Harvard Journal of Legislation 127 (1973) NOTE LIMITED FEDERAL CONSTITUTIONAL Introduction Article V of the United States Constitution offers two distinct procedures for constitutional amendment: initiation by two-thirds of each House of Congress and ratification by three-fourths of the states, or a convention called on petition of two-thirds of the states and ratification of its proposals by three-fourths of the states.1 No constitutional amendment has ever successfully traveled the convention route. Indeed, there has not been a federal constitutional convention since 1787.2 The convention clause is hardly a "dead letter," however, for there have been numerous efforts to call an article V convention. As recently as 1967, unrest attributable to the Supreme Court's "one man-one vote" decisions of the early 1960's had affected state legislatures to the extent that arguably 32 states only two short of the required had petitioned Congress for a constitutional convention." 34 1 The Congress, whenever two thirds of both Houses shall deem it neces U.S. CONST. art. V. 2 There have been federally called state conventions, however. See text at notes 73-85 infra. 3 See Prager & Milmoe, Table of State Applications for an Article V Convention, in ABA Special Constitutional Convention Study Committee, Report of American Bar Association Constitutional Convention Study Committee app. B [hereinafter cited as ABA Report]. The table records over 300 convention applications from state legislatures. 4 Lucas v. Forty-Fourth General Assembly, 377 U.S. 713 (1964); Reynolds v. Sims, 377 U.S. 533 (1964); Baker v. Carr, 369 U.S. 186 (1962). Lucas, invalidating an apportionment plan which had been approved and instituting one defeated in a statewide popular referendum, generated particular discontent. 5 See Graham, Efforts to Amend the Constitution on Districts Gain, N.Y. Times, Mar. 18, 1967, at 1, col. 6. For a general background on the effort and its rationale, see Dirksen, The Supreme Court and the People, 66 MICH. L. Rev, 837 (1968). One consequence of this activity was the introduction into Congress of legislation to establish procedures for the calling and holding of a national constitutional convention. The bill, authored by Senator Sam Ervin (D.-N.C.), passed the Senate 84 to 0 in 1971, but died in the House. It was reintroduced in the 93d Congress, and the Senate passed it again in July 1973. The Ervin Bill stimulated renewed interest in constitutional conventions. The American Bar Association soon became involved; in July 1971 it created a Special Constitutional Convention Study Committee to "evaluate the ramifications of the constitutional convention method of initiating amendments." The Special Committee had much to study, for the vagueness of the Article V convention clause has given constitutional scholars ample opportunity to debate the form, powers, and procedures of a federal convention. In the vacuum created by lack of firm federal precedent, convoluted exegesis and painstaking dissection of the "legislative history" of article V (i.e., The Federalist, and the various Notes on the convention of 1787) have flourished.10 Madison's objection to the convention mechanism, voiced in 1787, has proven to be prophetic: "difficulties might arise as to the form, the quorum, etc., which in Constitutional regulations ought to be as much as possible avoided."11 Of the many disputes which have arisen in the contemplation of a national convention, none has been so hotly debated as whether or not such a convention can be "limited." Can the petitioning states, or Congress, or both, legitimately restrict the matters to be considered by an article V convention? The question 6 117 CONG. REC. 36,803-06 (1971). See also S. REP. NO. 336, 92d Cong., 1st Sess. (1971); 117 CONG. REC. 35,764, 35,988, 36,442, 36,753, 46,642 (1971); Hearings on S. 2307 Before the Subcomm. on Separation of Powers of the Senate Comm, on the Judiciary, 90th Cong., 1st Sess. (1967). 7 The bill was reintroduced in the Senate as S. 1272, 119 CONG. REC. S5017-19 (daily ed. Mar. 19, 1973); favorably reported by the Judiciary Committee, id. at $12,462 (daily ed. June 29, 1973); and passed by the Senate, id. at S12,728 (daily ed. July 9, 1973). 8 ABA Report, supra note 3, at 2. 9 The Notes are collected in THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (M. Farrand ed. 1911) (hereinafter cited as FARRAND]. 10 See, e.g., ABA Report, supra note 3, at 13-16; Kauper, The Alternative Amendment Process: Some Observations, 66 MICH. L. Rev. 903 (1968). 11 2 FARRAND, supra note 9, at 630. clearly is fundamental, for it goes to the very basis of the convention's powers and its relationship to the other organs of government. On one side in the dispute stand those who would proclaim a convention "the personification of the sovereign people assembled for the discharge of the solemn duty of framing their fundamental law."12 "The character and extent of a constitution that may be framed by that body is freed from any limitations i other than those contained in the Constitution of the United States." In the view of these opponents of limited conventions, a convention ought to be free to consider and propose whatever amendments it desires. On the other side stand those who would permit the states, Congress, or both to limit the convention, either by forbidding it to discuss specified matters (thereby leaving the convention free to deal with all other subjects at its discretion), or listing those topics which the convention may take up and precluding the consideration of all others. Delegates to a convention, in this view, "are but agents of the people, and are restricted to the exercise of the powers conferred upon them by the law which authorizes their selection and assemblage."14 That the issue is at once divisive and critical is demonstrated by the peculiar fact that the Special Constitutional Convention Study Committee unanimously agreed that a national convention could be properly limited "to the subject matter on which the legislatures of two-thirds of the states request a convention,"1 whereupon the Council of the ABA's Section on Individual Rights and Responsibilities (SIRR) "voted, without dissent, to reject and oppose the basic recommendations" of the Special 12 Walker, Myth and Reality in State Constitutional Development, in Major PROBLEMS IN STATE CONSTITUTIONAL REVISION 15 (W. Graves ed. 1960) (denominated a "myth"). 13 Livermore v. Waite, 102 Cal. 113, 117, 36 P. 424, 426 (1894) (dicta). 14 Quinlan v. Houston & T.C. Ry., 89 Tex. 356, 376, 34 S.W. 738, 744 (1896). 15 ABA Report, supra note 3, at 11. 16 Letter from Professor Jefferson B. Fordham to the Honorable Judge C. Clyde Atkins, Aug. 17, 1973. The Special Committee's Report was approved unanimously by the ABA House of Delegates at the latter's convention during the summer of 1973, an event attributable more to the absence of its enemies than the depth of its support. In rejecting the Special Committee's Report, the SIRR was disowning its Committee. At least one member of the SIRR — who is also on its Committee on National Constitutional Conventions - has commented that the "fundamental weakness" of the Special Committee's report was "its infirmly supported position that the legislatures applying for the call of a convention could limit convention jurisdiction to one or more specific subjects."" Though there never has been an article V convention, this Note suggests that the controversy surrounding limitation of such a body may be resolved, or at least focused, through examination of the state experience with limited conventions. Conventions have been the preferred instrument for thoroughgoing revision of state constitutions since the Delaware, New Hampshire, and Massachusetts gatherings of the late 1770's. To date there have been approximately 225 state constitutional conventions: New Hampshire has convened the most (15 — until 1964 the New Hampshire constitution could be amended in no other way), while 11 states have convened only one. Four-fifths of the states provide for such conventions in their constitutions, and in the remainder conventions have been held, often with judicial approval." If, as has been claimed, the constitutional convention is one of the original and significant American contributions to democratic political theory, it is the state experience which gives substance to that assertion. It is in the crucible of state legislatures, courts, and ballot boxes that the theoretical bases of the institution have been hammered out, and its relation to the more ordinary governmental bodies established. own child, inasmuch as the Special Committee was set up at the behest of SIRR Council in 1971. See ABA Report, supra note 3, at 1. 17 Letter from Professor Jefferson B. Fordham to the Honorable Judge C. Clyde Atkins, Aug. 17, 1973. 18 Sturm, State Constitutions and Constitutional Revision, 1970-1971, in Council. OF STATE GOVERNMENTS, THE BOOK OF THE STATES, 1972-73, at 10 (1972). 19 See A. STURM, THIRTY YEARS OF STATE CONSTITUTION-MAKING; 1938-68, app. C, 132-37 (tabular presentation of each state's provisions for constitutional conventions); Sturm, State Constitutions and Constitutional Revision, 1970-1971, in COUNCIL OF STATE GOVERNMENTS, THE BOOK OF THE STATES, 1972-73, at 24 [this table is hereinafter cited as Procedures for Calling Constitutional Conventions]; Note, State Constitutional Conventions: Limitations on Their Powers, 55 Iowa L. Rev. 244, 247 (1969) (hereinafter cited as Iowa Note]. 20 R. HOAR, CONSTITUTIONAL CONVENTIONS: THEIR NATURE, POWERS AND LIMITA TIONS 1-3 (1917) [hereinafter cited as HOAR]; J. WHEELER, THE Constitutional CON VENTION: A MANUAL on Its Planning, ORGANIZATION AND Operation xi (1961). This Note argues that the theoretical framework developed to support the prevailing view that state conventions may be limited is persuasive, that the similarities and differences between the state and federal levels make the case for limited article V conventions still more persuasive, and that the state experience sheds light on potential problems of limited article V conventions. The Note concludes that a limited federal convention is appropriate and that denying the states the opportunity to call a limited convention would be inappropriate under article V. I. LIMITABILITY: THE STATE EXPERIENCE "The customary manner of calling constitutional conventions in the United States is by resolution of the legislature followed by a submission of the question to the electorate," though there have been exceptions.22 The customary scenario proceeds somewhat as follows: the legislature passes a resolution initiating the convention; this is submitted to the electorate for approval; after approval the legislature passes an enabling act to provide for a budget, temporary officers, and the election of delegates; the delegates are elected; the convention meets; and the final product is submitted to the electorate for approval. The details of the process vary by state in particular, 12 states have constitutional provisions which require that the question of calling a convention be submitted to the electorate periodically, thus bypassing the legislature at the initial stage of the procedure-but the basic structure is surprisingly uniform throughout the nation." 21 Annot., Power of State Legislature to Limit the Powers of a State Constitutional Convention, 158 A.L.R. 512 (1945). 22 Most of these occurred before the present century. Examples include the first state conventions of the late 18th century, which were "revolutionary" in origin as well as outlook; the congressionally instigated conventions preliminary to statehood, discussed in part II(A) infra; and the Reconstruction conventions held after the Civil War. Modern exceptions include conventions in those states in which the state constitution provides that the convention question shall be submitted to the people periodically, and those conventions called by popular initiative in states allowing such procedures. See Procedures for Calling Constitutional Conventions, supra note 19. 23 See Procedures for Calling Constitutional Conventions, supra note 19. This is not to suggest that the details of the process of amending a constitution through a constitutional convention always are handled smoothly or without legal questions. See generally, e.g., Dodd, State Constitutional Conventions and State Legislative |