legislation that would clarify the constitutional process and apprise the States of the risks. The State legislatures have acted in good faith, I agree, but, more important, they have also acted on the basis of a combination of inattention and, I think, misunderstanding. Your main question should be: What can Congress do to help toward a proper understanding of the convention process?

May I point out that Professor Van Alstyne is the only person I have found, other than some confused State legislators, who will tell you what he just told you and what he has said in his recent writingsthat a State legislature can, in fact, take the National Taxpayers Union's or the Right to Life movement's specific proposals for amendment, put them verbatim into a State application for a convention, and compel Congress to call a convention that would be limited to voting up and down on that specific proposal. The ABA doesn't say that and no other commentator has said that. And even Professor Van Alstyne hadn't said that at the time 28 legislatures voted for a balanced budget convention.

I think and hope it will give your committee pause to contemplate today's testimony. You ought to be, and I hope you will be, impressed by the fact that most constitutional scholars here disagree with the central assumption of the bills before you the assumption that Congress has constitutional power effectively to limit a convention's agenda. I believe that if you gathered another panel of four constitutional lawyers and then another panel of four constitutional lawyers and then another such panel, the breakdown would be very much like we have today-three people telling you that it is not possible constitutionally to limit the convention's agenda and only one person supporting the misapprehensions that I think underlie S. 1710 and the other bills.

Does anybody care what academics think about all this? I think you should, when you contemplate the false hope you may be holding out to the country if you enact this legislation-the false hope that you can assure that a convention will be limited.

Our views are on record and in print. Others are ready to say the same thing to you. If and when a convention gets underway, I am prepared to tell a convention delegate that if he perceives his constituency is interested in a subject not listed in the congressional call, be it the cutting off of funds for abortions or increasing funds for energy, he is free to propose constitutional amendments on these subjects at the convention.

Senator BAYH. What about repealing the first amendment?

Mr. GUNTHER. If in the course of the convention process, that were to be done, I think that it would be constitutionally legitimate, although I would argue vehemently that it should not be done. I recognize that my former employer, Chief Justice Warren, used to include in some of his commencement speeches a reference to an old "Time" poll which suggested that if you asked the people about particular applications of each one of the Bill of Rights, each one of the first eight amendments, you would not get majority support today for most of the Bill of Rights. But I also think or at least I hope I have enough faith in the country-that the Bill of Rights would not be repealed. But, my point is, that it is not your legitimate function,

if I may say so, to prevent this country from repealing the Bill of Rights if it so chooses, in a process where the people elect the delegates to a convention designed to propose constitutional changes. To assume that Congress has the power to keep a convention from considering "bad" amendments is to stand article V and its history on its head. I don't think it is contemplated by the constitutional scheme, and I don't think the political and legal dynamics are such, that Congress can operate as a body which could or would keep an antiBill-of-Rights view of the people from being effectuated at a convention. Article V clearly rejects the notion that Congress is the guardian of the substantive deliberations at a convention.

Let me briefly indicate where my own constitutional position stands on the spectrum of views you have heard today. We have on one extreme, Professor Van Alstyne, who is the only one here-and, I think, the only constitutional lawyer in the country-who supports the legitimacy of the narrowest limitations on a convention that one could conceive of. He says that a convention can be limited to a yes-or-no vote on the text of a specific amendment. No other scholar has ever said that. At the other extreme, I suppose, stands Professor Black, claiming that a State application which purports to say anything about subject matter is entirely void. He insists that only an unlimited convention application is proper. In between, you have Professor Dellinger and me, with some slight disagreements, but we are somewhere in the middle. But I should add that, as to the ultimate scope of a convention, we are much more in Professor Black's camp then in the ABA or the Van Alstyne camp. We believe that a convention is a separate, largely autonomous body that has a legitimate claim to have its views effectuated on the convention floor and above all to exercise ultimate control over its own agenda.

Professor Dellinger and I do not agree on everything, but we are remarkably close. I am impressed by that, though I don't see any reason why you should necessarily be. I am impressed because my view and that of Professor Dellinger, while very close, were arrived at entirely independently. I did not know that he was writing about this issue, nor did he know that I was thinking and speaking and writing about it. I think it is not insignificant that two reasonably independent, reasonably non-ax-grinding scholars reached such similar conclusions after several months of entirely individual thought.

All that is background. It does not show that either I, or Professor Dellinger, or anybody else is right. It does suggest that there are significantly different views about the proper scope of a convention. And for the Congress to embrace one of those views for the purpose of curbing a convention may therefore well be a very misguided notion. Congress would surely add to the confusion and raise false hopes if, by enacting S. 3 or S. 1710, it conveyed the impression a convention could be effectively limited in the face of the fact that so many of us argue that that is not true.

So your false hope concern is a very genuine, admirable, central concern, Senator Bayh. If you are really concerned about conventions that may rewrite the Bill of Rights or do other substantial, damaging thing to the basic document that has served us so well for a couple of hundred years, I would urge you to follow Professor Dellinger's

suggestion and my own; namely, enact legislation which would adopt minimal housekeeping guidelines, but which would not have congressional veto powers of the sort before you. You should make it clear to the States that they can adopt an application which would produce a congressional call stating: "We hereby call a convention because 34 States want to discuss this issue responsibly." But it is of the greatest importance that you also make it clear to the States that you believe that that convention will have a plausible reason to go beyond the subjects suggested in the application and the call. In short, I think it is your duty to apprise the States of the risk of an unlimited convention. Such congressional action would, I think, change the political dynamics in the States right now. I think many States would reconsider and repeal their applications. I think such congressional action would also be true and more faithful to Congress proper constitutional role in our constitutional scheme.

To summarize very briefly: My view is that States can specify a subject in their applications, can say what they would like a convention to discuss; and that Congress can state that subject in its call. But I differ with the premises of the bills before you and with Professor Van Alstyne and with the ABA committee when it comes to the force of that statement. In my view, the statement of the subject in your call and in the State applications is largely an informational device and, at most, a moral exhortation to the convention, in effect saying, "We hope you will stick to this subject." But such a statement of the subject does not go so far as to effectively bind that convention; ultimately, the presumption created by the statement of subject can be overcome; ultimately, the convention delegates are free to respond to the call of the voters and to get their own agenda.

I say all that as a matter of constitutional interpretation. But I also want to spend a couple of minutes on an amateur effort at analyzing the political and legal dynamics-dynamics which make it very unlikely that any congressional attempt to impose a binding limit on the convention's agenda can or will be effective in any ironclad way. I have participated in a number of debates around the country on the issues before us today. I have found people on both sides with respect to the proper constitutional interpretation of article V. But I can assure you that very few people will tell you that anything you say in your call in order to limit a convention will have an overriding probability of really succeeding. Even those disagreeing with constituional interpretations such as those of Black or Dellinger or Gunther will typically agree that a congressional effort to limit may not work.

Professor Van Alstyne tells you that the courts may defer to a congressional judgment. But the Federal courts are themselves part of the very National Government that the article V convention method was intended largely to circumvent, so that the Supreme Court may not be very cooperative in getting into the fray and siding with Congress. If you passed the bill to limit the subject matter, the Supreme Court may well-and, I suspect, wisely-delegate the ultimate decision to the convention itself, and to the delegate selection process.

I say in my prepared statement that I believe my views are supported not only by sound constitutional interpretation, but also by considerations of political dynamics. Let me dwell very briefly on

those dynamics. Suppose Congress were to specify subject to its call, were to enact an exhortation that a convention should address only that particular subject. The next step would be the selection of delegates to a convention. The convention delegates would probably be chosen in popular elections, where passions and delegates would be hostile to congressional control, where issues other than the specified ones, would no doubt be raised, and where some successful candidates would respond to those pressures.

I believe that, when the elected delegates gathered at the convention, they could legitimately speak as representatives of the people, chosen at the most recent nationwide election. Those delegates could make the justifiable argument that they were charged with considering all those constitutional issues perceived as of significance by the people who elected them-essentially, that the convention was entitled to set its own agenda.

The convention accordingly might propose a number of amendments going beyond the subject mentioned in the call. Under the bills before you, Congress could veto such "unauthorized" proposals, could refuse to submit such convention proposals to the States for ratification. But I believe that that kind of congressional veto effort would encounter not only substantial constitutional arguments but also substantial political restraints.

As I noted, the convention delegates could make a plausible constitutional argument that they were essentially in control of their own agenda. They could make even more powerful arguments that a congressional refusal to submit the convention's proposals would thwart the opportunity of the people to be heard once again in the ratification process. They could claim, too, that a congressional veto would fly in the face of one of the really dominant themes in the constitutional history: That the article V convention method was designed to minimize the role of Congress in the amendment process.

In the light of those constraints, in the face of those political dynamics and those legal arguments, might not Congress find it impolitic to refuse to submit the convention's proposals to ratification? I suggest that it is not at all inconceivable that Congress, despite its initial hope that it could confine the agenda of the convention by specifying the subject, would ultimately find it to be the course of least resistance, as well as the course truest to the constitutional scheme, to submit all of the proposals emanating from a convention of delegates by the people to the ratification process, where the people would have another say.

Permissible specifications of subject matter in State applications and in the congressional call, but, ultimately, no effective or proper limit on the scope of the convention's deliberations: That, I submit, is the most plausible understanding of the article V convention method.

That, I believe, is the understanding this committee should embrace and convey to the State legislatures and the Nation, in order to dispel the prevailing uncertainties about the article V convention method. That understanding, I submit, should govern this committee's scrutiny of the pending proposals; that understanding supports those provisions of S. 3 and S. 1710 dealing with minimum procedural, housekeeping ground rules, but not those seeking to impose substantive constraints on a convention's deliberations.

Obviously, those premises lead me to disagree with the ABA committee as to congressionally imposed limits. Instead, I-and, in different ways, Professors Black and Dellinger-insist that it is not for Congress to impose an effective substantive limit on the convention's agenda. That is not to say that I would be opposed to Congress identifying in its call-for the purpose of informing the delegates and as a matter of exhortation-those concerns that were uppermost in the State legislatures' minds when they applied for a convention.

I think, however, that you would be holding out a false hope and adding to rather than alleviating the prevalent confusion if you told the country that you had, by enacting S. 3 or S. 1710, effectively cleared the way for a limited convention which would be controlled by you or by the Federal courts or by any other national agency. That would be contrary to the view of many of us who have considered the constitutional history and the dynamics of the political process.

I have gone on longer than I planned. I apologize.

Senator BAYH. Neither of you gentlemen has had as much time as I think you deserve. I regret the restrictions. It is now 1:30. Permit us, if we might, to read the full record, and then present whatever questions we might have in writing.

Mr. GUNTHER. I will be glad to do so.

Senator BAYH. I appreciate your taking the time to be with us. Unfortunately, article V and the Philadelphia proceedings, are not replete with precedents.

Mr. GUNTHER. I am just starting a revision of my constitutional law casebook, which I hope to get to the printer in the short time of 3 months; and you will be interested to know that in the constitutional law literature, there is very little discussion of this difficult constitutional issue. In the 1,650 pages of my own book, for example, I do not mention this issue once. But I plan to correct that omission in the new edition. My colleagues here can tell me what chapter the subject belongs in.

Senator BAYH. Somewhat painfully, as we went through the process of extension of the Equal Rights Amendment, it is slim pickings to find out what was meant. Some of our colleagues reached one conclusion, and some another, but it is certainly not the kind of thing where there is a wealth of information to draw from.

Let me ask one question, Mr. Gunther. I don't think you volunteered your assessment of this, and if you care to, you may, but Professor Van Alstyne did relative to the question of rescission.

Mr. GUNTHER. On the rescission of State ratifications? I disagree with Professor Van Alstyne on that question, too, although I must say, as he said, that by and large we agree on almost everything else in constitutional law.

Senator BAYH. That specifically was not the question, but that is all right. Has either of you gentlemen views on the ability of the State legislators to rescind petitions, applications, and resolutions?

Mr. GUNTHER. I have no doubt in my own mind that one of the few clear things required by article V is substantially contemporaneous State application for a convention, and that the State legislatures are perfectly free to change their minds, before the requisite 34 are in hand, as to whether they want a convention or not.