out that "proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor." In that endeavor, state governments do not act on the basis of their sovereign status but under a special power conferred by the national constitution. As Judge Jameson wrote, the power to amend the constitution is not a power belonging to the states "originally by virtue of rights reserved or otherwise." As a consequence, "when exercised, as contemplated by the constitution, by ratifying, it ceases to be a power, and any attempt to exercise it again must be a nullity... [Once] ratified, all power is expended."11 That view also has the support of the eminent Professor Dodd. He has stated that the view "is incontrovertible, that a state, once having ratified, may not withdraw that ratification . . . to construe the Constitution otherwise, would be to permit great confusion in that no state in ratifying could know what the status of the amendment was if at the same time other states were permitted to withdraw. Of course, confusion would occur also in that it would be difficult to know when thres-fourths of the states had ratified . . . The function of ratification seems to be one which, when once done, is fully completed and leaves no power whatever in the hands of the state legislature."'11 The highest courts of two of the American states have achieved the same conclusion. In Wise v. Chandler,13 the Court of Appeals of Kentucky said: "It is the prevailing view of writers on the question that a resolution of ratification of an amendment to the Federal Constitution, whether adopted by the Legislature or a convention, is irrevocable. This conclusion seems inescapable as to the action of a convention called for the purpose of acting upon an amendment. When it has acted and adjourned, its power is exhausted. Since the 'powers and disabilities' of the two classes of representative assemblies mentioned in Article V are 'precisely the same', when a Legislature, sitting, not as a lawmaking body, but as such an assembly, has acted upon a proposal for an amendment, it likewise has exhausted its power in this connection." The Supreme Court of Kansas, about the same time and through the medium of the case of Coleman v. Miller, 15 declared: "It is generally agreed by lawyers, statesmen and publicists who have debated this question that a . . . ratifi 10 See Dillon v. Gloss, 256 U. S. 368 at 374, 41 S. Ct. 510 at 512, 65 L. Ed. 994 at 997 (1921). 11 Jameson, A Treatise on Constitutional Conventions: Their History, Powers and Modes of Proceeding (Callaghan & Company, Chicago, 1887), §§ 579 and 581. 12 Dodd. "Amending the Federal Constitution," 30 Yale L. J. 821 (1921), particularly p. 346. 13 270 Ky. 1, 108 S. W. (2d) 1024 (1937). 14 270 Ky. 1 at 8-9, 108 S. W. (2d) 1024 at 1028. 15 146 Kans. 390, 71 P. (2d) 518 (1937). cation once given cannot be withdrawn. . . [From] historical precedents, it is... true that where a state has once ratified an amendment it has no power thereafter to withdraw such ratification. To hold otherwise would make article 5 of the federal constitution read that the amend ment should be valid 'when ratified by three fourths of the states, each adhering to its vote until three fourths of all the legislatures shall have voted to ratify.'. . . [When] a proposed amendment has once been ratified the power to act on the proposed amendment ceases to exist.' 16 What room is there, then, for supposing that a different view should be applied to the matter of retracting a state resolution calling upon Congress for a convention to consider a proposed amendment? When a state adopts an original resolution memorializing Congress to that end. it is not exercising a sovereign power exclusively its own, nor merely leg islating simply on behalf of its own people, but is engaging in a “federal" function. That fact places such activity within the exclusive domain of federal jurisdiction and completely removes the same from the pale of the state province and beyond the power of state withdrawal. The truth of this is manifest since the function of a state legislature, in memorializ ing Congress to call a convention for the purpose of proposing an amendment, is derived wholly from the federal constitution. It is no different, in source, than the function of Congress in proposing an amendment, or the function of a state legislature voting to ratify the same. Since the latter functions have been judicially identified as "federal functions" totally without state realm," the conclusion would appear inescapable that the purported rescinding resolutions are of no effect whatever. It is submitted, therefore, that Congress should act, at the latest, when four more state legislatures vote in favor of a constitutional convention to consider the proposed income tax rate limitation amendment. F. E. PACKARD 16 146 Kans. 390 at 400-3, 71 P. (2d) 518 at 524-6. 17 In Coleman v. Miller, 146 Kans. 390 at 392-3, 71 P. (2d) 518 at 520 (1937), the Supreme Court of Kansas said: "It is settled beyond controversy that the function of a state legislature in ratifying a proposed amendment to the constitution of the United States, like the function of congress in proposing an amendment, is a federal function derived from the federal constitution; and it transcends any limitation sought to be imposed by the people of a state. The power to legislate in the enact ment of the laws of a state is derived from the people of the state, but the power to ratify a proposed amendment to the federal constitution has its source in that instrument. The act of ratification by the state derives its authority from the federal constitution, to which the state and its people alike have assented.... If the legislature, in ratifying a proposed amendment, is performing a federal function, it would seem to follow that ratification is not an act of legislation in the proper sense of that term. It has been so held." CONSTITUTIONAL CONVENTIONS AND STATE LEGISLATORS Doyle W. Buckwalter+ 1. INTRODUCTION RECENT EFFORTS TO AMEND THE UNITED STATES CONSTITUTION, i.e., apportionment, a rewriting of article V, and legislation to implement the amending clause, have directed considerable public attention to the possibility of a constitutional convention. The recent spate of congressional and academic discussions have revealed several basic issues in this controversy, many of which have surprised public officials. With the death of Senator Everett Dirksen in 1969, and the apparent insufficient number of state petitions for a convention, the impetus for an immediate convention has dramatically diminished. Yet, the fate of congressional bills to operationalize the convention portion of article V remains indeterminate. Such legislation, in essence, would establish explicit procedures for state and federal government involvement in establishing constitutional conventions.' There has been little attempt to ascertain state legislative attitudes and to integrate additional data on state legislative processes on the subject of constitutional conventions. Consequently, this paper shall: (1) consider a brief history of article V, and (2) discuss four basic questions of the convention controversy and how these are perceived by state legislators throughout the United States. II. EARLY PREcedents and Debates As the Constitutional Convention of 1787 convened to consider basic plans for revising the Articles of Confederation, there were several alternative approaches to the question of future alteration of the Articles. It became ostensibly clear that a major focal point of discussion would be the inoperative amending process. Charles Pinckney, in his “plan for a Federal Constitution," urged on May 29, 1787, the following amendment procedure: If two-thirds of the Legislatures of the States apply for the same, the Legislature of the United States shall call a convention for the B.A., M.A.. Brigham Young University; Ph.D., University of Michigan. Assistant Professor of Political Science, Brigham Young University. 'Senate bills, S. 12307, 90th Cong., 1st Sess. (1967), and S. 623, 91st Cong., 1st Sess. (1969), were the principal procedural legislative measures. purpose of amending the Constitution; or, should Congress, with Pinckney expressed deep concern that unless alteration of the unanimous consent clause of the Articles was imminent, the nation would inevitably continue in its "depressed situation." The Virginia Plan, suggested by Edmund Randolph, contained in its Resolution XIII the reference to amendments: [P]rovision ought to be made for the amendment of the Articles Charles Pinkey "doubted the propriety or necessity for the last clause," and Elbridge Gerry claimed that "[t]he prospect of such a revision would also give intermediate stability to the Government." It was Mason who strongly advocated not requiring the assent of the national government. He asserted it was: better to provide for them in an easy, regular and constitutional There was unanimous acceptance of Randolph's proposal with the exception of the last restricting clause. Subsequently, Alexander Hamilton presented his plan which called for adoption of the following amendment procedure: This constitution may receive such alterations and amendents as may be proposed by the Legislature of the United States, with the concurrence of two-thirds of the members of both Houses, and ratified by the Legislature of, or by Conventions of deputies chosen by the people in two-thirds of the States composing the Union.' 21 J. Madison, Journal of thE FEDERAL CONVENTION 72 (E. Scott ed. 1898). 'Id. at 110. 'Id. at 149. 71 THE RECORDS OF THE FEDERAL CONVENTION, supra note 3, at 149. |