South Dakota Law Review

VOLUME 9

SPRING 1964

CONFEDERATION vs. UNION

By GEORGE MCGOVERN

"One Country, One Constitution, and One Destiny." Daniel Webster's conclusion and plea, is once again challenged. New anti-Federalists seek to fragment the unitary, national character of our civil rights and duties. They have proposed Constitutional change intended to permit the several states to go their separate ways on public issues of vital national character.

These men have offered to the state legislatures three amendments to the Federal Constitution. The first permits a minority of states to amend the Constitution without application for a national consensus on the proposal. The second subjects Supreme Court judgments relating to federal-state jurisdiction to review by a superior court made up of the Chief Justices of the 50 states. The third permits entrenched minority rule to circumscribe democratic government in the states. All, to Charles L. Black, Jr., Professor of Jurisprudence at Yale Law School, are "radical in the extreme". As a former professor of American history and as a practicing politician, I agree with Professor Black.

It is curious to see how these "radical" proposals have been propelled into prominence and adoption by nearly twenty state legislatures to the point now that there is a serious possibility they will become the law of the land. Less than a year and a half ago, on July 27, 1962, officials representing twelve Southern states, all delegates to the. regional meeting of the Council of State Governments, met in Biloxi, Mississippi. Concerned with the effect of federal Constitutional litigation from Brown v. Board of Education to Baker v. Carr3 on the civil rights posture in their states, these officials adopted two resolutions: the first, to forbid federal judicial intervention in state legislative ap

B.A. 1946, Dakota Wesleyan University; M.A. 1949, Ph.D. 1952, Northwestern University; United States Senator from South Dakota.

1. As quoted in CONG. REC. 8263 (daily Ed. May 15, 1963).

2. 349 US. 294 (1955).

3. 369 U.S. 186 (1962).

portionment, and the second, to curb the jurisdiction of the federal courts and strengthen the Tenth Amendment of the Federal Constitution.

As an example of how a minority proposal without grass roots support can be catapulted to endorsement by a widely respected and influential national conference of responsible citizens, the capable reporter, Fred J. Cook, has chronicled the growth of the Biloxi resolutions. The National Legislative Conference meeting in Phoenix, September 21, 1962, passed a resolution, "Strengthening the states in the Federal System," detailing its Federal-State Relations Committee to report to the December meeting of the General Assembly of the States on how the Constitution could be amended effectively by state initiation for the purpose of strengthening state sovereignty. The members of this Federal-State Relations Committee were selected by the Chairman of the National Legislative Conference, a man of like mind to the Biloxi delegates. Understandably, of the nine man committee he selected, eight strongly supported the state sovereignty proposal. Using the Biloxi resolutions as a base, the Federal-State Relations Committee drafted the three amendments discussed below including the suggested method of having them adopted: upon "application of the legislatures of twothirds of the several states" followed by a national convention and subsequent ratification by three-fourths of the states.'

The Council of States Governments, without endorsement but at the Federal-State Relations Committee's request, placed the three amendments before the General Assembly of the States, meeting in Chicago December fifth. The General Assembly, a gathering of state legislators and officials, received copies of the three proposed amendments only on the day they were brought out. There was little debate, no time for the opposition to organize its objections, less for proper reflection on the effect these amendments to our Constitution would have on effective government and Federal-State jurisdiction. Reportedly, the resolutions were brought out, read, debated and passed all in two hours. The votes on these resolutions were as follows:

4. COOK, THE PROGRESSIVE, (1963). Another history of the proposals may be found in Morgan, “Seventeen States Vote to Destroy Democracy as We Know It," Look, Dec. 3, 1963, p. 76.

5. The efficacy of this method has been attacked by Professor Black in "The Proposed Amendment to Article V: A Threatended Disaster," 72 YALE L. J. 957 (1963). 6. 36 STATE GOVERNMENT 12-15.

Thus, the small group of state officials meeting in Biloxi, Mississippi had obtained apparent endorsement by the General Assembly of the States, a national body of state officials, in just five and one half months. Now, armed with this "national consensus" many state legislators felt empowered to seek adoption of the resolutions in their own legislatures, resolutions which if finally enacted would increase their own powers and those of their state governments.

Still lacking grass roots support and prior to representative public discussion on the resolutions, by July 1963, seven months later, seventeen states had passed one or more of them. The roll call of the states follows:"

7. Information supplied by Council of State Government as of July 1963.

(a) In Nevada the proposal was vetoed by the Governor. (b) In New Jersey the legislature later rescinded its action. (c) In Utah the language differs from the standard resolution.

THE AMENDMENT TO SIMPLIFY STATE
INITIATION OF PROPOSED CONSTITUTIONAL
AMENDMENTS

The first of these alleged reforms would alter the Article V procedure for amending the Constitution to the end that the state legislatures could bypass Congress, or any other national forum, such as a constitutional convention, and directly effect changes in the Constitution. Under this proposal, the existing provision in Article V for a convention would be eliminated.

Article

Section 1. Article V of the Constitution of the
United States is hereby amended to read as follows:

The Congress, whenever two-thirds of both
Houses shall deem it necessary, or, on the application
of the Legislatures of two-thirds of the several states,
shall propose amendments to this Constitution, which
shall be valid to all intents and purposes, as part of
this Constitution, when ratified by the Legislatures of
three-fourths of the several states. Whenever applica-
tions from the Legislatures of two-thirds of the total
number of states of the United States shall contain
identical texts of an amendment to be proposed, the
President of the Senate and the Speaker of the House
of Representatives shall so certify, and the amendment

as contained in the application shall be deemed to have
been proposed, without further action by Congress.
No State, without its consent, shall be deprived of its
equal suffrage in the Senate.

Section 2. This Article shall be inoperative unless
it shall have been ratified as an amendment to the Con-
stitution by the Legislatures of three-fourths of the
several states within seven years from the date of its
submission.

The political philosophy behind this proposal mistakenly considers that the United States exists only as fifty and separate political groups and that a national interest, if it does exist, can and ought to find expression only through the separate action of a qualified majority of fifty geographical political units. National questions ought surely at some stage to be deliberated upon in a national forum. Only thus can they receive the consideration of representatives whose responsibility in office is the welfare of the country as a whole. But here is a proposal for state rule only, on the basis of state-by-state count only, and through state institutions only, with national issues submerged.

State legislatures, by the very nature of their purpose and function, have relatively small acquaintance with problems of a national character. They have little or no experience in dealing with problems in such perspective. Even given the best of intent on the part of any state legislature there would be great difficulty in acquainting the members with the attitudes, views, and needs of sections of the country other than their own. The Congress with its nationwide news is best designed to generate the kind of national debate and public scrutiny that is needed to prevent hasty or ill-advised changes in our Constitution. The issue, in short, is whether or not measures of national interest should be subjected to debate, deliberation and publicity at a national level before going out to the several states for their adoption. Do we favor a union of states or a return to the Articles of Confederation?

Using the 1960 census, Professor Black has noted that a muster of thirty-eight least populated states needed to ratify a Constitutional amendment account for 40% of the national population. In these 38 state accounting for 40% of our population

8. Supra note 6, at 959.