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(Notre Dame, Lawyer, 1964)

OBSERVATIONS ON THE PROPOSED ALTERATION OF
THE CONSTITUTIONAL AMENDATORY PROCEDURE⭑

Albert E. Jenner##

The enactment of the amendments now under consideration would, I feel, lead to an outright revolution in this country, a revolution not in the gradual sense, but a fighting one conducted by the nation's great majorities who would be, in that eventuality, under the complete domination and subjection of minorities of both states and people.

The first of these proposals, the subject of the present inquiry, would alter the amendatory process prescribed by Article V of the Constitution. It is designed to vest the amendatory power in the state legislatures to the exclusion of the Congress.

The sponsors of these amendments seem to have erred, strategically at least, in going beyond their first proposition for it is the remaining two amendments, that calling for the overruling of Baker v. Carr and the last to create a "Court of the Union" to review the rulings of the United States Supreme Court, which betrayed their underlying purpose and intent, thus giving warning of the extremes to which the minority group of states and the minorities within these states might go.

The adoption of the first of these amendments would effect a complete redistribution of governmental power, channelling to the states much of which now rests with the federal Congress. The ultimate result would be a confederation or league of states similar to that under the Articles of Confederation of 1777. No longer would we maintain in the central government the power and jurisdiction so essential to the preservation of the Union. While the states would be afforded sufficient sovereignty to devote their attentions to purely local problems, their participation in the national picture would be barely adequate to make known the parochial views of the fifty separate jurisdictions. It should be noted in this connection that this process would not be a mere transference of power to the states as states, but to the state legislatures. The importance of this distinction is obvious upon the slightest consideration of the present maldistribution of representation in the legislative bodies. The inequalities presented by these apportionments would thus be preserved, and, by the increase of power, worsened. A representative form of government would vanish.

Apparently, then, the lessons of the errors and impracticality of the Articles of Confederation have been lost to the amendments' sponsors. The blood bath of the Civil War, fought in great part to accentuate the indissolubility of the Union, will have been for naught.

Political, as well as legal, repercussions would ensue. There would be

The following article is Mr. Jenner's oral presentation at the Notre Dame Law School on February 29, 1964, as edited by the Editorial Board of the Lawyer.

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Well-known trial lawyer and partner in the Chicago firm of Raymond, Mayer, Jenner & Block; LL.B., University of Illinois; long-time active member of the Chicago, Illinois, and American Bar Associations.

precluded any possibility of a national forum for the debate of national and international issues. Limited debating societies would obtain in each of the fifty states. With Nebraska as the only state with a unicameral legislature, we would be left with ninety-nine such societies.

How, then, did such proposals ever come about? While there is general agreement that the danger of their passage is slight, the meandered method of their genesis is highly pertinent to a fair evaluation. The sponsorship rests with the general assembly of the Council of State Governments, a normally conservative group and one of our most highly respected organizations and institutions. It consists almost exclusively of legislators of considerable prominence and ability from each of the several states selected from commissions on interstate cooperation existing in each of the states. The National Legislative Council, an affiliate of the Council of State Governments, was the initial proponent and drafter of the amendment. While this National Legislative Council meets annually, the general assembly convenes only half as often. This fact, as we shall see, becomes quite significant. In September of 1962, with a meeting of the general assembly but three months distant, the National Legislative Council met, fully realizing that whatever proposals were not submitted in December to the general assembly would not be acted upon for at least two additional years. It issued a report critical, in a fairly statesmanlike but direct fashion, of the action of the Congress and the executive department of the federal government over the preceding decade, which action, it alleged, had served to erode the powers and functions of the states, an erosion which had progressed to that point where the Union itself might be adversely affected. While it is true that the Union depends upon alert, dynamic and powerful states for its most effective functioning, the Council, rather than discuss the central requisites of that delicate balance between Union and state, chose to devise a "meat-cleaver" method of rectification. Rather than restore the scale's balance, if such seemed necessary, the Council's amendments so weighted the opposite pan as to plummet the scale to the ground.

This report was circulated among the delegates and a committee drawn up to draft the present amendments. The actual draft of these amendments was not submitted to the delegates of the general assembly until the opening day of its convention. In the course of but one day, the day following the opening, the delegates read, debated, and acted favorably upon all three of these amendments. Hence, as a special order of business, on the sixth of December, 1962, it was proposed completely to revamp the government of the United States. The complete unpreparedness of these delegates to pass upon motions of such moment is perhaps best evidenced by the fact that the second amendment received fewer favorable votes than the first, and the third still fewer. This suggests that the delegates became relatively more informed as the afternoon wore on.

Under Article V of the Constitution, amendments may be initiated either by the Congress or by the legislatures of the several states; the latter method has never been used. Under the former, the Congress, on a two-thirds vote of both Houses, submits the proposal to the state legislatures or to state con

ventions. The proposal becomes a constitutional amendment when and if it is ratified by three-fourths of such legislatures or conventions, depending upon which avenue Congress has chosen. At present, then, the consent of thirtyeight such legislatures or conventions conditions the adoption.

The alternative method requires the Congress, upon the application of twothirds of the state legislatures, to "call a convention for proposing amendments." Nothing further is said concerning what this convention is to do. The proposals which emanate from that convention take effect in the same manner provided for the alternative passage, namely, ratification by threefourths of the state legislatures or state conventions.

The general assembly's proposal seeks to eliminate completely the national convention method of amendment. It further proposes to abolish the state convention alternative method of amendment regardless of whether the original proposal was initiated by Congress or by a national convention. It is intended, then, that the state legislatures control the amendatory process. Also, if three-fourths of the state legislatures submit identical proposals by way of application, then the Congress is required, by purely ministerial procedures, to certify these proposed amendments to the very same state legislatures. This empty course of action serves to circumvent completely the Congress, relegating the entire amendatory procedure to the mercy of the state legislatures. The potential effects of this procedure to the Constitution need not be listed. The combined effects of this and the other two amendments would possibly include the destruction of the Supreme Court of the United States, the elimination of Congress, and the sharp modification of at least the first eight amendments to the Constitution, at least as applied to the states via the Fourteenth Amendment.

As an incidental point, it is interesting to note that Section Two of these resolutions recites that the article shall be inoperative unless ratified, within seven years of the date of its submission, by the legislatures of three-fourths of the several states. This is apparently an adroit attempt to prevent the Congress from employing the state convention alternative method, which it is empowered to do under the Constitution. Yet it is only through this alternative method that any semblance of representation of all the people can be obtained.

Finally, the amendment under consideration is perhaps the most extraordinary and astounding governmental proposal of recent times. If there is at present an imbalance in the federal-state area of action (and such an imbalance is by no means conceded), correction of the defect lies in the strengthening of the states under our present system and not in the virtual demolishing of the Congress by its reduction to a pleasant debating society.

PROPOSAL II AND THE NATIONAL INTEREST IN
STATE LEGISLATIVE APPORTIONMENT

Carl A. Auerbach*

Shortly after President Eisenhower asked Congress, in May, 1953, to permit the personal income tax cuts scheduled for January 1, 1954, to go into effect, I had occasion to lunch with Thurman Arnold. I asked Mr. Arnold what he thought of the impending tax cut and he replied, "Fine, we can enjoy it privately and kick like hell publicly." Remember, this was before we were told by President Kennedy and President Johnson that what we can do most for our country is to pay less taxes.

My initial reaction to the Supreme Court's decision in Baker v. Carr1 was like Thurman Arnold's response to President Eisenhower's first venture into deficit financing. As a private citizen, suburbanite and member of the Democratic Party, I relished the result. But as a student of constitutional law, I agreed with Mr. Justice Frankfurter that legislative apportionment was none of the Supreme Court's business. I intended to kick about it publicly at this symposium, in fact.

However, as I studied the three so-called states' rights amendments to which our symposium is devoted, I came to doubt my original conclusion that the Supreme Court had overstepped the bounds of its proper role in our democracy when it decided Baker v. Carr.

Provisions of Proposal II. For our immediate purpose, however, it is important to point out that even those who agree with Mr. Justice Frankfurter's dissenting opinion in Baker v. Carr have reason to oppose the constitutional amendment which purports to overrule the Court's decision in that case. For the proposal which I shall refer to as Proposal II goes far beyond its alleged purpose. Section 2 of Proposal II provides that:

-

The judicial power of the United States shall not extend to any
suit in law or equity, or to any controversy, relating to apportion-
ment of representation in a state legislature.'

This section, however, is ancillary to the basic aim of Proposal II set forth in
Section 1, which provides that:

No provision of this Constitution, or any amendment thereto,
shall restrict or limit any state in the apportionment of representa-
tion in its legislature.*

Proposal II and the State Courts. If Proposal II contained only its second section and, thus limited, became part of the Constitution, the Supremacy Clause of Article VI would still obligate the state courts to decide apportion

· Professor of Law, University of Minnesota Law School; A.B., Long Island University; LL.B., Harvard Law School.

1 369 U.S. 186 (1962).

2 The texts of the three states' rights amendments are set forth in State Government, Winter 1963, p. 10.

3 Ibid. Section 3 of Proposal II provides that the proposed amendment "shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission." Ibid.

ment cases in the light of the requirements of the federal Constitution. In all likelihood, then, the state courts would not interpret these requirements uniformly, with the anomalous result that the existence and vindication of federal constitutional guarantees would depend upon the immaterial circumstance of where the case was brought.

Granting, then, that the proposed limitation on the federal judicial power is justified, it makes sense to impose the same limitation upon the state courts so far as the enforcement of federal constitutional guarantees is concerned. This may have been all that the draftsmen of section 1 of Proposal II intended. But as drafted, section 1 would accomplish a great deal more than even its supporters have not sought to defend.

Proposal II and Racial Discrimination. Dissenting in South v. Peters, Mr. Justice Douglas remarked: "I suppose that if a State reduced the vote of Negroes, Catholics, or Jews so that each got only one-tenth of a vote, we would strike the law down." But if these shameful objectives were achieved under the guise of state laws apportioning representation in state legislatures, section 1 of Proposal II would not only bar the federal courts from striking the laws down, but would also bar the state courts from striking the laws down under the authority of the federal Constitution.

We are not dealing with a remote contingency. If Proposal II had been in effect, no court could have prevented the racial discrimination which the Alabama legislature tried to perpetrate in Gomillion v. Lightfoot. The Alabama courts would have been bound by state law. Speaking for the Court in Gomillion v. Lightfoot, Mr. Justice Frankfurter held that federal court intervention was warranted precisely because abstention "would sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions.”

Clearly, then, Proposal II would abridge the national guarantees of equality imbedded in the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution. But surely we will not permit the long, historic, and increasingly successful struggle of the Negro citizen for the right to vote to culminate in districting and apportioning schemes which deprive him of the fruits of victory.

Proposal II and Congressional Power. Under Proposal II, the Congress of the United States would also be deprived of authority to take action against the kind of racial discrimination involved in Gomillion v. Lightfoot. Section 1 would strip Congress of its powers under the enforcement sections of the three Civil War Amendments whenever legislative districting or apportionment was used as the vehicle for discrimination.

Proposal II and Presidential Power. Proposal II is aimed at the President, as well as Congress. It would curtail the powers of the President and Congress under Article IV, Section 4 of the federal Constitution which requires that the "United States shall guarantee to every State in this Union a Republican form of government." I agree with Mr. Justice Frankfurter that the Tennessee

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