intended the ratification mechanism to deal with maybe some of those concerns you have expressed.

But once again, we struck the balance as I indicated. The arguments that you advance certainly are very merited, and we didn't perhaps have the benefit of those arguments with the same degree of insight and eloquence that you have just put them out with.

Senator BAYH. This was completed in 1974. Is it possible to get an update of the thoughts of the committee?

Mr. FEERICK. Yes; I believe so, even though the committee doesn't any longer have any legal existence within the American Bar Association.

I think, as we have done in the past when a committee has completed its work on a subject, and a member of the committee has been designated to be a continuing representative of that work, it has been my practice to represent the members of the committee on any suggestion that we might be advancing on details.

I can recall vividly on the subject of Electoral College reform that after taking a number of very detailed positions other issues developed, and we subsequently dealt with those issues on an informal basis by tapping back to the people who originally were involved.

So our position is out there. I don't want to be presumptuous. I doubt that we are going to change our position on matters that are specifically contained in our report.

We did not take a position on what the vote should be at the convention. All we took a position on was that the legislation should not specify that vote.

So there is an open issue as to how the members of this committee, as a group of individuals, would feel about what the vote should be at the convention in terms of what the convention should do. I don't know if that is one that our committee would want to speak to, but I certainly will put the question to them.

Senator BAYH. I am not suggesting that you deal with this concern just because I raised it, but if there are other things that you feel might be indicated, the committee would always be glad to have your judgment. Let me move to

Senator HATCH. Would the Senator yield just on that point for a second?

You know, we elect Members of Congress by a simple majority vote and then they propose amendments by two-thirds votes. How does that differ from calling conventions by applications of twothirds of the States, and then proposing amendments at the convention by majority vote? Three-fourths of the States ratifying would still be necessary.

As I noted in my opening remarks, I strongly believe that consideration of this bill should be divorced from contemporary constitutional controversies. I am in complete agreement with Senator Bayh.

Senator BAYH. I apprciate the comment of my friend from Utah, but we also elect city clerks by majority vote. We are not talking about a general election. We are talking about amendment of the Constitution of the United States, and we have not amended once by a process of a vote other than two-thirds.

We will work that out in the committee.

59-609 O 80 5

Mr. FEERICK. I will circulate the members of our old special committee, and if there are any additional comments in the light of that, I will convey them to you.

Senator BAYH. You are a busy man. I don't want to ask you to do something that will take a lot of time and effort.

Let me ask you: The three-judge panel as arbitrators, how do you recommend that they be appointed, and where do we find the authority for that kind of arbitration?

Mr. FEERICK. There are statutory provisions on the three-judge courts. The American Bar has recommended that there be very limited use of three-judge courts in the past, quite apart from this particular study.

We did not get into the type of issues you just mentioned about appointment of the members of the three-judge court, and frankly, I hadn't personally thought through that in that type of detail, and I would not feel that I would be able to speak with the confidence that this committee is entitled to without a little more thought on that. I would be happy, if I could, to respond to your question in writing.

Senator BAYH. Thank you.

[The information subsequently submitted follows:]

Hon. BIRCH BAYH,
U.S. Senate,

Washington, D.C.

NEW YORK, N.Y., March 18, 1980.

DEAR SENATOR BAYH: This is in response to your inquiry when I testified if I could survey the members of the Association's Special Constitutional Convention Study Committee concerning the vote for proposal of a constitutional amendment by a national constitutional convention. As you know, the Committee recommended that the required vote be left to the convention to decide.

The Committee, as a functioning group within the Association, no longer is in existence. It ceased operating after it had completed its study in 1973 with the publication of its report, entitled "Amendment of the Constitution by the Convention Method Under Article V." However, as you requested, I wrote to the members of the Special Committee subsequent to my testimony inviting them to express any additional views they might have on the question of the vote. No additional views were communicated to me. Since the 1973 recommendations of the Committee were approved by the Association's House of Delegaes, I believe a process of committee study followed by Association action would be required before any new positions could be taken, if such were to be the case.

of

Although I am not in a position to communicate any additional views of the Association other than those contained in the above-mentioned report, I am, course, available to assist the Committee on an individual basis with its study of the subject of constitutional convention procedures legislation.

Once again, I would like to thank you and the Committee for affording us the opportunity to testify on this subject.

Sincerely,

Senator BAYH. One last question.

JOHN D. FEERICK.

One of the real issues concerning us, of course, is the question of the ability to limit the jurisdiction. Your committee concludes that this can be done.

Mr. FEERICK. Yes.

Senator BAYH. Do you have any doubts at all that this might be something that could be challenged by a sitting convention, by the first convention called to revise the articles? They might say that the

paraphernalia that the Congress has provided is not listed in the Constitution, and that that body is free and independent to do what it, likes. Do you have any doubt in your mind?

Mr. FEERICK. Speaking as a spokesman for our study committee, I do not think there is any type of a committee view on it.

Senator BAYH. Excuse me. The reason I asked that is, and I think we can get almost 100 percent approval, this is what it ought to be, but whether it can be based upon the mandate of authority is the question I raise.

Mr. FEERICK. I guess the way I would answer it for myself in terms of doubt is to say that it is a possibility—maybe more than a possibility under certain circumstances where there is strong emotion about a particular subject.

But if that possibility were to occur, we think there are controls for dealing with it.

On the other hand, I personally do reflect a view that when we are talking about matters of serious business such as amending the Constitution of the United States, my experience as a practicing lawyer and working with this committee and the Congress is that people exercise those responsibilities mindful of the importance of the subject of amending the Constitution. This is similar to so many issues we grappled with in the 25th amendment. In that area, as you recall, we were concerned about what would happen if the President became insane and how the Members of Congress would handle their responsibility. I remember Herbert Brownell saying, "Well, there are those areas where you have to trust to the good faith of the people you put in office," whether it be Members of this body or a Constitutional Convention. Up to now that faith has been honored by the responsibility of people in moments of seriousness and crisis.

Senator BAYH. You know, I think that is something that is true, that we just trust that the Good Lord is watching over us.

I don't for a moment doubt the motivation of delegates, that they would do what they thought was in the best interests of the country, but it is a matter, I think, of general recognition that some of these constitutional amendment issues are very emotional, very deeply felt, and I do not believe it is beyond the realm of reason to suggest that a Constitutional Convention called for balancing the budget would find the very well-organized right to life opponents utilizing this.

They are well-motivated, but they could see that a majority of delegates elected in the States, in addition to wanting to balance the budget just coincidentally want to have a constitutional amendment on the question of abortion. Then when the question of ignoring the specificity is drawn to the convention, say, "We will bring in something else," particularly when you talk about emotional issues.

Mr. FEERICK. I hope I haven't left you with the impression that either I or the American Bar are advocates of a National Constitutional Convention. That is not an issue we addressed.

Senator BAYH. I understand.

Mr. FEERICK. People of experience and the exercise of restraint and reluctance, I think, needs to be part of amending the Constitution. But as I said before, we took article V as given, we put aside what personal views we had about how the Constitution should be amended.

Members of the committee certainly weren't polled as to whether they would prefer the congressional method, but frankly, based on my discussions with them, I doubt that anybody would say anything other than what I said about one's personal preference. But we put aside all that, and groped with these issues, mindful of the trust that the American Bar Association placed in us, and mindful of the fact that we are dealing with the United States Constitution. We went about it as thoroughly and objectively, with the limitations we had as a group, as possible.

Senator BAYH. I would add another adjective as democratically as the bar association usually proceeds in these matters. There is no question about that at all.

Look, if I might ask your permission to submit some questions to you in writing, because there are some others with respect to congressional delegates to conventions, delegates to the conventions, where a State legislator gets elected to the convention and then goes back and ratifies.

Questions like that may seem extreme, but it seems to me those problems are best anticipated in advance rather than to wait and suffer the consequences.

I apologize for talking so long. I yield to my friend from Utah.
Senator HATCH. I yield to the Senator from South Carolina.

Senator THURMOND. Mr. Chairman, I wonder if we could have 10 minutes each after this round, like they do in the Judiciary Committee. Would that be reasonable, instead of one member taking 30 minutes or 40 minutes? We could each be alloted 10 minutes.

Senator BAYH. That is fine.

Senator THURMOND. That is a rule that has worked pretty well. Senator BAYH. If I had known the Senator had time constraints, I would have yielded to him all my time at the beginning. He may have that next time.

Senator THURMOND. Mr. Feerick, we are glad to have you here.
Mr. FEERICK. Thank you, Senator.

Senator THURMOND. We appreciate your statement, and as I understand, you have come down on the side of a limited convention; is that correct?

Mr. FEERICK. We have come down with the conclusion that if the States, the State legislatures, asked for a limited convention, that such a convention can be convened under article V, yes.

Senator THURMOND. Article V, as I just read the pertinent portion here, and I would like for it to be in the record at this point, reads this way:

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution all 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, all by conventions in three-fourths thereof, as one or the other mode of ratification may be proposed by the Congress.

Now, I can see that a construction might be put on that section to mean that if we were to call a convention, it would have to be open, or I can see where, if you called a convention, that it would not have

to be open. However, it seems to me that if the legislatures of twothirds of the States so word their petitions that a convention be called and those petitions limit the scope of the convention to one or two items, or whatever it is, then the convention could legally and constitutionally be called in that manner.

I see nothing here in the Constitution, especially in this pertinent portion I just read, that would prohibit it.

Do you know of anything in the Constitution that would prohibit the States from submitting petitions along the line I have indicated so that a convention would be limited?

Mr. FEERICK. No. Assuming in your question that two-thirds of the States concur on a particular item or items so that there is a concurrence of the necessary two-thirds of the States.

Senator THURMOND. Two-thirds of the States?

Mr. FEERICK. Concur on a particular item.

Senator THURMOND. Concur and agree that they want a convention to be limited to one item, say, a balanced budget, for instance, or abortion, or any other subject.

Then, is there any reason why their wishes as expressed in their petitions could not be conveyed to the Congress, and is there any reason why the Congress should not abide by their wishes? I see nothing in the Constitution that would demand that a convention be open to any and all subjects.

Mr. FEERICK. There is no disagreement between us, Senator. I agree with you.

Senator THURMOND. You agree with the same proposition, in other words.

I am of the opinion that there is no logical reason to construe the Constitution otherwise and say that although the legislatures of twothirds of the States submitted petitions for a limited convention, we are forced to have an open convention.

If the States wanted an open convention, the petitions would have just signified to that effect, or if they wanted to consider two subjects at the convention, the States would so signify. That, to me, makes good sense.

If you didn't follow that construction, then would not the States be discouraged from calling for a convention, for fear that if you do have one, then it could upset the entire system of government and change the entire form of government?

Mr. FEERICK. Our committee expressed similar views in our report, Senator.

Senator THURMOND. I am strongly of the opinion that this committee should take the position that whatever is contained in the petitions, then Congress would be bound by that request, to take up one subject, or two subjects, or have an open convention, or whatever, that the States ask and request, and that we should be limited to that.

If we don't do that, and make any other construction, then we might as well write off this provision of the Constitution of the States calling conventions unless the States wish to take the risk of changing the entire form of government.

Do you agree with that?