(North Dakota Law Review 1979) AMENDING THE CONSTITUTION BY THE ARTICLE V CONVENTION METHOD DOUGLAS G. VOEGLER I. INTRODUCTION Article V of the United States Constitution reads as follows: The Congress, whenever two-thirds of both Houses shall Two methods of amending the Constitution are provided for in this Article. Under one method, the amendment is initiated by Congress. Under the alternative method, Congress, after being petitioned by the states, calls a convention to propose amendments. Since our Constitution was adopted in 1787, it has been amended only twenty-six times. If the first ten amendments, the Bill of B. A., University of Nebraska, 1973; J. D., University of Nebraska — Lincoln School of Law, 1976; former law clerk, Honorable Paul W. White, Chief Justice, Nebraska Supreme Court. 1. U.S. CONST. art. V. The "Authorization to Sell Reserved Mineral Interests to Surface Owners" ignores two already existent solutions to the conflicts in surface development with reserved mineral rights. The land developer is, like any other citizen, free under the mining laws to locate mining claims in good faith. He must do the required annual assessment work thereafter. but such assessment work provides for exploration and development work on a gradual and continuing basis," which is precluded by selling the mineral rights at a point in time when an existent mineral value may be much lower than the value future circumstances and developments could realize. The second solution possible under present mining laws is a withdrawal of the land from mineral entry. If the surface. development of public land is desirable, Congress has the power to withdraw that piece of land from mineral entry. But just as the courts have found it easier to entrust the mining laws to land agencies, so the Congress puts up little resistance to easing its responsibilities with regard to withdrawing public land from mineral entry. The despotism of administrative law fills the void at the expense of all the practicality inherent in American mining law. Without the mining laws, which are our heritage, we will be without a true and tested system of mineral development. Administrative law is already without representation from mineral development people, without judicial control, and without the immediate desire to develop minerals. Lacking these, the liquidators of our mineral wealth can not truly concern themselves with a better system. A triumph for the "rule of man" in the Department of the Interior is no triumph for Man. 55. Mining Law, 30 U.S.C. §28 (1872); See generally: Mining RIGHTS ON THE Public Domain, supra, note 25, at 108-137. Rights, (which were adopted almost simultaneously with the adoption of the Constitution, and can therefore be considered a part of the original document) are excluded from this count, the Constitution has been amended a mere sixteen times in nearly two hundred years. To date, all of the amendments to the Constitution have been proposed by Congress. There has never been a constitutional convention, "despite the fact that in the years since the Constitution was ratified... [several hundred] resolutions have been submitted to Congress by the States calling for national constitutional conventions.''? The Article V convention method has been called a "constitutional curiosity," the forgotten part of the article,* and “[o]ne of the best-known 'dead letter' clauses in the federal Constitution."'s While there has never been a constitutional convention, the Article V provision has not been without effect in our nation's history. During the ratification of the Constitution, the AntiFederalists expressed concern that the Constitution did not contain any provisions for the protection of certain basic rights of mankind. Virginia and New York petitioned Congress to call a convention to deal with this perceived defect. This led to Congress' proposing, in 1789, the Bill of Rights to quell these concerns.” At the turn of the century, public agitation grew for an amendment to the Constitution for the direct election of Senators. On several occasions between 1893 and 1902, the House of Representatives had passed resolutions calling for such an amendment. The Senate, naturally reluctant to propose an amendment which would place in jeopardy the tenure of its current members, refused to act. After a significant number of states petitioned Congress for a constitutional convention to deal with the problem, Congress, afraid of the peoples' 2. Cominent, Amendment by Convention, Our Next Constitutional Crisis?. 53 N.C.L. Rev. 491 (1975) (hereinafter cited as Comment). For a comprehensive list and analysis of the state resolutions calling for a constitutional convention American Bar Association Special Constitutional Convention Study Ce amittee. Amendment of the Constitution By the Convention Method Under Article 1' App. B. at 59-77 (1974) fhereinafter cited as A.B. A. Study]. 3. Comment, supra note 2, at 492. 4. Dirksen. The Supreme Court and the Prople. 66 Mich. L.. Rev. 837 (1968) [hereinafter cited as Dirksen]. 5. Dixon, Article V: The Comatose Article of Our Living Constitution?, 66 Mich. L. REV. 931, 943 (1968) [hereinafter cited as Dixon]. 6. Comment, supra note 2. at 499. 7. See A.B.A. Study, supra note 2. at 69-70, reaction should such a convention come into being, proposed the seventeenth amendment providing for the direct election of Senators.R In recent times, a significant attempt was made to invoke an Article V convention to reverse the Supreme Court decisions of Baker v. Carr, and Reynolds v. Sims, 10 concerning state legislative reapportionment. The Council of State Governments and the late Senator Everett M. Dirksen of Illinois led an attempt to amend the Constitution to permit one house of a state legislature to be exempt from the "one man, one vote" rule." After the Congressional route failed, the Article V convention method was pursued. By March 1967, "thirty-two states had submitted arguably valid applications to Congress only two shy of the magic number representing two-thirds of the States." On March 18, 1967, a New York Times' story caught the nation off guard, with these com ments: "(A) campaign for a Constitutional convention to modify the Supreme Court's ‘one man-one vote' rule is nearing success. It would be the first such Convention since the Constitution was drafted in Philadelphia in 1787.''13.. While this attempt to call a constitutional convention did not succeed, it did serve to stimulate a great deal of scholarly and Congressional debate over the Article V convention method. As a direct result, Senator Sam J. Ervin, Jr., of North Carolina introduced comprehensive legislation to deal with the Article V convention method on August 17, 1967." Senator Ervin's 8. "The history of the 17th amendment illustrates the usefulness of having a method by which a recalcitrant Congress can be bypassed when it stands in the way of the desires of the country for constitutional change." S. REP. No. 93-293. REPORT OF THE COMM. ON THE JUDICIARY UNITED STATES SENATE Together with Additional Views To Accompany S. 1272, 93d Cong., 1st Sess. 6 (1973) [hereinafter cited as S. REP. No. 93-293]. See also A.B.A. Study, supra note 2, at 72. 9.369 U. S. 186 (1961). 10. 377 U. S. 533 (1964). 11. See Dirksen, supra note 4. 12. Comment, supra note 2, at 502. 13. New York Times, March 18, 1967 (city ed.) at 1, col. 6. 14. The legislation was first introduced as S. 2307, 90th Cong., 1st Sess. (1967). Hearings were held on the bill. Hearings on S 2307 Before the Sub-Committee on Separation of Powers of the Senate Committee on the Judiciary. 90th Cong., 1st Sess. (1967) [hereinafter cited as Hearings on S, 2307). Thereafter the bill was revised and reintroduced. S. 623, 91st Cong., 1st Sess. (1969). The Subcommittee reported S. 623 to the full Committee on the Judiciary but no action was taken during the 91st Cong. The legislation was reintroduced in the 92d Cong, as S. 215. The Subcommittee reported the bill to the full Committee which reported the bill to the Senate on July 20, 1971. With one amendment the bill passed by a vote of 84-0. The bill was then referred to the House Judiciary Committee. No action was taken on the bill by the House during the 92d Cong. The legislation was reintroduced in the 93d Cong., 1st Sess. as S. 1272, which was identical to S. 215. The Subcommittee reported the bill to the Committee which reported the bill favorably to the full Senate. See S. REP. No. 93-293, supra note 7. The bill was again passed by the Senate, and again referred to the House Judiciary Committee. Again, no further action was taken. During the 94th Congress the "Ervin" legislation was introduced as S. 1815 by Senator Abourezk. The bill was referred to the Senate Judiciary Committee. No action was taken. During the 95th Congress, the "'Ervin" legislation was introduced legislation was the first comprehensive attempt by Congress to deal with the Article V convention method, though it had previously touched upon the problem. 15 Senator Ervin's efforts received much attention and stimulated long-needed discussion. 16 Senator Ervin gave these reasons for introducing the legislation: The scant information and considerable misinformation Congress to date, however, has refused to take action on comprehensive legislation dealing with the Article V convention method. 18 919 It has been observed that "the primary importance of Article V may be found in the in terrorem effect of an ultimate appeal to the people for the correction of the abuses of their government. In the past, states applied to Congress for a constitutional convention because they thought such a convention would be desirable. However, "[b]eginning with the twentieth century... the process has been used primarily as a prod in the side of Congress to force that body to propose a specific amendment. "20 Currently there are as H.R. 7008 by Congressman Hyde, and as S. 1880 by Senator Helins. H.R. 7008 was referred to the House Judiciary Committee which referred it to its Subcommittee on Civil and Constitutional Rights. S. 1880 was referred to the Senate Judiciary Committee. No action was taken on either bill. Because Senator Ervin was the first to consider this issue and draft legislation and because subsequent Congressional legislation has been substantially identical to Senator Ervin's, this article will cite Senator Ervin's legislation, S. 1272, as exemplifying the Congressional approach. 15. See, eg, Hearings on Amending the Constitution Relative to Taxes on Income, Inheritance, and Gifts Before Subcomm No. 3 of the House Comm on the Judiciary, 85th Cong., 2d Sess. (1958); Hearings on S. J. Res 23 Before the Subcommittee of the Senate Committee on the Judiciary, 83d Cong., 2d Sess. (1954); Staff OF THE HOUSE Comm. on the Judiciary, 86th CONG., 1ST SESS., STATE APPLICATIONS ASKING CONGRESS TO Call a Federal CONSTITUTIONAL Convention (Comm. Print 1959); STAFF OF THE HOUSE COMM. ON THE JUDICIARY, 82d Cong., 2d Sess., Problems Relating to State ApplicaTIONS FOR A CONVENTION TO PROPOSE CONSTITUTIONal Limitations ON FEDERAL Tax Rates (Comm. Print 1952) 16. See, eg, Black, Amending The Constitution: A Letter To a Congressman, 82 Yale L. J. 189 (1972) Thereinafter cited as Black], Note, Proposed Legislation on the Convention Method of Amending the United States Constitution, 85 HARV. L. REV. 1612 (1972). 17. Ervin, Proposed Legislation To Implement The Convention Method of Amending The Constitution, 66 MICH L. REV. 875 (1968) (hereinafter cited as Ervin). 18. See also H. Con. Res. 340, 95th Cong., 1st Sess. (1977); H. Con. Res. 28, 94th Cong., 1st Sess. (1975). 19.Kurland, Article V and the Amending Process, in An American Primer 148, 152. (D. Boorstin ed. 1966). 20. Comment, supra note 2, at 500, citing, W. Pullen, The Application Clause of the Amending |