such a convention is intended to be free of congressional control. That was the whole point of the matter. These bills, in the process of trying to domesticate the convention and make it usable for these single-issue constituencies, run the risk of creating a precedent for congressional control over the convention at a future time when a convention might truly be needed as a counter to congressional abuse. Now, we have debated the issue, in the literature, of whether Congress has the power to set limits on a convention.

Senator Hatch's bill is subject to different interpretations. I read it as saying that Congress, itself, may undertake to frame what is the "general subject" to which the convention is limited, perhaps extrapolating or subsuming a number of different State applications into what Congress thinks is an appropriate general subject, and then Congress in its sole determination has the power to exercise what is essentially censorship over the content of any proposals that emanate from a Constitutional Convention and say, "No, they don't meet the standards we set up, they don't meet what we think is in the general subject, and we will not forward them to the States."

Were there ever a time in which the Nation needed to limit congressional abuse, this power would be quite dysfunctional and contrary to the notion that the convention mode was to be independent of Congress.

So what these bills do are really two different things that look in different directions.

They first of all encourage the use of the convention in a trivial matter for single-shot special-interest groups and hope to make that a viable possibility by controlling, domesticating, and shackling the convention under congressional superintendence or State legislative applications.

Then, on the other hand, these bills cripple the use of the convention as a serious deliberative body free and independent as the framers intended, by setting a precedent that it is up to Congress to control one of these conventions.

They do that by the subject matter limitations and by setting a precedent for further controls by Congress, such as a congressionally imposed voting requirement.

I enjoyed rereading the debate which you had, Senator Bayh, with Senator Ervin over the proper voting majority in a constitutional convention.

With all due respect, this is one issue on which I think the American Bar Association report was correct, that this is not a matter for this body to decide.

If we take a convention for proposing amendments seriously, and keep ever in mind the essential attribute that the proposing body is independent of Congress, then that convention itself ought to set its own agenda and its own voting requirements.

Mr. BLACK. I totally agree with that.

Mr. DELLINGER. Senator Bayh suggested that if there is one issue at the convention, the delegates are going to count noses, and if there is a bare majority for our side, but not two-thirds, the majority would not put through a two-thirds requirement. Such an outcome is not clear, however, if the convention is going to have the authority to determine the scope of its own deliberations and what subjects it will consider.

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

be that that convention could vitiate the greatest act in the history of

mankind.

Mr. BLACK. I agree with that. If I had a choice, I would put in the two-thirds vote provision in Article V, but I cannot see how it can be read into it. The ordinary common rule is that you have to have a majority of the vote.

I think one defect of this bill is that in reporting on the Electoral College which is something I have strongly defended-that would increase the power of less populous States.

If a convention were called with proportional representation, it couldn't pass anything without a majority. When they come together the first thing they have to pass is their rules, and they would certainly have to be passed by a majority. I wish it had said two-thirds, but since it is a way of circumventing Congress in whatever field of operation, I cannot read into it the power in Congress to set the voting rules for such a convention. I think it would be-it is too bad that it is not there, but I can't see it there.

Mr. DELLINGER. Senator, I understand your concern about not unleashing something we cannot control, and I think that the best way to insure that we don't have irresponsible use of a Constitutional Convention would be for this Congress to make it clear to the States, through legislation and otherwise, that exactly to the contrary to section 10 of this bill, that exactly to the contrary, a convention for amendments could propose whatever amendments they desire, and again, exactly opposite to section 10, that the convention shall propose whatever amendments the convention thinks appropriate.

I think that would have a very salutary effect of curbing the desire to submit petitions for a convention by legislatures which have not really taken it seriously.

I think it would totally change the dynamics of the State legislative process if a State legislator could confidently assert to his fellow members: "If we want to have a convention on nationalizing the broccoli industry, we can have one, but the convention will be free to propose whatever it wants, and I don't think nationalizing the broccoli industry is important enough a matter for this State legislature and 33 others to summon a Constitutional Convention."

I think we would find that caution exhibited in State after State. Senator BAYH. You have been very kind. I would like to submit some questions to you in writing and then put them in the record.

Mr. DELLINGER. My colleague from Duke disagrees with my views, so I am trying to scoop my papers up quickly and give him a chance to speak.

Senator BAYH. I hope Senator Hatch's staff could address some questions.

Mr. DELLINGER. I am sorry. I think he did have some questions. Senator BAYH. Why don't we give our colleague from Utah the same right to present questions in writing.

I know how busy you are, gentlemen, and thank you very much for appearing.

Mr. BLACK. May I submit this to you for the record?

Senator BAYH. Yes.

Thank you very much.

[Mr. Dellinger's prepared statement and additional material follow:]

PREPARED STATEMENT OF PROF. WALTER E. DELLINGER

Mr. Chairman, the principal bill before this committee (S. 1710. "The Constitutional Convention Implementation Act of 1979", introduced by Senator Hatch) is predicated upon the fundamentally flawed premise that Congress or the state legislatures may exercise substantial control over the outcome of a "Convention for proposing Amendments". The specific erroneous assumptions underlying this bill are (1) that Congress may control any convention called for proposing amendments by limiting in advance the subject matter authority of that convention; (2) that state legislatures may validly specify in their applications that the convention be formally so limited; and (3) that Congress, in response to these limited requests, must call a limited convention, define, in rough or precise accord with the state applications, the scope of matters that may be considered, and mandate that the convention stay within those pre-set limits. It is possible that this legislation is also based upon an assumption that Congress can take applications for a narrowly limited convention, broaden those applications into a "general subject" defined by Congress, and call a convention on that more "general subject"-even if many of the applying state legislatures are in fact opposed to a convention with an expanded mandate.

For the reasons I have set forth at greater length in a recent article ("The Recurring Question of the 'Limited' Constitutional Convention", 88 Yale Law Journal 1623 (1979) I am persuaded that any Article V convention was intended to be free of the control both of Congress and of the state legislatures. One theme that emerges from the Philadelphia debates in 1787 is that Congress should not be given the exclusive authority to propose amendments; another is the fear expressed by Hamilton and others that state legislatures would propose amendments that would seek to enhance their own power at the expense of the national government. The framers of Article V therefore rejected a plan which would have permitted state legislatures to propose particular amendments for ratification. They created instead an alternative amendment method free of congressional or state legislative control: a constitutional convention free to determine the nature of the problem, free to define the "subject matter" and free to compromise the competing interests at stake in the process of drafting a corrective amendment. State legislatures may call for such a convention, but neither they nor Congress may control it.

A state legislature is free, of course, to suggest the particular problems it believes need to be addressed by a convention and free to recommend that the convention confine itself to those subjects. Any formal limitation on the subject matter authority of such a convention, however, would be inconsistent with one of the principal reasons for the creation of the convention device. If the state legislatures could limit the convention to consideration of a precisely worded amendment (as might be possible under the bill proposed by Senator Helms, S. 520), and restrict the convention to either proposing that exact amendment or taking no action at all, effective proposal power would have been shifted to the state legislatures and would exclude any national body from having an effective voice in shaping the amendment. If, on the other hand, the convention were confined not to an exact amendment, but rather to a "general subject" (as would be the case under the proposal by Senator Hatch, S. 1710) then Congress would likely become involved in defining and enforcing limits on the convention in the process of framing the call and judging whether the convention's product was within the "subject" established by Congress. This would conflict with a different goal of the drafters of Article V: the desire to create an alternative amendment process in which Congress had no significant control over the outcome.

An example of impermissible Congressional influence over a convention limited to a "general subject” by Congress may be drawn from Senator Hatch's own remarks. Senator Hatch's bill attempts to avoid the problem of undue state legislative control over the outcome of a convention by broadening the scope of limits over a convention to those of a "general subject". In explicating the term "general subject", Senator Hatch informed the Senate that a state application for a convention for the purpose of "improving the functioning of the executive branch of the Federal Government" would not fall within the same "general subject" as an application for a convention to consider "changes in the length of the presidential term of office." 125 Cong. Rec. S. 11872 (daily ed. Sept. 5, 1979). It strikes me as far from self-evident that these two proposals are not related to the same general subject: lengthening the term of the President would certainly be one conceivable way of improving the functioning of the executive branch. A Congress free to define the "general subject" of a convention called for by a series of different applications would have a good bit of influence over

the agenda and the possible outcomes of such a convention. And a Congress free to reject a convention's proposed amendment changing the term of the President because it did not properly relate to the "general subject" of the functioning of the executive branch, as Senator Hatch suggests would be proper is a Congress with substantial control over the final product. Since the convention method was established as an alternative to Congress, the influential task of defining the agenda should be left where Article V intended it to be left: with the "Convention for proposing Amendments".

Legislation which attempts, as each of the proposed bills pending before the House and Senate does, to limit the authority of the convention to propose whatever amendments the convention may think appropriate is thus inconsistent with Article V in either or both of two ways. Limitations confining a convention to an amendment whose "nature" or text is narrowly defined impermissibly transfer proposing power to the applying state legislatures; more generous limitations to a “general subject” mitigate this flaw, but only at the risk of creating another: an impermissible transfer to Congress of power to define the subject and to check a convention's proposing authority by rejecting amendments which in Congress' own view are inconsistent with the "general subject" as defined by Congress.

Because the term "general subject" is so elastic, it is difficult to ascertain from S. 1710 to what extent it would permit legislatures narrowly to confine the scope of a convention, and to what extent it would permit Congress to define the contours of the convention's authority. In either case, I believe it impermissibly withdraws from a “Convention for proposing Amendments” the authority to determine what amendments to propose. It may be useful to the committee, however, to go beyond this basic objection and to consider how this bill might operate in practice. How, for example, would the presently pending applications for a convention to propose a balanced budget amendment fare if tested by standards set out in Senator Hatch's bill? Senator Hatch has stated that "the imminence of a convention [on] the matter of a balanced budget has clearly created the urgency for this legislation". 125 Cong. Rec. 11872 (daily ed. Sept. 5, 1979). It is therefore ironic that virtually all of the pending applications for such a convention would presumably be invalid under the standards proposed by S. 1710. This bill requires legislatures to state in their applications the "general subject" of the proposed convention, requires Congress to limit the convention to such a “general subject” and permits a convention to propose any amendments pertaining to that “general subject". Senator Hatch recognizes that thoughtful constitution drafting cannot be conducted as a plebiscite among a series of resolution passing state legislatures which specify the very amendment to be "proposed" by the convention. He notes that “... to the extent that a petition was required to be precise, either with respect to the specific amendment sought, or the specific language sought, there would be litle use for the convention itself. To limit the convention to the consideration of a single, meticulously worded amendment is to make the convention a farce.” The thirty “balanced budget” amendments now pending before Congress contemplate that the convention will be limited to the consideration of just such an impermissib`y narrow amendment proposal. Arizona, for example, seeks a convention for "the specific and exclusive purpose" of requiring in the absence of a national emergency that the total of all federal appropriations made by the Congress for any fiscal year may not exceed the total of all estimated federal revenue for that fiscal year." None of the thirty applications comes close to stating anything that could conceivably be cal ́ed a “general subject” and therefore do not provide a basis for calling a limited convention under Senator Hatch's bill.

Some might suggest, however, that the proper response to such applications under the Hatch bill would be for Congress itself to define a "general subject" (such as "federal fiscal policy" or "inflation control") under which these specific applications could be subsumed, and then proceed, once the requisite number of appliations had been reached, to call a convention limited only by this expanded “general subject." Such action by Congress, however, would be flatly inconsistent with the expressed wishes of many of the applying state legislatures. They have made it c`ear in their applications that they oppose a convention with an expanded mandate. The following states, for example, have stated in their applications that they seek a convention limied to the "specific and exclusive purpose" of considering an amendment that federal expenditures may not exceed federal revenues: Alabama, Colorado, Georgia, Maryland, Oklahoma, Oregon, Pennsylvaina, South Carolina, Virginia, Wyoming. Nebraska, Idaho, South Dakota, Arkansas, Utah, Texas, Arizona and Iowa. Half a dozen states