:ject other than that subject which was authorized by the petitioning states. Other than a moral exhortation, what means of enforcement is available?

8. The ABA and several constitutional scholars have recommended that convention delegates be popularly elected. Can you foresee any problems that may be connected with those elections with state laws, or possibly the necessity of amending state laws to accommodate those elections?

9. What are your thoughts on convention delegates being appointed? Would that appointment be made by the governor or the State legislature?

10. The ABA Report states there is no evidence of any federal constitutional bar against a member of Congress serving as a delegate. Do you have an opinion on that?

11. What are your thoughts with respect to a State legislator serving as a delegate to a convention? What are the ramifications of a State legislator serving a delegate, proposing an amendment and then returning to the State and ratifying that amendment?

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12. Would a provision in procedures legislation, such as that contained in S. 1710, Sec. 7(a) which states that no Senator or Representative or person holding an office of trust or profit under the United States, shall be appointed as a delegate-be an effective bar?

13. Is the exclusion of Federal employees as delegates justified in light of the fact that State employees would not be excluded?

14. Is it appropriate for Congress to include in the implementing legislation, a clause designating either the Federal government or the States to provide funds for the convention?

15. In your opinion, which entity should bear financial responsibility for a convention?

16. S. 1710 embodies the basic tenants of federalism and the sovereignty of the States. In Section 8(b), which states that with respect to no federal funds appropriated for a convention, the states shall bear all expenses incurred. The constitutional question seems to be how can the Congress require the legislatures of the sovereign States to appropriate funds for the support of a federal constitutional convention? In the past there has been instances of "matching funds" but precedent would be set for total financial support by the States. The convention would be totally dependent upon the goodwill of each and every State to pay its share, which as we know, was one of the problems faced by the Convention of 1787.

17. In S. 1710, the State supreme court justice with the most tenure shall convene the constitutional convention and administer the oath of office to each delegate and preside until officers are elected. What are your thoughts on this provision as to the practicalities and political impact?

18. As we know, the original convention was in session roughly five months and drafted the entire Constitution, do you have any recommendation as to the duration of any future convention?

19. Section 9 of S. 1710 eliminates the provision in S. 3 which provides that a constitutional convention shall terminate in one year unless extended by Congress. Would this omission effectively authorize a continuing convention?

20. I would like to draw your attention to the fact that S. 1710 does not provide for a vote on final passage of an amendment by the convention. If S. 1710 was to be passed by Congress, do you think it could be implied that the convention itself has the authority to determine the mode and margin of the vote, or would that become a matter to be decided by the courts?

21. By what vote, whether required by procedures legislation or left to the convention to decide, do you think should be required for passage of an amendment? A simple majority or two-thirds or possibly some other fraction?

22. What provisions for judicial review should be incorporated in any procedures bill, or would the convention itself have to provide for any review by the courts?

23. What would be the status of any lawsuit brought before a convention assumes its responsibilities?

24. The ABA report suggests that a three judge district court panel be authorized to review any disputes that may arise with respect to a constitutional convention. Do you have an opinion as to the advisability of this panel? How do you foresee this panel being selected?

25. As you know, S. 3 does not provide for any judicial review, whereas S. 1710 makes provision for an aggrieved State to bring an action in the Supreme

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Court directly, which was rejected by the ABA feeling that the initiation of suit in the Supreme Court necessarily escalated the level of the controversy without regard to the significance of the basic dispute. What are your thoughts on this?

26. Do you think Section 15(a) of S. 1710 is constitutionally consistant with Article III of the Constitution, hich establishes the original and appellate jurisdiction of the Supreme Court?

27. Should time constraints be put upon any court, panel or arbitrating body for a determination of any dispute or legal action brought by any individual or State in connection with any procedures legislation or action by the convention? 28. Section 12 of S. 1710 fails to include any provision for dealing with a situation where Congress fails to enact a concurrent resolution providing for the mode of ratification, but the proposed amendment is submitted to the States for ratification by the Administrator of the General Services Administration anyway. What are your thoughts as to whether this leaves a serious gap in the ratification procedure?

29. Section 13 of S. 1710 omits a provision included in S. 3 which states that Congress shall decide questions "concerning State ratification or rejection" of proposed amendments. This power to determine the validity of a State ratification or rejection is one that Congress has traditionally exercised. In the alternative, what other institution could make that determination or would be better qualified?

BRIEF RESPONSE TO THE 29 QUESTIONS ASKED BY SENATOR BAYH Responses to a number of these questions appear in my prepared testimony before the Subcommittee on The Constitution, and I hope that testimony will be helpful. Some of that testimony is amplified in the two brief published essays I submitted with that prepared testimony, and some parts may also have been clarified in the course of the brief oral presentation I made to the Subcommittee. In one portion of my prepared testimony, I took care to note that there are, of course, many questions of practical significance associated with S. 1710 and with the operation of a called constitutional convention. Part II of my prepared testimony ("Questions of Political, But Not of Constitutional, Significance") identified several such questions and some of these overlap some of the twentynine questions framed in Senator Bayh's addendum. Similarly, Professor Tribe (in his essay published in the Pacific Law Review) noted a very considerable number of such matters. With respect to nearly all of them, as I said in my prepared testimony:

"[W]ithout at all disparaging questions or alternatives that may sensibly be pressed by others on [such] issues, those questions and alternatives do seem to me to be less matters of constitutional power and propriety than of specific political wisdom and preference."

Because that is so, I accordingly do not value my own opinion respecting the best way of providing for each such question and for that reason I respectfully do not wish to submit advice which frankly cannot warrant more credence than the well-informed opinions of the members of the Subcommittee itself-but which advice, once given in this setting, may at once appear to claim some special insight. For whatever guidance it may yield to the Subcommittee in response to the more particular questions before it (other than questions of constitutional magnitude to which I have attempted rather fully to respond), my basic thoughts are merely these:

1. As I am firmly of the view that the state-initiated mode of securing amendments to be proposed was meant to be of practical availability (and not meant as mere "window-dressing" carrying the appearance but not the means of securing constitutional modifications), I think that, accordingly, congressional legislation providing for its use should be drafted to make its use practical rather than to make its use virtually impossible;

2. As I think also that a constitutional convention is indeed meant to be a deliberative body (albeit a deliberative body convoked in contemplation of a reasonably specific agenda rather than a revision of the whole Constitution at large), it would be more in keeping with that view that in cases of doubt respecting the procedures of the convention, Congress should generally defer to the discretion of the convention in the formulation of such procedures or, if Congress elects to provide some procedures, it should provide procedures which

facilitate the Convention's proceedings as against procedures rendering such proceedings difficult and frustrating.

3. As I think legislation reflecting the central features of S. 1710 is both long overdue and clearly superior to the utter uncertainty of providing no standards of any kind whatever (which, as I said in my prepared testimony, favors only those "who are so very apprehensive of any use of the state legislative mode of securing amendments *** that they prefer an indefinite state of complete uncertainty"), insofar as the Subcommittee does not feel strongly (or insofar as it finds itself divided) on some of the secondary questions it may be better advised at this time to adopt a limited bill than either (a) to do nothing, or (b) draft in such detail as must necessarily involve both a high level of speculation and a high level of political controversy.

These are, of course, statements at a fairly reified level of abstraction-and may on that account appear to do no one much good. But I think that they may do some good, as but one or two examples may help to show. Questions fourteen and fifteen, for instance, are directed to the preference or appropriateness of federal and/or state funding to defray convention expenses. I hold no strong opinion with respect to either alternative, though it strikes me that there is no impropriety were Congress to provide for reasonable federal funding, even while omitting any provision from this bill with respect to that particular subject would also be understandable and by no means so "serious" an omission as to make the balance of the bill either useless or undesirable. (Assuming, even as question sixteen recalls was true of the original Philadelphia Convention, that money problems should turn out to embarrass the convention-then even as was true of the original convention it is hardly a matter of constitutional significance.) Similarly, question seventeen directs its attention to the proposal that the most senior state supreme court justice act briefly as presiding officer until a presiding officer is chosen by the convention itself. Omission to provide for such a matter would seem to me altogether understandable-though the provision as it now appears seems hardly subject to more than mincing criticism (e.g., such as who shall momentarily preside should the most senior state supreme court justice refuse to serve?). Similarly, a question of somewhat greater political significance is doubtless question eight:

"The ABA and several constitutional scholars have recommended that convention delegates be popularly elected. Can you foresee any problems that may be connected with those elections with state laws, or possibly the necessity of amending state laws to accommodate those elections?"

Yes, surely there are such problems-but presumably there may be problems as well though state legislatures were left free to designate that state's complement of delegates other than by popular election. Assuming that popular election seems highly desirable (a view I think has its own pros and cons and would prefer to leave to each state consistent only with each acting with sufficient dispatch as not to delay the convening of the convention which in most instances I anticipate will be a limited convention), however, insofar as provision for such election proceeds pursuant to legislation enacted under Article V, I should think that such legislation may be controlling with respect to its special subject matter and not require any general alterations in state election laws.

Yet, even as I sketch these brief responses, the original point makes itself clearer than before: some of those proposed provisions may be thought by others clearly important to have and, if so, I have no personal basis for strongly opposing them. Nearly all invite marginal disagreements and add targets for objections, on the other hand, and insofar as most of them are not essential to address in basic guideline legislation (which in my view is all that legislation of this kind need now be) either some change in or outright omission of many of them would be understandable. The legislation should preferably be generous and be brief. Congress would thus be better advised at this time to adopt a limited bill than either to do nothing or to draft in such detail as necessarily engages a very high level of speculation and unnecessary controversy.

QUESTIONS SUBMITTED BY SENATOR THURmond for PROF. WILLIAM VAN ALSTYNE

Question. You feel that the state applications and Congressional call for a Convention can limit the subject matter at that Convention. If the Convention ignores the limitations, how would those limits be enforced?

Answer. By Congress, declining to submit such ultra vires proposals for ratification.

Question. Do you believe that every state application which calls for a Convention is valid no matter how restricted a Convention the application envisions? That is, is every application valid, even if it cannot be used with other applications to achieve the aggregate two-thirds, because it addresses a unique issue?

Answer. Yes.

Senator BAYH. Professor Gunther, you are a patient soul.

Mr. GUNTHER. You are patient, too, and in light of the hour, I think the best service I can perform is to keep this brief.

Senator BAYH. I would like nothing better than to spend a whole afternoon, or a whole weekend, with the four of you gentlemen, having a chance, without reservation, to discuss this.

TESTIMONY OF GERALD GUNTHER, A WILLIAM NELSON CROMWELL PROFESSOR OF LAW, STANFORD UNIVERSITY SCHOOL OF LAW, STANFORD, CALIF.

Mr. GUNTHER. It sounds like an attractive seminar to me. Maybe we could give academic credit as an inducement to hold it.

I have submitted a prepared statement and I have appended to that a fuller exposition of my written views, the Sibley lecture that I gave a few months ago at the University of Georgia and that is about to be published in the Georgia Law Review.

I won't belabor my constitutional position set forth at length in the Georgia lecture. My prepared statement was designed to give a shorter, 10-minute version of my position but I now think even that is too long for this purpose, and I will try to give you a shorter

version.

Senator BAYH. We will put the entire statement in the record. Mr. GUNTHER. Let me focus primarily on a problem you raised earlier on, Senator Bayh.

One of your concerns, you said, was that you did not want to hold out false hopes to the States, to the country, in enacting legislation purporting to curb the agenda of a Constitutional Convention. I think that is properly a central issue that you ought to consider. I think that if today's discussion demonstrates anything, it should persuade you and your colleagues on the subcommittee and on the full committee and in the Senate of the United States that indeed you risk holding out false hopes to the extent that you purport to enact anything like the Helms bill or the Hatch bill-enactment which, as Professor Dellinger pointed out, would be taken by the States as assurances that they could readily have a limited convention.

I think there are two problems about that. I won't dwell at any length here on the first one-namely, that legislation curbing a convention rests on a very questionable constitutional understanding of article V.

The problem I would like to dwell on, because it hasn't been dealt with today, is the political dynamics you could confront even if you were to enact legislation designed to curb a convention. How effective would it be in keeping a good faith convention-not a mad or a crazy, but a good faith convention-and good faith convention delegates run

ning for election from proposing discussion of subjects other than the ones Congress chose to put in its call?

I think it is a very real and very high responsibility of this Congress to inform the country on these matters, to advise about this process, and above all to warn the people and the State legislatures that a congressional effort to limit the convention agenda cannot guarantee that the limit will be effective.

Senator BAYH. May I just, so that we will understand what we are talking about, say this: We are talking about a convention that is called for by the initiation of State legislatures, with the Congress as a conduit for the calling process.

Mr. GUNTHER. What has been often overlooked, is the question of what it is that the States are initiating: It is a convention as contemplated by article V, not necessarily a convention of the sort the States would like to have.

Senator BAYH. Yes. What I was suddenly struck with was the precedents. Is it the States that do the calling, and have a vehicle that is then beyond their control? There is some debate about whether it is beyond the control of Congress or not. There can be no question that the States who called the convention, or asked the Congress to call the convention, who in good faith and reasonable assurance that the call is limited, are powerless to do anything about it if it isn't limited, except not ratify it.

Mr. GUNTHER. There are lots of problems with what you are saying, in all deference, Senator.

One of the central problems is that you are talking about States in good faith thinking they can do something which-as Professor Black argues and Professor Dellinger argues, and as I argue as well, though somewhat differently-the Constitution does not provide for. All that the States are capable of calling, despite their mistaken good faith belief, is a convention that has the power to set its own agenda.

In California last February, the legislature held hearings on some of the problems we are discussing here today. The California legislature was extraordinary because it was the first legislature that even considered in any detail what they would be voting for if in fact they applied for a convention. California, so informed, voted down the application for a convention. The votes in every other legislature before February 1979 came amidst not just confusion, but pervasive inattention to what an article V convention was really all about.

The votes in most legislatures were up and down votes as the symbol of a balanced budget, not on the nature of an article V convention. I have talked with legislative leaders in various States, and they have often confirmed this. In California as elsewhere, some legislators had the initial misimpression that they could constitutionally have a process such as only Professor Van Alstyne has endorsed-where the legislature can, in fact, go so far as to specify the detailed terms of a proposed amendment and compel Congress to call a convention that would be limited to a yes or no vote on a specific amendment. That is a misimpression. That would not be a deliberative convention as contemplated by article V.

Congress bears part of the responsibility for reinforcing that misimpression, by not holding hearings before now and by not enacting