Question 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?

Answer 24. If federal court review is provided-a matter as to which I have some doubt, as I have just noted, but on which I lean slightly in the direction of the ABA committee report-I think a three judge district court would be appropriate. I have not thought about the selection or such a panel. Indeed, the problems about an appropriate selection tend to reinforce my doubts about the desirability of much if any judicial review authorizations in the bill. Wouldn't it be preferable to handle this delicate and difficult issue by expressing no view on it in the legislation?

Question 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 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? Answer 25. Without much careful thought, I think the provision of S. 1710 in this regard has a good deal of appeal. An aggrieved state has the strongest claim of anyone for judicial review, for the convention route was after all to be a state-initiated route. And any claim an aggrieved state may raise does I think warrant the dignity of direct access to the Supreme Court, in accordance with the role originally contemplated for the Supreme Court in state-involved cases. On this matter, the ABA feeling does not seem persuasive: any time a state disagrees with respect to a state-protective amendment procedure, it seems to me questionable implicitly to label the dispute as "insignificant."

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

Answer 26. Without extensive thought, and without adequate time to elaborate here, I believe that Section 15(a) is consistent with the provisions of Article III of the Constitution with respect to the original jurisdiction of the Supreme Court.

Question 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?

Answer 27. No.

Question 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?

Answer 28. I believe that Section 12 of S. 1710 does leave a serious gap in the ratification procedure. As I reiterate frequently in my writings on convention problems, congressional powers with respect to the convention process of amendment are very limited; but one of the very few clear powers and indeed duties of Congress under Article V is to select the mode of ratification for a proposed amendment. I think any congressional legislation ought to reiterate that clear constitutional duty of Congress. Indeed, Section 12 of S. 1710 strikes me as ironic indeed, in light of my other writings and some of my earlier answers to your questions. S. 1710, in earlier provisions, seems to me to go beyond the legitimate congressional powers with respect to the calling of a convention when it seeks to limit the scope of a convention's deliberations; yet, after exceeding legitimate congressional powers in that respect, it proceeds in Section 12 to fail to reiterate a duty of Congress, with respect to choosing a mode of ratification for proposed amendments. Section 12 seems to me to illustrate that it, like the other proposals pending before you (such as S. 3), rests on an inadequate understanding of the constitutional groundrules.

Question 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?

Answer 29. Sections 13(a) and (b) of S. 1710 do include provisions regarding ratification and recissions, much as S. 3 and S. 520 do. In short, it does involve congressional determination of some questions "concerning State ratification." True, S. 1710 omits Section 13 (c) of the Helms proposal, the general provision as to congressional decision of such questions. I believe that omission is ill advised: I believe that the traditional congressional role with regard to state ratifications or rejections is as appropriate under the convention route as under the usually used, congressionally initiated amendment route. I do not believe that any other institution is more appropriate for the decision of such questions.

QUESTIONS SUBMITTED BY SENATOR THURrmond to Prof. Gerald GUNTHER, WITH RESPONSE

Question 1. While you would allow permissible specifications of subject matter in state applications, what effect would this specification have on the validity of the application?

Answer 1. I believe that a state specification of subject matter in an application for a constitutional convention is consistent with a valid application under Article V. The fact that a constitutional convention called in response to such application would nevertheless be able to control its agenda (see my prepared statement and my Georgia lecture) does not deprive a states "limited" application of validity. The crux of the matter is that a "convention" called under Article V is ultimately free to set its own agenda, as a matter of law as well as political dynamics; the scope of such a convention is not within the states' control. It is partly for that reason that I have long urged your committee to hold hearings on this issue, so that Congress may air the widely held belief among scholars that convention delegates would have a powerful practical and legal claim to make proposals on all constitutional issues they think of significance to the electorate. In my view, it is only by such airing of what a convention may indeed entail that the states can be adequately informed as to what they are really voting for when they apply for a convention.

Question 2. When you state that you would give "some weight" to state or Congressional specifications, what do you mean by "some weight", in light of your decision that the Convention would control its own agenda,

Answer 2. When I say that specifications of subject matter in state applications and congressional calls can be given "some weight," I mean that such specifications are properly read as signifying at least the subject that prompted the congressional call and that Congress would like the convention to discuss. In other words, the specifications are legitimate at least as information-conveying devices. I believe, moreover, that the specification of subject in the congressional call can properly be read as a moral exhortation to the convention that the specified subject should be the delegates' initial focus. But the specifications are entitled, I suggest, only to "some weight" and not to conclusive weight. Despite the specifications, the convention may proceed to consider additional subjects, in accordance with the legal and practical arguments set forth in my opening statement and in my Georgia lecture. The specification of subject matter in the call, under my view, would create at most a rebuttable presumption that the convention should address only that subject; the significant limit on the weight of the specification-a limit of which the state legislatures should be apprised by Congress-is that the presumption can be overcome, and that the convention delegates are ultimately free of any legally or practically effective restraint in setting their own agenda.

APPENDIX

PART 1-ADDITIONAL STATEMENTS, NEW ARTICLES, AND CORRESPONDENCE

A SECOND CONSTITUTIONAL CONVENTION: THE VIEW FROM THE FIRST

CONVENTION

(By Jeffrey T. Bergner)

At this moment thirty states have called for a second constitutional convention to propose an amendment to balance the Federal budget. The total is just four states short of the thirty-four states required to compel the Congress to call a convention. This is by no means the first campaign for another constitutional convention. Indeed, before the Constitutional Convention of 1787 had adjourned, some of its delegates were already calling for a second convention to consider matters not resolved to their satisfaction in the first convention. To date over three hundred petitions for another convention have been filed by the states on various subjects, and every state in the union has filed at least one.1 Because we are a nation which lives under a written constitution, our discussions of policy tend naturally to revolve around the meaning of this document. Our laws are structured and judged in terms of their appropriateness to the Constitution. Even proposed amendments to the Constitution must justify themselves in terms of the spirit and the other language of the Constitution if they are to have a chance of adoption. All changes in our political life must demonstrate their conformity with the fundamental law which is the Constitution. Because all questions ultimately turn on the meaning of the Constitution, the intentions of the framers of the Constitution become highly significant. This is a legacy of the framers themselves, and it has been well said that great men necessarily condemn lesser men to interpret them.

For this reason the intentions of the framers in drafting the amending article of the Constitution invite discussion. But such discussion is required for another reason as well. The balanced budget amendment has evoked highly emotional opposition, and opponents have offered a variety of interested, but wholly unjustified, interpretations of the meaning of Article V of the Constitution. One scholar, basing his opinion upon a single letter of a single word in Federalist No. 85, has argued that a second convention can be called only for a general revision of the Constitution, and not for proposing a single, specific amendment. Another scholar, less attracted to subtlety, has simply asserted that the framers did not intend the convention mode of amendment as a serious possibility. In light of such novel views, it is all the more useful to consider the deliberations of the framers themselves concerning the amendment process.

2

These deliberations reveal that the framers regarded the convention mode of amendment "to be as desirable and as viable as that which allows for constitutional amendment at the initiation of Congress." Indeed, this conclusion understates the importance of the convention mode and overstates the importance of the Congressional mode. For, as Madison remarked, the issue facing the Convention of 1787 was not whether popular conventions should be excluded from the amendment process, but whether the Congress should be excluded from the process.3 Any interpretation of the intentions of the delegates to the Convention of 1787

1 Amendment of the Constitution by the Convention Method Under Article V, The American Bar Association, 1974, p. 69.

2 Senate Committee on the Judiciary, Federal Constitutional Convention Procedures Act, S. Rep. No. 293, 93d Congress, 1st Session 7 (1973).

3 The Records of the Federal Convention of 1787, edited by Max Farrand, vol. I, p. 202.

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must finally confront the fact that the states are given a paramount role in the amending process. There is an old German saying that "Mann denkt, Gott lenkt," which may be roughly translated as "Man proposes, God disposes." The sense of this saying is preserved in the amending process: amendments must be both proposed and disposed. In amending the Constitution, there are two ways of proposing and two ways of disposing. Either the Congress or the states may propose, but only the state may dispose. In the last analysis, the power of the disposition as the old saying suggests—is the greater of the powers. When it is coupled with the power of proposition, its power is complete. A manifestly greater power is thus given in principle to the states than to the Congress in amending the Constitution. The states may act as proposers and disposers; the Congress may act only as proposer. Let us turn to the deliberations of the Convention of 1787 in ordered to see why this is so.

II.

Prior to the Convention, the Virginia delegation drew up a list of resolutions as a focus for the discussions of the Convention. The first mention of the amending process is found in the thirteenth of these resolutions, listed in the Record on May 29th. It reads in full: "13. Resd. that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislation ought not to be required thereto." In this formulation the Congress (the National Legislature-to-be) was deliberately excluded from the amending process. This formulation differed from the procedure for amending the Articles of Confederation in two ways. First, it excluded the Congress from any role in the amending process. Under the Articles of Confederation the Continental Congress was the sole proposer of amendments. Second, it did not specify the necessity of unanimity of the states to adopt any proposed amendment. It remained silent on this point. The Articles of Confederation had demanded unanimity, a feature which was an acknowledged deficiency of the arrangement which made the Confederation largely an alliance of states. We may note one thing about this resolution. Whereas the entire intent of the Convention was to construct a stronger national government, there was not an equal concern to expand or even to maintain the power of the national legislature to propose alterations in the fundamental law. Indeed, it might be suggested that simply because a so much stronger national legislature was contemplated, the Virginia delegation saw reason to place the amending power in the hands of the states alone.

Resolution thirteen was considered formally on June 11th. On that day there was apparently discussion about the propriety of excluding the national legislature from the amending process. George Mason of Virginia was on that day and throughout the Convention the strongest advocate of excluding the national legislature from the amending process. He was supported by fellow Virginian Edmund Randolph. Mason argued that the Congress might refuse its consent to a proposed amendment, because the amendment might attempt to remedy an abuse of power by the Congress itself. Such an amendemnt, directed at the prerogatives of Congress itself, would be unlikely to secure the assent of Congress. This view was part and parcel of the general view of human and institutional nature prevalent among the delegates to the Convention of 1787. Whether we have reason to reject that view in favor of a more optimistic one has certainly not been adequately demonstrated.

No agreement was reached on the exclusion of the Congress on that day, and the Convention turned to a discussion of another issue. The delegates agreed only that some provision for amendments ought to be made in the new Constitution. This minimal agreement was reflected subsequently in resolution seventeen, listed in Madison's notes on June 13th. Resolution seventeen was considered formally on July 23rd and unanimously adopted in the following form: "That provision ought to be made for the amendment of the articles of union, whensoever it shall seem necessary."

On August 6th, Madison reported in his notes the form given to the resolution (now number XIX) in the report of the Committee of Detail. The Committee, chaired by Mr. Rutledge of South Carolina, proposed the amending article as follows: "On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a Convention for that purpose." From this we can see that the