(Colorado, Delaware, Louisiana, Idaho, North Carolina and Utah) explicitly provide that their applications are not to be counted towards the calling of a convention if the convention has the authority to propose an amendment which varies from the very narrowly defined "subject" set forth in the applications. Congress should not, under the Hatch bill or otherwise, act upon such applications, since they call for a convention shackled by narrow constraints that Congress has no power to impose, and since they expressly or by implication oppose the calling of a convention on any other basis. One particular flaw of the proposed Hatch bill deserves separate mention: it flatly disregards the provision of Article V which grants to Congress the authority to determine whether amendments shall be ratified by state conventions or by state legislatures. Article V provides that amendments, whether proposed by Congress or by a constitutional convention, shall be valid "when ratified by the Legislatures of three fourths of the several states, or by Conventions in three fourths thereof, as one or the other Mode of Ratification may be proposed by the Congress." Section 11(b) of Senator Hatch's bill provides that when a constitutional convention transmits an amendment to Congress, the President of the Senate and the Speaker of the House shall after 30 days automatically transmit that proposed amendment to the Administrator of General Services, if Congress has failed to take action within that period. The Administrator of General Services must, in turn, transmit the proposed amendment to "the States" under Section 11(c). The amendment becomes valid when ratified by three-fourths of "the States" under Sec. 12. Who is to decide in the case of congressional inaction whether ratification is to be by the legislatures or by conventions? The Adminis trator of General Services? Each state legislature? The bill does not say. The original Ervin bill, and its present counterpart, S. 520, introduced by Senator Helms, attempt to deal with this problem by specifying that if Congress takes no action on an amendment sent to it by a constitutional convention, ratification shall be by state legislatures. (Sec. 12(c)). (The Helms proposal itself is arguably objectionable on the ground that the choice of mode of ratification should be made affirmatively for each particular amendmend proposal by the Congress sitting at the time the amendment is proposed.) The Hatch bill deals with the problem by ignoring it altogether. Under the Hatch bill, an amendment could be sent to "the States" without any Congress (the Congress which enacted the 1979 implementing legislation, the Congress which received the convention's proposed amendment, or any other) ever having selected a mode of ratification. In attempting to provide for virually automatic submission of convention proposals to the states for ratification, the Hatch bill short circuits the one power that Congress must clearly exercise over a proposed amendment: selecting the mode of ratification. If this Congress were to enact any legislation regulating constitutional conventions, I would suggest that an appropriate bill would contain the following provisions. First, and foremost, the legislation should clearly state, exactly to the contrary of Sec. 10 of S. 1710, that a "Convention for proposing Amendments" may propose for ratification whatever amendment the convention deems necessary. The bill should permit state legislatures which apply for a convention to recommend the subject or subjects which the convention should consider, and may even permit legislatures to append suggested texts of proposed amendments. The legislation should clearly inform applying legislatures, however, that the final determination of the subjects to be considered and the amendment(s) to be proposed rests with the convention itself. When 34 applications from state legislatures are received which call for a convention which the legislatures understand will have the final authority over its own agenda. Congress should proceed to call such a convention. Only applications received within a four or five year period should be aggregated, and states should be permitted to rescind applications at any time before the requisite total is reached. Such a convention may very well decide to limit itself to the subject recommended by applying state legislatures. Any amendments proposed by such a convention, however, should be submitted for ratification, with Congress determining, in accordance with Article V, whether ratification should be by state conventions or by state legislatures. A further word is in order on the suggested four or five year limit for applications and on the suggestion that states should be permitted to rescind applications. A constitutional convention should be held only if there exists a genuine national consensus that such a convention is necessary, If, as I have suggested, state legislatures may not specify mandatory limits to be imposed on a con vention, one device for establishing the existence of a consensus-agreement on the subject matter limits for the convention-is not available. A reasonably short time period within which “unlimited" applications are to be aggregated would help insure that a consensus existed that a convention was desired at given time in history, even if different states sought a convention with different purposes in mind. Permitting recission of applications would also facilitate the calling of a convention only when there was a consensus about the need for a convention. (Permitting states to rescind applications can quite arguably be distinguished from the controversial question concerning the right of states to rescind ratifications. A state which ratites a proposed amendment has substantially all the information it needs—the text of the amendment-to make a formal, final and binding decision to ratify. A state which has applied for a constitutional convention, however, may be acting at an early, fluid stage of the amending process. It may have sought a convention in the expectation that the convention would likely confine itself to what appeared to be the only pressing problem calling for an amendment. In a subsequent year, it may appear that there are forces seeking a convention which would bend it to the consideration of other potential amendments which the first applying state did not desire to have considered. In those circumstances, a rescission of the application might properly commend itself to the first state.) If rescission of applications were permitted, it might be appropriate to extend the time within which "unlimited" applications are to be aggregated to six or seven years. One further observation deserves reiteration. Congress has no authority under Article V or any other provision of the Constitution to call a constitutional convention merely because it feels that such a convention is necessary or desired by a number of people. Congress may call a convention only upon receipt of 34 valid applications. If 34 states seek only a so-called "limited convention", while opposing the calling of a real convention invested with full authority to propose amendments as contemplated by Article V, then Congress has a constitutional duty to decline to call a convention. Since S. 1710 purports to impose a contrary duty upon future Congresses, it is inconsistent with Article V. [From the Duke Law Journal, Nov. 5, 1979] WHO CONTROLS A CONSTITUTIONAL CONVENTION-A RESPONSE (By Walter E. Dellinger*) Although I am pleased to have provoked such thoughtful comments from my colleague,' I do not agree that his objections to the thesis of my recent Yale Law Journal article are either slight or marginal. I append this brief note to clarify the extent of the disagreement. There are, to be sure, important points on which we agree. We agree, for example, that it would not be inappropriate for a constitutional convention to consider but a single subject and to propose a single corrective amendment.3 We differ quite sharply, however, with respect to a critical question: who is empowered to control a constitutional convention? Professor Van Alstyne has suggested that a group of applying state legislatures may dictate to a constitutional convention the exact text of the amendment the convention is to "propose" (if it takes any action at all). I have argued, on the contrary, that the "Convention for proposing Amendments" is granted final authority under Article V to define the issues to be addressed and to determine the nature and extent of any amendments to be proposed for ratification. I need not recount in detail the arguments I have previously set forth in support of this conclusion. Drawing upon the debates at the Constitutional Convention of 1787, I argued that the convention mode was created to provide a method of proposing amendments that was an alternative to proposal by Congress, but Professor of Law, Duke University; A.B. 1963, University of North Carolina; LL.B. 1966, Yale University. 1 Van Alstyne, The "Limited" Constitutional Convention-The Recurring Answer, 1979 Duke L. J. 000. 2 Dellinger, The Recurring Question of the "Limited" Constitutional Convention, 88 Yale L. J. 1623 (1979). 3 For a contrary view, see Ackerman, Unconstitutional Convention, New Republic, Mar 3, 1979, at 8. U.S. Const. art. V. independent as well of the state legislatures." I suggested that the framers' rejection of a draft plan that would have permitted state legislatures to propose, as well as to ratify, amendments was in part a reflection of the concern expressed by Hamilton and others that "[t]he State Legislatures will not apply for alterations but with a view to increase their own powers***" By substituting a constitutional convention for the state legislatures as a body to propose amendments, the drafters created an alternative proposing mechanism free of both the possible self-interest of Congress and the potential parochialism of the state legislatures. By leaving to the states the final authority to ratify all amendments, the framers carefully divided the power to amend the Constitution between state and national interests. Professor Van Alstyne's narrow reading of the authority of a constitutional convention is reflected in his recurring references to the convention method as the "state mode"" of proposing amendments. But there is no "state mode" for proposing amendments created by Article V; it provides, on the contrary, for a "Convention for proposing Amendments." The phrase "state mode" is one which, as far as I can ascertain, was never used at the Philadelphia Convention. There was considerable discussion of the need for a method of proposing amendments that was independent of Congress. The alternative chosen, however, was proposal by a national convention, and not proposal by state legislatures. If I am correct that a "Convention for proposing Amendments" has the final authority to determine what amendments to propose, how should Congress treat state legislative applications that may erroneously presume to predetermine the subject or even the exact text of any amendment that is to be "proposed" by the convention? The question is essentially one of construing the intent of the applying state legislature: Does the applying legislature wish its application to be counted as one seeking a convention if that convention will have final authority to determine the amendments to be proposed? The hypothetical state application with which Professor Van Alstyne ends his correspondence obscures this critical issue, for it provides scant basis for determining whether the hypothetical legislature-which seeks a convention "for the purpose of" proposing a specific amendment-would favor or oppose calling an Article V convention authorized to make its own final judgment concerning what amendments to propose. As I noted in my earlier article, "[t]he use of the phrase 'for the purpose of is not necessarily inconsistent with recognition by the apply ing legislature that the convention would be free to consider other amendments." Having no knowledge of the context in which this future hypothetical application might then be brought forward (or of what the settled professional opinion might then be about these issues), one cannot confidently speculate about the assumptions made by such a legislature. My answer to Professor Van Alstyne's hypothetical is intended to emphasize that an application is not necessarily invalid simply because it is accompanied by a suggested amendment, as long as the applying legislature understands its proposed amendment only to have the force of a recommendation. It is important to note, however, that most of the applications presently pending in the real world are free from this ambiguity. With only one or two exceptions, they apply for the calling of a convention for the sole and exclusive purpose of proposing an amendment the exact text of which is set out in the applications. These applications implicitly, and still others by express provision," make it clear that they are opposed to a "Convention for proposing Amendments" if such a convention is empowered to determine for itself what amendments to propose. Professor Van Alstyne considers such applications to be valid. I do not." See Dellinger, supra note 2, at 1624-30. II The Records of the Federal Convention of 1787. at 558 (M. Farrand ed. 1937). 8 U.S. Const. art. V. Dellinger, supra note 2, at 1637. 10 The North Carolina application, for example, sets out the exact text of the amendment it proposes and explicitly proves that "this application and request be deemed rescinded in the event that the convention is not limited to the subject of this application." N.C.S.J. Res. 5 (1979), reprinted in 125 Cong. Rec. $1123 (daily ed. Feb. 6, 1979). 11 Professor Van Alstyne would have Congress act upon a sufficient number of such applications by calling a convention and imposing upon that convention whatever strictures of subject matter or predrafted text had been sought by 34 identical applications. I would not have Congress act upon such applications, since they call only for a convention shackled by constraints that Congress has no power to impose, and since they expressly or by implication oppose the calling of a convention on any other basis. The Recurring Question of the "Limited" Walter E. Dellingert Article V of the United States Constitution requires Congress to call "a Convention for proposing Amendments" upon application of two-thirds of the states.1 Amendments proposed by such a convention, if subsequently ratified by three-fourths of the states, become part of the Constitution. Thus far in the history of the republic, no such convention has been called. In the last few years, however, thirty states2 have submitted applications to Congress calling for a convention restricted to consideration of an amendment requiring a balanced federal budget. Only four more applications are necessary to reach the total of twothirds specified by Article V; Congress is said to have been brought "to the brink of calling a constitutional convention." For a century following the Constitutional Convention in 1787, the only applications submitted by state legislatures under Article V contemplated conventions that would be free to determine their own agendas. Only in this century have legislatures begun to submit ap The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amend. ments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths 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 State, without its Consent, shall be deprived of its equal Suffrage in the Senate. 2. As of May 31, 1979, twenty-nine of these state resolutions had been printed in the Congressional Record: 125 CONG. REC. S6085 (daily ed. May 16, 1979) (New Hampshire); id. at $5017 (daily ed. May 1, 1979) (Indiana); id. at $2363 (daily ed. Mar. 8, 1979) (Arkansas and Utah); id. at S1931 (daily ed. Mar. 1, 1979) (South Dakota); id. at S1932 (Idaho); id. at S1306 (daily ed. Feb. 8, 1979) (Alabama, Arizona, and Colorado); id. at S1307 (Delaware, Florida, Georgia, Kansas, and Louisiana); id. at S1308 (Maryland and Mississippi); id. at S1309 (Nebraska and Nevada); id. at S1310 (New Mexico, North Dakota, Oklahoma, and Oregon); id. at S1311 (Pennsylvania and South Carolina); id. at $1312 (Tennessee, Texas, and Virginia); id. at S1313 (Wyoming); id. at S1123 (daily ed. Feb. 6, 1979) (North Carolina). As of May 31, 1979, the resolution by Iowa, S. J. Res. 1 (1979), had not been printed in the Congressional Record. For a discussion of the validity of these applications, see p. 1636 infra. 3. National Law Journal, Mar. 5, 1979, at 1, col. 2. 4. See Black, Amending the Constitution: A Letter to a Congressman, 82 YALE L.J. 189, 202-03 (1972). |