Though the foregoing list is inconclusive and represents a minute proportion of potential state legislative respondents, the data does render an indication of potential convention subjects.

It is not inconceivable that such topics as "electoral college revision' might evoke sufficient support that the nation would be confronted with chaotic imbroglio. One state legislator, with fifteen years experience, expressed the following sentiment regarding the ease with which the requisite number of petitions might be secured:

It is possible that with pressure from such groups as the Council of State Governments, plus a well planned drive to have each state introduce and consider a particular petition, that within four years there would be more than ample requests for a convention.

Though there may be sufficient number of legislators who advocate numerous changes, the intensity and intention of those supporters may be questioned. One legislator, reflecting the apparent fear of an open constitutional convention, made this statement:

I have talked with many of my colleagues who were also frightened that a convention may completely undo the fundamental principles of our constitution. Many of them voted to have Congress call a convention, not because they wanted one necessarily, but because they wanted Congress to know how the legislators felt. From now on we will not petition for a convention, but simply urge the Congress to propose an amendment about a specific subject. This way, we know that there will be only one amendment, which we here in the states can accept or reject.

This statement does have some empirical support. Nearly three-fourths of all petitions seek constitutional revision, but not for the convention process.

Our survey responses reveal a wide range of attitudes, many of them expressing distrust of the convention, while others anticipate some significant results from the convening of a national constitutional convention:

I think that each state should take two consecutive sessions and consider major areas and then transmit their actions to the Congress.

I believe that we need to have a public referendum, requiring at least two thirds of those voting in the last election, before the state legislature considers the possibility of adopting a constitutional petition.

I see no real threat in conducting a constitutional convention, because all of its proposals have to be accepted by the States.

My colleagues, representing one of the largest states, feel that there ought to be a continuous constitutional convention. Each section of the constitution would receive a thorough hearing throughout the country during one year's time, after which any new amendment proposals would be voted on in convention and dispatched to the state legislatures for their consideration.

It would be possible for the Congress to actually solve many of the problem areas which are bothering the state legislatures. A convention might open Pandora's box.

V. CONCLUSION

Many people have argued that the convention process of amending the Constitution is an anomaly in the law. Nevertheless, state legislatures continue to petition Congress for establishment of conventions. Fifteen state legislatures had resolutions pending which called for a convention on the eighteen-year-old vote issue. The Ninety-second Congress recently adopted, and the states ratified, an amendment directed to this subject. With the preemptive action by Congress, the unused originating power of the state legislature remains to be tested. Pertinent legislation, giving clarification of the state petition and convention processes, has been explored in the Senate; yet, no decision has been concluded.

Any projections on the future direction of and the number of state petitions must certainly consider three basic factors: the intensity of the issue resulting in reaction by the state legislatures; the extent of organized pressure group activity throughout the country; and, the attitude of Congress toward the issue. Speculations on potential areas giving rise to numerous state petitions might include presidential powers and judicial review, though nearly all issues appearing in Table III could be ameliorated by legislative processes or by the first amendment procedure.

The four basic questions discussed in the preceeding pages deserve a final note. It would appear that a federal law requiring an identical form of petition and process is essential to eliminate the present state legislative application confusion. States have failed to initiate procedures achieving uniformity in petitions and processes and the outlook for any action seems negligible. The question of petition duration appears to be self-liquidating as more states adopt the philosophy of requiring two successive legislatures to give tacit or implied sanction to a petition. Because of the increasing tendency of Congress to give greater credence to public attitudes in the past five years, it appears that Congress would only in an unusual circumstance refuse to call a constitutional convention. An initial congressional response would most likely be in the form of an amendment for ratification by the states. Should the Congress establish a constitutional convention, state legislatures would undoubtedly conduct the proceedings as if the convention were merely a ratifying body rather than a deliberative structure. This attitude, plus the lack of federal laws governing the total petition and convention process, appears to leave the entire initiative of the indeterminate second amendment procedure in the realm of state control. Though the apportionment issue aroused public attention to the amendment question, it will require an additional highly volatile issue to provide the catalytic action necessary for resolution of the constitutional convention problem.

Article V of the United States Constitution provides that constitutional amendments may be initated in two ways-by two-thirds of both houses of Congress or by a convention called by Congress at the request of two-thirds of the state legislatures.1 The second initiation option was provided to afford states an opportunity to bypass congressional refusal to originate amendments of significant state and national concern.2 Although the architects of the Constitution evidently viewed the two methods as equivalent alternatives, initiation through state legislative application has never been accomplished; each of the twenty-six ratified amendments has been proposed by Congress.' As a result of this historical preference, little precedent exists relating to state initiation of amendments.

A.B., 1964, J.D. 1968, University of California (Berkeley); M.P.A. 1973, Harvard University; Executive Assistant to the Speaker of the Florida House of Representatives, 1970-1972. 1. The full text of article V reads: "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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

2. "The founders included the convention alternative in the amending article to enable the states to initiate constitutional reform in the event the national legislature refused to do so." Ervin, Proposed Legislation To Implement the Convention Method of Amending the Constitution, 66 Mich. L. Rev. 875, 885 (1968).

3. Between 1788 and October 1971 the states submitted a total of 304 applications for a constitutional convention. The following subjects have received the support of at least ten states: reapportionment (33), 1957-1969; direct election of Senators (31), 1893-1911; limitation of federal taking power (28), 1939-1960; prohibition of polygamy (27), 1906-1916; general constitutional revision (22), 1788-1929; and return portion of federal taxes to states (15), 1965-1971. 117 Cong. Rec. 16,519 (1971). Subsequent to this report by Senator Ervin, four additional states submitted revenue sharing applications. See note 6 infra.

4. Responding to the lack of clarity concerning article V convention procedures, Senator Ervin introduced S. 2307 in the 90th Cong., 1st Sess. Ervin, supra note 2, at 875. See Hearings on S. 2307 Before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 90th Cong., 1st Sess. (1967) [hereinafter cited as 1967 Hearings]. The bill was revised and reintroduced in the 91st Cong., 1st Sess. as S. 623. The Subcommittee reported

The paucity of understanding concerning the unused article V convention procedure became apparent when national organizations representing State legislators joined forces in 1970 to prod congressional action on federal revenue sharing. Pursuant to article V, a united effort was commenced to secure applications from thirty-four states requesting Congress to convene a constitutional convention dealing solely with revenue sharing. Thirteen states had enacted a model application, or a similar version, by the time revenue sharing was passed into law."

The most perplexing of the several questions raised by the revenue sharing convention campaign was whether a convention created by state application may be limited to a single subject or whether such a convention must open the entire Constitution to revision. The authority of the states and Congress to impose limitations on an article V convention is not evident through a literal construction of the article's language. Moreover, the Supreme Court has been noticeably silent regarding questions raised by the amendment process. The convention route has been useful in the past, 10 however, and it is

S. 623 to the full Committee on June 19, 1960, but no action was taken by the Judiciary Committee. The legislation was reintroduced in the 92d Congress on Jan. 26, 1971, as S. 215 [hereinafter cited as Ervin Bill]. On April 27, 1971, the Subcommittee on Separation of Powers reported the measure to the full Committee on the Judiciary. On July 31, 1971, the Committee reported S. 215 to the Senate with an accompanying report, S. REP. No. 92-336, 92d Cong., 1st Sess. (1971) (hereinafter cited as 1971 REPORT]. S. 215 passed the Senate on Oct. 19, 1971, 117 Cong. REC. 16,569 (1971). However, it received no action by the House Judiciary Committee during the 92d Congress. The bill has been reintroduced in the 93d Congress as S. 1272, sponsored by Senators Ervin and Brock.

5. These organizations were the National Legislative Conference, the National Society of State Legislators, and the National Conference of State Legislative Leaders.

6. States that applied to Congress for a convention on revenue sharing during this campaign were: Arizona, Delaware, Florida, Iowa, Massachusetts, New Jersey, North Dakota, Ohio, Oregon, Rhode Island, South Dakota, and West Virginia. Louisiana passed the model application with slight variations.

7. The State and Local Fiscal Assistance Act of 1972, Pub. L. No. 92-512, was enacted by the House on October 12, 1972, and by the Senate on Oct. 13, 1972.

8. Article V states that Congress shall call “a Convention for proposing Amendments." If these words are literally construed, it might be argued that a convention could not create an entirely new instrument to supersede the present Constitution, since its work would be confined to proposing amendments. Nevertheless, the convention could propose the equivalent of a new Constitution by a series of separate amendments. See C. BRICKFIELD, Problems Relating to a Federal ConstitutionAL CONVENTION, STAFF OF HOUSE Comm, on the JUDICIARY, 85th Cong., 1st Sess. (Comm. Print 1957) (hereinafter cited as BRICKFIELD, 1957]. But cf. Black, Amending the Constitution: A Letter to a Congressman, 83 Yale L.J. 196 (1972): "It is my contention that Article V, properly construed, refers, in the phrase 'a Convention for proposing Amendments,' to a convention for proposing such amendments as to that convention seem suitable for being proposed."

9. It has been suggested that many of the significant questions raised by article V will not be resolvable by the courts. See L. ORFIELD, The Amending of the Federal CONSTITUTION 7-36 (1942); Dowling, Clarifying the Amending Process, 1 WASH. & LEE L. Rev. 215 (1940); Note, Proposing Amendments to the United States Constitution by Convention, 70 Harv. L. REV. 1067 (1957). In Coleman v. Miller, 307 U.S. 433 (1939), the Supreme Court held that the effectiveness of a state's ratification of a proposed amendment, which it had previously rejected, and the period of time within which a state could validly ratify a proposed amend

clear from the revenue sharing campaign that the limitation issue must be clarified before legislatures will confidently employ their constitutional prerogative to initiate amendments.11

This article will examine the limitation issue, initially analyzing the legislative history of article V. Additionally, the practical effects of the framers' decision to provide both the national and state legislatures an opportunity to initiate federal constitutional change will be examined.

HISTORY OF THE Amendment Process at the 1787 ConsTITUTIONAL CONVENTION

The Virginia Plan, consisting of fifteen resolutions, was presented to the convention delegates by Edmund Randolph on May 29. Resolution thirteen dealt directly with amendments:12

13. Resolved that provision ought to be made for the amendment of the Articles of the Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto. Randolph's resolution was considered by the Commitee of the Whole on June 5 in a discussion focusing on the proposition "that provision ought to be made for [hereafter] amending the system now to be established, without requiring

ment were non-justiciable political questions within the exclusive determination of Congress. Strong dicta in a concurring opinion by Justice Black suggests that all questions arising in the amendment process may be non-justiciable: “Undivided control of [the amending] process has been given by the article exclusively and completely to Congress. The process itself is 'political' in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point." Id. at 459 (concurring opinion). However, there is evidence from several cases that some of the questions arising in the amendment process can be settled by the judiciary. Compare Leser v. Garnett, 258 U.S. 130 (1922); Dillen v. Glass, 250 U.S. 368 (1921); National Prohibition Cases, 253 U.S. 350 (1920); Hawke v. Smith, 253 U.S. 221 (1920). See also Trombatta v. Florida, 353 F. Supp. 575 (M.D. Fla. 1973), wherein the court held article 10, $1 of the Florida constitution unconstitutional under article V of the United States Constitution. The Florida article provided that the state legislature could not take action on any proposed amendment to the United States Constitution unless a majority of the members thereof were elected after the proposed federal amendment is submitted for state ratification.

10. "The campaign for direct election of Senators was stymied for decades by the understandable reluctance of the Senate to propose an amendment that jeopardized the tenure of many of its members. Frustrated by the Senate, the reform movement shifted to the States, and a series of petitions seeking to invoke the convention process were submitted to Congress. Rather than risk its fate at the hands of a convention, the Senate then relented and approved the proposed amendment, which was speedily ratified." 1971 REPORT, supra note 4, at 6.

11. Regarding the introduction of S. 215, Senator Ervin has commented: "Most important, there is no law on the books that would confine a convention to a specific amendment. If we are to avoid the possibility of a runaway convention and a constitutional crisis, I believe it is imperative that orderly procedures be established for the conduct of a constitutional convention." 117 Cong. Rec. 16,510 (1971).

12. 1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 22 (1911) [hereinafter cited as RECORDS].