(North Carolina Law Rev.--1975)

COMMENT

Amendment by Convention: Our Next Constitutional Crisis?

On September 15, 1787, in the waning moments of the Philadelphia Convention, which drafted the United States Constitution, Charles Cotesworth Pinckney of South Carolina observed that "conventions are serious things and ought not to be repeated." Americans have apparently taken Pinckney's wisdom to heart, for in our long history as a constitutional republic, there has never been another federal constitutional convention. This is true although the Constitution expressly authorizes "a Convention for proposing Amendments," and despite the fact that in the years since the Constitution was ratified approximately two hundred sixty-nine resolutions have been submitted to Congress by the States calling for national constitutional conventions.'

Article V is the part of the Constitution that provides for its own amendment. It reads as follows:

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 a part of this 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: Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Under article V there are two means of proposing constitutional amendments: either by a two-thirds vote of both Houses of Congress,

1. 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 632 (1911) (hereinafter cited as FARBAND).

2. U.S. CONST. art. V.

3. State Applications Calling for a Constitutional Convention to Propose Amendments to the Constitution of the United States: 1787 to July 1, 1974 (unofficial list prepared by the staff of the United States Senate Subcommittee on Separation of Powers, as revised, September 25, 1974) [hereinafter cited as State Applications).

or by a constitutional convention called by Congress in response to petiions of two-thirds of the state legislatures. The powers of Congres or of the constitutional convention are limited to proposing amendments. Proposed amendments become part of the Constitution only when ratified by three-fourths of the States. Congress, regardless of how the amendments are proposed, has the exclusive power to determine the method of ratification and must choose to have the proposed amendments ratified either by the state legislatures or by conventions held in each state for that purpose. Each of the present twenty-six amendments to the Constitution were initially proposed by the Congress. Since the national convention procedure has never been used, it remains a constitutional curiosity. As is clear from the language of article V, the convention would be a truly national forum with the authority to propose important changes in our system of government. But beyond this literal reading, article V is tantalizingly vague.

American constitutional law and history have developed within the long shadow cast by the Philadelphia Convention of 1787, and students and practitioners of our national political system have generally shared Gladstone's opinion of the Constitution as "the most wonderful work ever struck off at a given time by the brain and purpose of man." It is, then, understandable that constitutional scholars from James Madison to Senator Sam J. Ervin, Jr. have approached the subject of a new constitutional convention with a prudent degree of apprehension bred by proper respect for the enduring vitality of the Constitution. Much of the fear of a constitutional convention, which might, for example, seek to undermine important rights and freedoms guaranteed by the Bill of Rights, springs undoubtedly from the language of article

4. United States v. Sprague, 282 U.S. 716, 730 (1931).

5. [An article V national convention] would consequently give greater agitation to the public mind; an election into it would be courted by the most violent partisans on both sides; it wd probably consist of the most heterogenous characters; would be the very focus of that flame which has already too much heated men of all parties; would no doubt contain individuals of insidious views, who under the mask of seeking alterations popular in some parts but inadmissible in other parts of the Union might have a dangerous opportunity of sapping the very foundations of the fabric. Under all these circumstances it seems scarcely to be presumable that the deliberation of the body could be conducted in harmony, or terminate in the general good. Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a second.

Letter of James Madison to G.L. Turberville, November 2, 1788, in 5 U.S. BUREAU OF ROLLS AND LIbrary, DocumENTARY HISTORY OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA, 1786-1870, at 104-05 (1905).

6. See, e.g., Senate Subcommittee on Separation of Powers, Press Release, Aug. 17, 1967.

V itself, which leaves unanswered numerous questions concerning the nature and scope of the powers of a national constitutional convention."

The heat of the controversy surrounding article V represents the constitutional friction generated by the insertion of a new deliberative body into a political system carefully balanced by the doctrine of separation of powers and limited by the principles of federalism. Who determines the validity of state applications? Where would the convention be held and how long would it last? May Congress refuse to call a convention, given a sufficient number of valid applications? Are questions such as these justiciable in the courts, or are they “political questions" to be left to other departments of government?

Since there has never been a constitutional convention under article V, there exists no precedent to suggest solutions for these difficult problems. Likewise, there are no Supreme Court cases directly on point, and precious few on the amendment process generally.10 Congress, though it has considered the problem on several different occasions,11 has passed no legislation on the subject. Fear and uncertainty, in many cases justified, have left the convention procedure much ignored and little understood. Yet so long as the words remain in the Constitution, a national constitutional convention is a possibility. Fundamental wisdom and common sense on so important a matter would thus seem to require that the problems in the article V conven

7. Concern over the wording of the national convention procedure is as old as article V itself: "Mr. Madison remarked on the vagueness of the terms, 'call a Convention for the purpose,' as sufficient reason for reconsidering the article. How was a Convention to be formed? by what rule decide? what the force of its acts?" 2 FARRAND, supra note 1, at 558 (quoting Madison's notes).

8. Professor Orfield has suggested that an article V convention would be, in effect, a fourth branch of government, coequal with the Congress, the Executive and the Judiciary. See L. ORFIELD, THE AMENDING OF THE FEDERAL CONSTITUTION 47-48 (1942).

9. For a discussion of justiciability and the political question doctrine see text accompanying notes 130-34 infra.

10. See text accompanying notes 137-67 infra.

11. See, e.g., Hearings on S. 1272 Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 93d Cong., 1st Sess. (1973); Hearings on S. 2307 Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 90th Cong., 1st Sess. (1967); 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); Hearings on Amending the Constitution Relative to Taxes on Incomes, Inheritances, and Gifts Before Subcomm. No. 3 of the House Comm. on the Judiciary, 85th Cong., 2d Sess. (1958); Hearings on SJ. Res. 23 Before a Subcomm. of the Senate Comm, on the Judiciary, 83d Cong., 2d Sess. (1954); STAFF OF 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).

tion process be anticipated and dealt with effectively. Given the dearth of contemporary authority, investigation into the meaning and requirements of article V, as with other parts of the Constitution, might best begin with, the comments of the men who wrote it.12

I. BACKGROUND AND HISTORY OF ARTICLE V

Although today it might seem that an amendment clause should be an indispensable part of any national charter, this view was by no means common among eighteenth century political theorists. In fact, just the opposite was true; the idea of making changes in a constitution was foreign to European political systems. The power of amendment was a unique product of the American experience, 13 arising out of the conviction that ultimate sovereignty is in the people. This radical conception of state sovereignty found power in the people not only to make a constitution, but, as a necessary corollary, to amend and to revise it.1 It was the impotence of the national government under the Articles of Confederation,15 manifested in part by the unanimity requirement for amendment, that led Congress in 1787 to call for a federal conven

12. The Supreme Court has long recognized the propriety of drawing upon the debates in the Philadelphia Convention of 1787, the essays of The Federalist and other writings of the Founding Fathers as aids in construing vague and ambiguous constitutional provisions. See, e.g., Missouri Pac. R.R. v. Kansas, 248 U.S. 276 (1919); Missouri v. Illinois, 180 U.S. 208 (1901); Pollack v. Farmer's Loan & Trust Co., 157 U.S. 429 (1895); Transportation Co. v. Wheeling, 99 U.S. 273 (1878); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821).

13. See, e.g., C. BRICKFIELD, HOUSE COMM. ON THE JUDICIARY, 85TH CONG., 1ST SESS., PROBLEMS RELATING TO A FEDERAL CONSTITUTIONAL CONVENTION 1 (Comm. Print 1957); Scheips, The Significance and Adoption of Article V of the Constitution, 26 NOTRE DAME LAW. 46, 48 (1950).

14. L. ORFIELD, supra note 8, at 1. For the first time in the history of written constitutions, an amending provision appeared in the Pennsylvania Frame of Government drawn up by William Penn and his colonists in 1683. By 1787 the constitutions of eight states contained clauses dealing with amendment; five provided for amendment by convention and three, by the legislature. W. Pullen, The Application Clause of the Amending Provision of the Constitution 1 (1951) (unpublished thesis in Wilson Library, University of North Carolina at Chapel Hill). In states such as Virginia, whose constitution did not permit amendment, the need for an amending clause was strongly felt. During debate on article V, Madison lamented that "[t]he Virginia state government was the first which was made, and though its defects are evident to every person, we cannot get it amended. The Dutch have made four several attempts to amend their system without success. The few alterations made in it were by tumult and faction, and for the worse." 1 FARRAND, supra note 1, at 476.

15. Article XIII provided (in part): "The Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration shall be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state." DOCUMENTS OF AMERICAN HISTORY 115 (8th ed. H. COMMAGER 1968). Note, incidentally, that article XIII made no provision for a constitutional convention.

tion "for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union.”1

A. Prerequisite Conditions for Amending the Constitution

In the proceedings and debates of the 1787 Convention, some general philosophical and political considerations emerged as to the intent of the Framers regarding the amendment process generally and the function of an article V convention specifically. Broadly speaking, written into the language of article V as it appears today are three prerequisite conditions for amending the Constitution:

(1) "Perfection", and the Amendment Process

The Constitution proposed by the Philadelphia Convention was intended to be the ultimate expression and statement of the sovereignty of the American people. Continued acceptance by the people of the authority and legitimacy of the Constitution requires that amendments be the product of an orderly, controlled and procedurally correct constitutional process.1 17 Professor Bonfield summarizes the argument in this

manner:

Because of the uniquely fundamental nature of a constitutional amendment, attempts to alter our Constitution should not be filled with highly questionable procedures which could reasonably cast doubt on the ultimate validity of the provision produced. The procedure followed in any effort to amend the Constitution should be so perfect that it renders unequivocal to all reasonable men the binding nature of the product. 18

16. 1 J. ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 120 (2d ed. 1836).

17. The Constitution expressly provides that all amendments "shall be valid to all Intents and Purposes, as part of this Constitution...." U.S. CONST. art. V (emphasis added). As Professor Black has written,,“a high degree of adherence to exact form, at least in matters of importance, is desirable in this ultimate legitimating process; a constitutional amendment ought to go through a process unequivocally binding on all." Black, The Proposed Amendment of Article V: A Threatened Disaster, 72 YALE L.J. 957, 963 (1963).

18. Bonfield, Proposing Constitutional Amendments by Convention: Some Problems, 39 NOTRE Dame Law. 659, 661 (1964). The point was also made during debate on article V at the Philadelphia Convention. Col. Mason argued that "[a]mendments will therefore be necessary, and it will be better to provide for them, in an easy, regular and constitutional way than to trust to chance and violence." 1 FARRAND, supra note 1, at 202-03. James Iredell of North Carolina, later a United States Supreme Court Jus