of the General Assembly; and in case a majority of the electors so qualified, voting at such election for and against such proposition, shall decide in favor of a convention for such purpose, the General Assembly, at its next session, shall provide by law for the election of delegates to such Convention.

This section was amended in 1964 to provide, in part:

At the general election to be held in the year one thousand nine hundred and seventy, and in each tenth year thereafter, and also at such times as the General Assembly may, by law, provide, the question, 'Shall there be a Convention to revise the Constitution, and propose amendment or amendments to same?' shall be decided by the electors qualified to vote for members of the General Assembly; and in case a majority of the electors so qualified, voting at such election, for and against such proposition, shall decide in favor of a Convention for such purpose, the General Assembly, at its next session, shall provide by law for the election of delegates to such Convention, and for submitting the results of said Convention to the people, in such manner and at such time as the General Assembly shall provide.

40 Election results for the years 1870, 1880, and 1890 are found in DOCUMENTARY MATERIAL RELATING TO THE HISTORY OF IOWA, 282-83 (B. F. SHAMBAUGH ed. 1897). 41 19 IOWA OFFICIAL REGISTER 363 (1901).

42 24 IOWA OFFICIAL REGISTER 457 (1911-1912).

48 29 IOWA OFFICIAL REGISTER 483 (1921-1922).

44 SHAMBAUGH, CONSTITUTIONS OF IOWA 281-83 (1934).

45 Letter from Robert C. Landes, Deputy Secretary of State, to Author, September 6, 1968. 46 Des Moines Register, January 1, 1961, at 10, col. 6.

47 44 IOWA OFFICIAL REGISTER 318 (1951-1952).

48 49 IOWA OFFICIAL REGISTER 369 (1961-1962).

49 The Virginia Constitution of 1870, article XII provides, in part:

At the general election to be held in year 1888, and in each twentieth year thereafter, and also at such time as the general assembly may by law provide, the question, 'Shall there be a convention to revise the constitution and amend the same?' shall be decided by the electors qualified to vote for members of the general assembly; and in case a majority of the electors so qualified voting at such election shall decide in favor of a convention for such purpose, the general assembly at its next session shall provide by law for the election of delegates to such convention: Provided, That no amendment or revision shall be made which shall deny or in any way impair the right of suffage, or any civil or political right as conferred by this constitution, except for causes which apply to all persons and classes without distinction.

The 1887 Code of Virginia numbers this provision as section 2; however, The Acts of the General Assembly of the State of Virginia (1870), The Code of Virginia (1873), and 7 THORPE, THE FEDERAL AND STATE CONSTITUTIONS 3897-98 (1909) treat this and the preceding provision as one article without sections.

50 W. VAN SCHREEVEN, THE CONVENTIONS AND CONSTITUTIONS OF VIRGINIA, 17761966, 15 (1967).

51 No convention shall be called by the legislature to propose alterations, revisions, or amendments to this constitution, or to propose a new constitution, unless the law providing for such convention shall first be approved by the people on a referendum vote at a regular or special election, and any amendments, alterations, revisions, or new constitution, proposed by such convention, shall be submitted to the electors of the State at a general or special election and be approved by a majority of the electors voting thereon, before the same shall become effective: Provided, That the question of such proposed convention shall be submitted to the people at least once in every twenty years.

62 Election results for the years 1926 and 1950 are contained in a letter from Basil R. Wilson, Secretary, State Election Board, to Author, September 18, 1968.

53 Letter from Basil R. Wilson, Secretary, State Election Board, to Author, May, 1970. 54 This section was submitted by initiative and adopted November 2, 1920. The provision

states:

The question 'Shall there be a convention to revise and amend the Constitution?' shall be submitted to the electors of the state at a special election to be held on the first Tuesday in August, one thousand nine hundred and twenty-one, and at each general·

election next ensuing the lapse of twenty successive years since the last previous submission thereof, and in case a majority of the electors voting for and against the calling of a convention shall vote for a convention, the governor shall issue writs of election to the sheriffs of the different counties, ordering the election of delegates, and the assembling of such convention, as is provided in the preceding section.

55 OFFICIAL MANUAL STATE OF MISSOURI 478-79 (1921-22).

56 The convention was called by the governor, as provided by the Missouri Constitution article XV, section 4.

87 OFFICIAL MANUAL STATE OF MISSOURI 397-98 (1943-44).

68 The convention was called by the governor, as provided by the Missouri Constitution article XV, section 4.

59 This section provides, in part

At the general election on the first Tuesday following the first Monday in November, 1962, and every twenty years thereafter, the secretary of state shall, and at any general or special election the general assembly by law may, submit to the electors of the state the question 'Shall there be a convention to revise and amend the Constitution?". The question shall be submitted on a separate ballot without party designation, and if a majority of the votes cast thereon is for the affirmative, the governor shall call an election of delegates to the convention on a day not less than three nor more than six months after the election on the question. At the election the electors of the state shall elect fifteen delegates-at-large and the electors of each state senatorial district shall elect two delegates. Each delegate shall possess the qualifications of a senator; and no person holding any other office of trust or profit (officers of the organized militia, school directors, justices of the peace and notaries public excepted) shall be eligible to be elected a delegate. To secure representation from different political parties in each senatorial district, in the manner prescribed by its senatorial district committee each political party shall nominate but one candidate for delegate from each senatorial district, the certificate of nomination shall be filed in the office of the secretary of state at least thirty days before the election, each candidate shall be voted for on a separate ballot bearing the patry designation, each elector shall vote for but one of the candidates, and the two candidates receiving the highest number of votes in each senatorial district shall be elected. Candidates for delegates-at-large shall be nominated by nominating petitions only, which shall be signed by electors of the state equal to five percent of the legal voters in the senatorial district in which the candidate resides until otherwise provided by law, and shall be verified as provided by law for initiative petitions, and filed in the office of the secretary of state at least thirty days before the election. All such candidates shall be voted for on a separate ballot without party designation, and the fifteen receiving the highest number of votes shall be elected. Not less than fifteen days before the election, the secretary of state shall certify to the county clerk of the county the name of each person nominated for the office of delegate from the senatorial district in which the county, or any part of it, is included, and the names of all persons nominated for delegates-at-large.

60 OFFICIAL MANUAL STATE OF MISSOURI 1179 (1963-64).

61 If during any ten-year period a constitutional convention has not been held, the secretary of state shall place on the ballot for the next general election the question: 'Shall there be a Constitutional Convention?' If a majority of the votes cast on the question are in the negative, the question need not be placed on the ballot until the end of the next ten-year period. If a majority of the votes cast on the question are in the affirmative, delegates to the convention shall be chosen at the next regular statewide election, unless the legislature provides for the election of the delegates at a special election. The secretary of state shall issue the call for the convention. Unless other provisions have been made by law, the call shall conform as nearly as possible to the act calling the Alaska Constitutional Convention of 1955, including, but not limited to, number of members, districts, election and certification of delegates, and submission and ratification of revisions and ordinances. The appropriation provisions of the call shall be self-executing and shall constitute a first claim on the state treasury.

42 Letter from Thelma Cutler, Director of Elections to Author, October 21, 1969: The question of a constitutional convention will appear on the ballot in the 1970 General Election and the voters, will vote on the question at that time.

63 This section provides, in part:

The legislature may submit to the electorate at any general or special election the question, 'Shall there be a convention to propose a revision of or amendments to the Constitution?". If any ten-year period shall elapse during which the question shall not have been submitted, the lieutenant governor shall certify the question, to be voted on at the first general election following the expiration of such period. If a majority of the ballots cast upon such question be in the affirmative, delegates to the convention shall be chosen at the next regular election unless the legislature shall provide for the election of delegates at a special election... Unless the legislature shall otherwise provide, there shall be the same number of delegates to the convention, who shall be elected from the same areas, and the convention shall be convened in the same manner and have the same powers and privileges, as nearly as practicable, as provided for the convention of 1968.

The only change in this language adopted in 1968 was the reference to the 1968 convention in place of the 1950 convention.

64 Hawaii held a convention in 1968 pursuant to a 1966 referendum authorized by the legis lature. Porteus, The Constitutional Convention of Hawaii of 1968, 42 STATE Gov. 97 (1969). Thus another vote is not required in Hawaii until 1976.

65 The question 'Shall there be a Constitutional Convention to amend or revise the Constitution of the State?' shall be submitted to all the electors of the state at the general election held on the Tuesday after the first Monday in November in the evennumbered year next succeeding the expiration of a period of twenty years from the date of convening of the last convention called to revise or amend the constitution of the state, including the Constitutional Convention of 1965, or next succeeding the expiration of a period of twenty years from the date of submission of such a question to all electors of the state, whichever date shall last occur. If a majority of the electors voting on the question shall signify 'yes', the general assembly shall provide for such convention as provided in Section 3 of this article.

In providing for the convening of a constitutional convention to amend or revise the constitution of the state the general assembly shall, upon roll call, by a yea vote of at least two-thirds of the total membership of each house, prescribe by law the manner of selection of the membership of such convention, the date of convening of such convention, which shall be not later than one year from the date of the roll call vote under Section 1 of this article or one year from the date of the election under Section 2 of this article, as the case may be, and the date for final adjournment of such convention.

66 This section is included in the proposed new constitution of Arkansas which will be submitted to the voters at the 1970 general election The section provides:

A constitutional convention may be called by law, by initiative or by the voters of the State at a general election upon submission of the question by resolution of the General Assembly. If a constitutional convention has not been held or if the question of calling a convention has not been submitted to the voters of the State for a period of twenty years, then the question shall be submitted at the next general election. The General Assembly shall provide by law for the holding of a convention within one year after a majority of those voting on the question approves the calling of a convention.

67 This section has tentatively been approved by the 1969-70 Illinois constitutional convention. It is subject to being finally included in the convention's draft constitution and being approved by the Illinois voters in December, 1970. The section provides, in part: In the year 1990 and every twenty years thereafter the Secretary of State shall submit to the electors at the general election in that year the question of whether a Constitutional Convention should be called, unless there has been a similar submission during the preceding twenty years.

The vote on calling a Convention shall be on a separate ballot. A Convention shall be called if three-fifths of those voting on the question vote in the affirmative. The General Assembly shall, at the next session following approval by the electorate, provide for the Convention and for the election on a non-partisan ballot of two delegates from each senatorial district. The General Assembly shall designate the day, hour and place of the Convention's initial meeting, which shall be within three months after the election of delegates. The General Assembly shall fix the pay of delegates and officers, and provide for that pay together with all expenses necessarily incurred by the Convention in the performance of its duties.

59-609 0 - 80 - 59

(St. Louis Univesity Law Journal--1971) CONSTITUTIONAL CONVENTIONS: PRECEDENTS, PROBLEMS, AND PROPOSALS

THOMAS A. GILLIAM*

INTRODUCTION

The evidence suggests that, after nearly one hundred years, there is a possibility of a second constitutional convention. If this be the case, solutions to the problems of a twentieth-century convention will soon become necessary. The problems themselves, perhaps, may be grouped into categories, the most immediate being those centering around the issue of Congressional discretion in calling a convention when the legislatures of two-thirds of the states request it, in view of seemingly mandatory phrasing of article V of the Constitution. If so, inquiry follows regarding the extent to which a convention is to be controlled, its composition (to insure that its members represent the people) and the subject matter of its deliberation (to insure that any constitutional change proposed reflects not a wholesale tampering with the Constitution, but deals with a particular alleged dissatisfaction). Then there may remain the issue of what alternatives are available even beyond those that are constitutionally provided. In the remainder of this article the available precedents, pertinent Congressional history, and the most important scholarly writings will be examined and evaluated and a few conclusions will be made.

Article V of the Constitution requires that:

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 this Constitution, when ratified by the Legislatures of threefourths 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...

The only remaining precondition is that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." It could be thought, since the convention method of proposing amendments is initiated by the states, that it is the function of Congress to propose amendments from time to time on particular controversies, and that of states to apply through the convention method for general revision of the Constitution. Still, that does not seem to have been the general

Thomas A. Gilliam, Assistant City Attorney, Denver, Colorado; Member of the Colorado Bar.

intent of the Framers, whose debates reflect that a convention was only a means of providing the states with an alternative should the national legislature refuse to act on some desired constitutional change.1 However, James Madison felt that the article enabled both the general and state governments "to originate the amendment of errors."2 A fear of another convention was expressed then,3 as now, although Hamilton felt that if it were requested by the requisite number of states, Congress had no alternative but to call one. This expression of fear and of limitation may have been precipitated by the precedent of the Convention of 1787 itself. Its delegates had disregarded the instructions from the Continental Congress to simply amend the Articles of Confederation, although in the end the Framers still sought the approval of the Congress of the draft product."

Senator Sam J. Ervin, Jr., the noted authority of Constitutional law in the Senate, most recently involved in the problems of article V, notes that the Founders did not place the new government in the strait-jacket that inhibited the Confederation (the inability to change fundamental law without the consent of every state), but instead compromised between those who would utilize state legislatures as the sole means of initiating amendments, and those who would lodge it in the national legislature. Nevertheless, with the adoption of the Constitution, a new federalism developed with Congress taking the lead as to the amendatory power. While the impetus for inclusion of the Bill of Rights came from the states, it was Congress that initiated the first ten amendments, thereby becoming an active participant in the continuing constitution-making process of 1787. Also, while conceiv

8

1. M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 20304 (1937).

2. The Federalist No. 43[42] (J. Madison); that every amendment is a single proposition, see The Federalist No. 85 (A. Hamilton).

3. See Carson, Disadvantages of a Federal Constitutional Convention, 66 MICH. L. REV. 921 (1968), citing Charles Pickney of North Carolina in the closing debate of the Philadelphia Convention, September 15, 1787, that "Conventions are serious things and ought not to be repeated."

4. The Federalist No. 85 (A. Hamilton).

5. American Enterprise Institute, Special Analysis: A Convention to Amend the Constitution? (1967) found in Hearings on S. 2307 Before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 90th Cong., 1st Sess. 128 (1968), citing J. BECK, THE CONSTITUTION OF THE UNITED STATES 173 (1924).

6. Ervin, Proposed Legislation_to_Implement the Convention Method of Amending the Constitution, 66 MICH. L. REV. 875, 881 (1968).

7. Rhode Island, it has been noted, did not participate in the Convention of 1787 and did not ratify the Constitution until more than a year after the required ninth state had done so. Forkosch, The Alternative Amending Clause in Article V: Reflections and Suggestions, 51 MINN. L. REV. 1053, 1067 (1967).

8. Brickfield, Staff of the House Committee on the Judiciary, 8th Cong., 1st Sess., Problems Relating To A Federal Constitutional Convention 7 (Comm. Print 1957), notes that as early as 1789 New York and Virginia made application for a general convention for inclusion of the Bill of Rights. This was also the concern of the closing debate of the Convention of 1787 with reference to holding another convention for this purpose, see note 3 Pipra.