Tomorrow's news story? Probably Tom not. An impossible fantasy? Certainly not. It could become a reality if the accelerating effort to call a constitutional convention is successful. By early 1980, 30 state legislatures— .four short of the required two thirds— had passed resolutions asking Congress to call a constitutional convention to approve an amendment requiring a balanced federal budget. The National Taxpayers Union, which is spearheading the drive for the convention, predicts they'll have the 34 states necessary to convene a convention before the year is over. But what is the connection between an effort to force the federal government to balance its budget and our First Amendment rights? Is there really any potential danger from a constitutional convention (sometimes abbreviated con-con)? When the Founding Fathers approved the Constitution, they recognized that changes might be needed. Congress was given the right to make amendments subject to the approval of three quarters of the states. Article V, however, provides that a constitutional convention shall be called when two thirds of the state legislatures petition Congress for one. Alexander Hamilton, writing in The Federalist, No. LXXXV, reinforced this point: "The words of this article are peremptory. The Congress shall call a convention." (Italics supplied.) As with congressional amendments, any amendment proposed by a convention requires approval from three fourths of the states. In addition to calling a convention, Congress has the responsibility of deciding such secondary but crucial matters as how many delegates shall at tend, how they shall be chosen, and the manner in which each state is to be represented. After that, however, the situation becomes much less clear and much more ominous. Can Congress, for instance, set boundaries for a con-con by specifying what issues it may properly consider? If Congress does impose guidelines, must the convention honor them and stick to the specific issue(s) for which it was called, or may it consider other matters, as well? Most of those who favor a con-con claim that fear of a freewheeling convention ----such as one that might repeal all or part of the Bill of Rights--is preposterous. They have no less a fig Tom Dybdahl is an assistant editor, book division, Rodale Press, Emmaus, Pennsylvania. "When the Constitution Constitution was first framed I predicted that it would last fifty years. I was mistaken. But I was mistaken only in point of time. The crash will come, but not quite so quick as I thought." -Ascribed to Aaron Burr, circa 1835, in Life and Times of Aaron Burr (1858), by James Parton. ure than former U.S. Attorney General Griffin Bell on their side. "Limits can be set," he has said. "Congress has a duty to do so." But others are less certain. Howard Jarvis, the antispending crusader who led the fight for California's Proposition 13, warned that in a constitutional convention "every radical crackpot or special-interest group would have the chance to write the supreme law of the land." Congressman Barber Conable (R-N.Y.) says such a gathering would be a kind of "constitutional Russian roulette." Such fears are not entirely unfounded. The precedent of the only other constitutional convention, which met in Philadelphia in 1787, is somewhat less than reassuring. It was assigned the job of amending the Articles of Confederation. What it did-and perfectly legally-was to abandon that document completely and write another, very different, charter. That could happen again. The prospect has given rise to all kinds of fantasies. Amendments on several subjects are currently pending before Congress. Many people would like to reinstate school prayer. A considerable number of very determined people would like to see a constitutional amendment that would prohibit abortion. (At this writing 15 states have called for a con-con on that issue.) What would prevent a delegate from putting forward one of these amendments at a constitutional convention gathered to consider the federal budget? Of course, Congress can call a concon and limit its subject. However, the convention could then-legallydeclare itself superior to Congress and ignore any limitations that had been set (as did the 1787 convention). It could also for good measure-vote to amend the Constitution to eliminate the Supreme Court. And no rules approved by one Congress would necessarily be binding on any other Congress or on the convention. Even if Congress could successfully limit a convention's powers, how could the debate be focused? Various states have approved different resolutions, some very short and general, others long and specific. The one approved in Delaware calls for a convention only if the other states approve a resolution identical to Delaware's; no other state has yet done so. Another approach could be to limit the convention to a single subject, such as the federal budget. But in that case, those who favor school prayer could propose that no federal funds go to states that don't permit prayer in public schools. Or antiabortionists could offer an amendment cutting off welfare funds to any state that allowed abortion. If, as proponents sometimes suggest, Congress is fearful of a con-con, the convention strategy might be just the prod needed to get the legislators moving. This has happened before. Both the Seventeenth Amendment, providing for the direct election of Senators, and the Twenty-first, repealing prohibition, were passed after drives for special conventions were under way. Conservative Columnist William Safire believes that this is, in fact, the purpose of Article V. It was, he says, "provided by the Founding Fathers as a way of lighting a fire under Congress if the government in Washington did not prove sensitive to the will of most of the states." According to this scenario, Congress would short-circuit a constitutional convention by passing its own amendment. The problem here is that while many members of Congress would like to balance the budget, and while they love to tell their constituents about their efforts in this regard, there is a limited amount of support for an ironclad amendment requiring it. Supporters of a con-con say discussions of possible dangers from such a convention are just a way of dodging the real issue-the need for a balanced budget. They point to opinion polls that show that 70 percent of Americans want a balanced budget, along with some sort of law requiring one. Even if the convention is wide open, they say, there is nothing to fear. California Governor Jerry Brown, a leading concon advocate, argues that "the idea that the American people want to junk the Bill of Rights is absurd." Most people would agree that repeal of the First Amendment-or any other part of the Bill of Rights-is highly unlikely. At the same time, an unlimited convention could work other sorts of serious mischief. The judgment of "the people" may generally be good, but we all have lapses. Consider the fact that less than thirty years ago an amendment was seriously proposed that would have set aside the First Amendment and replaced it with the assertion that "this nation devoutly recognizes the authority and law of Jesus Christ, Saviour and Ruler of Nations, through whom are bestowed the blessings of Almighty God." Noble as that sentiment may be, America would be in real trouble if that were, in fact, our First Amendment! Most of those who support a constitutional convention believe they are acting in the best interests of their country. They are not part of a plot to deprive us of any of our freedoms, including religious ones. But history confirms that good intentions are not enough. A constitutional convention, whatever its merits, offers the possibility of serious problems. For those of us who cherish all our rights, it is a possibility better avoided. 口 JUDICIAL REVIEW OF CONGRESSIONAL DETERMINATIONS PURSUANT TO THE CONVENTION METHOD OF AMENDING THE CONSTITUTION (By Kenneth F. Ripple*) SUMMARY Recent holdings of the Supreme Court dealing with various aspects of justiciability have fu ther clouded the issue of whether Congressional determinations pursuant to the Article V amendment procedures are justiciable. Certainly, the provisions of S. 1710 do not create a scheme particularly compatible with the constitutional policy concerns most frequently articulated by the Court in its recent decisions. INTRODUCTION The constitutional and practical feasibility of providing for judicial review of Congressional action with respect to the calling of a federal constitutional convention' has been discussed rather frequently in the literature. This presentation will not attempt to plough that ground again. Rather, it will identify, in light of recent trends in Supreme Court case law, the arguments which ought to serve as the focus of the current debate over the proposed constitutional procedures legislation. CONSTITUTIONAL CONSIDERATIONS FAVORING JUDICIAL REVIEW Setting aside, for the moment, the particular language of this bill, it must be stated at the outset that a significant and respected portion of the legal community clearly favors limited judicial review of Congressional action with respect to a constitutional convention. For instance, the Report of the ABA Special Constitutional Convention Study Committee addressed the matter rather extensively and, pursuant to that Report, the House of Delegates resolved that "[a]ny Congressional legislation dealing with such a process for amending the Constitution should provide for limited judicial review of Congressional determinations concerning a constitutional convention." " Indeed, the ABA Study Committee Report probably sets forth the case in favor of a provision for judicial review in a convention procedures bill most succinctly: 1. Although, in each case, the matter arose in a context other than the actual proposal and ratification procedure, the courts have already adjudicated many questions which would arise in legislative action pursuant to a convention procedures bill: " a. Whether Congress may choose the "state legislature" method of ratification for proposed amendments which expand federal power; b. Whether a proposed amendment requires the approval of the President; c. Whether Congress may fix a reasonable time for ratification of a proposed amendment by state legislatures;' d. whether the states may restrict the power of the legislatures to ratify amendments or submit the decision to a popular referendum; 8 e. the meaning of the requirement of a two-thirds vote of both Houses." Associate Professor of Law, University of Notre Dame and Director, Thomas and Alberta White Center for Law, Government and Human Rights, University of Notre Dame. The author gratefully acknowledges the assistance of Raymond M. Ripple, Esquire of the Connecticut Bar and Miss Mollie A. Murphy, his student assistant. The author is solely responsible for the opinions expressed herein. 1 U.S. Const. Article V. 2 See, e.g., ABA Special Constitutional Convention Study Committee, Amendment of the Constitution by the Convention Method Under Article V (1974) thereinafter ABA Report); Proposals for a Constitutional Convention to Require a Balanced Budget (AEI 1979) Note, "The Process of Constitutional Amendment," 79 Col. L. Rev. 108, 138-172 (1979); Note, "Proposed Legislation on the Convention Method of Amending the United States Constitution," 85 Harv. L. Rev. 1612 (1972). 3 ABA Report vil-viii. But see Leser v. Garnett, 258 U.S. 130 (1922) (official notice of ratification conclusive on the courts), Fairchild v. Hughes, 258 U.S. 126 (1922) (a citizen may not institute suit in federal court to obtain indirectly an advisory opinion on the validity of an amendment.) 5 United States v. Sprague, 282 U.S. 716 (1931). • Hollingsworth v. Virginia. 3 U.S. (3 Dall) 378 (1798). Dillon v. Gloss. 256 U.S. 368 (1921). 8 Hawke v. Smith, 253 U.S. 221 (1920). National Prohibition Cases, 253 U.S. 350 (1920). 2. The subsequent case of Coleman v. Miller 10 placed in doubt whether all of the foregoing issues remain justiciable." However, Coleman itself may have been significantly restricted by the Court's later decisions in Baker v. Carr,1 and Powell v. McCormack.13 Arguably, the rationale of Powell, with its strong emphasis on the interest of voters in having the person they elect take a seat in Congress, would also control a situation where Congress refused to call a convention despite the requisite number of petitions. Clearly, the convention method. was meant to permit the states, expressing the will of the people, to bring about change despite congressional opposition." Baker, moreover, may suggest that, despite dicta to the contrary in Powell, the Court, in vindicating such a frustration of the popular will, need not restrict itself to declaratory relief but might fashion a more extensive remedy.18 15 CONSTITUTIONAL CONSIDERATIONS AGAINST JUDICIAL REVIEW 1. The case against the justiciability of Congressional decisions in the convention amendment procedure must begin with the reality of Coleman v. Miller " which, while ambiguous on the actual scope of its rationale, charts attitudinally a course of judicial non-involvement." Coleman can be read as acknowledging that the amending process by convention involves, in the words of Baker, a "textually demonstrable commitment" 19 to another branch. Moreover, if the Court is required to second-guess the decision of Congress as to whether the petitions deal with the same general topic, the possibility for head-to-head confrontation with the Congress in an area devoid of real standards would be acute. Baker itself can be distinguished on the ground that it did not involve a confrontation with a coordinate branch of the federal government but rather involved the obligation to enforce federal constitutional standards upon nonconforming state action. Powell, of course, did involve Congressional action. The Court acted, however, only after it was convinced that there was not a textually demonstrable commitment of the question to a coordinate branch and then only when it was clear that simple declaratory relief would suffice. 2. More importantly, in the years following the ABA Study Committee Report, the Court had several occasions to examine further the concept of justiciability. Significantly, these cases involved constitutional provisions which, like Article V, deal with institutional responsibilities and not individual rights. These cases manifiest, at least at the hands of the present Court, a distinct propensity to acknowledge the right and responsibility of the other branches to interpret definitively such clauses. For instance, in United States v. Richardson," the 10 307 U.S. 433 (1939). "In the words of the ABA Report (p. 21-22): In Coleman, the Court held that a group of state legislators who nau voted not to ratify the child labor amendment had standing to question the validity of their state's ratincation. Four Justices aissented on this point. The Court held two questions non-justiciapie: the issue of undue time lapse for ratincation and the power or a state legislature to ratily atter having first rejected ratiucation. In reading these conclusions, the Court pointed to the absence of criteria either in the Constitution or a statute relating to the ratincation process. The four Justices who dissented on standing concurred on non-justiciability. They felt, however, that the Court should have disapproved Dillon v. Gloss insofar as it decided judicially that seven years is a reasonable period of time or ratification, stating that Article V gave control of the amending process to Congress and that the process was "political in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point." Even though the calling of a convention is not precisely within these time limits and the holding in Coleman is not broad, it is not at all surprising that commentators read that case as bringing Article V issues generally within the rubric of "political questions." 12 369 U.S. 186 (1962). 13 395 U.S. 486 (1969). 14 ABA Report pp. 23-24. 15 395 U.S. at 517-518. 16 ABA Report p. 24. 17 See note 10, supra. See also Chandler v. Wise, 307 U.S. 474 (1939). 18 See note 11, supra. 19 369 U.S. at 217. 20 In addition to "a textually demonstrable constitutional commitment. . . to a coordinate political department," Baker lists the following criteria as relevant for ascertaining the presence of a "political question": a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion: or the impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment for multifarious pronouncements by various departments on one question. 369 U.S. at 217. 21 418 U.S. 166 (1974). 23 25 Court held that a private citizen did not have standing to maintain an action for the enforcement of the Accounts Clause 22 since he could show no "particular concrete injury" from Congress' refusal to enforce the Clause against the Central Intelligence Agency." Replying on Ex parte Lévitt, the Court readily acknowledge that [i]t can be argued that if respondent is not permitted to litigate this issue, no one can do so. In a very real sense, the absense of any particular individual or class to litigate these claims gives support to the argument that the subject is committed to the surveillance of Congress, and ultimately to the political process.20 Mr. Justice Powell's concurring opinion manifested an even greater reluctance to involve the Court in such matters. Speaking of the power of judicial review, he wrote: "The irreplaceable value of the power (of judicial review) lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action. It is this role, not some amorphous general supervision of the operations of government, that has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the countermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests." 28 Significantly, on the same day, the Court addressed the question of whether a citizen could judicially challenge Congress' non-enforcement of the provisions of the Incompatibility Clause 20 against its own members. 30 Again, the Court declined to entertain the issue, noting that to allow such a suit would "distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing “government by injunction.' 99 31 32 It may be argued that, since the foregoing cases deal essentially with the concept of standing, they are inapposite to a determination of whether a particular issue raises a "political question." However, as Chief Justice Warren pointed out in Flast v. Cohen, 2 both of these concepts, standing and political question, have common constitutional roots in the "case or controversy" requirement of Article III. In both situations, the Court must ultimately focus on whether the dispute presents a matter capable of judicial resolution. The common root of these concepts is perhaps best illustrated by one of the cases which reached the Court in the aftermath of the tragedy of Kent State, Gilligan v. Morgan. There the Court held that a request to submit the training and operations of the Ohio National Guard to continuing federal judicial scrutiny was non-justiciable. That conclusion, noted the Court, could be articulated either as a lack of standing or as a political question requiring judicial scrutiny of a subject committed expressly by the Constitution "to a coordinate political department" because of the mandate of the Militia Clause.35 Therefore, in the years following the last careful review of Article V in the ABA Report, the Court has demonstrated an increased reluctance to define the constitutional limitations of judicial power so as to require judicial monitoring of the institutional responsibilities of the coordinate branches. At the very least, there is an increased doubt that the reasoning of Baker and Powell affords a realistic basis upon which to premise a statutory judicial review procedure of Congressional determinations pursuant to its responsibilities under Article V. 23 U.S. Const. Art. I, sec. 9, cl. 7. 23 418 U.S. at 177. 24 The Central Intelligence Agency Act of 1949, 63 Stat. 208, 50 U.S.C. § 403a et seq. permitted the CIA to account for its expenditures "solely on the certificate of the Director.... ." 50 U.S.C. § 403j (b). 25 302 U.S. 633 (1937). 26 418 U.S. at 179. 27 Id. at 180-197. 28 Id. at 192. 29 U.S. Const. Art. I, sec. 6, cl. 2. 30 Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974). 31 Id. at 222. 82 392 U.S. 83. 95 (1968). See also Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970). There is also a non-constitutional. prudential element to justiability questions which is not of immediate concern here. See Warth v. Seldin, 422 U.S. 490, 499 (1975). See generally Ashwander v. TVA, 297 U.S. 288, 346-356 (1936) (concurring opinion of Brandeis, J.). 23 413 U.S. 1 (1973). 34 See note 19, supra. U.S. Const. Art. I, sec. 8, cl. 16. |