Indeed, my own view is that if Congress were to adopt legislation based on my consitutional understanding, instead of the misguided understanding that underlies the pending legislation, that would cause some State legislators, including some I have talked with, to reexamine what they have done; I believe that quite a few legislators would then vote to withdraw existing State applications. The most useful thing you can do is to make it clear that Congress or the States cannot guarantee a limited convention; I think you will then have withdrawals from a number of State legislatures.

Senator BAYH. Professor Van Alstyne, do you have a comment on that?

Mr. VAN ALSTYNE. Yes, I do, if I understand Professor Gunther correctly. The basis for his conclusion proves too much for me, insofar as his view would go to the process of rescinding ratifications as well. So that is not a satisfactory answer.

Mr. GUNTHER. It is for me, of course.

Mr. VAN ALSTYNE. Not for those who think it is appropriate for Congress to first permit States to ratify and then look at the tally and reconsider. But with regard to petitions for a convention, at least, a different argument can be made. In my view, ratification is meant to be deliberate, and it is more so by being considered final when done. It may be considered several times, but not called back again once released.

The view on the other side of the question, with regard to calling back petitions for a convention, on the other hand, could be seen like a petition seeking redress of grievances; and insofar as any one of the States having submitted its request with respect to that, alters its views, even within a short range of years and no longer feels as aggrieved as it did on the spur of the moment, when it may have called up the petition, then I think there are good reasons for Congress to contemplate a different rule.

That does make it harder to get 34 petitions outstanding, because there would be political jockeying for position among the legislatures who had previously submitted positions, making the process more difficult to operate at all. I do not know anything starkly unconstitutional about either alternative.

your

I only suggest that the difference in treatment between petitions for application and ratification seem to me to have an arguably sound foundation, and I would want you to stay with that because of own interest in the amendment process, Senator Bayh, and your successful efforts on behalf of the 27th amendment, I do urge you as an individual, Senator, to think carefully about any bill that would tend to have a carryover effect.

There is a widespread understanding that ratifications are disallowed. Encouragement of the contrary understanding is not at all historical either with regard to this amendment or to the general proposition.

Mr. GUNTHER. I would urge you not to be unduly concerned about what you were just told about the spillover effect of the question before us on the ERA ratification problem. I supported the ERA, but I did not support the arguments of those who prevailed on the ratification issue. However, I also believe, that, since ERA is a congres

sionally submitted amendment, Congress was entitled to enact a different view as to whether it would allow rescissions of ratifications. In short, I think there is no doubt that the ERA extension action was a constitutionally authorized thing for Congress to do. But when dealing with the convention route, I think it is very important to bear in mind that the congressional role in governing the process is far more minimal than when Congress initiates the amendment process. So I think the spillover effect is clearer on the surface than when one thinks about it. The spillover argument risks comparing apples and oranges.

Senator BAYH. Thank you, gentlemen, both of you, for your contribution here. I apologize for keeping you here until almost 2 o'clock. Thank you.

Mr. GUNTHER. Thank you. We appreciate the opportunity of being

here.

[Whereupon, at 1:42 p.m., the subcommittee recessed to reconvene subject to the call of the Chair.]

[Mr. Gunther's prepared statement with attachments and answers to questions from Senator Bayh and Senator Thurmond follow:]

PREPARED STATEMENT OF GERALD GUNTHER

I appreciate the opportunity to participate in these important hearings. They are important for at least two related reasons.

First, I believe that Congress has the responsibility to air and help eliminate some of the uncertainties and difficulties pertaining to the convention method of amendment under Article V of the Constitution. As you know, about 30 state legislatures have applied for a constitutional convention; in most of those legislatures, there has been virtually no attention to the question of what the calling of such a convention would entail; and many of the state legislators voting for applications have acted on the mistaken assumption that it is within the states' power to initiate a convention limited to an up-and-down vote on a very specific amendment proposal.

Second, I believe that Congress has the responsibility to address the question of enacting procedural legislation pertaining to the calling of a convention under Article V. We have never used that amendment method; no guidelines are on the books pertaining to a congressional response to the requisite number of applications from the states. I have grave constitutional doubts about some of the provisions in the constitutional convention bills pending before you; but I do not doubt that addressing these proposals and the questions they raise can shed important and helpful light on the process-light which is surely preferable to the darkness in which the state legislatures have groped and stumbled, without adequate information and deliberation, toward the brink of a convention. During recent months, I have spoken and written extensively about a range of problems raised by the untried and uncertain convention method under Article V. In this brief statement, I will limit myself to a central problem: Are there legitimate and effective means to limit a constitutional convention to a single subject specified in advance? In my view, the answer is "no."

I would summarize my views as follows: I believe that state legislatures are entitled to state in their applications the subject which prompted their vote. I believe, moreover, that Congress may, in its call of a convention, state the subject which has prompted the initiation of the convention process. But I would add that those recitals of subject matter in the state applications and in the congressional call are not ultimately binding on the convention. I think that the convention delegates should treat those recitals as informational devices and as moral exhortations; but I also believe that those recitals create no more than a presumption that the convention should confine itself to the stated subject. Ultimately, I believe, the convention is empowered to set its own agenda. In my view, the convention delegates will have a valid claim to consider and propose amendments on any subject of constitutional dimension of concern to the electorate who

chose them. I accordingly believe that, although Congress may properly enact minimal housekeeping provisions regarding the receipt of state applications and the convening of a convention, it cannot legitimately compel the convention to limit itself to a specified subject matter, either through imposing oaths or other obligations on the delegates or through threats to veto so-called "unauthorized" convention proposals. I would add, moreover, that even if the congressional call purported to confine a convention to a stated subject, the dynamics of politics as well as the most persuasive constitutional arguments would generate powerful forces making it highly unlikely that Congress could and would effectively interpose itself between the convention's allegedly "unauthorized" proposals and the ratification process.

My examination of the text, history and structure of Article V persuades me that the convention was to be a substantially autonomous body, and that the role of Congress in channeling the convention method of amendment was to be a minimal one. To me, the most significant aspect of the debates on the amendment process in Philadelphia in 1787 was the deliberate introduction of the convention device into Article V. That device makes the state-initiated amendment route very different from the traditionally used alternative, whereby Congress proposes amendments and the states ratify. Under the convention route, states cannot propose specific amendments and may only initiate a convention; Congress must call a convention when the requisite number of valid state applications are at hand; and, most important, it is the convention that is the central body in formulating proposed amendments.

The convention mechanism was a compromise between centralist and localist forces. It was designed to still the fears of those who thought that state legislatures might have power to dictate the terms of proposed amendments on their own, without the intervention of a national deliberative body at the proposal stage. At the same time, it was a method likely to calm the anxieties of those who feared that Congress would have undue control over proposals emerging from the state-initiated amendment route. In short, the convention-understood to be a powerful mechanism in 1787, both from the kind of convention contemplated early in the Philadelphia convention and from the Framers' experience at the Philadelphia Convention itself-was conceived as the central institution in the state-initiated amendment process, a genuinely deliberative body with very considerable autonomy of its own.

Even a cursory examination of the sources relevant to constitutional interpretation undercuts the basic premise of those who argue that the state-initiated amendment route must be construed as parallel or essentially synonymous to the congressionally-initiated one, that it must be as "easy" to use, and that the convention's agenda must accordingly be limited to the subject specified in the state applications and in the congressional call. The Philadelphia Convention did not accept Madison's proposal to make two-thirds of the states coequal with Congress in proposing amendments. Instead, the 1787 debates limited the states' initiative to one applying for a convention, and it inserted the convention as the institution that would undertake the actual proposing. True, Congress has full control over the terms of the proposed amendment when it rather than the states initiates the process. But, given the nature of the convention mechanism set up by the Constitution and the background of that mechanism, the stateinitiated convention route cannot be synonymous. Under that route, state legislatures can voice their grievances and demand a convention; the national legislature's control is sharply limited; and it is the convention that is the dominant national forum to consider constitutional defects and debate and propose desirable amendments.

In short, what I think the Framers had primarily in mind was that the states should have the opportunity to initiate the constitutional revision process if Congress became unresponsive, arrogant, or tyrannical. That does not mean that any convention called under Article V must be as far-reaching as the one in 1787. I see no reason why the states cannot voice the grievance that prompts the applications, or why the articulation of that grievance should not have appropriate weight when it is repeated in the congressional call. But I do insist that the convention contemplated is not limited to consideration of the specified grievance. I believe that a convention is entitled to consider all major constitutional issues of concern to the country at the time the delegates are selected and the convention meets.

My constitutional position stands in between the extremes: I do not agree with those who claim that only a limited convention is contemplated by Article V nor with those who argue that only an unlimited convention is permissible, so that Congress must consider void and ineffectual any state application for a limited convention. Instead, I believe that specifications of subject matter by the states and by Congress are permissible, but that the convention is a separate, independent body ultimately not controllable by the applying states or by Congress. My view does not preclude the possibility of a single-issue convention if there is only one, overriding constitutional problem before the country when the delegates are selected and the convention gathers; but if several constitutional issues are of concern to the nation, I believe that the delegates may consider them. My reading is akin to that of the "limited convention" advocates in giving some weight to state and congressional specifications of subject matter; but it is allied with the "unlimited convention" position in insisting on ultimate control by the convention of its own agenda.

I believe that my position is supported not only by sound interpretation of the constitutional scheme but also by considerations of political dynamics. Consider those dynamics for a moment.

Suppose that Congress were to specify a subject in its call-an exhortation that the convention address only that particular subject. The next step would be the selection of delegates for a convention. The convention delegates would probably be chosen in popular elections-elections where the platforms and debates would be outside effective congressional control, where interest groups would surely seek to raise issues other than the specified one, and where some successful candidates would probably respond to those pressures. I believe that when the delegates gather at a convention, they can legitimately claim to speak as representatives of the people, reflecting voter desires expressed at the most recent nationwide election. And these delegates could accordingly make a very plausible argument that they were charged with considering all those constitutional issues perceived as major concerns by the American people who elected them-in essence, that the convention is entitled to sets its own agenda. Acting on those premises, the convention might well propose a number of amendments, including amendments on subjects not specified in the congressional call.

Now, if the convention were to report such allegedly "unauthorized" proposals to Congress for submission to ratification, would Congress truly be in a position effectively to ignore them? I doubt it: I believe any such congressional veto effort would encounter not only substantial constitutional arguments but also substantial political restraints.

Consider the possible context in which congressional consideration of a veto of the convention's efforts would arise. The delegates elected to serve at “a Convention for proposing Amendments" (in the words of Article V) could make plausible constitutional arguments that they acted with justification, despite the prior congressional specification of the subject. They could make even more powerful arguments that a congressional refusal to submit the convention's proposed amendments to ratification would thwart the opportunity of the people to be heard once again, in the ratification process. They could claim, too, that any significatnt congressional control and confinement of the convention route would fly in the face of one of the dominant themes of the constitutional history: if the state-initiated method for amending the Constitution was designed for anything, it was designed to minimize the role of Congress. Congress was given only two responsibilities in the Article V convention route; and, properly construed, these are extremely narrow responsibilities. First, Congress must call the convention when 34 valid applications are at hand (and it is of course a necessary part of that task to consider the validity of the applications and to set up housekeeping details regarding the receipt of applications and the convening of the convention). Second, after the convention has submitted its proposals, Congress has the responsibility for choosing the method of ratification. And that, it can be persuasively argued, is all that Congress can properly do. 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 elected 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 adopt 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 dealing with minimum procedural groundrules, but not those seeking to impose substantive constraints on a convention's deliberations.

In this statement, I have not been able to spell out all of the arguments supporting that understanding. I will of course be glad to answer questions. And, with your permission, I will submit for the record the fullest written elaboration of my views, the text of an article soon to be published in the Georgia Law Review based on the John A. Sibley Lecture I gave at that University some months ago.