THE BACKGROUND The Federal convention of 1787 fixed on two methods for amending the Constitution. On 32 occasions Congress has used one route and proposed amendments to the states. Five were not ratified by the necessary three-fourths of the legislatures, and one, the equal rights amendment, is still pending. The other course, a convention called by Congress on the request of the states, has never been used. In two cases, however, the legislatures came within one state of the needed two-thirds. Early in this century that pressure contributed to Congressional proposal of the amendment requiring the direct election of senators. Then, in the late 1960's, Congress held fast against an effort to undo the Supreme Court's reapportionment decision. While attacks on deficit spending have been a political commonplace for many years, the current effort began seriously in 1975 when State Senator James Clark of Maryland, pushed a convention call through his Legislature and began talking up the idea with other state lawmakers. He also enlisted the backing of the National Taxpayers Union, a small organization best known until now for attacks on foolish-sounding Federal grants and on double-dipping by military pensioners on the Federal payroll. The convention campaign gathered steam in the last couple of years. It has been helped along by rampant inflation, which 58 percent of the public in the latest New York Times/CBS News Poll think could be curbed by cuts in Federal spending. Since most states are required to have blanced budgets (though usually by accounting methods very different from Federal practices), the idea has until recently met little opposition. Recently, most of the states that approved a convention call have offered Congress a way out-writing an amendment itself as they sought to reassure those who argued that a convention might go haywire. THE SUPPORTERS' CASE James D. Davidson, chairman of the National Taxpayers Union, contends that deficits spur inflation and devalue the currency. He argues that emergency clauses could cope with the needs of war and depression. Gov. Edmund G. Brown Jr. of California, the most prominent political supporter of the drive, goes further seeing a balanced budget as a philosophical symbol for "the kind of discipline this country needs." . Mr. Davidson maintains that without a constitutional injunction members of Congress will be unable to withstand the temptation to spend more than they are willing to tax to pay for. While most of the supporters say they are using the convention call only as a "club" to get Congress's attention, Mr. Davidson says he has no fear that it would run wild, feeling that Congress and the courts would enforce the calls from most of the states that make it clear this is the only subject they want considered. In any case, he says, the necessary 38 states would not ratify wild amendments from a convention. And he argues that a caliber of delegate comparable to those who met in Philadelphia in 1787 would be chosen for a new convention. THE OPPONENTS' CASE Critics such as Senators Edmund S. Muskie of Maine and John C. Culver of Iowa, both Democrats, insist that, while balanced budgets are a worthy ideal, any binding requirements would be too inflexible and would make it hard for Congress to react quickly and head off a depression when an economic downturn began. They contend that the states that are demanding a balanced budget are hypocritical, getting $30 billion in Federal aid. They warn, with arguments that are beginning to be heard in state capitals, that revenue sharing and other grants would be cut first. Some foes maintain that deficits have little effect on inflation anyway and that economic theory should not be embedded in the Constitution, because it would be stuck there even if the theory proved wrong. Others say that this sort of detail does not belong in a statement of great principles. But the most effective argument the critics have is the fear of a runaway convention. Senator Birch Bayh of Indiana, chairman of the Senate's Constitutional Amendments Subcommittee, says he thinks Congress could limit a convention, but he is not sure. While legal scholars are found on both sides of the issue, opponents point out that the original convention went beyond its mandate and say they do not want to run the risk of turmoil and uncertainty that efforts to rewrite the basic law of free press, free speech or aportion would raise. THE OUTLOOK It now appears more likely than not that sometime this year the necessary 34th state will call for a convention, even though Congress has not received, or cannot find, some of the earlier resolutions. That confusion has led some Congressmen to contend that as few as 14 states have passed resolutions, but there is no reason to doubt that additional copies will be forwarded to Capitol Hill. This problem is probably a reflection of the fact that Congress has never set up precise procedures for dealing with such resolutions. In fact, only the Senate has ever considered legislation to regulate an actual convention. It passed such measures twice but the House took no action. Despite the mandatory language of the Constitution that Congress "shall call a convention" once two-thirds of the states ask for one, the fact that most of the resolutions give Congress the alternative of proposing its own amendment will blunt, for a time, any requirement for an immediate convention call. When and if the 34th state signs up Congress is likely to get seriously at work on a budget-balancing amendment of its own, with as much flexibility as it can manage, and on a revival of legislation to govern convention procedures. But the issue will not go away, and even the amendment's severest critics are aware of its strong public support, recorded by 73 percent of those in the Times/CBS News Poll. HOUSE OF REPRESENTATIVES, Washington, D.C., November 21, 1979. Hon. BIRCH BAYH, Chairman, Subcommittee on the Constitution, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: Enclosed is a copy of an independent research paper entitled "Resurrecting a Federal Constitutional Convention Procedures Act" which I wrote last spring in connection with my studies at Catholic University School of Law where I am presently a fourth year, evening division student. Copies of the paper have also been furnished to the Senate sponsors and cosponsors of constitutional convention procedures legislation in the 96th Congress S. 3, S. 520, and S. 1710. I would appreciate your making the paper and this letter of transmittal a part of the November 29 hearing record on this legislation. The paper analyzes the development of the Article V convention provision and the modern dilemma facing the Congress-the absence of statutory convention procedures, recent applications for a constitutional convention to consider a balanced budget amendment, and unanswered questions regarding the convention alternative. Included are a detailed analysis of the legislative history of the Ervin bill which twice passed the Senate as well as a sectional analysis of that legislation. My firm conclusion is that a procedures bill should be enacted by the Congress. Among my recommendations for amendments to the Ervin legislation are: A requirement that legislatures state clearly in each application its effective date; A Congressionally-prescribed short form for applications to aid in determining their validity; Full applicability of the provisions of the Act to applications submitted prior to enactment of the bill; A periodic determination and count of valid applications pending before the Congress; Convention proposal of appropriate amendments by simple majority vote, except that in any case the number be a percentatge of delegates voting; Clarification of Congressional intent regarding rescissions of ratifications of proposed amendments before the states at the time of enactment of the Limited judicial review of Congressional determinations provided in the bill, under a standard of "clearly erroneous." Thank you for your attention. Sincerely, GORDON M. THOMAS, RESURRECTING A FEDERAL CONSTITUTIONAL CONVENTION PROCEDURES ACT (By Gordon M. Thomas,1 Columbus School of Law, The Cathole University of America, Washington, D.C.) Article V of the Constitution of the United States provides two alternative means by which the Constitution can be amended. In pertinent part, Article V reads as follows: "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 To date, all proposed amendments submitted to the states for ratification have been proposed directly by Congress; the constitutional convention method has never been utilized. BACKGROUND AND HISTORY OF THE CONVENTION PROVISION ... Out of a general sense of dissatisfaction with the manner in which the national government was functioning under the Articles of Confederation,2 Congress called the Philadelphia Convention of 1787 into session for the purpose of proposing revisions, subject to the approval of Congress and the states. Instead, the convention proposed an entirely new Constitution which was accepted by Congress and ratified by the requisite number of states.* The convention provision in Article V, in its earliest form, was the product of a compromise between Virginia delegates, who wished the national legislature to have no part whatsoever in any amendment procedure," and a broader cross section of delegates generally who thought it unwise and improper to exclude Congress completely." The Committee on Detail and Committee on Style and Revision reported draft language which, when temporarily accepted by the delegates over the course of extended debate on an amendment article, became the forerunner of the current Article V convention provision. This initial text contained no provision for direct proposal of an amendment by the national legislature, nor did it include a requirement that the states ratify any action taken by a convention. 1 The author of this directed research project is employed as Legislative Assistant to Representative L. H. Fountain of North Carolina, chief sponsor of a constitutional convention procedures bill in the 96th Congress, H.R. 1664. The research for the writing of this paper began several weeks prior to Representative Fountain's introduction of H.R. 1664 and was conducted independently of the author's employment duties. Views expressed herein are entirely those of the author and should not necessarily be attributed to Representative Fountain. 2 In particular, Article XIII, which provided for amendment of the Articles of Confederation, did not permit a national consensus short of unanimity on the part of state legislatures to respond to changing circumstances. Article XIII prohibited any alteration "unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the Legislatures of every State" (emphasis supplied). Note that Article XIII made no provision for the calling of a convention when initiated by the states. 3 See, e.g., Congressional Research Service. Library of Congress. The Constitution of the United States of America: Analysis and Interpretation, S. Doc. No. 82, 92d Cong., 2d Sess. XL (1973). Id. For establishment of the Constitution between states ratifying it, Article VII required ratification by conventions in nine states. 51 M. Farrand, The Records of the Federal Convention of 1787, 22 (rev. ed. 1937). The Virginia Plan called for amendment "whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto." Id. at 202-03. The Committee of the Whole. consisting of delegates from all the colonies, rejected language excluding the national legislature. See generally C. Brickfield. Problems Relating to a Federal Constitutional Convention, House Judiciary Committee, 85th Cong., 1st Sess. 4 (Comm. Print 1957). At the urging of Alexander Hamilton, who believed "the State legislatures will not apply for alternations but with a view to increase their own powers", and of James Madison, who offered substitute language providing for alternative modes of amendment, the convention adopted a proposal permitting Congress itself to initiate an amendment in addition to the convention method previously reported by the Committee on Detail and Committee on Style and Revision and approved by the delegates. The final version contained the requirement embodied in Article V that three-fourths of the states ratify any amendment proposed under either alternative in order for it to become part of the Constitution." Writing in The Federalist Papers, Madison and Hamilton provide additional legislative history of the Article V convention provision.10 In particular, Madison detailed the opportunity possessed by the states, in effect, to introduce amendments, an opportunity which was intended to be on a par with that of Congress : "That useful alterations will be suggested by experience, could not but be foreseen. It was requisite therefore that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. It moreover equally enables the General and the State Governments to originate the amendment of errors as they may be pointed out by the experience on one side or on the other." Little supplemental historical authority exists to explain in further detail what the Founding Fathers had in mind when they wrote the convention provision into Article V. Since the convention route has not been invoked under the current Constitution, there are no modern precedents, legislative or judicial, to use in determining a host of vexing problems and issues associated with the specter of a federal constitutional convention. Despite the lack of additional legislative history, the basic intent of the provision is clear: the convention method of proposing amendments is an alternative which cannot be ignored. THE MODERN DILEMMA FACING THE CONGRESS A. No statutory convention procedures Since 1967, as a result of the absence of statutory implementation of the Article V convention alternative, the United States Senate has made significant strides toward enactment of such a bill.12 The House of Representatives has thus far refused to act on Senate-passed legislation, and the House Judiciary Committee has not held a legislative hearing directly on the issue.13 13 Proponents of procedures legislation argue that Congress has general power under the "necessary and proper" clause" to enact a bill. Former Senator Sam J. Ervin, Jr. of North Carolina, the earliest and most noted advocate of a procedures act, has said: "I have no doubt that the Congress has the power to legislate about the process of amendment by convention. The Congress is made the agency for calling the convention, and it is hard to see why the Congress should have been involved in this alternative method of proposal at all unless it was expected to • Id. at 5. For a more complete account of the deliberations of the convention on these points, see Brickfield, supra note 6. at 4-6. See also ABA Special Constitutional Convention Study Committee, Amendment of the Constitution by the Convention Method Under Article V 11-14 (1974) (hereinafter cited as ABA Study). 10 The Federalist No. 43 (J. Madison), at 278-79 (Mentor ed. 1961) and The Federalist No. 85 (A. Hamilton), at 526 (Mentor ed. 1961). 11 The Federalist No. 43, supra note 9. 12 See discussion infra of Congressional attempts to establish statutory procedures and guidelines. 13 Representative Emanuel Celler. chairman of the House Judiciary Committee when the Senate first passed a procedures bill. believed "that the present state of uncertainty, while undesirable. is preferable to the active encouragement of a flood of new amendments that might result from setting up the new machinery." N.Y. Times. Oct. 20, 1971, reprinted in 117 Cong. Rec. 45184 (1971). Yet, years earlier Chairman Celler had called the issue "a long-neglected but vital problem" and wrote. "(u)nfortunately there is no statutory authority to guide this committee or the Congress in classifying applications or in counting them. nor for the calling of a convention." C. Brickfield. Problems Relating to a Federal Constructional Convention. House Committee on the Judiciary. 85th Cong.. 1st Sess. Foreword (Comm. Print 1957). The issue has been touched upon peripherally in other House committee hearings. See.. e.g.. Amending the Constitution Relative to Tares on Income, Inheritances, and Gifts: Hearings Before Subcommittee No. 3 of the House Committee on the Judiciary. 85th Cong., 1st Sess. (1958). 14 U.S. Const. art. I. § 8. cl. 18. determine such questions as when sufficient appropriate applications had been received and to provide for the membership and procedures of the convention and for review and ratification of its proposals . . . (Congress) has the residual power to legislate on matters that require uniform settlement.15 The Supreme Court, in Dillon v. Glos8,16 said: "As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require; and Article V is no exception to the rule." Taking a contrary view, Professor Charles Black of Yale Law School believes : "Article V allows only a general, no-holds barred convention. Anything which ties the hands of the delegates . . . is not the kind of deliberative body the founding fathers envisioned.18 The weight of scholarly authority," and the unanimous passage of a procedures bill by the Senate on two occasions,20 without serious question during the legislative debate as to the bill's constitutionality, indicate that Congress has power to implement by statute the convention alternative of Article V, subject to a standard of reasonableness.21 B. Proposals regarding a constitutional amendment to require a balanced Federal budget Renewed interest in the constitutional convention issue has surfaced in recent months as the result of a nationwide campaign 22 to write into the Constitution an amendment requiring a balanced federal budget for each fiscal year except in time of war or national emergency as declared by Congress." As part of the drive to require a balanced federal budget, approximately 29 state legislatures," five short of the 34 (two-thirds) necessary under Article V, have passed resolutions of application to the Congress to call a constitutional convention for the purpose of proposring a balanced budget amendment." There is difficulty in arriving at a binding count of valid convention applications before Congress since there are no established procedures for the receipt, notation, tabulation, and central storage of such applications. The Library of Congress, through its own efforts as well as through the use of data compiled by a private source, has counted up to 29 applications for a balanced budget convention. Not all of the 29 have been received by the Speaker of the House and the President of the Senate and officially noted in the Congressional Record, or have been located in the files of the Senate and House Judiciary Committees. Some applications are conditional and therefore of questionable validity in that they call on Congress first to propose an amendment directly, and, failing that, then to call a convention." 26 Several states which have passed, but perhaps erroneosuly submitted, applications to the Congress, or have failed altogether to submit them, have made 15 Ervin, Proposed Legislation to Implement the Convention Method of Amending the Constitution, 66 Mich. L. Rev. 875, 879, 880 (1968) (hereinafter cited as Ervin article). 18 256 U.S. 368 (1921). 17 Id. at 376. 18 Margolick, "Constitutional Convention?", The National Law Journal, Mar. 5, 1979, at 1, col. 2 (paraphrasing Professor Black). See also Black, Amending the Constitution: A Letter to a Congressman, 82 Yale L.J. 189 (1972). 19 See, e.g., Federal Constitutional Convention: Hearings on S. 2307 Before the Subcommittee on Separation of Powers of the Committee on the Judiciary, 90th Congress, 1st Session (1967) (hereinafter cited as Senate Hearings). 20 The Senate passed S. 215 of the 92d Congress by a vote of 84-0, 117 Congressional Record 36804 (1971), and S. 1272 of the 93d Congress by voice vote, 119 Congressional Record 22731 (1973). 21 See Senate Hearings, supra note 18, at 34-38 (statement of Theodore C. Sorensen). See also, 117 Congressional Record 36766 (1971) (statement of Sen. Bayh). 22 The campaign has been spearheaded by the National Taxpayers Union, a Washington lobbying organization, and California Governor Jerry Brown. 23 Dozens of resolutions calling for Congress to propose such an amendment directly have been introduced in the 96th Congress. The Senate Judiciary Subcommittee on the Constitution opened hearings on the issue on Mar. 12, 1979. 125 Congressional Record D234 (daily ed. Mar. 12, 1979). See, e.g., S.J. Res. 5, S.J. Res. 6, S.J. Res. 18, and S.J. Res. 38, 96th Cong, 1st Sess (1979). The House Judiciary Subcommittee on Monopolies and Commercial Law began hearings on similar House resolutions on Mar. 27, 1979. 125 Congressional Record D340 (daily ed. Mar. 27, 1979). 24 See infra note 25. The number of valid applications before the Congress is open to question. 25 D. Huckabee, "Constitutional Convention Applications: Addressing the Controversy of Counting State Applications Relating to a Deficit Spending Amendment." The Library of Congress, Congressional Research Service, Government Division 7-11 (rev. print Mar. 12, 1979). |