against a limited convention "can be wrenched from Article V-but only through a mechanical and literal reading of the words of the Article, totally removed from the context of their promulgation and history."94 The Senator's reading of the historical record persuaded him that the framers "did not appear to anticipate the need for a general revision of the Constitution" and that they expected a "specific amendment or amendments rather than general revision."95 It is possible to quarrel with this reading of the record. Far more compelling is the practical argument advanced by the Sena tor: If the subject matter of amendments were to be left entirely Paul Kauper made the same point with perhaps even greater poignancy: [T]he usefulness of the alternative amendment procedure Thus the limiting language of the Ervin bill,98 while it is not compelled by legal logic, is clearly more in keeping with practical considerations and political feasibility. The Ervin bill supplies an equally realistic solution to the question of whether a state may recall its ratifying action: SEC. 13 (a) Any State may rescind its ratification of a proposed amendment by the same processes by which it five define procedures to be used by the states in making application to Congress for the calling of a constitutional convention. Sections six through ten establish procedures for congressional calling of a convention and regulate the convention's organization and conduct. Section eleven provides that congressional approval of any amendment agreed upon by the convention must occur within ninety days; sections twelve and thirteen deal with the ratification process. "Ervin. Proposed Legislation to Implement the Convention method of Amending the Constitution, 66 MICH. L. REV. 875.881 (1968). 95 Id. at 882. 96 Id. at 883. "Kauper, supra note 27, at 912. "The bill originally introduced by Senator Ervin read: No convention called under this Act may propose any amendment or amend- S. 2307, 90th Cong., 1st Sess. § 10(b) (1967). See also Ervin, supra note 94, at 900. 59-609 0 - 80-46 ratified the proposed amendment, except that no State may 99 (b) Any State may ratify a proposed amendment even though it previously may have rejected the same proposal. Section 13(b) confirms prior practice and the specific ruling in Coleman v. Miller.100 Section 13(a), on the other hand, breaks new ground but addresses itself to a problem which, subsequent to the drafting and introduction of the Ervin bill, appeared as a concrete issue.101 Again it would appear that the solution is founded less in consideration of the legal constraints than in the perspective of the practicalities of the political process. If the action of a state legislature on a proposed amendment to the Constitution of the United States were viewed as an ordinary legislative act, rescission of the amendment would be permissible, essentially as if it were the repeal of a statute. But the established view is that ratification is not a legislative function. When Congress proposes an amendment, its power to do so derives from article V; and when a state legislature acts on the proposal, it does so by virtue of, and in accordance with, article V.102 The legislature acts in a constituent capacity, not a legislative one. It could be asserted that constitution-making, as distinguished from law-making, is an event of unique impression and that the states are called upon to engage in this function but once for each proposal. The logic of this reasoning would, of course, require rejection of the present rule that ratification following rejection is a valid exercise of the state's role under article V. Even without considering the practical aspects, this "onechance-only" approach stands on weak foundations. Conceptually, one could argue that a constituent act is an exertion of the will of the people at one time. However, article V precludes this by dividing the constituent act into two phases, one of which (the proposal) has to precede the other (the ratification).103 Once this separation is made, and given further the lack of coincidence in time of state legislative sessions, it seems difficult to maintain that the second phase of the constituent act cannot take place at "S. 215, 92d Cong., 1st Sess. § 13 (1971). See also Ervin, supra note 94, at 902. 100 307 U.S. at 433. See note 66 and accompanying text supra. 101 In the spring of 1973, resolutions were introduced in the legislatures of several states seeking rescission of a previous ratification action of the Equal Rights Amendment. Nebraska's legislature acted to rescind. N.Y. Times, Mar. 16, 1973. § 1. at 1. col. 4; N.Y. Times. Mar. 17. 1973. § 1. at 13. col. 3. 102 Hawke v. Smith. 253 U.S. 221. 229 (1920); Opinion of the Justices. 118 Me. 544. 546-47. 107 A. 673, 674 (1919). See also L. Orfield, supra note 23. at 62-63. 103 See note 55 supru. any time within the period allowed by Congress. Within that period, can the constituent will be required (or expected) to remain constant? The answer would seem to be that, if the constituent will is sovereign, one can hardly forbid it to change. Permeating the Ervin bill is the assumption, derived from the concurring opinion in Coleman, that the amending process is political and properly the exclusive province of Congress. Earlier it was suggested that Coleman v. Miller might not be as strong a precedent today as it seemed even two decades ago. 104 The Ervin bill would make this question entirely academic, for it proposes to withdraw the amending process from judicial review altogether.105 As Paul Kauper observed, whether Congress can insulate the questions as thoroughly 106 Since these words were written, the personnel of the Supreme Court has undergone major change, with the newer members displaying a marked tendency to defer to Congress.107 The Ervin bill's foreclosure of judicial review probably runs less risk of judicial nullification today than it did five years ago. Meanwhile, activity on the amendment front continues unabated. Applications for a convention to amend the Constitution appear to have become the preferred mode of response by those who dislike a given ruling by the Court.108 It must be expected that, sooner or later, there will be a congruence of applications compelling a congressional call for a convention. Hopefully, the Ervin bill (or an equivalent) will have prepared for the event. Once a convention has taken place and the feasibility of this process has been demonstrated, it can be anticipated that the device will be employed with increasing frequency. Formal amendment will then assume new importance in the constitutional scheme and in the political life of the nation. Presumably, a 104 See note 71 and accompanying text supra. 108 S. 2307, 90th Cong., 1st Sess. §§ 3(b), 5(c), 10(b), 15(c) (1967). 106 Kauper, supra note 27, at 908. 107 Kauper. A Look at the Burger Court and a Look Back at the Warren Court. 17 LAW QUADRANGLE NOTES (Univ. of Mich.) 6. 11 passim (1973). 108 In response to Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973), twelve State legislatures petitioned Congress, within five months of the decisions. for a convention to amend the Constitution by providing a definition of "person" to include a fetus at any state of development after the moment of conception. POPULATION Crisis, July-Aug., 1973, at 1. concomitant consequence would be a decline in the importance of informal amendment-and hence in the role of the Supreme Court. Whether this is or is not desirable is an issue of great dimensions. Involved are such basic propositions as the ability of democratic government to be responsive to the public's needs and wants, and the perennial question of the balance among the three branches of a government based on a separation of powers. These are issues that are quite clearly political to the highest degree. Thus the essence of the American constitutional scheme is, as in other nations, revealed as preeminently political. The change foreseen by the concurring justices in Coleman may in fact be imminent and appropriate. 109 See note 67 and accompanying text supra. (The Minnesota Law Review, May 1967) 1053 The Alternative Amending Clause in Article V: Reflections and Suggestions Morris D. Forkosch* I. INTRODUCTION Current efforts to amend the Constitution to reverse or modify Baker v. Carr1 and allow state legislatures to apportion themselves on standards other than the Supreme Court's “one man, one vote" standard necessitate a review of the Constitution's amending provisions.2 Article V of the Constitution provides two methods for proposing constitutional amendments. First, amendments may be proposed by two-thirds of both Houses of Congress. Second, "on the application of the Legislatures of twothirds of the several states, [Congress] shall call a convention for proposing amendments." Since 1787, the Constitution has been amended twenty-five times. In each case, the amendments were proposed by Congress pursuant to the first alternative.3 As a result, the appropriate powers and procedures relating to the first alternative are clearly understood.* Given Congress' apparent unwillingness to take the initiative concerning a reapportionment amendment," the question becomes whether Congress will be forced to call a Constitutional Convention under the second alternative. Since the Baker decision in 1962, at least thirty-two State legislatures have sent forty-seven separate communications to Congress urging the proposal of a reapportionment amendment. Many of these communications Professor of Law, Brooklyn Law School. 1. 369 U.S. 186 (1962). See also Reynolds v. Sims, 377 U.S. 533 (1964); Gray v. Sanders, 372 U.S. 368 (1963). 2. Perhaps the "Dirksen amendment" best typifies these current efforts. On January 6, 1965, Senator Dirksen and a number of other Republicans proposed that the Constitution be amended "to preserve to the people of each State power to determine the composition of its legislature and the apportionment of the membership thereof." S. J. Res. 2, 89th Cong., 1st Sess. (1965). See also 111 CONG. REC. 166, 235 (daily ed. Jan. 6, 1965) (remarks of Senators Dirksen and Douglas). 3. Dillon v. Gloss, 256 U.S. 368, 373-74 (1921). See also Christian Science Monitor, April 3, 1967, p. 9. See, e.g., Coleman v. Miller, 307 U.S. 433 (1939) (adoption and ratification); Dillon v. Gloss, 256 U.S. 368 (1921) (proposal procedures); Keogh v. Neely, 50 F.2d 685, cert. denied, 284 U.S. 583 (1931) (methods). 5. The Dirksen proposal was sent to the Senate Judiciary Committee where it died. 6. Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Minnesota, |
