"Congress would not have to convene a convention if it considered the suggested amendment itself." He further maintains that, "Since the carrying out of the intention is the dominant or primary objective sought, as long as the Congress can effectuate intention, the Congress clearly has the legal right to act in the matter." And he concludes his article by saying that, "The time has come for Congress to defer to the expressed wishes of a two-thirds majority of all of the forty-nine states and propose the amendment."

Whose expressed wishes? Those of the states which have passed resolutions to rescind? That of Wyoming twenty years ago?

The leap which Mr. Packard takes from his earlier position, that Congress must now call a constitutional convention, to his later one, that Congress might just as well avoid all the fuss of constitutional conventions and writs of mandamus by carrying out the "expressed wishes" of two thirds of the states, makes more sense politically than it does legally. Has he not, in effect, constructed a legal paper tiger aimed at convincing Congress that it should propose a constitutional amendment to the states?

In asserting that "the carrying out of the intention is the dominant or primary objective sought", Mr. Packard refutes his earlier argument that state resolutions to rescind their applications are "null and void" despite the reversal of "intention" or "expressed wishes" thereby indicated. By thus departing from the legal aspects of the case, Mr. Packard would appear to be hoist with his own political petard.

CONCLUSION

There is no legal bar whatever to prevent the Congress from proposing to the states an amendment which would limit federal income tax rates. However, before employing the "second route" of a constitutional convention for this purpose, there must be valid applications from two thirds of the states. As of today, this requirement has not been met, and the Congress would be acting outside the scope of its constitutional authority if it succumbed to the cry that such a convention be called.

[From the American Bar Association Journal, vol. 45, November 1959] PETITIONING CONGRESS FOR A CONVENTION: CANNOT A STATE CHANGE ITS MIND? (By Frank W. Grinnell of the Massachusetts Bar (Boston)1)

In the February issue of the Journal, an article by Frank E. Packard, of Chicago, stated that thirty-three states (two thirds of the forty-nine states existing at the time) had passed resolutions calling upon Congress to call a convention to propose a constitutional amendment limiting the federal power to tax incomes. In his list of thirty-three states, Mr. Packard included seven that had later withdrawn their resolutions, on the theory that a state may not rescind such a resolution once passed. Mr. Grinnell disagrees on this question of constitutional law. He sets forth his view of the problem in this article.

One of our most balanced American historians-the late Andrew C. McLaughlin-in his lectures on "American Constitutionalism" said, "The hope for successful popular government—and its justification—is based on the willingness of people to think."

That is an impressive way of reminding us of the remark Edmund Burke in 1774 in his famous address to the Electors of Bristol (his constituents): "Government and legislation are matters of reason and judgment and not of inclination."

Mr. Packard's interesting article on the amending process in the February JOURNAL is summarized on page 161 on the following headnote:

"Amendments to the Federal Constitution may be proposed either by two thirds of both houses of Congress or by a convention called by Congress at the application of the legislatures of two thirds of the states. The second method of pro

1 Frank W. Grinnell was admitted to the Massachusetts Bar in 1898. He is the secretary of the Massachusetts Bar Association and editor-in-chief of the Massachusetts Law Quarterly. He has been a member of the American Bar Association since 1907.

posing constitutional amendments has never been used. However, Mr. Packard points out that thirty-three states have adopted resolutions calling upon Congress to call a convention to propose an amendment to limit the power of the Federal Government as to income taxes. Although seven of the thirty-three have since tried to rescind their resolutions, Mr. Packard believes that these attempted rescissions are of no effect, and he argues that a writ of mandamus will lie to compel the Congress to issue the call for a convention."

While the article deserves to be read, that brief statement seems sufficient for the need of further discussion.

After quoting a variety of opinions of well-known authors and some state judges, he concludes:

"All of which would indicate that the attempts of the seven states to rescind their resolution calling on Congress for a convention to propose an income tax limitation amendment are null and void."

He and those whom he quotes reach this conclusion by relying on the action of Congress refusing to recognize the revocations by Ohio and New Jersey of their previous votes ratifying the Fourteenth Amendment. That amendment was adopted under peculiar circumstances during the reconstruction days after the Civil War, and the practice under those peculiar political conditions can hardly be accepted as a final settlement of this far-reaching question. The history of the Civil War amendments as told by Professor Burgess' volume on "Reconstruction and the Constitution" is worth reading in this connection.

What sound reason is there for saying that ratification by a state legislature is irrevocable if a succeeding legislature votes to revoke before the requisite number of states have ratified? Certainly it seems peculiar if a state can change its mind in favor of, it cannot also change its mind against, ratification. Is not the notion that a state can change its mind in only one direction a most stultifying doctrine to apply in these days to the representatives of the people of the United States? How do the people differ from an individual in this respect? No one knows what amendments may be submitted in the future as the result of political excitement; and, if the entire national structure is to be submitted to the hasty political action of state legislatures without any opportunity for reconsideration, the country may wake up and find itself in a most serious situation some day. Turning now to the wording of Article V that "on application of two thirds of the several states" the Conggress "shall call a convention for proposing amendments". Mr. Packard quotes Professor Willoughby (on page 196) as suggesting that "it would appear that the act thus required of Congress is a purely ministerial one in substance if not in form" and states that Mr. Justice Story in Martin v. Hunter's Lessee said "that the word 'shall' imports the imperative and the mandatory". Mr. Packard also suggests, with some citations, that a District Court of the United States could, and would, issue a writ of mandamus to the Congress of the United States to compel the Congress to call a convention. These suggestions call for very close analysis and some consideration of the nature and structure of the Government of the United States and the relations of its branches.

In the first place, Martin v. Hunter's Lessee had no relation to the problem. In the second place, the word "shall" has very flexible meanings as indicated in a discussion of "shades of shall" illustrated by the appearance, in one section of a Massachusetts statute, of nine "shalls" with different meanings"directory", "mandatory", etc. In the third place, Mr. Packard poses what may be called an enormous question for the Bar, the Bench and the American people generally.

We are considering three questions-first the practicable meaning of the word "shall" in Article V; second, under the constitutional relations of Congress and the Judicial Department can a district court created and subject to repeal by the Congress issue mandamus to the Congress? third, if so, in case of appeal to the Supreme Court under the "appellate jurisdiction-with such exceptions and under such regulations as the Congress shall make", could and would that court sustain the issuance of such a writ? Marbury v. Madison does not answer or even discuss these related questions.

Mr. Packard says (page 196) "The hand of the Congress can be forced in the matter." But how? No one but the Congress can "call" a convention. The courts are not authorized to do it, but to issue a writ would be an attempt by the court to do what Congress alone is authorized to do. It seems necessarily to follow that the word "shall" in Article V is a directory, and not an impossible mandatory word. If a district court should venture to issue such a writ, the

Congress could immediately abolish the court which issued it. Who could apply for such a writ? An individual, a state legislature, or a group of state legislatures? Who would be the necessarily interested parties involved in addition to every member of Congress? Certainly every citizen of every one of the United States including Alaska and Hawaii, including babies. How could they be represented? By their state legislatures, which might be changed in the midst of the litigation? Is it conceivable that any court should, would or could, precipitate such a situation between two of the independent co-ordinate departments of the government of the nation?

Returning again to the thirty-three states alleged to have asked for a convention of which seven have revoked their request, Mr. Packard lists Massachusetts. Just what did Massachusetts do? I know nothing of the contents of the alleged resolutions of other state legislatures, but this is what happened in Massachusetts:

In 1941, two years after the collection of resolves, like a collection of signatures, began in Wyoming, the Massachusetts legislature adopted a resolution requesting Congress "that it call a convention-for the purpose of proposing an amendment to said Constitution as follows." Then followed a specific form of amendment. Note that the convention was to be called not to consider but "propose".

In February, 1952, the Massachusetts legislature adopted another and quite different resolution, somewhat curiously phrased, as follows:

"Whereas, A limiting of the power of the federal government to impose taxes on the people would automatically curtail government spending; and

"Whereas, If we withhold our money, our officials cannot carry us into socialism or communism; and

"Whereas, A limiting of spending by our government would enable our elected officials to resist requests from those who exert great pressure for bigger handouts; and

"Whereas, Most of our states and municipalities are subjected to limitations in their ability to tax, to the end that they are sound while the federal government is almost bankrupt; and

"Whereas, We have ceilings on everything but taxes; therefore be it "Resolved, That the General Court of Massachusetts memorializes the Congress of the United States to amend the Constitution of the United States to the end that all taxes levied and collected in any one year shall not exceed a certain and reasonable percentage of the national income for the nearest preceding calendar year for which figures are available, with a special provision to provide moneys for military emergencies; and be it further

"Resolved, That copies of these resolutions be transmitted forthwith by the state secretary to the President of the United States, to the presiding officer of each branch of Congress, and to the members thereof from this commonwealth." Note that this resolution did not ask for a convention, but expressly asked the Congress "to amend the Constitution", which it cannot do.

Mr. Packard refers to the Fourteenth Amendment incident as a "precedent" (on page 162), but he does not tell the whole story. Secretary Seward himself expressed a doubt whether the action of the legislatures of Ohio and New Jersey in revoking a previous ratification before the requisite number of states had ratified might not be effectual in withdrawing the consent of those states. This appears in his announcement of July 20, 1868, which is quoted in Volume II of Watson's book on the Constitution, pages 1314-15, as follows:

"Whereas, no law expressly or by conclusive implication authorizes the Secretary of State to determine and decide doubtful questions as to the authenticity of the organization of state legislatures, or as to the power of any state legislature to recall a previous act or resolution of ratification of any amendment proposed to the Constitution, and

"Whereas, it further appears that the Legislatures of two of the States, to wit, Ohio and New Jersey, have since passed resolutions respectively withdrawing the consent of each of said States to the aforesaid amendment; and whereas it is deemed a matter of doubt and uncertainty whether such resolutions are not irregular, invalid, and therefore ineffectual for withdrawing the consent of the said two States, or either of them to the aforesaid amendments.

"Now, therefore, be it known that I . . . do hereby certify that if the resolutions of the Legislatures of Ohio and New Jersey ratifying the aforesaid amendment are to be deemed as remaining of full force and effect, notwithstanding the subsequent resolutions of the Legislatures of those States which purport

to withdraw the consent of said States from such ratification, then the aforesaid amendment has been ratified in the manner hereinbefore mentioned, and so has become valid, to all intents and purposes, as a part of the Constitution of the United States.

On the following day, however, Congress passed a concurrent resolution :

"That the following States, including Ohio and New Jersey, having ratified the fourteenth article of amendment to the Constitution of the United States; therefore, be it resolved that said fourteenth article is hereby declared to be a part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State."

Secretary Seward then issued another proclamation certifying that:

"The said amendment has become valid to all intents and purposes to the amendments of the Constitution."

The only "precedent", therefore, appears to be a political one adopted during great political excitement in the face of doubt publicly expressed by so able a lawyer as William H. Seward.

Mr. Packard's reference (on page 162), as "a perfect analogy, to the case of West Virginia v. Sims, 341 U.S. 22, relating to the attempt to withdraw from an interstate compact after the compact was completed, seems to me to have nothing to do with the question he raises. At all events, whether the dogmatic resolution without reasoning by a headstrong majority of Congress in a period of vindicative politics will stand as "a precedent” if it comes before the Court as to any future amendment or not, it is a far cry to apply it as a precedent to a mere resolution by a state legislature asking the Congress to do something. Bunches of such state resolutions are passed almost every year about something. So far as I have observed few of them are seriously considered. Mr. Packard lists Massachusetts among the states that have asked Congress to call a convention, but the Massachusetts legislature changed its mind. And why should it?

Of course, I agree with Mr. Packard that a legislature in dealing with federal amendments is not legislating on state matters. They are performing federal functions with which the state governors have nothing to do. But the legislators are acting in a profoundly serious representative capacity for all the citizens of their state and their "posterity" when they act in any way concerning the Federal Constitution. They have no unrestrained powers or functions to commit their people without deliberate thinking. All of us change our minds constantly about something or other before final action if we are wise enough to do so. Surely the representatives of all of us have not only the power, but the constitutional duty, to do so if they realize before it is too late that they have made a mistake while representing us. It is our right and their duty as a matter of common sense because we may have to pay the price if they do not. While I appreciate their sincerity and earnestness, I respectfully submit that Mr. Packard and all persons whose opinions he cites are profoundly wrong on this question as a matter of common sense.

[From the American Bar Association Journal, vol. 49, December 1963]

THE ROLE OF THE STATES IN PROPOSING CONSTITUTIONAL AMENDMENTS (By Fred P. Graham, Former Chief Counsel of the Senate Subcommittee on Constitutional Amendments*)

Drawing on the history of the article providing for amendment of the United States Constitution and the proposals that have been submitted by states for constitutional conventions, Mr. Graham concludes that the states have a vital role in the amending process in prodding Congress to act in areas involving the prerogatives of Congress itself. Too often, however, the states have allowed themselves to be used in campaigns for radical amendments that do not have popular support and to which Congress has responded by ignoring the states' requests for a convention.

During the first eight months of 1963, the legislature of eighteen states submitted to Congress thirty-eight applications calling for a constitutional conven

Educated at Yale University (B.A. 1953) and Vanderbilt (LL.B. 1959), Fred P. Graham also holds a diploma in law from Oxford, earned while on a Fulbright fellowship in 1960. A member of the Tennessee Bar, he is now confidential assistant to the Secretary of

Labor.

The author wishes to express his gratitude to William H. Barr for his able assistance in the preparation of this article.

tion to propose amendments to the Constitution of the United States.' This was almost four times as many applications as were submitted to Congress in the first century of the Constitution, and by far the largest number to be adopted in any one year. Most of the applications called for the proposal of one or more of the three so-called states' rights amendments recommended to the states by the Council of State Governments. Critics of the three proposals charged that they were "radical in the extreme" and that their adoption would result in basic changes in the federal system of government. The controversy developed into a cause célèbre in the press; many citizens became aware for the first time that the Constitution does provide a system whereby amendments can be suggested by the states.

Unfortunately, the public controversy centered around the three proposals themselves and virtually ignored the question whether such extreme amendments could, as a practical matter, be added to the Constitution through the efforts of state legislatures. The very fact that opponents of the proposals viewed them with such alarm created the impression that they might somehow be forced into the Constitution by the pressure of state legislative efforts, without the approval of Congress and the general public. These widespread misinformed beliefs have blurred the public understanding of the actual powers of the states in proposing constitutional amendments. Since there appears to be a trend toward greater use of this constitutional device by the state legislatures, it is worthwhile to examine the true role of the states in the amending process.

ARTICLE V: AN INEFFECTIVE COMPROMISE

When the delegates to the Constitutional Convention met in Philadelphia in 1787, two considerations were uppermost in their minds-the states would have to transfer more of their sovereign power to the central government and the new constitution would have to be made easier to amend than were the Articles of the Confederation. Under the Articles of Confederation, only the Congress could propose amendments, and the unanimous approval of the states was required for ratification. This requirement proved too strict, and none of the proposed amendments was ever ratified. It was only logical that the delegates should attempt a compromise under which Congress would share with the states its power to propose amendments, and the states would surrender some of their power to veto amendments.*

At first the convention considered giving the states the sole power to propose amendments, but the delegates later rejected this system as inconsistent with a constitution which was intended "to be paramount to the state constitutions".5 The convention then adopted a resolution by Madison, which clearly vested in Congress the dominant role in the amending process:

"The Legislature of the United States whenever two-thirds deem necessary, or on the application of two-thirds of the legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three-fourths at least of the legislatures of the several States, or by conventions in three-fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the United States."

Several of the delegates were uneasy about a constitutional arrangement that placed the central government in a position of superiority over the states and at the same time gave the central government a veto over the amending process. Mason argued that this system would be "exceptional and dangerous" because "no amendments of the proper kind would ever be obtained by the people, if the

1 A list of the state applications is printed as an appendix to this article.

2 Letter from Professor Charles L. Black, Jr., to Arthur J. Freund, Jan. 7, 1963, in 109 Congressional Record 8263-65 (1963). Former President Dwight D. Eisenhower stated in a speech on May 26, 1963, that the people could amend the Constitution "through their state legislatures and without regard to the Federal Government. Washington Post, May 27, 1963. Newspaper comments on the "states rights' amendments" controversy are collected at 109 Congressional Record 8267-71, 9649-51, 10663-64, 11331-33, 12137-38 (1963).

See generally, Schelps, The Significance and Adoption of Article V of the Constitution, 26 Notre Dame Law. 46 (1950); Martig, Amending the Constitution Article Fire: The Keystone of the Arch, 35 Mich. L. Rev. 1253, 1267-69 (1937); Note, 70 Harv. L. Rev. 1067 (1957).

62 Farrand, Records of the Federal Convention of 1787 557-59 (5th ed. 1937). In contrast, the Constitution of the Confederate States of America did give the states the exclusive power to propose amendments. Commander Documents of American History 384 (6th of 1958).

•Id. at 559.