national consensus by providing that applications which do not pertain to the same general subject will not be counted toward the two-thirds requirement. Congress, as the body which has responsibility for calling the convention, would make the initial determination of whether a sufficient number of "reasonably-related" applications had been submitted. Any dispute under a(i) whether an application should be counted could be resolved in the courts, and the weight given to Congress' determination that a particular application did not bear sufficient relationship to others would also be for the courts to decide.211 Subsection a(ii) is cast in disjunctive terms from a(i) and preserves the right of the States to petition for a convention with power to propose general, far-ranging revisions of our constitutional system. Such proposals would, however, be subject to ratification under section 3. Phrasing a(i) and a(ii) in the alternative makes it clear that a general convention may be called only when specifically requested and that applications within the time limit from two-thirds of the States on a variety of different subjects do not warrant or require Congress' calling a general convention. Section 2, clause I, subsection b(i) gives Congress the power and obligation to determine the number, manner of selection and apportionment of delegates to the convention. The question of whether members of Congress may simultaneously serve as delegates is implicitly left subject to the rulemaking authority of the convention referred to in clause III. Subsection b(ii) permits Congress to fulfill its duty to call the convention by providing for the date, time and place of the first meeting of the convention. Once convened, the convention would then be free to determine its own schedule and meeting place. Subsection b(iii) imposes a duty upon Congress to appropriate funds for the expenses of the convention, so that Congress could not by in 211. This commentator believes that such issues as this, presented in the context of an article V amended as herein suggested, would clearly be within the judicial power of the federal courts under article III. Accordingly, language to this effect in article V is not required. In order to insure the availability of a judicial forum for the ultimate resolution of article V disputes, Congress could enact a special statute extending jurisdiction over such matters to the federal courts, presumably with no ju isdictional amount requirement. Cf. SPECIAL CONStitutional ConVENTION STUDY Committee, AmERICAN BAR ASSOCIATION, supra note 205, § 16(a), at 57. Since time is a key factor in assembling the required number of petitions under this amended article V, some provision for expedited appeals should be included if jurisdiction arises originally in the federal district courts. In cases where a State is a party to the action, serious consideration should be given to expressly including such cases within the original and exclusive jurisdiction of the Supreme Court under 28 U.S.C. § 1251 (1970), since such a case would present issues of paramount constitutional significance. direction defeat the purpose of the convention by depriving it of financial, support. Section 2, clause II is designed to allay fears of those who are anxious that the convention would transform itself into a permanent and perpetual "fourth branch of the government." Under this clause, the maximum length of a convention would be just under four years, presuming the original convention to be called immediately after the swearing-in of a newly-elected Congress. The convention could be extended beyond the two-year term of that Congress only by consent of Congress, and then for only one additional two-year term. Since twothirds of both houses is required to submit for ratification an amendment proposed by Congress, this same supermajority should be required to extend a convention. Note that "extension" of a convention already in session differs from "calling" a convention originally. Under section 2, clause I, Congress is not permitted to call a convention unless it has a sufficient number of valid applications. Section 2, clause II, however, would permit Congress in its discretion to extend a convention which it had originally called, and such extension would not require further applications. Only one extension is permitted, since there is no assurance that the national consensus would continue for a longer period of time. If such a consensus were to persist, it could again be manifested by applications for a new convention. Section 2, clause III provides the machinery with which the convention actually proposes amendments. Under the "rules and procedures" authority recognized by this clause, the delegates would adopt their own rules of procedure and would have power to determine the size of the majority needed to propose a particular amendment. The clause requires presentation of all proposed amendments to Congress, which in turn has the responsibility of submitting them to the States for ratification under section 3. The proviso to clause III strikes an essential balance between the powers of Congress and those of the convention. If two-thirds of both houses of Congress agree that any or all of the proposed amendments do not pertain to the particular subject matter stated in the applications [section 2, clause Ia(i)], then Congress may refuse to submit such amendments for ratification. Again, this congressional determination should be reviewable in the federal courts. 213 All amendments proposed by a general convention 212. See note 211 supra. called under section 2, clause Ia(ii) should be submitted for ratification since the proviso in clause III does not apply in this situation. Section 4 would write into the Constitution the sound wisdom of the Supreme Court in Hollingsworth v. Virginia213 to the effect that the President's veto does not apply to acts of Congress involving constitutional amendments. This section would apply to acts of Congress pursuant to either mode of amendment. Recent events have focused popular attention upon our Constitution and the fundamental principles of our form of government to a degree unmatched perhaps since the great ratification debates of the eighteenth century. In return, our constitutional system has proved its worth, its strength and ability to withstand extreme challenge and emerge the better for it. Accordingly, the present affords an ideal time to consider the problems inherent in the procedure whereby our Constitution may be changed as contemporary wisdom dictates. In so doing, the role of the States in the constitutional amendment process can be reaffirmed. This can best be achieved by amending the words of the Founding Fathers to reflect more accurately their original expectations. Until this is done, there remains with us the spectre of a fresh constitutional crisis, one involving not merely the petty motives and ambitions of individual persons, but the very right of States to determine to some extent the essential terms of their federalism. MICHAEL A. ALMOND 213. 3 U.S. (3 Dall.) 378 (1798), discussed in note 143 supra. (Ohio State Law Journal--1970, Vol 31) THE MANDATORY REFERENDUM ON CALLING A STATE By ROBERT J. MARTINEAU* I. INTRODUCTION Included in the constitutions of thirty seven of the fifty states is the bold and provocative manifesto that the people' have the right at all times to alter or reform their government. This statement, which found early expression in the Declaration of Independence, is generally considered to be another way of phrasing the principle that ultimate sovereign power is in the people. The direct exercise of sovereignty by the people of a state is, with one exception, limited to voting on statutory or constitutional measures presented through the initiative, referendum or constitutional revision procedures specified in state constitutions. In all other situations the people have delegated their sovereignty to their state government. Even the three acts of popular soveignty listed find their source in the state constitution and not in the inherent power of the people. There is, however, one aspect of sovereignty that does not depend • Associate Professor of Law, University of lows. The author wishes to acknowledge the contribution of Jon H. Kent, his research assistant, in the preparation of this article. 25 (1917). See also Forkosch, Who are the "People" in the Preamble to the Constitution, 19 CASE W. RES. L. REV. 644 (1968). 1 The definition of "people" is discussed in HOAR, CONSTITUTIONAL CONVENTIONS 1625 (1917). See also Forkosch, Who are the "People" in the Preamble to the Constitu tion, 19 CASE W. RES. L. REV. 644 (1968). 2 Alabama, art. I, §2; Arkansas, art. II, §1; California, art. I, §2; Colorado, art. II, §2; Connecticut, art. 1, §2; Delaware, Preamble; Georgia, art. I, §2-501; Idaho, art. I, §2; Indiana, art. I, §1; Iowa, art. 1, §2; Kentucky, §4; Maine, art. I, §2; Maryland, Declaration of Rights art. 1; Massachusetts, pt. I, art. VII; Minnesota, art. I, §1; Mississippi, art. 3, §6; Missouri, art. I, §3; Montana, art. III, §2; Nevada, art. I, §2; New Hampshire, pt. I, art. X; New Jersey, art. I, §2; North Carolina, art. 1, §3, North Dakota, art. I, §2; Ohio, art. I, §2; Oklahoma, art. II, §1; Oregon, art. 1, §1; Pennsylvania, art. I, §2; Rhode Island, art. I, §1; South Carolina, art. I, §1; South Dakota, art. VI, §26; Tennessee, art. 1, §1; Texas, art. 1, §2; Utah, art. 1, §2; Vermont, c. I, art. 7; Virginia, art. I, §3; West Virginia, art. 3, §3; Wyoming, art. 1, §1. Of the other thirteen states, Alaska, Arizona, Florida, Hawaii, Kansas, Michigan and Washington provide in their constitutions that political power is inherent in the people, Illinois, Wisconsin and Nebraska that government derives its powers from the consent of the governed, Louisiana that government originates from the people, and New Mexico that political power is vested in and derived from the people. In addition, Alaska, Arizona, Florida, Kansas, Louisiana, Michigan, Nebraska, New Mexico, and Washington have constitutional statements that all unenumerated powers are retained by the people. Only New York has no provision that refers to any basic political right existing in the people. "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute New Government..." Declaration of Independence, par. 2. Luther v. Borden, 48 U.S. (7 How.) 1, 47 (1849); Gatewood v. Matthews, 403 S.W.2d 716, 718 (Ky. 1966); Wheeler v. Board of Trustees, 200 Ga. 323, 331-33, 37 S.E.2d 322, 328-29 (1946); Staples v. Gilmer, 183 Va. 613, 623, 33 S.E.2d 49, 53-54 (1945); Wells v. Bain, 75 Pa. 39, 46 (1873); Hoar, CONSTITUTIONAL CONVENTIONS 11-15 (1917). upon the state constitution but, rather, is inherent in the people of a state-the power to revise their form of government by means of a constitutional convention. The state constitutional convention has been described as (in the field of constitution writing) the repository of the sovereignty of the people-an all-powerful body, subject to no limitations except those imposed by the people themselves and by the Federal Constitution. It is through the constitutional convention and the subsequent referendum on its proposals that the people are able to exercise directly their right to alter or reform their government. The constitutional convention has been considered so basic that the power to have a convention has been held to exist even though the state constitution makes no mention of it. The usual procedure for a state to follow in having a constitutional convention involves (1) a decision by the state legislature to submit the question of calling a convention to the people; (2) a favorable vote by the people; (3) the adoption by the legislature of enabling legislation for the convention including providing for the election of delegates to the convention and funding the convention; (4) the election of the delegates. Under this process the holding of a convention is completely dependent upon the legislature. A number of states have, however, attempted to bypass the legislature by including in their constitutions not only the statement as to the right of the people to change their government but also a requirement that the question of calling a constitutional convention be submitted to the people at specified or minimum intervals. These provisions direct that if the people in a mandatory referendum vote for a convention, a convention be held, and they either are self-executing to the extent that no further legislative action is necessary for a convention to be held, or impose a duty upon the legislature to provide the mechanics for holding a convention. At the present time, there are eleven states' with 5 Anderson v. Baker, 23 Md. 531, 616 (1865) quoted with approval in Board of Supervisors of Elections v. Attorney General, 246 Md. 417, 433-34, 229 A.2d 388, 397 (1967); HOAR, CONSTITUTIONAL CONVENTIONS 128-48 (1917); Dodd, The REVISION AND AMENDMENT OF STATE CONSTITUTIONS 72-117 (1910); Note, State Constitutional Change: The Constitutional Convention, 54 Va. L. Rev. 995, 1012-16 (1968), Note, The Constitutional Convention, Its Nature and Powers-And the Amending Procedure, 1966 UTAH L. REV. 390, 401-09; White, Amendment and Revision of State Constitutions, 100 U. PA. L. REV. 1132, 1139-47 (1952); Note, State Constitutional Conventions: Limitations on Their Powers, 55 IOWA L. REV. 244, 261-62 (1969). The principal exponent of the contrary view is JAMESON, CONSTITUTIONAL CONVENTIONS 301-28 (4th ed. 1887). Harvey v. Ridgeway, Ark., 450 S.W.2d 281 (1970); Board of Supervisors of Elections v. Attorney General, 246 Md. 417, 229 A.2d 388 (1967); Gatewood v. Matthews, 403 S.W.2d 716 (Ky. 1966), Hoar, Constitutional CONVENTIONS: ch. IV (1917); Dodd, THE REVISION AND AMENDMENT of State ConSTITUTIONS 44 (1910); White, Amendment and Revision of State Constitutions, 100 U. PA. L. REV. 1132, 1134-35 (1952). 7 Alaska, Connecticut, Hawaii, Iowa, Maryland, Michigan, Missouri, New Hampshire, New York, Ohio and Oklahoma. Arkansas and Illinois will join the group if the new constitutions adopted by the 1969 Arkansas constitutional convention and the 1970 Illinois constitutional convention are ratified by the voters in November and December, 1970, respectively. In the Appendix there is a state by state listing of the mandatory referendum provision of |