tion, many theorists are diametrically opposed as to the extent of Congress' power to regulate or govern the operations of a convention either through enactment of a regulatory statute, such as proposed by Senator Sam Irvin in 1973, or through the refusal of Congress to submit to the States for ratification a disfavored amendment produced by a convention. Could Congress limit the scope and powers of a convention? This is perhaps the most debated question on the subject and the one on which the opinions are often carried to the furthest extremes. For example, Charles L. Black, Jr., of Yale University Law School believes that a constitutional convention by definition is illimitable, but this is a minority opinion and not shared by Attorney General Griffin Bell. Others view Congress as the appropriate body for assuring uniformity of operation on issues of national importance, and therefore, the proper institution for resolution of some of the technical questions concerning procedure, but not as a supervisor of a convention once it is launched. A distinction is made between the power to establish and the power to interfere. Other unanswered questions include the method of selection and apportionment of delegates. Should the convention comport with the one man one vote rulings of the Supreme Court or be based on a congressional model?

Moreover, whether Congress acts by proposing its own amendment, enacts a regulatory statute, or simply ignores the critics from the state legislatures, there remains the final issue of judicial review. In Coleman v. Miller, 307 U.S. 433 (1939), four Justices stated in a concurring opinion that the amending process is political in its entirety and not subject to judicial guidance or control. Although expressly upheld in Baker v. Carr, 369 U.S. 186 (1962), this case and the political question doctrine as a whole do not constitute a particularly firm foundation for any absolutist view on the abstinence from judicial action on the subject. The Supreme Court has dipped into the area several times in the past, although it is sheer speculation as to how it would react, if at all, until after the initial determinations were made by Congress and subsequent action taken in reliance upon that legislative judgment.

If Congress decides to propose its own amendment instead, the difficulty would be in deducing what it is that the States really want. Several irate Members of Congress, including Senator Edmund Muskie of Maine, have already threatened the States with an end to revenue sharing and the Federal Grants-in-aid as a means of cutting the budget. Proponents of a balanced budget amendment believe that eliminating the federal deficit would reduce inflation, thereby strengthening the dollar; while critics of this approach charge that deficit spending is necessary for flexible government, and that such deficits are not the source of the oil price increases, cost of hospital care increases, and food price increases.

But the advocates are unmoved by the threats of cuts in federal aid and steadfastly assert that only the injection of fiscal discipline into the Constitution will circumvent an economic catastrophe.

Some of the resolutions thus far introduced simply call for outlays not to exceed revenues except in the case of a national emergency. Others propose that government spending not exceed a fixed percentage of the gross national product. One proposal, the so-called Friedman amendment, propounded by the National Tax Limitation Committee from California, would tie the rate of spending growth to that of the gross national product, but if the rate of inflation exceeded 3 percent, the allowable spending increase would be cut. At the time of this writing, a final version of this proposal had not yet been introduced.

The myriad of questions on the effect of "constitutionalizing" economic and budget policy is equal to the legal morass surrounding the calling of a constitutional convention. First of all, what does and does not constitute the budget probably cannot be defined or characterized in a manner suitable to the forming of a constitutional amendment. If economists and budget experts have a hard time measuring and defining terms such as "gross national product" and "total outlays," then the politicians will be totally unable to agree on what would be encompassed by the phrase "national emergency." Is a national emergency a war, catastrophic weather conditions, mild recession, or severe economic depression?

If such an amendment were ratified. how would it be enforced? By presidential impoundment of funds? Or would there be a limited right of judicial review included in the amendment, as with the case of the Friedman proposal? Furthermore, if what the states are attempting in reality to achieve is a decrease in governmental intrusion into and regulation of our lives, a balanced budget

is unlikely to achieve this effect. Notwithstanding the cry of the critics that a balanced budget amendment would "tie the hands of Congress," perhaps the greatest fear is that of the unknown. That is, many of the implications and potential effects on federal-state, congressional-executive, and national-foreign relations are hidden beneath the surface of the present political situation. The balanced budget gospel presently being preached belies the possibility that some of the hardest questions may not have been asked.

CONSTITUTIONAL CONVENTION PROCEDURES

STATEMENT OF JAMES A. MICHENER

One of the rare privileges of my life was to serve as the secretary of the Coustitutional Convention which rewrote the basic laws of the Commowealth of Pennsylvania. We met for ninety days, under a strict set of instructions from the legislature and with severe limitations in three areas: we could not alter the term of the governorship, for this had only recently been attended to by the legislature; we could not impose a state income tax; and among ourselves we agreed not to bring up the thorny question of state aid to parochial schools, for this was being handled elsewhere.

We succeeded within those limitations in becoming the only major state to successfully revise its entire constitution, New York and Maryland having failed conspicuously at about the same time that we were working. We succeeded in part, I think, because of the brilliant leadership provided by Former-Governor William Scranton, a superb public servant who helped keep the convention from becoming polarized as to political party. The Republicans had a slight majority in numbers and could have dominated the convention structure, had they wished; we Democrats had a high supply of mercurial debaters and could have tied things up in a knot had we been forced to do so. Thanks to Scranton's sober leadership, we avoided this internecine struggle and worked instead as a single unit, something that did not happen in other states.

In a dozen major areas we brought in new concepts of law while preserving the best of the old. We got rid of our preposterous minor judiciary which was paid according to the percentage of charged persons who were found guilty, substituting for it a well paid, well trained, well housed preliminary judiciary which works very well indeed. We arranged for removal of judges for cause and in such a way as to preserve an old man's dignity when his powers were obviously fading. We paved the way for sensible area forms of government which cut across ancient boundaries. And we revised our tax law completely, paving the way for an orderly transition to the statewide income tax, which we knew would come along shortly, even though we were forbidden to enact one.

Of all the writing I have done in my life, I am proudest of what I helped do in rewriting this basic law of a great state, and I am pleased to see that in the years that followed this labor, the young men who served with me have gone on to positions of great eminence: to Congress, to judgeships, to Federal attorneys, and in the person of Richard Thornburgh to the governorship itself. It formed one of the happiest and most productive experiences of my life, and it forms the basis whereby Pennsylvania can govern itself prudently and constructively for the next century.

I am, however, totally opposed to any measure that would encourage the 50 states of our union to amend our national Constitution by means of the convention method, for I, better than most, appreciate the hidden dangers inherent in this system.

The people of the United States are certainly entitled to use this device if they wish. The framers of the Constitution realizing that what they did was not perfect or sacrosanct, laid plans for its revision, and two procedures were spelled out the houses of Congress could propose changes which the legislature of the states could accept or reject (the way in which our present 26 amendments have been added); or the legislatures of the states themselves, bypassing the federal legislature, could assemble a convention which would propose amendments, which would then be ratified either by the state legislatures or by conventions called together in the states.

The first procedure having worked so effectively, both for proposing amendments and for removing one when it did not function as planned, we have

never used the second plan. Indeed, the day-by-day procedures under which such conventions would be called and the rules under which they would operate have never been spelled out by Congress, but it is proposed now to remedy that deficiency by laws which would lay down the ground rules.

So the convention method of amending the Constitution is totally legal, and it has the most honorable sponsorship, for it was specifically authorized by the Founding Fathers. Why should anyone object to its implementation now?

I object for two reasons. The plan we are using has served us so well and so constructively in the 182 years since 1789 that as a traditionalist I see no need for meddling with the system; but more important, I know from history and from experience that once a constituent assembly has been convened, there is no power that can restrict it to limits arbitrarily set.

Any such convention contains the right and the implied power to become a runaway convention, and this is a most dangerous possibility that should be avoided if at all possible. And in a case like the present, when we already have a splendidly functioning system of amendment, it would be folly to lurch off irresponsibly to an alternative method which has not been proved and which contains dangers of the most treacherous kind.

History is replete with examples of innocent conventions, assembled for one purpose, which exploded into unforseen directions, the two most memorable being the Legislative Assembly which gave hideous guidance to the French Revolution and the Long Parliament which supervised the more peaceful revolution in England. I am afraid of such runaway conventions.

But, it is argued, if the United States convened such a constitutional convention its powers would be strictly limited by the enabling legislation which summoned it into being. And here precisely is the trouble. I do believe that any prior law, no matter how carefully drawn, cannot inhibit, or restrict, or delimit a constituent assembly once it convenes. Of course those initiating the convention would say, 'But it's field of legal operation is limited. We have said so.' My contention is that it cannot be so limited. At the moment a convention is assembled and sworn in, it becomes a self-directing body with only such limitations as it prudently places upon itself, and the prior restraints which have so carefully been placed upon it no longer apply.

My personal experience in this field is relevant. I have explained how carefully the Pennsylvania legislature spelled out the limits within which the Pennsylvania Constitutional Convention must act, and since we stayed within those limits it would seem that this proved the efficacy of that system of policing a convention. Quite the contrary. As secretary of the convention I became aware of the intense pressure on some members to break out of the limits thus arbitrarily set. Again and again we ran up to the margins of our commission like little boys playing at the edges of a bonfire, and with a few bad breaks we could have destroyed the entire procedure.

I should like to describe one crisis. We had solemnly agreed among ourselves not to raise the inflammable issue of State aid to parochial schools, and we did so for two reasons: (1) this matter was being handled with such intelligence in another way; and (2) we knew we would break the convention wide open and destroy every good chance we had if we attempted to solve that problem when a state-wide consensus had not yet been reached.

Gingerly we skirted this explosive issue and were congratulating ourselves on having avoided disaster when a young member of the convention, seeing a chance to gain some glory for himself and some advantage for his religion, announced late in the day that on the following morning he would be proposing a measure that would tear the convention wide apart. The fat was in the fire, just as I had expected all along that it would be.

Since the young man was a Democrat, I was given the job of trying to dissuade him from this disruptive action, but he had already gained so much applause that he ignored my pleas. Catholic members from each party argued with him, for they did not want to see the convention destroyed by an issue which was being handled capably elsewhere, but they accomplished nothing. Elder statesmen of both parties argued with him, and they too were powerless, so I went to bed disheartened.

But at breakfast a Republican member came to me and whispered, 'I think everything will be all right. Charley Murray talked with him at midnight.' And when we convened at 0900 a chastened young man arose and informed us that he was not going to present his bill. We all sighed and then applauded and our convention proceeded to a finel conclusion.

I was so grateful that I went to the young man to express my appreciation and to ask him why he had changed his mind when Murray talked with him when I had been able to accomplish nothing. 'Mr. Murray gave me a different explanation,' he said.

So I went to Murray and asked, "What did you tell him?" and Murray, a stocky, tough Philadelphia politician of the old school replied, "I took him out in the street where no one could hear. It was about one in the morning; the street was deserted. I grabbed him and said, 'If you bring in that bill I'll break both your arms above the elbow.' At last he understood."

The story, which could have ended so disastrously, actually ended rather well. After the convention Charley Murray, because of his excellent performance, was chosen sheriff of Philadelphia, a job he filled for many years with generosity and distinction. One of the first deputies he employed was the young man who had given him so much trouble at the convention. "I liked him," Sheriff Murray said, “because he knew how to take orders."

The simple moral of this tale if by chance we do convene a constitutional convention, be sure that Sheriff Murray is one of the delegates. A more philosophical caution is that preliminary rules or agreements do not always prevail once an assembly meets.

I know with that difficulty we kept our convention on track and how perilous some of our adventures were. Had we been a convention covering the entire nation and had our members been driven by great sectional and moral imperatives, I doubt that discipline could have been maintained. I caution most seriously against turning loose any convention which has runaway potentials, especially when it is not needed.

Can Congress or any other body limit the subjects to be tackled by a convention? I think not, and the whole pressure of history warns us that it can not. Can the convention, once legally assembled, do pretty much what it wants? I think so, and history gives us many examples of this riotous behavior.

Can the Supreme Court throw out those parts of an assembly's results if such results exceed the commission? I suspect not, for the new enactments are now part of the Constitution. The court could interpret but not reject.

Should we expect legal and perhaps physical battles if the court tried to reject the results of the convention? I fear so, and this is a risk we do not need to take.

Could the convention, once legally assembled, decide on its own to take a look at the Bill of Rights and amend it as it felt current circumstances required? Yes. Judging from what such assemblies have done in the past, the revision of the Bill of Rights would be one of their simplest and easiest acts.

Have we no safeguards at all? Of course we do. Article V states that when the convention is finished with its work, its proposals must be ratified by three-fourths of the States before they can become part of the Constitution. This means that 38 States must approve, which means that only 13 are needed to prevent the proposals from becoming part of our national governance. That seems a prudent number, one calculated to prevent wild or ill-considered proposals from becoming part of the Constitution.

But there is a further provision which scares me. Approval of the States can be given not only by the legislatures thereof but also by State conventions. This means that were the Nation to be gripped by some mania, and this happens often with nations, a vast uprising of the people could in the first instance demand a constitutional convention and then dominate State conventions also, producing hysterical results which might not be in the interests of the general population.

Already proponents of the convention method have sneered at such warnings as inflammatory or irresponsible. I believe they are sensible and prudent. I believe the protectors of a democracy ought always to anticipate the worst possibilities and then protect the Nation from those possibilities. We must look soberly at the possible consequences of behavior which though authorized has never been tested.

So that there need be no confusion as to where I stand on this matter, I state that because of my experience in the United States and elsewhere I am afraid that a runaway convention might revoke or alter the fundamental laws which have enabled this nation to exist for so long and with such distinction. I believe without question that a convention meeting in a crisis situation might do irreperable damage to our form of government and might indeed revoke some of our basic protections.

Are those who want to change in some particular area powerless? Not at all. The amendment process is wide open and has been used most constructively in all past decades of our national history. (We often forget that the original bill of rights contained 12 proposed amendments, not 10. Two were judged not in the best interests of the Nation and were rejected.) At periodic intervals we have added to our basic law and can be expected to do so in the future. By no means are we a monolithic government irresponsive to the demands of the people.

Were a constitutional convention to be held now I would fear for two parts of our present Constitution: the provisions governing the Supreme Court (Article III) and the law governing the freedom of the press (Amendment One). The temper of the times is such that radical revisions of those two parts of our basic law might easily be proposed and enacted, and I suppose that many would like to alter the fifth amendment, which gives the accused the right to remain silent rather to speak in a way which might self-incriminate.

I do not want to subject our Constitution to frivolous or hasty amendment. It seems to me that the classic example of how best to amend the Constitution, even against the foot-dragging of the Congress, came with the 17th amendment of 1913. For many years citizens had demanded the direct election of senators, like the direct election of representatives; but the Constitution stated specifically that senators of a state must be "chosen by the legislature thereof."

Normal political agitation accomplished little, because the Senate was not likely to sponsor an amendment which would alter its prerogatives. So by the beginning of 1912 29 States had devised tricks and stratagems whereby their citizens could participate in the selection of their Senators, and finally Congress realized that if they didn't act promptly, the States were going to convene a constitutional convention as authorized by Article V. Belatedly the Congress proposed an amendment, in the traditional way, and the convention was avoided. The amendment passed quickly, after which Senators were elected in the manner the people wanted.

This, I think, is the safe and honorable way. Let the people bring pressure upon the Congress. Let the Congress react, as speedily or as slowly as events dictate. Let the States ratify in due process. And let the new laws take effect, if that is the will of the people. With such a stately and time-honored procedure there seems no reason to adopt one less tested.

Finally, since the alternative method is authorized in the Constitution, and since no one today knows what the specific procedures would be for instituting or governing such a convention, I see some logic in having Congress today set forth specifically what those rules should be, on the grounds that it would be best to devise the laws now, in a time of tranquility, rather than later in some time of distress. But if the passage of such law were to become either an invitation or an excitation to use it immediately, I would be strongly against such passage. I am all in favor of abiding by the time-honored, court-tested procedures which have served us so well for so long.