GEORGIA LAW REVIEW VOLUME 14 FALL 1979 NUMBER 1 THE CONVENTION METHOD OF AMENDING THE UNITED STATES CONSTITUTION* Gerald Gunther** In April, 1978, when I accepted the invitation to speak in your distinguished series of John A. Sibley Lectures, I was quite confident that I would speak on one of my two major preoccupations-the work of the Burger Court and the life of Learned Hand. But one cannot work in constitutional law for long without appreciating the hazards of guesses about the future. Not only is it foolhardy to place bets on outcomes of pending cases or to venture predictions about impending shifts of doctrine; it is equally risky to make confident assertions about where one's interests may lie a year hence. In recent months, much of my attention has been directed to a problem that was not at all on my mind a year ago. The problem is the meaning of Article V of our Constitution'-in particular, the meaning of the provision which states that, "on the Application of the Legislatures of two thirds of the several States," Congress "shall call a Convention for proposing Amendments." As you know, we have had only twenty-six amendments to our remarkably brief Constitution in our nearly two hundred years of national existence. All of those amendments have been initiated through the first of the two methods provided by Article V: they have been proposed by a two * The John A. Sibley Lecture in Law delivered at the University of Georgia School of Law on May 24, 1979, revised and annotated for publication. ** William Nelson Cromwell Professor of Law, Stanford University. B.A., Brooklyn College, 1949; M.A., Columbia University, 1950; LL.B., Harvard University, 1953. It states, in relevant part: 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 Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislature 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. .. U.S. CONST. art. V. thirds vote of Congress, with subsequent ratification by threefourths of the states. We have never tried the alternative method of amendment, the constitutional convention process. And that constitutional convention route bristles with unanswered questions. Those questions have prompted me to do some reading and thinking in recent months in the unaccustomed and refreshing realm of constitutional interpretation unguided (and unobscured) by judicial pronouncements. The constitutional convention issue entered most people's consciousness only this spring, largely through the efforts of a specialist in consciousness-raising, California Governor Jerry Brown. Early in 1979, the Governor urged in his inaugural speech that the states apply for a convention to achieve adoption of a constitutional amendment mandating a balanced federal budget.' And the Governor has ever since campaigned in support of the drive to call the first constitutional convention since the Philadelphia one in 1787.3 That drive is momentous indeed: as of mid-1979, thirty states had applied to Congress for a convention; and under Article V, it is clear that, when thirty-four valid applications are at hand, Congress is under a duty to call a convention-a constitutional convention for which there are no guidelines regarding such central problems as the selection of delegates, the duration of its meeting, and, above all, its agenda and authority. In examining the constitutional convention process, I will begin with some comments on the current drive to persuade two-thirds of the states to apply for a convention." I especially want to scrutinize the assurances of the budget amendment advocates that their campaign will not produce a "runaway" convention." I will then offer my own view of what the Constitution contemplates about the contours of a constitutional convention called under Article V. Finally, I want to address the question of what Congress should do now, and See excerpts from Brown's inaugural address in Brown's Twin Speeches: PresidentialCampaign-Inaugural and Routine State-of-the-State, 10 CAL. J. 73, 73 (1979). ' Interview with Edmund G. Brown, Jr., Governor of California, in San Francisco, California (Oct. 6, 1979), reported in King, Brown Starting Drive in Northeast to Eliminate Carter as Candidate, N.Y. Times, Oct. 7, 1979, at 26, col. 1-2. • For a convenient listing of the applying states as of May 31, 1979 (with references to the pages of the Congressional Record in which the text of the resolutions have been printed), see Dellinger, The Recurring Question of the "Limited" Constitutional Convention, 88 YALE L.J. 1623, 1623 n.2 (1979). * See text accompanying notes 9-12, infra. • See text accompanying notes 13-23, infra. 'See text accompanying notes 24-43, infra. 59-609 O 80 - 21 especially the problems raised by pending proposals for federal legislation establishing the machinery for (and delineating the bounds of) Article V constitutional conventions.8 I. THE CURRENT CAMPAIGN The ongoing balanced budget campaign is a threat to launch the first Article V convention in our history. The fact that we have never used the convention route does not make it illegitimate, of course: it is there in the Constitution, and it is there to be used when appropriate. But it is an uncertain route because it hasn't been tried, because it raises a lot of questions, and because those questions haven't begun to be resolved. If thirty-four state legislatures deliberately and thoughtfully want to take this uncertain course, with adequate awareness that they risk prompting a convention that will be able to consider issues ranging far beyond the balanced budget, so be it. But the present campaign has in fact largely been an exercise in constitutional irresponsibility-constitutional roulette, or brinksmanship if you will, a stumbling toward a constitutional convention that more resembles blindman's buff than serious attention to deliberate revision of our basic law. Although he is largely responsible for making most of us aware that such a campaign is in fact under way, California Governor Brown did not initiate it. When the Governor got aboard last January, we were already well along towards a convention. The National Taxpayers Union had long been at work on a nationwide, little noticed, but remarkably successful drive,' a drive that had persuaded about two dozen state legislatures to apply to Congress for a call of a convention. Even before Governor Brown joined in, the campaign had already gotten the support of about half of the states. These state legislatures had voted with the most remarkable inattention to what they were really doing. Typically, the legislatures did not even hold hearings on the unresolved questions of Article V. Typically, the legislative debates were brief and perfunctory, essentially up-and-down votes on whether one was for or against a balanced budget. Yet what was adopted, typically, was a resolution which said that, unless Congress submitted a budget amendment of its own, the state was applying under Article V for a constitu See text accompanying notes 44-64, infra. See Mohr, Tax Union Playing Chief Role in Drive, N.Y. Times, May 15, 1979, at D18, col. 1; Wall St. J., Feb. 1, 1979, at 17 (Western ed.) (NTU full-page advertisement advocating federal balanced budget amendment). tional convention." I think it is fair to say that the questions of what such a convention might do, and especially whether such a convention could and would be limited to the balanced budget issue, were largely ignored. When Governor Brown joined the campaign, the public began to take it more seriously. In February 1979, a committee of the California Assembly became the first state legislative body to hold extensive hearings on what the convention process really might look like." The California legislature rejected the convention proposal after those hearings. Many people then assumed that the drive was dead. But it continues. By the summer of 1979, New Hampshire had become the thirtieth state to ask for a convention." The chief proponents, the National Taxpayers Union and the California Governor, plan to press the campaign in other state legislatures during 1980. If four more states join the campaign, I suppose everyone will become aware that a truly major constitutional issue confronts us. II. THE UNPERSUASIVE ASSURANCES OF THE BUDGET AMENDMENT ADVOCATES A major reason why so many serious questions have been ignored is that the advocates of the balanced budget amendment have uttered frequent assurances that a constitutional convention can readily be limited to a single, narrow subject and that the process won't get out of hand. One way of examining the problems of the convention route is to scrutinize those assurances, in which I perceive three major recurrent themes. First, we are told that a constitutional convention is not likely to come about, since the real aim of this drive is to spur Congress into proposing a budget amendment of its own. Second, we are told that, even if a convention is called, it will be confined to the budget issue and will not become a "runaway" convention, as the 1787 Convention of course was. And, third, we are told that even if the convention were to become a "runaway" convention that proposed amendments going beyond the budget issue, its proposals would never become part of the Constitution because three-fourths of the states would never ratify them. "See, e.g., Del. H. Con. Res. No. 36 (1975), reprinted in 125 Cong. REC. S1307 (daily ed. Feb. 8, 1979). "California Assembly Comm. on Ways and Means Report 79-1, Transcript of Hearings on the Balance the Federal Budget Resolutions (1979) [hereinafter cited as California Hearings]. 12 See N.H. POM-223 (1979), reprinted in 125 CONG. REC. S6085 (daily ed. May 16, 1979). In my view, there is no adequate basis for those assurances, and certainly not for the confidence with which they are persented. I believe that the convention route promises uncertainty, controversy, and divisiveness at every turn. With respect to the central constitutional question-whether a convention would and could be limited to a single subject-I am convinced that there is a serious risk that it would not and could not in fact be so limited. Let me take a closer look at the major arguments of those who seek to allay concerns about the risks of the convention route. First, we are promised that there isn't likely to be a convention, because the campaign is simply a device to press Congress into proposing a budget amendment of its own. That claim seems to me the simplest to challenge: a threat to induce congressional action needs to be a credible threat; a strategy that rests on the threat of a convention must surely take account of the possibility that a convention will actually convene. Moreover, one of the very few issues about the convention route on which scholars agree is that, once thirty-four proper applications for a convention are submitted, Congress is under a duty to call a convention and does not have a legitimate discretion to ignore the applications. Second, we are told that any convention would be limited to the subject matter of the state applications. That is of course the central constitutional problem, and it raises a number of questions for which there are no authoritative answers. Let me touch on just a few of the issues that raise doubt about the possibility of truly limiting a convention, and let me consider several scenarios that might quite possibly confront us in the months to come. Let me begin by recalling the various steps broadly delineated in Article V of the Constitution. The first step is "the Application of the Legislatures of two thirds of the several States" for a convention. After proper "Applications" are received, Congress, as the second step, "shall call a Convention for proposing Amendments." Incident to that "call," Congress will have to provide for the selection of delegates; choosing those delegates is the third step in the process. Then, as the fourth step, the convention meets. After the convention reports its proposals, Congress is called upon to take the fifth step: to select the "mode of Ratification" of the proposed amendments-ratification either by the "Legislatures of three fourths of the several States" or by ratifying conventions in three-fourths of the states. The sixth and final step is the actual consideration of ratification in the states. With respect to the first step, some scholars believe that the only |