down of this Virginia statute cannot be squared with accepted Item: The Court disregards precedents at will without offering adequate reasons for change. Mr. Justice Brennan puts his charge in short compass in Pan American World Airways, Inc., v. United States:" The root error, as I see it, in the Court's decision is that it works an Item: The Court uses its judgments not only to resolve the case before it but to prepare advisory opinions or, what is worse, advisory opinions that do not advise. The testimony here includes the following: The Court has done little more today than to supply new phrases imprecise in scope and uncertain in meaning for the habeas More fundamentally, the enunciation of an elaborate set of This is not the plea by academic followers of Herbert Wechsler for principled decisions nor even an argument by Wechsler's opponents for ad hoc resolutions. It is the view of Mr. Justice Stewart in Townsend v. Sain.1o Item: Not unrelated to the charge just specified is the proposition that the Court seeks out constitutional problems when it could very well rest judgment on less lofty grounds. Here is the Chief Justice himself speaking in Communist Party v. Subversive Activities Control Board:"1 ... I do not believe that strongly felt convictions on constitutional questions or a desire to shorten the course of this litigation justifies the Court in resolving any of the constitutional questions presented so long as the record makes manifest, as I think it does, the existence of non-constitutional questions upon which this phase of the proceedings can and should be adjudicated.... I do not think that the Court's action can be justified. Item: The Court has unduly circumscribed the Congressional power of investigation. The testimony I offer here is not that of the chairman of the House UnAmerican Affairs Committee nor that of the Birch Society. It derives from Mr. Justice White's opinion in Gibson v. Florida Legislative Investigation Committee:12 The net effect of the Court's decision is, of course, to insulate Item: I will close the list with the repeated charge that the Due Process Clause of the Fourteenth Amendment as applied by the Court consists only of the "evanescent standards" of each judge's notions of “natural law.” The charge is most strongly supported by the opinions of Mr. Justice Black in Adamson v. California " and Rochin v. California," which I commend to you. I close the catalogue not because it is exhausted. These constitute but a small part of Brutus's indictment and an even smaller proportion of the witnesses prepared to testify to the Court's grasp for power. These witnesses are impressive, however, for they are not enemies of the Court but part of it. Moreover, their depositions may be garnered simply by thumbing the pages of the recent volumes of the United States Reports, which is exactly the way my partial catalogue was created. Let me make clear that this testimony does not prove Caesar's guilt, but only demonstrates that these charges cannot be dismissed out of hand. The fact that they are endorsed by such irresponsible groups as would support the proposed constitutional amendment does not add to their validity. But neither does such support invalidate them. What then of Antony's defenses of Caesar? First is the proposition that our Caesar has done no more than perform the duties with which he is charged. We have it from no less eminent an authority than Paul Freund that the Court has not exceeded its functions and he defines them thus: " First of all, the Court has a responsibility to maintain the constitu- ... A second great mission of the Court is to maintain a common market of continental extent against state barriers or state trade preferences. ... 12 372 U.S. 539, 585 (1963) (dissenting opinion). 13 332 U.S. 46, 68 (1947) (dissenting opinion). 14 342 U.S. 165, 174 (1952) (concurring opinion). 15 Freund, The Supreme Court Under Attack, 25 U. PITT. L. Ræv. 1, 5-6 (1963). In the third place, there falls to the Court a vital role in the preservation of an open society, whose government is to remain both responsive and responsible.. Responsive government requires freedom of expression; responsible government demands fairness of representation. And so, Professor Freund suggests, the Court has done no more than its duty and he predicts that we shall be grateful to it:1o The future is not likely to bring a lessening of governmental inter- It is not clear to me that the second defense is really different from the first. Here we are met with the proposition that the Court, politically the least responsible branch of government, has proved itself to be morally the most responsible. In short, the Court has acted because the other branches of government state and national have failed to act. And a parade of horribles would not be imaginary that marched before us the abuses that the community has rained on the Negro; the evils of McCarthyism and the continued restrictions on freedom of thought committed by the national legislature; the refusal of the states and the nation to make it possible for the voices of the disenfranchised to be heard, either by preventing groups from voting, or by mechanisms for continued control of the legislature by the politically entrenched, including gerrymandering, and subordination of majority rule by the filibuster and committee control of Congress; the police tactics that violate the most treasured rights of the human personality, police tactics that we have all condemned when exercised by the Nazis and the Communists. This list, too, might be extended almost to infinity. There can be little doubt that the other branches of government have failed in meeting some of their essential obligations to provide constitutional government. The third defense is that which I have labelled the defense of Caesar's will. It is put most frankly and tersely by Professor John Roche in this way: " As a participant in American society in 1963- somewhat removed from the abstract world of democratic political theory I am delighted when the Supreme Court takes action against "bad" policy on whatever constitutional basis it can establish or invent. In short, I accept Aristotle's dictum that the essence of political tragedy is for the good to be opposed in the name of the perfect. Thus, while I wish with Professors Wechsler and Kurland, inter alios, that Supreme Court Justices could proceed on the same principles as British judges, it does not unsettle or irritate me when they behave like Americans. Had I been a member of the Court in 1954, 16 Id. at 7. 17 Roche, The Expatriation Cases: "Breathes There the Man, With Soul So Dead. . . ?” 1963 SUPREME COURT REVIEW, 325, 326 n.4. I would unhesitatingly have supported the constitutional death- There then are the pleadings. I do not pretend to a capacity to decide the case. It certainly isn't ripe for summary judgment on the pleadings. I am fearful only that if the case goes to issue in this manner, the result will be chaos whichever side prevails. For, like Judge Learned Hand, I am apprehensive that if nothing protects our democracy and freedom except the bulwarks that the Court can erect, we are doomed to failure. Thus, I would answer the question that purports to be mooted today, whether the court-ofthe-union amendment should be promulgated, in the words of that great judge:" And so, to sum up, I believe that for by far the greater part of their work it is a condition upon the success of our system that the judges should be independent; and I do not believe that their independence should be impaired because of their constitutional function. But the price of this immunity, I insist, is that they should not have the last word in those basic conflicts of "right and wrong between whose endless jar justice resides." You may ask then what will become of the fundamental principles of equity and fair play which our constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say what will be left of those principles; I do not know whether they will serve only as counsels; but this much I think I do know that a so ciety so riven that the spirit of moderation is gone, no court I find then that I have come neither to praise nor to bury Caesar. I should only remind those who would destroy Caesar of the self-destruction to which the noble Brutus was brought; nor can the Antonys among us who would use Caesar for their own ends — rejoice at his ultimate fate. For Caesar himself, I should borrow the advice given Cromwell by Wolsey: "I charge thee, fling away ambition: By that sin fell the angels." 18 HAND, THE Spirit of Liberty 164 (2d ed. 1953). (Notre Dame Lawyer, Symposium 1964) PROPOSING CONSTITUTIONAL AMENDMENTS BY CONVENTION: SOME PROBLEMS Arthur Earl BonfieldTM All of the existing amendments to the United States Constitution were proposed to the states by a two-thirds vote of both Houses of Congress. Proponents of the three provisions under discussion here seek to avoid this procedure. They are attempting to invoke an alternative means of submitting to the states amendments to our fundamental law. In addition to the direct Congressional initiation of the amending process, Article V provides that "on the Application of the Legislatures of two-thirds of the several states [Congress] shall call a Convention for proposing amendments." The present paper will consider some of the difficult questions raised by the current effort to utilize this particular mode of "proposing" amendments to our Constitution. At the outset, it should be noted that many of the significant questions that will arise in the present attempt to propose amendments to our fundamental law by convention will not be resolvable in the courts. Strong dicta even go so far as to insist that all questions arising in the amending process are nonjusticiable.' But there is evidence of a substantial nature to the contrary. It would indicate that some of the questions which may arise in this process can be settled on the merits by the judiciary. However, those that are beyond the capacity of the courts to decide because they are nonjusticiable Assistant Professor of Law, University of Iowa College of Law; B.A., Brooklyn College; LL.B., LL.M., Yale Law School. 1 U.S. Const, art. V. The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of the Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress. 2 See Coleman v. Miller, 307 U.S. 433, 457 (1939) (concurring opinion). Dowling, Clarifying The Amending Process, 1 WASH. & Lez L. Rev. 215 (1945). In Coleman v. Miller, the Court held that the effectiveness of a state's ratification of a proposed amendment which it had previously rejected, and the period of time within which a state could validly ratify a proposed amendment, were nonjustíciable political questions within the exclusive and irrevocable determination of Congress. 3 See id. at 457-59 (concurring opinion). Proclamation under authority of Congress that an amendment has been ratified will carry with it a solemn assurance by the Congress that ratification has taken place as the Constitution commands. Upon this assurance a proclaimed amendment must be accepted as a part of the Constitution, leaving to the judiciary its traditional authority of interpretation.... Undivided control of [the amending] process has been given by the Article exclusively and completely to Congress. The process itself is "political" in its entirety and is not subject to judicial guidance, control or interference at any point. See also text accompanying note 22 infra, and Dowling, note 2 supra. 4 See Leser v. Garnett, 258 U.S. 130 (1922); Dillon v. Gloss, 256 U.S. 368 (1921); National Prohibition Cases, 253 U.S. 350 (1920); Hawke v. Smith, No. 1, 253 US. 221 (1920); Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798). This article will not attempt to fully explore the extent to which the Courts can or should take it upon themselves in suits properly before them to independently resolve the vari |