voked deliberately to undertake (in your words) "an unconditional reappraisal of constitutional foundations"1o is the only kind of convention or even the typical kind of convention anticipated under article V strikes me as decidedly untrue. To the contrary, while allowed by article V, such a convention is the least likely to be the foreseeable object of states expected to make use of their collective authority in article V. An event most likely to provide the most expected (and legitimate) use of this power would be just that: a particular event, an untoward happening, itself seen as a departure from, or as a suddenly exposed oversight within, the Constitution. The event would be the kind of thing, however, Congress might not be expected swiftly to repair, especially if Congress were itself the source of the mischief; the kind of thing, rather, providing specific occasion for parallel state resolutions to consider a particular proposal (or alternative proposals) in convention at once to be called for the purpose.

In sum, on the basic issue I quite agree with the student's view stated in the Harvard Law Review seven years ago:

Although it would be contrary to article V if Congress attempted to limit the scope of a convention when the states had applied for an open convention, it would seem to be consistent with, if not compelled by, the article for Congress to limit the convention in accordance with the express desires of the applicant states.''

So far as I would differ from this view, it is a very mild difference. It is perfectly plausible that Congress might leave all debatable degrees of germaneness to the discretion of the convention itself. When convinced that within a reasonable number of years (e.g., seven) that it has in fact received applications from two-thirds of the several states requesting a call for convention consideration of a given subject of sufficient common description that further insistence for more perfect agreement among the applications would clearly be unreasonable, however, Congress is under a constitutional obligation to call a convention responsive in good faith to those applications.

Indeed, I think that Congress could least decline to call a convention if, in keeping with identically worded state legislative resolutions to this effect, the sole function of that convention would be to do no more than to deliberate and to debate the pros and cons of an exactly particularized proposal, with choice at the convention's conclusion for the delegates only to vote "yea" or "nay." If two-thirds of the state legislatures might perchance agree on the exact wording of an amend

10. Ackerman, supra note 3, at 8.

11. Note, Proposed Legislation on the Convention Method of Amending the United States Constitution, 85 Harv. L. Rev. 1612, 1628-29 (1972) (footnote omitted).

ment they would wish to be reviewed in a called convention for discussion and vote, this would seem to me to state the paradigm case in which Congress should proceed with the call-and limit the agenda exactly in accordance with the unequivocal expressions of those solely responsible for the event. On the other hand, were Congress to presume altogether to disregard these resolutions, as though neither singly nor in the aggregate did they qualify as proper applications under article V, I should think it outrageous.

The notion that nothing may be considered by means of convention unless everything may be considered in that same convention seems to me a non sequitur having no basis whatever in article V. The typical convention called under article V would surely least be like rather than most be like-the Convention of 1787. The most proper use, rather than the least proper use, of such a convention would be in contemplation of a fairly modest change rather than a wholesale change. That thirty-four states could be instructed by Congress that they may not resolve a common call for a convention for the sole purpose of considering a repeal of the sixteenth amendment unless they mean also to consider a repeal of the other twenty-five and of all six articles as well (and to manifest that willingness in the resolutions they submit to Congress) seems to me the ultimate in congressional cynicism. Yet all of this is explicit in the position that you and Charles have suggested. I do, as I said at the beginning, have some doubts.

Cordially,

William Van Alstyne /s/

[From ADA World, May-June 1979]

DON'T LET'EM OPEN THAT CAN!

(by Stina Santiestevan)

"Americans for Democratic Action notes with alarm that 28 states have passed resolutions calling for a constitutional convention to mandate a balanced federal budget. We reject this approach as impractical and injurious to our system on both constitutional and economic grounds."

With these words, ADA's national board in March served notice that ADA had joined the nation-wide battle against Con-Con.

One week earlier ADA-with representatives of the AFL-CIO, NEA, Common Cause, Congress Watch, and a number of other progressive groups-announced formation of Citizens for the Constitution, an ad hoc coalition formed to combat the proposed constitutional convention.

Citizens for the Constitution is headed by Massachusetts' lieutenant governor, Tom O'Neill, who says the organization will concentrate on lobbying legislatures which are considering the issue or are expected to do so soon, including Alaska, Ohio, New Hampshire, Montana, Rhode Island, Vermont, Maine, and West Virginia.

The National Taxpayers Union, the major force behind Con-Con and a front for assorted Right Wing organizations, has claimed it will have the necessary 34 states by the middle of the year. (It requires two-thirds of the states, or 34, to force Congress to call a constitutional convention, but any amendment to the constitution would require ratification by 38 states.)

NTU, which is loosely related to some 500 state and local groups, was founded in 1969, claims over 100,000 members, and spent $1 million on "education” in 1978. It says it will double that amount this year.

NTU opposes federal spending of all kinds, and "never alienates supporters by specifying what it would cut," according to the UAW. The AFL-CIO'c Committee on Political Education says NTU is linked to the John Birch Society, the NAM, the Heritage Foundation, and Americans Against Union Control of Government.

The statement issued by ADA's board in March said in part:

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"... a constitutional convention will surely plunge us into a crisis of mammoth proportions, for there is no precedent: The only opinion constitutional experts can agree upon is that there is no clear approach to a constitutional convention. No one is sure how delegates would be selected. No one is sure of the convention procedures. Worse, no one is sure whether the convention is limited to a single issue or whether convention delegates may take on the entire document... needlessly amending the constitution can only initiate an erosion of our political system and diminish the power of the document to define fundamental national values."

Economists, constitutional scholars, and political leaders are frightened at this prospect-whether they are liberals or conservatives. Experts have pointed out that delegates would gather after a popular election and could argue that a convention has the right to set its own agenda. It is unlikely that the agenda would be limited to the federal budget. Liberals fear such acts as repeal of the income tax, reversal of the "one-man-one-vote" Supreme Court decision, establishment of a compulsory open shop policy, or the outlawing of abortion, forced busing, and gun control. Thoughtful conservatives fear efforts to legalize drugs or outlaw guns or establish an environmental "bill of rights."

Economists point out that the federal budget can be "balanced" in one of several ways: by raising taxes, or by cutting expendiutres-especially the $89 billion in grants to state and local governments, or by accounting devices which shift capital expenditures out of the budget entirely. About three-quarters of each budget is pre-set by long-term legislation, leaving only about one-quarter to be controlled by annual budgets.

In its statement, ADA's national board warned that our $2.3 trillion economy is complex. "The fiscal and monetary policies of the federal government are a crucial component of our ability to fine-tune and stabilize our economy. To impose a rigid requirement on a system that requires flexibility would mean that mild recessions would turn into repeats of the 1930s."

THE EFFECTS OF S.3 AND S.1710 ON STATE PROCEDURES FOR THE ADOPTION OF APPLICATIONS FOR A CONSTITUTIONAL CONVENTION

(By David Gillespie)

Article V of the United States Constitution provides: "The Congress * on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments ***." Two bills pending in the United States Senate, S.3 and S.1710, attempt to address many of the thorny procedural issues inherent in the convention provision. Although the two bills differ in various particulars, they are substantially identical in terms of their underlying constitutional theories. Both bills regulate state procedures for the adoption of convention applications and the role of state governors in the application process. They also provide mechanisms for the resolution of procedural questions that arise in the course of the application process. This analysis concentrates on two aspects of the proposed legislation: the scheme these bills provide for the regulation of state procedures for the adoption of convention applications; and, their proviso to nullify the State Governors' veto power over convention applications.

The Constitution vests power to apply for constitutional conventions in the legislatures of the several States. Article V does not supply the States with a procedure for application, nor does it vest power to control the application procedure in Congress. The raison d'être for the convention method of constitutional amendment is to provide the States with a means to circumvent the congressional route of amendment. Any attempt by Congress to meddle with this domain of state power violates the language and intent of Art. V. The convention method of amendment is the constitutional co-equal of the congressional method. Congress has no more power to constrain the power of constitutional conventions than it has to limit the enumerated powers of other branches of the Federal Government. Thus, Congress has no power to regulate substantively the application process, which is an inteegral element of the convention power. Under Act. V, the sole power of Congress with respect to constitutional conventions is to tabulate applications and to "call" a convention when the requisite number of valid applications is received.

Although Congress has no power to interfere with State application procedures, the constitutional mandate to call a convention rests with Congress. Congress must be in a position to judge the validity of state applications. S.3 and S.1710 provide different procedures for the resolution of questions that arise concerning the validity of applications. S.3 Sec. 3(b) vests power in Congress to make final determinations of questions concerning the adoption of

State resolution (s) cognizable under this Act." The most fundamental difficulty with this provision is that no basis exists in Art. V to support such a broad assertion of congressional power. Furthermore, Congress lacks both the procedure and the expertise to resolve such questions of state law. Vexatious as they may be, the laws and procedures of the 50 States must provide the standard by which the validity of convention applications is judged. Both bills crudely recognize this principle when they provide in Sec. 3(a) that in adopting applications, "*** the State legislature shall follow the rules of procedure that govern the enactment of a statute by that legislature." Unfortunately, this formulation of the principle of state primacy in the realm of application procedure presents a myriad problems.

The approach of S. 1710 Sec. 3(b) is more consonant with constitutional principles than its S. 3 counterpart. If Justice Holmes is correct in his observation that "*** there is no Canon against using common sense in construing laws as saying what they obviously mean," Roschen v. Ward, 279 U.S. 337, 339 (1929); Art. V means that State legislatures have the power to decide whether or not they have adopted an application for a convention. To deny the States the ability to make this decision, as does S. 3, is to eliminate a substantial element of the States' application power. S. 1710 comports with the basic constitutional principle of allowing the States to determine whether they have applied for a convention. The problem with the procedure under Sec. 3(b) in S. 1710 is that it makes a questionable bedfellow for Sec. 3(a). The States do not have full power under Sec. 3(b) to determine "Questions concerning the validity of State legislative procedure and the validity of the adoption or withdrawal of a State resolution cognizable under this Act," if, as required by Sec. 3(a), the legislature is constrained to “*** follow the rules of procedure that govern the

enactment of a statute (emphasis mine) by that legislature." Sec. 3(b) gives the legislatures a measure of power that Sec. 3(a) takes away. This paradox is treated at greater length below.

Sec. 3(a) in both S. 3 and S. 1710 limits the State legislatures' choice of procedures for the adoption of convention applications. However, for Congress to require that the adoption of applications proceed in the same manner as the adoption of statutes places a restriction on the States' application power that is not supported by Art. V. Not only is the imposition of such a stricture beyond the pale of Congress' Art. V power, it is a poorly thought out procedural rule that prevents States from consideration and adoption of special procedures for the purpose of adopting convention applications. If a State is constrained to follow procedures for the adoption of statutes when in the process of adopting a convention application, the State is prevented from developing a set of procedures suited to the unique function allotted to it by Art. V. Many States have constitutional provisions that govern the proposal of amendments to their respective constitutions. Many have provisions that govern the calling of conventions to propose amendments or to propose large scale constitutional revision. To place a State in this procedural strait jacket not only prevents the development of parallel state legislative response to the Federal application problem, it creates many additional difficulties due to the baggage that goes along with legislative procedures for the adoption of statutes. Depending upon the State in question, S. 3 and S. 1710 may have the effect of either making it too easy or too difficult for the States to adopt convention applications.

Similar problems arise with a congressional attempt to proscribe the role of State governors in the application process. Sec. 3(a) of S. 3 and S. 1710 makes just such an attempt. Sec. 3(a) accomplishes two things: it binds the State legislatures to procedures that govern the enactment of statutes; and, it removes governors from any significant role in the application process. The authors of S. 3 and S. 1710 are oblivious to the fact that Congress has no constitutional authority to interfere with the role of governors in the convention application process. Plenary power to apply for constitutional conventions is vested by Art. V in the State legislatures. The power to exclude governors from the application process rests with the State legislatures, and by simple logical extension, the power to include them in the process rests with the State legislatures. Under Art. V, the State legislatures are free to adopt their own procedures for the adoption of convention applications, and this freedom includes the provision of a substantial role for their respective governors in the application process. Under a guise of constitutional soundness which uses language that suggests congressional deference State legislative procedures, S. 3 and S. 1710 act so as to regulate unconstitutionally the method of convention application adoption.

The most obvious problem created by the elimination of governors from the application process arises when a governor vetoes a convention application. The simple question to be answered: What result? Before reaching the "simple" solution, we shall turn to an investigation of the veto power of the Governor of the State of Nevada. The reason for our choice of State is twofold: Nevada is one of 48 States which provides its Governor with veto power; and, the Governor of this State vetoed the legislature's application for a constitutional convention (Con. Rec., Feb. 21, 1979, H 808).

Article 4 section 35 of the Nevada Constitution grants the governor veto power over bills. The constitution does not provide him with a pocket-veto power. The governor has 5 days in which to return bills with his objections, for reconsideration. A two-thirds majority of both houses is needed to override a veto. The veto power also extends to joint resolutions under Nevada Statute 218.420. Joint resolutions are treated by the Nevada legislature in the same manner as bills, just as in the United States Congress, where the ". . . two forms are often used indiscriminately (Charles J. Zinn, "How Our Laws Are Made," p. 8, U. S. Government Printing Office, 1974)." The Nevada convention application exists in the form of a joint resolution, Senate Joint Resolution No. 8, and is therefore within the full ambit of the Governor's veto power.

The Governor's veto power is strictly construed by the Supreme Court of Nevada. An act of the legislature has force of law only in the following three circumstances: if the act is signed by the Governor; if the Governor gives his tacit approval by not returning the act; or, if the act commands a majority of two-thirds of both houses of the legislature. Standing by itself, a simple majority of both houses has no force of law in the State of Nevada.