The Convention Method of Amending the Constitution by the Hon. Sam J. Ervin, Jr. (former Senior Senator from North Carolina) Published in the public interest by Americans for a Constitutional Convention Suite 825 529 14th Street, NW • Washington DC 20045 As a public service, Americans for a Constitutional Convention is privileged to make available “The Convention Method of Amend- Everything that Senator Ervin discusses in this remarkable article The subject of an open or limited Convention, the obligation of The facts and information in this article should be of great value We believe the greatest strength of the anti-abortion movement is in the state legislatures, which are much closer to the people than our Senators and Representatives in far-off Washington, and certainly far closer than the seven judges who rendered the abortion decisions. The Supreme Court, in these cases (as in many others). intruded upon and seized the power of our state legislatures. Prior to 1973 only two of 50 states permitted easy abortion, and even in those two states it was by no means as permissive as what the Court has forced on the whole nation. The people have the opportunity to assert the power granted them by the Founders of the American Republic by resorting to a Constitutional Convention to restore decency and sanity to our nation on the subject of abortion-on-demand. In 1974, the Special Constitutional Study Committee of the American Bar Association unanimously agreed that “Our two-year study of the subject has led us to conclude that a national Constitutional Convention can be channeled so as . . . to be... an orderly mechanism of effecting constitutional change when circumstances require it." Certainly circumstances require it now, more than four years after abortion-on-demand became the law of the land, followed by the death of millions of unborn babies, with no meaningful action by Congress to end this terrible crime against humanity and blemish against our nation. We believe Senator Ervin's article to be one of the best available and we hope that you will find it an important weapon in the fight for the rights of the unborn. DAN BUCKLEY [The following article is reprinted without alteration from the Spring, 1977 issue of The Human Life Review (150 East 35 St., New York, NY 10016); it originally appeared in The Michigan Law Review (Vol. 66, No. 5) in March, 1968. 1968 by The Michigan Law Review Association.] The Convention Method of Amending the Constitution ARTICLE Sam J. Ervin, Jr. ARTICLE V of the Constitution of the United States' provides that constitutional amendments may be proposed in either of two ways by two-thirds of both houses of the Congress or by a convention called by the Congress in response to the applications of two-thirds of the state legislatures. Although the framers of the Constitution evidently contemplated that the two methods of initiating amendments would operate as parallel procedures, neither superior to the other, this has not been the case historically. Each of the twenty-five constitutional amendments ratified to date was proposed by the Congress under the first alternative. As a result, although the mechanics and limitations of congressional power under the first alternative are generally understood, very little exists in the way of precedent or learning relating to the unused alternative method in article V. This became distressingly clear recently, following the disclosure that thirty-two state legislatures had, in one form or another, petitioned the Congress to call a convention to propose a constitutional amendment permitting states to apportion their legislatures on the basis of some standard other than the Supreme Court's "one manone vote" requirement. The scant information and considerable misinformation and even outright ignorance displayed on the subject of constitutional amendment, both within the Congress and outside of it and particularly the dangerous precedents threatened by acceptance of some of the constitutional misconceptions put forth prompted me to introduce in the Senate a legislative proposal designed to implement the convention amendment provision in article V. This article will discuss that provision of the Constitution, the major questions involved in its implementation, and the answers to those questions supplied by the provisions of the bill, Senate Bill No. 2307.2 II. Background On March 26, 1962, the United States Supreme Court, in the landmark case of Baker v. Carr, held that state legislative apporSam J. Ervin, Jr., is a former U.S. Senator from North Carolina (he retired in January, 1975). This article first appeared in The Michigan Law Review (Vol. 66, No. 5) in March, 1968, and is reprinted here with permission of the author and the Review (1968 by The Michigan Law Review Association). tionment is subject to judicial review in federal courts, thus overruling a long line of earlier decisions to the contrary. Two years later, on June 15, 1964, in Reynolds v. Sims, the controversial "one man-one vote" decision, the Court held that the equal protection clause of the Fourteenth Amendment requires that both houses of bicameral state legislatures be apportioned on a population basis. The two decisions evoked a storm of controversy. In the Congress, dissatisfaction with the Court's intrusion into the hitherto nonjusticiable political thicket resulted in attempts in both houses to reverse the rulings by legislation or constitutional amendment. On August 19, 1964, the House of Representatives passed a bill introduced by Representative Tuck of Virginia which would have stripped federal district courts of jurisdiction over state apportionment cases and denied the Supreme Court appellate jurisdiction over such cases. The Senate declined to invoke that extreme remedy, passing instead a "sense of Congress" resolution that the state legislatures should be given time to reapportion before the federal judiciary intervened further. In both 1965 and 1966, however, a majority of the Senate voted to propose the so-called "Dirksen amendment" to the Constitution, which would permit a state to apportion one house of its bicameral legislature on some standard other than population. But the amendment failed both times to get the required two-thirds vote, failing fifty-seven to thirty-nine in 1965 and fiftyfive to thirty-eight in 1966. A more extraordinary effect of the rulings in Baker v. Carr and Reynolds v. Sims was the activity generated in the state legislatures designed to reverse the Court's rulings by means of a constitutional amendment proposed by a convention convened under the second clause of article V. In December 1962, following Baker v. Carr, the Council of State Governments, at its Sixteenth Biennial General Assembly of the States, recommended that the state legislatures petition the Congress for a constitutional convention to propose three amendments, including an amendment to accomplish essentially the same purpose as the Tuck bill, that is, the denial to federal courts of original and appellate jurisdiction over state legislative apportionment cases. In response to this call, twelve state petitions were sent to the Congress during 1963 requesting a constitutional convention to propose such an amendment." Although this was the largest number of petitions on the same subject ever received by the Congress in any one year, the total was far below the required thirty-four, and their receipt caused no excitement in the Congress and attracted no public attention. In December 1964, following the decision in Reynolds v. Sims, the Seventeenth Biennial General Assembly of the States recommended that the state legislatures petition the Congress to convene a constitutional convention to propose an amendment along the lines of the Dirksen amendment, permitting the states to apportion one house of a bicameral legislature on some standard other than population. The response to this call was even greater than in 1963. Twenty-two states submitted constitutional convention petitions to Congress during the Eighty-ninth Congress (1965 and 1966) and four more during the first session of the Ninetieth Congress (1967). If one counted the petitions adopted by four other states, questionable in regard to their proper receipt by Congress, this brought the total number of state petitions on the subject of state legislative apportionment to thirty-two. 6 At this point, March 1967, the situation attracted the first attention in the press. A New York Times story on March 18, 1967," reported that only two more petitions were necessary to invoke the convention amendment procedure. The immediate reaction was a rash of newspaper editorials and articles, almost uniformly critical of the effort to obtain a convention, and a flurry of speeches on the subject in the Congress. Whether favorable or unfavorable to the efforts by the states, all of these press items and all of the congressional speeches had one common denominator. They all bore the obvious imprint of the authors' feelings about the merits of state legislative apportionment. Those newspapers that had editorially supported the Supreme Court's decisions now decried the states' "back-door assault on the Constitution."8 Those newspapers that had criticized "one man-one vote" now applauded the effort by the state legislators to overrule the new principle by constitutional amendment. Much more disturbing to me was the fact that many of my colleagues in the Senate seemed to be influenced more by their views on the reapportionment issue than by concern for the need to answer objectively some of the perplexing constitutional questions raised by the states' action. Those Senators who had been critical of the "one man-one vote" decision and were eager to undo it now expressed the conviction that the Congress was obligated to call a convention when thirty-four petitions were on hand and that it had little power to judge the validity of state petitions. Those Senators who agreed with the Supreme Court's ruling were now contending that some or all of the petitions were invalid for a variety of reasons and should be discounted, and that, in any case, Congress did not have to call a convention if it did not wish to. Most distress |
