A CRITIQUE OF THE PROPOSED LEGISLATION IN LIGHT OF THE FOREGOING CONSIDERATIONS The bill under consideration is S 1710, 96th Congress, 1st Session. As submitted, section 15 would provide: "SEC. 15. (a) Any State aggrieved by any determination or finding, or by any failure of Congress to make a determination or finding within the periods provided, under section 6 or section 11 of this Act may bring an action in the Supreme Court of the United States against the Secretary of the Senate and the Clerk of the House of Representatives or, where appropriate, the Administrator of General Services, and such other parties as may be necessary to afford the relief sought. Such an action shall be given priority on the Court's docket. "(b) Every claim arising under this Act shall be barred unless suit is filed thereon within sixty days after such claim first arises. "(c) The right to review by the Supreme Court provided under subsection (a) does not limit or restrict the right to judicial review of any other determination or decision made under this Act of such review as is otherwise provided by the Constitution or any other law of the United States." The foregoing discussion makes clear that a judicial review procedure has the best possibility of surviving judicial scrutiny if it can be characterized as essentially an effort "to strengthen the political system by assuring a higher level of fairness and responsiveness to the political processes." Cast in this light, a provision might be justified on the rationale of Baker. Such a characterization could, moreover, gather a good deal of legitimacy from the fact that the "convention method" of amendment was designed to permit the people to circumvent a Congress which was frustrating the popular will." The bill in question contains several features which appear to detract from the possibility of sustaining such a characterization. While a specific legislative grant of standing to initiate an action is no doubt viewed with favor by the courts, the right to initiate the action is here vested in the states. Arguably, the states need not resort to the judiciary for protection against the Congress since the Constitution specifically provides them with representation in each House. Moreover, the possibility of a finding of non-justiciability is probably increased somewhat by the bill's invocation of the Court's original jurisdiction." Traditionally, the Court appears to have been especially sensitive to the problem of non-justiciability in cases coming within its original jurisdiction." Moreover, as the ABA noted, "[i]nitiation of suit in the Supreme Court necessarily escalates the level of the controversy without regard to the significance of the basic dispute." 39 38 99 42 Perhaps, more importantly, the proposed section would apparently require the Court to determine the correctness of the Congressional determination that the requisite number of state petitions deal "with the same general subject"" or that an amendment proposed by the convention "differs from or was not included as one of the general subjects named or described in the current resolution of the Congress by which the convention was called."" Such a judgment might easily involve "judicial review of substantive political judgments entrusted to the coordinate branches of government." " It is not at all clear that, 38 413 U.S. at 11. 37 See Feerick, "Amending the Constitution Through Convention," 60 ABA J. 285, 287 (1974). 38 See, e.g., Warth v. Seldin, 422 U.S. 490, 500 (1975). Cf. Massachusetts v. United States, 435 U.S. 444 (1978). (plurality opinion of Brennan, J.) (relying on Chief Justice Marshall's famous dictum in McCullough v. Maryland, 17 U.S. (4 Wheat.) at 427, he justifies the narrow scope of a state's immunity from federal taxation on the ground that federal tax policy is the product of the national Congress which, in turn, is composed of state constituencies). But see National League of Cities v. Usery, 426 U.S. 833, 841 n. 12 (1976) (expressing the view that a state's representation in the national legislature is not a sufficient guarantee of its amendment X autonomy against federal use of the Commerce Power). 40 U.S. Const. Art. III, sec. 2. cl. 2. 41 See, e.g., Massachusetts v. Mellon, 262 U.S. 447, 483-485 (1923): Mississippi v. Johnson, 4 Wall. 475 (1866) Georgia v. Stanton, 6 Wall. 50 (1867). See generally, Stern and Gressman. Supreme Court Practice 5th ed. 610. But see National Prohibition Cases, 253 U.S. 350 (1920) where the Court apparently assumed jurisdiction in two cases seeking an injunction against the enforcement of criminal statutes enacted pursuant to the Eighteenth Amendment. These cases were decided prior to Coleman v. Miller. note 10 supra, and involved a post facto determination of the validity of the Amendment's ratification procedures. The Court was not asked to interject itself into the actual conduct of those procedures. 42 ABA Report 25. 43 Slip bill D. 5. sec. 6. 44 Id. at 10, sec. 11. 45 413 U.S. at 11. in attempting to fulfill its desiguated function under this bill, the Court could limit itself to the sort of declaratory relief which sufficed in Powell. The Court could, therefore, find itself in the embarrassing situation of being totally unable to enforce its decision. NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, Mr. JOHN MINOR, Office of Senator Edward Kennedy, 2237 Russell Senate Office Building, WASHINGTON BUREAU, Washington, D.C., January 9, 1980. DEAR MR. MINOR: I am enclosing a copy of NAACP's resolution opposing a constitutional amendment to balance the Federal budget. Sincerely yours, Enclosure. ALTHEA T. L. SIMMONS, Director, Washington Bureau. NAACP 70TH ANNUAL CONVENTION RESOLUTIONS, JUNE 25-29, 1979, LOUISVILLE, KENTUCKY 7. OPPOSITION TO CONSTITUTIONAL CONVENTION FOR BALANCED BUDGET Whereas, there is a national climate of negativism and retrenchment towards civil rights generally, and organized groups are attempting to repeal hard-won civil rights gains of black people by instituting fiscal austerity measures that reduce governmental funding of programs which provide for the essential health, education, employment, and welfare of the poor and black citizenry; and Whereas, there is now an effort to have the requisite two-thirds of the states to convene a Federal Constitutional Convention for the alleged purpose of amending the United States Constitution in order to require a "Balanced Federal Budget"; and, Whereas, a Constitutional Amendment to so balance the Federal Budget would have disastrous and deleterious consequences for the poor, by endangering Federal funding of social and other programs presently aiding poor and black people, and distressed areas of our nation; and Whereas, such a convention process is unprecedented, and is likely to be fraught with political posturing, various agendas, and constitutional uncertainty ; and, Whereas, there is the danger that a Constitutional Convention would be so openended a process that amendments might be proposed undermining basic civil rights and civil liberties protections; and, Whereas, the Constitutional Convention is NOT an appropriate mechanism for dealing with the problem of inflation, which hurts the poor as well as the rich; and, Whereas, there is no way to insure proper black representation at such a convention; and, Whereas, there is no way to insure that such a convention would not infringe on civil rights decisions of the courts, based on the Fourteenth Amendment, which have aided and advanced the rights of black people, therefore be it Resolved, That the NAACP is unalterably opposed to the convening of a Constitutional Convention and call upon its branches, youth councils, members and friends to work promptly and diligently to urge state legislatures either to disapprove of such application for the convening of a convention, or where such measures have passed it urge its units to work for recision by the legislatures of resolutions calling for the convening of such a convention. 46 See note 15, supra. National Federation of Business and Professional Women's Clubs RESOLUTION # 5 Adopted at the Boston Convention, July 24, 1979 Whereas, Whereas, Whereas, Whereas, Resolved, Resclved, Resolved, There are existing proposals to call a Constitutional The conventional method of state ratification of an amendment to the U.S. Constitution, upon proposal by Congress, has worked satisfactorily to achieve 26 amendments to the Constitution over the entire period since 1789, and No guidelines currently exist as to the convening method, necessary majority, or subjects to be covered, and The National Federation of Business and Professional That the National Federation of Business and Professional That in the event of the introduction in Congress of measures calling for such Constitutional Convention, the National Federation of Business and Professional Women's Clubs, Inc. urge Congress to call a National Conference of representatives of prominent, concerned National Organizations to participate in the establishment of appropriate criteria and parameters for the calling of such a Constitutional Convention; and be it further That a copy of this resolution be sent to each Member of Congress within thirty (30) days of the conclusion of this Convention. [Report No. F-7 New York County Lawyers' Association Committee on Federal Legislation June 1979] REPORT ON THE PROPOSED CONSTITUTIONAL CONVENTION PROCEDURES ACT RECOMMENDATION: DISAPPROVAL S. 520, 96th Cong., 1st Sess. (1979) and similar legislation has been introduced designed to clarify questions arising out of applications by states for convening a constitutional convention pursuant to Article V of the Constitution of the United States. It is widely assumed that such clarification is automatically desirable, or even mandated by due respect for the Constitutional provision invoked. However, the Constitutional provision does not expressly require or even provide for implementing legislation. Indeed, the fact that it is not contained in Article I, concerning the powers of Congress, may indicate that legislative implementation, apart from actually calling a constitutional convention in a proper case, is not contemplated.1 Moreover, there may be serious dangers to making decisions in advance concerning how applications for a convention under different circumstances ought to be treated. There is always some risk, of course, in all decisions by society concerning how problems that have not yet reached fruition should be handled. This risk is increased where the uncertainty surrounding the circumstances involved, and the consequences of the decisions to be made, may be frought with important dangers. Specifically, serious questions might well be presented in a given instance concerning whether or not a given series of applications are identical or within a sufficiently close time period to be counted, whether the rescission of an application is effective, and whether under all of the circumstances involved Article V requires the calling of a constitutional convention. A strong argument can be made that attempts to precommit Congress to a particular course of action, beyond whatever is contained in the text of Article V itself, are unwise. The question of whether a convention should be called is expressly confided to Congress. This may well refer to the Congress sitting at the time, not a prior Congress attempting to deal with contingencies in advance. An attempt by one Congress to bind future Congresses may not be binding. The decisions of the courts appear to indicate that a matter such as the calling of a constitutional convention is a political question. The Framers, by confiding the decision to Congress, appear to have intended this. An attempt to convert a political judgment into a purely mechanical one may thus contradict the philosphy of Article V as well as creating new difficulties. In addition, specific decisions contained in the proposed legislation concerning such matters as whether calls for a convention by a state require the approval of the Governor, or whether such matters should be left to state law, may be subject to legitimate debate. We believe, however, that regardless of the merits of such individual matters, Congress ought not to attempt to bind itself to future action beyond the strictures already contained in Article V. This position was adopted in unanimous reports of this Committee and the Committee on Federal Legislation of the New York County Lawyers' Association and the Committee on Legislation of the Federal Bar council comprising lawyers practicing in Federal courts in New York, New Jersey and Connecticut, in opposing an earlier bill which, while differing in some respects from the present bill, contained the same purported advance commitment of future Congresses to act in particular circumstances. The Federal Bar Council report stated: "Legislation has been proposed which would commit Congress to call a federal Constitutional Convention under Article V of the Constitution of the United States once applications for such a convention satisfying the mechanical requisites set forth in the legislation were received from the proper number of state legislatures. S. 623, 91st Cong., 1st Sess. (1969). "By exercising such congressional judgment in advance, the bill would purport to preclude Congress from deciding that an application was untimely because 1Cf. United States v. Bergman, 592 F. 2d 533, 536 (9th Cir. 1979). * See Coleman v. Miller, 307 U.S. 533 (1939). of changed circumstances, stale because it arose from a malapportioned legislature and sought to overturn reapportionment decisions, or was properly rescinded while Congress was considering the question of calling a convention. "Basically, the bill seeks to exercise in advance of the event the power of Congress under Article V to determine questions concerning the call to any future convention, thus preempting consideration of such issues in their factual context when presented. "We believe that such a step attempting to bind future elected Federal Legislatures may well be unconstitutional and void, because the calling of a convention is a political function and no court would seek to compel one Congress to exercise its political functions as decreed by its predecessors. ". . . The same may be said of the provision . . . that no application may be withdrawn while the requisite number of applications are under consideration by Congress. "In our view the calling of a federal Constitutional Convention is a step not to be lightly taken, and no judgment in favor of such a step should be exercised in advance. Otherwise we may gut our 'great instrument of government, intended to endure for unnumbered generations . . .' Dimick v. Schiedt, 293 U.S. 474, 490 (1935) (Stone, J. dissenting)." Federal Bar Council, Bulleting of Reports Concerning Legislation 9-10 (Jan. 1970). The same position has been taken by Professor Charles L. Black, Jr., of Yale Law School in a letter to the Chairman of the House Judiciary Committee on February 28, 1972 where he stated: "This bill, as to the vote commanded in its crucial Section 6, rests on the constitutionally impossible assumption that this Congress can bind the consciences of successor Congressmen and Senators, on questions of contitutional law and policy." Professor Black also points out that a resolution to call a convention is nowhere exempted from the blanket provision of Article I, section 7(3) of the Constitution that "Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives..." There is historical precedent that amendments to the Constitution proposed by Congress have never been presented for Presidential approval. But such amendments proposed by Congress require a two-thirds vote on the part of both Houses of Congress, the majority necessary to override a veto. Under the proposed legislation, a majority of Congress would be directed by the proposed statute to call a Federal Constitutional Convention-without presenting the matter to the President. The two-thirds approval required by Article I, section 7(3) in the absence of Presidential approval is thus circumvented by a mere statute. We do not think this is either wise or constitutional. The President's participation is also important because apart from the judiciary, which this bill excludes from all participation in matters concerning the calling of a convention, the President is the only officer involved in the process who represents the entire nation rather than a particularized constituency. Compare Neustadt, Presidential Power (1962); Rossiter, The American Presidency (Mentor ed. 1960); Jaffe, "The Effective Limits of the Administrative Process: A Reevaluation," 67 Harv. L. Rev. 1105, 1107-13 (1954); Jaffe, "Judicial Review: Question of Law," 69 Harv. L. Rev. 239, 273-74 (1955). The exclusion of the President from action contemplated by the bill is in our view one of the few instances where a statute could be found to violate the Constitution by simply laying the provision "alongside" the Constitution to see "if the latter squares with the former," as Justice Roberts said was done by the Court in United States v. Butler, 297 U.S. 1, 62 (1936). The problem with the bill is that it gives these matters insufficient importance by assuming that the only pertinent questions will be mechanical-i.e. does the number of applications equal two-thirds of the states? This is not necessarily true-indeed the opposite may well be the case in a concrete situation. & See Hollingsworth v. Virginia, 3 U.S. 378 (1798); but see Black "The Proposed Amendment of Article V: A Threatened Disaster," 72 Yale L.J. 957 (1963). |
