

Senator Hatch asked whether the convention mechanism was a dead letter. I think, Senator, it is proper to view the convention as an awesome device but one which serves us well, even as it stands and waits.

In this respect, it has much in common with another constitutional mechanism, the power to impeach and remove a President of the United States.

That, too, is a mechanism which has never been put to final use, but it is by no means a dead letter for that reason. The convention, like the power to impeach and remove a President, is an important part of the Constitution.

I think it is too important to be called into use for a narrow or trivially limited purpose.

Senator HATCH. If I could interrupt you for a second, one thing that bothers me, and I have great regard for both of you, is that under your interpretation where you can only call for a general convention, the only way you are going to have a convention under article V is if there is a general discontent with the Constitution itself.

If the States have no right to call for a convention on a specific issue, and have concern only about a specific issue, it seems to me we would never have a convention. Maybe I have oversimplified it, but that is a problem and concern that I have.

Mr. BLACK. It is not a dead letter to my mind. It is a final recourse. We have plenty of experience in amending the Constitution. We have amended it piecemeal on the one hand, and here we have the recourse if there is general discontent with the Government.

Senator HATCH. If the State has the sovereign right to call for the convention, it seems to me they should also have the right, to call for one on a limited basis or on a general basis. I am going to read your comments, and I certainly don't want to jump to any conclusions. If I am correct, it appears to me that Professor Black has taken the more extreme approach here today, extreme in the sense that he says that only a call for a general convention is in itself valid whereas others, such as Professor Dellinger, would at least countenance the validity of such applications, even though they could not actually limit the convention itself.

Would that be an accurate statement?

Senator BAYH. I am not sure Professor Dellinger had finished. Senator HATCH. Why don't I let you finish.

Mr. DELLINGER. I will come to that point.

I think there is no difference on constitutional law between Professor Black and myself. I can conceive of circumstances in which Congress, perhaps, had become so oppressive that there was a critical need for a particular and very important amendment, or series of amendments, that States would seek a constitutional convention, fully realizing that it was within the convention's prerogative to survey the problem and determine what amendments the convention thought ought to be proposed. That convention might very well limit its deliberation to the pressing issue which called it into existence without necessarily reviewing all 26 amendments and every article of the Constitution, so that it would not in that sense be a "general convention" to produce a new document, but one called in very serious circumstances, and a convention that we would treat seriously by saying that this is indeed the body that was to propose the amendment.

Mr. BLACK. It might simplify things if I say I agree that a convention may limit itself, naturally.

Senator HATCH. I think anybody could agree with that.

Mr. DELLINGER. The position of the American Bar Association takes a different view than that I espouse, and I think their view proceeds largely from the underlying premise that what we are talking about is what they call the State mode of proposing constitutional amendments.

It naturally follows that if this is the "State mode," the Stat legislatures ought to be able to put it to any use they wish. I thin that was the thrust of Senator Thurmond's remarks.

That is the fundamental error. There is no "State mode" for proposing amendments to the Constitution.

Senator HATCH. Professor Black says that the States, in calling for a constitutional convention, may only call one that is general.

You are saying that the States may call for a limited conventionthis is not automatically invalid-but that the convention itself must be general.

Mr. DELLINGER. I can be quite precise about that point.

A proper convention, and the only proper convention under article V in my view, is one which has the authority to determine what amendment it ought to propose for ratification.

In asking whether a State legislature has applied validly for a convention, one is asking essentially a matter of statutory interpretation. Having concluded that a proper constitutional convention can propose any amendment it thinks necessary and desirable one can look at one of the State applications such as Idaho, and ask if Idaho has requested us to convene that kind of convention-what they asked for is a convention limited to the question of the balanced budget convention.

I suggest to you, Senator, if you read the Idaho application, you will see that they make it quite clear they are opposed to a convention that has authority to do anything other than propose an amendment, the very details of which are expressly set forth in the application. Therefore, one certainly should not construe their application as one calling for that which they make clear they oppose.

The proper response would be to inform Idaho that a convention has the power to decide finally what amendments are proposed. "If you understand that, and wish to invoke such a convention, we will do so and will honor your request if you are joined by 33 other States. But you may not control that convention and may not put limits on it. Let us know whether you want such a convention or not."

I think the States have been confused by the process of earlier State applications and the consideration of this legislation in Congress. As I say, there is no "State mode" for proposing amendments. There is a congressional mode and a convention mode for proposing amendments.

One theme that emerges from the Philadelphia debates on article V is the expressed fear that State legislatures would enhance their own power at the expense of the central government. That takes on clear meaning if one considers, for example, the apportionment controversy, where if State legislatures could submit an amendment constitutionalizing malapportionment, and vote it up or down, and send it back to the same State legislatures for an up or down vote on ratification that is the very situation that Hamilton and others wanted to avoid.

It was a proposal

Senator BAYH. Excuse me. Is there anything to keep the State legislators who petition from also being elected as delegates to the convention?

Mr. DELLINGER. No.

Senator BAYH. Could we constitutionally prescribe who can and who can't? Can we say that no Member of Congress or member of the State legislature can run for delegate?

Mr. DELLINGER. I would have grave doubts, Senator, about the validity of any congressional provisions for the convention other than those which are necessary to establish-minimally necessaryto establish the convention. It runs the risk of Congress hamstringing the convention.

Senator HATCH. Would you excuse me a second?

I apologize to both of you and to the other witnesses, because I have to go. I am going to read very carefully what you have to say. As Professor Black knows, I have in the past praised him a great deal.

If you will forgive me, I hate to leave this, because it has been an extremely interesting hearing, one of the more interesting and useful ones that we have had recently. I have presently disposed on the side of the right to have a limited convention, but I do have an open mind on these extremely difficult and novel constitutional questions.

There are many questions that are unanswered in my mind.

I am going to ask my staff member to ask some of these questions of you, if that is all right with you.

I will have one more question, if you are finished. Are you?
Mr. DELLINGER. No.

Senator HATCH. Excuse me. Go ahead, please.

Mr. DELLINGER. The "limited" convention, moreover seems to me to be a very bad way to make law, fundamental law.

The limited convention is a form of special interest politics run rampant. It allows aggressive single-issue fringe groups to engage in low-visibility lobbying through State legislatures for narrow proposals which then could be presented to a convention on a take-it-orleave-it basis. I think that the record of the Constitutional Convention. indicates that a deliberative process is what was in mind and not one that was conducted by a plebiscite of State legislatures which lends itself to single-interest politics which we have seen on the rise in this country.

I think what Congress should be telling the State legislatures is, "If you want a Constitutional Convention, the procedure for applying for one is simple." But the additional message to be conveyed is that the convention is a serious matter. It doesn't mean that you have to revise the whole Constitution, but any convention should be a mature, responsible body fully empowered to engage in constitutional drafting to evolve the amendment that the convention believes best responsive to the country's needs.

The States should be given that message, and not the message of this bill, which encourages single issue politics which allows a lobbying group to come in with a single-shot proposal and have the convention take it or leave it.

Senator HATCH. Thank you.

Mr. DELLINGER. Mr. Chairman, my second objection is of a different nature. That is, that I think these bills run a risk of establishing a precedent of congressional power that could be used to destroy the viability of a convention as an essential but seldom-used safeguard against serious oppression.

Now, I don't have the sense from the Philadelphia Convention that there was any anticipation that this would be a frequent mode of amendment. Congress is much better situated, as you well know, to

At that point, delegates who favor by a bare majority proposition X may well vote in favor of a two-thirds majority out of fear that if they do not propositions Y and Z may also be proposed.

I am not saying they would decide to require two-thirds, but it is more likely than it would be in the case you analyzed of a single issue convention. If there is only one issue, everybody knows how you want to vote on the voting majority question as soon as the convention meets.

My point is that if Congress can say to a convention for proposing amendments, that "You must submit for ratification any measure which a bare majority favored," as Senator Ervin's original bill provided, or if Congress may say to the convention, "You may not submit for ratification any provision that two-thirds agree on," why not impose a requirement of four-fifths, or 90 percent?

That seems to me to make clear the fact that in attempting to domesticate this device to make it useful to the single-issue, specialinterest groups, what we have done is set up a system in which Congress need never fear that its abuses might be checked by a Constitutional Convention. As long as Congress can determine what the voting majority will be, and how broad or narrow the subject matter must be, and determine in its own view whether any proposed amendment satisfies congressional judgment in terms of its content, whether it is in or out of that proposed standard, then Congress need never fear that this is a device that would be used to hamstring the power of the Congress.

Senator BAYH. Let me look at the consequences.

I had two concerns about two-thirds. One is the procedural substantive one which I mentioned, and the other one I just sort of referred to tangentially, that an amendment to the Constitution should have a broad cross-section of support, a consensus of support and Mr. Black pointed out that we had to get three-fourths of the States, rather than three-fourths of the people.

What you are saying, then, gentlemen, is that you agree that article V does not give the States the right to petition for a limited convention, and basically you think that is good.

Mr. DELLINGER. I do, Senator, and Professor Black doesn't disagree, that the State might petition for a convention and recommend in the application, recommend a specific amendment.

Mr. BLACK. Yes. It is entirely possible that a convention could be summoned and in fact one amendment only would be proposed, but that is a different thing than an obligation.

Mr. DELLINGER. That is right.

Senator BAYH. What concerns me is that if one follows your conclusion, and you may very well be right, and it really concerns me that you are right, and if we go ahead with this business of trying to do something, that we are holding out false hopes and we sort of turn cannon loose on the deck, but what concerns me about the no limitations interpretation is that we could then be confronted, either accidentally or we could intentionally, getting two-thirds. States asking for a general convention, and we could make the proposal repealing the Bill of Rights, and that may sound ridiculous, but when you see the issues and the emotions that have existed in this country at one time or another, and looking at Miranda, and other things, it might