DOES ARTICLE V RESTRICT THE STATES TO CALLING UNLIMITED CONVENTIONS ONLY?—A LETTER TO A COLLEAGUE

WILLIAM W. VAN ALSTYNE*

From time to time, various state legislatures have adopted resolutions designed to require Congress to call a limited convention in which one or another possible amendments to the Constitution might be proposed. In 1967, thirty-two states, two short of the requisite two-thirds, filed such resolutions requesting a convention for the purpose of considering an amendment to "overrule" the Supreme Court's principal reapportionment decisions. In 1971, Senator Ervin of North Carolina introduced a bill to provide guidelines to be followed upon a state call for a convention. This year, approximately twenty-eight states have adopted some kind of resolution for the purpose of considering an amendment to impose fiscal restraint upon the federal government to require a "balanced budget."

Curiously, the convention mode of proposing amendments remains completely untested: no such convention has ever been assembled. Yet the amending convention obviously is contemplated by article V of the Constitution:

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 Legislatures 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.

1

Several scholars, including Professors Charles L. Black, Jr. and Bruce A. Ackerman," both of Yale Law School, have argued that unless the state legislative resolution reflects a desire to convoke a constitutional convention having the authority to propose an unlimited variety of fundamental changes in the Constitution, Congress should treat the state resolu

William R. Perkins Professor of Law, Duke University.

1. U.S. CONST. art. V.

2. Black, Amending the Constitution: A Letter to a Congressman, 82 Yale L.J. 189 (1972). 3. Ackerman, Unconstitutional Convention, New REPUBLIC, Mar. 3, 1979, at 8.

tion as a nullity. Recently, Professor Ackerman sent Professor Van Alstyne a reprint of his New Republic editorial and asked Professor Van Alstyne whether he had "any thoughts on this." The following is Professor Van Alstyne's reply. Footnotes have been added by the editors.

March 9, 1979

Professor Bruce Ackerman

Yale Law School

New Haven, Connecticut

Dear Bruce,

I do have some thoughts, albeit very incomplete ones. By chance, your note and enclosure found me in the midst of reading old and musty material-Farrand, Elliot, Madison's Dairy, The Federalist, early congressional discussions, recollections from varieties of inputs into article V. This unglamorous exercise was occasioned by the very subject of the editorial you sent me and, more particularly, by a fresh reading of Charles Black's Yale Law Journal Letter on the same point.

I understand that the basic point being urged is this: unless Congress concludes that thirty-four states have submitted resolutions contemplating an unrestricted convention for proposing amendments, Congress should decline to "call a convention." A qualified or limited or restricted state legislative resolution, one which would display an unwillingness to have the convention free to consider and to propose whatever amendments it deems appropriate to be submitted for possible ratification, should be regarded by Congress as falling short of the requisite commitment by that state. A "qualified" application by a state legislature is, in contemplation of article V, no sufficient application at all.

Accordingly, even if, by chance, thirty-four state legislatures were to submit identically phrased qualified applications (e.g., identically worded "single-item amendment agenda"), thus manifesting a concurrence and identical purpose to have that one proposal considered for full discussion and a flat up-or-down vote in convention, Congress should nonetheless, in fidelity to the requirements of article V, decline to call a convention. As each such resolution is incomplete insofar as it is thus qualified, each such resolution is no different than no resolution at all. As Charles puts it: thirty-four times zero is still zero. I gather you agree. Disappointingly, I do not—although I do think a cogent argument can be made (as you and Charles have made it) which, by

4. Black, supra note 2, at 198.

being accepted, tends thus to fulfill itself and to pass into the received wisdom.

Before sharing with you my misgivings about this view of article V, however, let me quickly concede in what several respects the argument cannot be easily disposed of and, indeed, has very considerable plausibility. First, it goes without mention that I know of no judicial decisions that offer any resistance. Second, I have found nothing in the early materials I have been canvassing that specifically anticipates the argument or that specifically discredits it; a question in the form you and Charles have raised was, so far as I can determine, never raised at all. There is thus no expression of views, favoring it or deriding it. Third, the language of article V assuredly is not inconsistent with the argument and may, without uncommon strain, even be read as mildly implying the rightness of the argument. Fourth, as Charles notes, insofar as a convention is seen as equivalent to Congress in its authority, the requirement of "equivalent" power to propose amendments favors the argument. Let me pause on these last two points before going on.

996

So far as text is concerned, the argument derives consistency, at the least, merely from noting: "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 . . . Congress, of course, has no limited agenda (and no limitable agenda) in respect to its proposing authority. Correspondingly, it may (as Charles has done) be nicely observed that a convention summoned in substitution of, or as an alternative or equivalent to, Congress ought not be conceived of as properly subject to constraints of any greater force: the convention cannot be confined in its authority any more than Congress may be so confined. A plausible argument derives from Charles' larger views of "structure and relation"—a convention must relate to the amendment power as Congress is related to the same amendment power; they are but alternative forums in which either must have authority "for an unconditional reappraisal of constitutional foundations."8

Fifth, the nearest thing we have to "early practice" on the use of this mode to secure amendments is in no respect inconsistent with the argument; to the contrary, it is wholly consistent with the argument. The early practice I have in mind consists of such possibly interesting

5. See id.

6. U.S. CONST. art. V (emphasis added).

7. C. BLACK, Structure and Relationship In Constitutional Law (1969). 8. Ackerman, supra note 3, at 8 (emphasis added).

shards of history as these:

(a) Despite grumbling and protest that the Philadelphia Convention of 1787 had no authority to propose a wholly new Constitution or to propose it under terms of ratification plainly disallowed as an authorized mode for altering the Articles of Confederation, once assembled that Convention presumed to reach its own conclusion that something more than the subjects proposed for revision by the various state legislatures was called for. States nonetheless ratifying the resulting product have reason to understand, therefore, that since the Convention they sent delegates to in 1787 did not deem itself constrained by whatever particular or limited items that may have been of exclusive or particular interest to some of them, they are on historical notice (as it were) of the uncabinable discretion of such conventions. More to the point, insofar as ratifying conventions within those same states elected to ratify that Constitution despite the extent to which its proposals greatly exceeded the originally limited purposes for which delegates from some states were sent to that Convention, the states must correspondingly concede that, evidently, such conventions cannot properly be subject to limited-agenda constraints.

(b) Among the states ratifying the Constitution, a good number did so very reluctantly-principally, although not exclusively, because of the absence of any kind of Bill of Rights. Concurrent with unconditional ratification, however, several of these state conventions accompanied their resolutions of ratification with a call for amendments, either by proposal by Congress or by a convention to be summoned for the purpose (presumably as contemplated by article V). Different state conventions had different amendments they wished to have considered: some dealt with identical subjects, but dealt with them in various degrees; some dealt with subjects not dealt with by others at all. There did appear to be a tacit assumption that insofar as Congress might respond by calling a convention rather than, as it did, by itself proposing twelve amendments, the convention to be called in keeping with article V would not (could not?) be constrained by the particular and limited amendment-interests of the calling states. In short, the mention of particular amendments to be considered did not imply an intention that no others could be considered or that, if any other amendments were to be considered then, in that event, the petitioning state convention would rather have no amending convention at all.

Sixth, the view of the matter that you and Charles take may claim additional strength from a sense of article V as a whole. What is that sense? Arguably, it is that amending the Constitution is a serious business. Alterations in the fundamental law should be possible, but not

easy. You yourself make the point well in your New Republic editorial. It could be expanded. Supermajorities are required; a special mix of different constituencies is demanded. Short of virtual impossibility of change, which was regarded to be the problem under the Articles of Confederation where unanimous approval by all the states was required, the dominant function of article V (as Brandeis opined to be true with respect to the dominant function of separate powers") is not to facilitate, but to clog; not to make haste in the furor of ad hoc dissatisfactions, but to require a more profound dissatisfaction-then to assemble in convention, to give pause to the felt necessity for changes, et

cetera.

The argument has obvious application, in support of your view, as an article V “price tag.” Amendments are a serious business, especially in the less-structured auspices of a convention. The notion that state legislatures may precipitate such events to blow off steam, a notion encouraged if single-item resolutions are deemed sufficient to mandate a convention, should be discouraged. It may best be discouraged by having state legislatures understand that just as there is no such thing as a “qualified” ratification of an amendment and just as it was uniformly understood in 1787 that there was no such thing as a “qualified” ratification of the Constitution, neither is there such a thing as a “qualified" call for an amending convention.

Seventh, your view is also helpful, were it adopted, in two eminently practical and important ways. First, it eliminates the plain and arbitrary difficulty of expecting a reasonable Congress to decide whether, given different forms in which these state resolutions are submitted (the current example of the "budget-balancers" is itself a fine example), a sufficient "consensus" has in fact been expressed for a given kind of limited convention? It avoids, too, the plain and related problem (supposing Congress agrees that a sufficient, albeit limitedagenda, consensus has been expressed), of what Congress is expected to do in describing the agenda for the convention thus called. Endless (and endlessly intractable) administrative and political questions at once arise in both respects. Neither kind of question arises, however, when only one kind of convention is deemed proper the kind you argue for. Perhaps a better way of expressing this concern is as follows: as between two constructions of article V, one of which will necessarily generate an entire series of additional questions for which there are no objective criteria to resolve, and the other of which wholly eliminates any need to consider such questions, other things being roughly equal,

9. Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting).