Mr. FEERICK. There was a lot in what you said. I think the thrust of what you said is certainly consistent with the views of our association and the committee as expressed in our report.

Senator THURMOND. What I have expressed here is in accordance with the views of your committee of the American Bar Association? Mr. FEERICK. Essentially, yes.

Senator THURMOND. That is all, Mr. Chairman.

Thank you.

Senator BAYH. Thank you very much.

Mr. FEERICK. Thank you very much.

Senator BAYH. It is a pleasure to have you again before us, and I wish you would pass our compliments on to your colleagues. Mr. FEERICK. Thank you very much.

[Mr. Feerick's prepared statement, the study submitted by the American Bar Association, and additional material follow:]

PREPARED STATEMENT OF JOHN D. FEERICK ON BEHALF OF THE AMERICAN Bar ASSOCIATION

Mr. Chairman and Members of the Subcommittee, I am John D. Feerick, a practicing attorney from New York City. I appear before you today at the request of Leonard S. Janofsky, President of the American Bar Association, to share with you our views on the issue of legislation to establish procedures for amending the Constitution by means of a national constitutional convention. I commend the Subcommittee for undertaking these hearings. What once may have seemed an issue of academic interest only has become a matter deserving serious national attention. The recent calls for a constitutional convention on a balanced budget and related issues are but the latest manifestation of a growing trend. While a national constitutional convention has never been held, every state has submitted at least one application for a convention, and there have been several hundred applications submitted in toto. From 1940 to 1942, more than thirty states petitioned for a convention to deal with the federal taxing power, and between 1963 and 1969 thirty-three states submitted petitions on the issue of legislative reapportionment.

The reapportionment petitions in particular brought into sharp focus unsettled questions concerning the convention method or initiating amendments. Does Article V leave it to the discretion of Congress to call a convention? Can a convention be limited to a particular subject or would it be free to roam over the entire Constitution and propose an entirely new document? Do the executive and judiciary have, or should they have, a role in the process? What is a valid application? How long does it remain valid? Can it be withdrawn once it has been submitted?

Prompted by the controversy over the convention method generated by the reapportionment applications, the American Bar Association in 1971 established a special committee to look into the questions of law entailed in the calling of a national constitutional convention. The chairman of the committee was C. Clyde Atkins, a federal district judge, and the committee included two other judges, Sarah T. Hughes and William S. Thompson; a former deputy attorney general of the United States, Warren Christopher, who, of course, is now the Deputy Secretary of State; two law school professors, David Dow of the University of Nebraska Law School and Dean Albert M. Sachs of Harvard Law School; two former presidents of state constitutional conventions, Adrian M. Foley, Jr., of New Jersey, and Samuel W. Witwer of Illinois; and me.

The committee conducted a two-year study on the subject and rendered a series of recommedations that were adopted by the Association at its August, 1973, meeting. Before addressing many of the specific recommendations, I would like to read a passage from the committee's report which I think well summarizes the underlying view of the Association on this issue:

"If we fail to deal now with the uncertainties of the convention method, we could be courting a constitutional crisis of grave proportions. We would be running the enormous risk that procedures for a national constitutional conven

tion would have to be forged in time of divisive controversy and confusion when there would be a high premium on obstructive and result-oriented tactics.

"It is far more prudent, we believe, to confront the problem openly and to supply safeguards and general rules in advance. In addition to being better governmental technique, a forthright approach to the dangers of the convention method seems far more likely to yield beneficial results than would burying our heads in the sands of uncertainty. Essentially, the reasons are the same ones which caused the American Bar Association to urge, and our nation ultimately to adopt, the rules for dealing with the problems of presidential disability and a vice-presidential vacancy which are contained in the Twenty-Fifth Amendment. So long as the Constitution envisions the convention method, we think the procedures should be ready if there is a contemporaneously felt need by the required two-thirds of the state legislatures. Fidelity to democratic principles requires no less."

Having concluded that legislation governing the convention method is highly desirable, the Association next addressed the issue of whether an Article V convention can be limited to a specific subject. We concluded in the affirmative.

Article V authorizes the state legislatures to initiate the convention process and imposes no express conditions on the scope of the convention which the states may seek. It was the view of our committee, however, that the state legislatures could exercise only a portion of their authority by calling for a convention limited to a specific subject. In this regard, the committee noted that at the state level, at which there have been more than 200 constitutional conventions, it seemed settled that the electorate may choose to delegate only a portion of its authority to a state convention and so limit it substantively.

With respect to the view that Article V sanctions only general conventions, the committee stated: "Such an interpretation would relegate the alternative method to an ‘unequal' method of initiating amendments. Even if the state legislatures overwhelmingly felt that there was a necessity for limited change in the Constitution, they would be discouraged from calling for a convention if that convention would automatically have the power to propose a complete revision of the Constitution."

The committee found support in both the text and history of Article V for its conclusion that a convention could be limited. The text of Article V evidences an intent that there be a national consensus in order to amend the Constitution. A two-thirds vote is necessary in each house of Congress to propose an amendment; there must be applications from two-thirds of the states to call a convention; ratification by three-forths of the states is necessary to ratify an amendment proposed under either method of initiation. This suggested to us that there must be a consensus of purpose among the states to hold a convention. When the states are at odds on the purpose of a convention, it seems wholly inconsistent with Article V to call one. Conversely when two-thirds of the states are in agreement on a particular, limited purpose, the conclusion is strong that a convention should be called, limited to that purpose.

As for the history of Article V, the amendment articles of a number of state constitutions adopted before the U.S. Constitution also suggested to the committee that a constitutional convention can be limited substantially. The language of the earliest draft of Article V submitted to the Constitutional Convention by the committee on detail indicates that a convention limited substantively was within its contemplation. That provision read: "On the application of the Legislatures of two-thirds of the States in the Union, for an amendment of the Constitution, the Legislature of the United States shall call a convention for that purpose" (emphasis supplied).

Sometimes the Constitutional Convention of 1787 itself is cited for the proposition that an Article V convention may not be limited, but that premise seems wholly inapposite: As the ABA report noted: "While the Constitutional Convention of 1787 may have exceeded the purpose of its call in framing the Constitution, it does not follow that a convention convened under Article V and subject to the Constitution can lawfully assume such authority."

The 1787 convention took place before the adoption of the Constitution when the states were independent and there was no effective national government. In addition, its work was submitted to the Continental Congress, consented to by that congress, and transmitted by it to the states for ratification. Moreover, as Thomas Cooley has observed, the 1787 convention was "a revolutionary proceeding, and could be justified only by the circumstances which had brought the Union to the brink of dissolution."

As for whether Congress is obliged to call a convention when the requisite number of applications have been submitted, the committee had little doubt. The language of Article V is mandatory, and the intent of the framers was made clear in the debate at the Constitutional Convention. Before the convention was a proposed Article V which provided in relevant part:

"The Legislature of the U.S. whenever two-thirds of both Houses shall deem necessary, or on the application of two-thirds of the Legislatures of the several States, shall propose amendments to this Constitution *

George Mason objected to the proposal, stating that both methods depended on Congress so that "no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive ***." His notes on the draft article read:

"By this article Congress only have the power of proposing amendments at any future time to this constitution and should it prove ever so oppressive, the whole people of America can't make, or even propose alterations to it; a doctrine utterly subversive to the fundamental principles of the rights and liberties of the people."

Gouverneur Morris and Elbridge Gerry then proposed the convention language and it was adopted. Alexander Hamilton, in Federalist paper 85, referred to Article V as contemplating “a single proposition." Congress would be obliged to call a convention, he stated, whenever two-thirds of the states concurred. He added: "The words of this article are peremptory. The Congress 'shall call a convention,' Nothing in this particular is left to the discretion of that body." In the first Congress, surrounding receipt of the first state application, Mr. Madison stated that when two-thirds of the states had concurred in an application, it would be "out of the power of Congress to decline complying, the words of the Constitution being express and positive relative to the agency Congress may have in case of applications of this nature."

Once a convention is called for a particular purpose, the committee concluded that the convention would have no authority to act with respect to other subjects. Were it to deviate from the subject that brought it into being and propose amendments on other subjects, the committee suggested that Congress could deal with the deviation by exercising its power over choosing the method of ratification and refusing to submit the amendments to the states. We also felt that judicial relief might be appropriate under such circumstances.

These issues are basic to the legislation you are considering today. But a variety of other issues are raised as one attempts to draft appropriate language.

1. CONTENT OF APPLICATION

Article V explicitly gives Congress the power to call a convention upon receipt of applications from two-thirds of the state legislatures. As a necessary incident of the power to call, the committee reasoned, Congress has the power to determine initially whether the conditions requiring a call have been satisfied. Not every state application, of course, is necessarily valid.

As the committee stated: "A reading of Article V makes clear that an application should contain a request to Congress to call a national convention that would have the authority to propose an amendment to the Constitution. An application which simply expressed a state's opinion on a given problem or requested Congress itself to propose an amendment would not be sufficient for purposes of Article V. Nor would an application seem proper if it called for a convention with no more authority than to vote a specific amendment set forth therein up or down, since the convention would be effectively stripped of its deliberative function. A convention should have latitude to amend, as Congress does, by evaluating and dealing with a problem."

The committee added that an application which expressed the result sought by an amendment (i.e., direct popular election of the President) should be proper since the convention would have the freedom to decide on the terms of the specific amendment. The committee also felt that it should not be necessary that each application be identical or propose similar changes in the same subject matter.

2. TIMELINESS

In Dillon v. Gloss, the Supreme Court stated that "the fair inference or implication from Article V is that the ratification must be within some reason1256 U.S. 368 (1921).

able time after proposal, which Congress is free to fix." It stated that "as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the States, there is a fair implication that it must be sufficiently contemporaneous in that number of States to reflect the will of the people n iall sections at relatively the same period, which of course ratification scattered through a long series of years would not do."

The committee expressed its view that this reasoning also was applicable to state applications for a constitutional convention. As the committee observed, the convening of a convention to deal with a certain matter certainly should reflect the "will of the people in all sections at relatively the same period * * *.” In the absence of a uniform rule, the timeliness or untimeliness of state applications would vary, it seemed to the committee, from case to case. It would involve, as the Supreme Court suggested with respect to the ratification area in Coleman v. Miller, a consideration of "political, social and economic conditions which have prevailed during the period since the submission of the [applications]."

3. WITHDRAWAL

Although there is uncertainty over whether a state may withdraw an application, the committee reasoned that there should be a rule allowing withdrawal. "In view of the importance and comparatively permanent nature of an amendment, it seems desirable that state legislatures be able to set aside applications that may have been hastily submitted or that no longer reflect the social, economic and political factors in effect when the applications were originally adopted. We believe Congress has the power to so provide."

4. ELECTION OF DELEGATES

From its study of Article V and conventions generally, the committee was led to the conclusion that in order for a convention to be representative of the people, its delegates should be elected by the people. It felt this was especially appropriate for the extraordinary happening of a national constitutional convention since the method was intended to supply the "people" with an alternative way of obtaining amendments "if the Government should become oppressive * * *," to quote George Mason's remark at the Convention of 1787.

5. APPORTIONMENT OF DELEGATES

On the question of the apportionment of delegates to an Article V convention, the ABA was of the view that in light of the governmental function to be performed, the one-person, one-vote standards should govern. The committee stated its view that an apportionment scheme based on representation in the House of Representatives also would be acceptable compliance, since it would respect existing state and district boundaries and assure each state at least one delegate. It doubted that a formula which afforded each state a number of delegates equal to its total representation in Congress would be held constitutional, since under that formula fifteen states would be over-represented at a convention by 50 percent or more.

6. CONVENTION VOTE

As for the necessary vote at a convention, the committee felt it was unwise and of questionable validity for Congress to prescribe a minimum vote by which the convention might propose an amendment, since such action would intrude into an area touching on the essential characteristic of a convention as a deliberative body and would be inconsistent with the farmers' design that the convention process be as free as possible from congressional control. It is noteworthy that the territorial conventions held under acts of Congress, most state constitutional conventions and the Convention of 1787 have determined their own vote.

7. PRESIDENTIAL INVOLVEMENT

On the question of whether a convention call is required to be presented to the President, the committee concluded that it was not. It believed that the submission of that question to the President would be inconsistent with the mandatory nature of Congress' duty to call a convention when proper applica

307 U.S. 433 (1939).

3

tions had been submitted from the requisite number of states. As the President historically has not had a ro.e in the process by which Congress proposes amendments, it also would alter the parallelism and intended equality between the two methods of initiating amendments. Also supporting the conclusion is the Supreme Court's decision in Hollingsworth v. Virginia, which held that Article I, Section 7 (the veto provision), applies to "ordinary cases of legislation" and "has nothing to do with the proposition or adoption of amendments to the Constitution." The Court ruled the 11th Amendment to be valid although it had not been presented to the President.

8. GUBERNATORIAL INVOLVEMENT

For somewhat similar reasons as above, the committee concluded that the state governor is not assigned a role in the process by which a state legislature applies for a convention or ratifies a proposed amendment. It believed this followed from the Supreme Court's decisions in Hawke v. Smith,* and Leser v. Garnett.5

In Hawke the Court held that it was improper for a state to subject the ratification of a proposed amendment to a popular referendum, declaring that ratification was not ordinary legislation but rather an expression of assent in which "no legislative action is authorized or required." The Court emphasized that the agency for ratification was the "state legislature," that is, the representative lawmaking body of the state. The lawmaking procedures of the state, the Court held, were not applicable to the act of ratification. If the act of ratification does not invoke these procedures, which customarily include the governor's veto, it is hard to see why the application, a task specifically assigned to the legislatures by the Constitution, would do so.

9. JUDICIAL INVOLVEMENT

The committee, in its report, stated that it was desirable and feasible to have in any implementing legislation a limited judicial review of congressional determinations made in the convention process. It was influenced in this regard by the view that the convention process likely would be used to effect a constitutional change opposed by vested interests and against the backdrop of some congressional inaction. Under these circumstances, the committee believed, it was desirable to have our independent judiciary serve as the arbiter and thereby assure the legitimacy of the process.

The committee questioned both the wisdom and validity of legislation excluding the courts from any involvement, stating: "It is questionable whether the power [of Congress to withdraw matters from the jurisdiction of the federal courts] reaches so far as to permit Congress to change results required by other provisions of the Constitution or to deny a remedy to enforce constitutional rights. Moreover, we are unaware of any authority upholding this power in cases of original jurisdiction."

The committee suggested limits on judicial review in any legislation adopted on the subject. First, it suggested that a congressional determination should be overturned only if "clearly erroneous," which would acknowledge Congress' political role and at the same time guard against arbitrary action. Second, it recommended that judicial remedies be limited to declaratory relief so as to diminish actual conflict between the branches of government. Finally, it stated that judicial review should not be allowed to delay the amending process unduly; accordingly, it recommended a short limitation period combined with expedited judicial procedures.

In our view, the confusion about the convention method strongly argues, as long as the convention method remains part of the Constitution, for the establishment of procedures governing the process-procedures which neither facilitate the adoption of any particular constitutional change nor make practically impossible any resort to the convention method. As our committee noted: "The integrity of our system requires that when the convention method is properly resorted to, it be allowed to function as intended."

33 U.S. (3 Dall.) 378 (1798).

+253 U.S. 221 (1920).

5 285 U.S. 355 (1932).