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PART 3-PAST LEGISLATIVE HISTORY

[From the Congressional Record, Sept. 5, 1979]

STATEMENT ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. Hatch:

S. 1710. A bill to provide procedures for calling Federal constitutional conventions under Article V for the purpose of proposing amendments to the U.S. Constitution; to the Committee on the Judiciary.

CONSTITUTIONAL CONVENTION IMPLEMENTATION ACT OF 1979

Mr. HATCH. Mr. President, article V of the U.S. Constitution provides that constitutional amendments may be proposed in either of two ways. The firstthe means by which every successful amendment to the Constitution has been proposed-requires the agreement of two-thirds of each House of Congress. The second requires the agreement of a convention called by Congress in response to the petitions of two-thirds of the State legislatures. Ratification of amendments proposed through either method is to be done either by the legislatures, or by conventions, in three-fourths of the States, depending upon the decision of Congress.

Largely as a result of the fact that the convention method of constitutional revision has never been successfully employed, there are substantial questions that relate to it:

What exactly constitutes a valid petition to the Congress?

What procedures must a State follow in submitting a petition?

Must the precise language of the proposed amendment be included within the petition?

How similar must the language be in the petitions of various States in order to allow them to be aggregated?

How long does a petition remain valid? May such petitions be rescinded by the States?

What is the extent of congressional power to review petitions? What is the extent of congressional power to restrict the deliberations of the convention? What is the extent of State power to restrict the deliberations of the convention?

How is the convention to be organized? How are the States to be represented at the convention?

May Congress refuse to submit the product of a convention to the States for ratification?

How are constitutional convention-proposed amendments to be ratified in the States?

With respect to most of these questions, there is very little constitutional guidance. The relevant language of article V states simply:

"The Congress . on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments."

Nor are there useful precedents in view of the fact that there has never been a constitutional convention. Each of the questions involved in this, the "alternative" means of amending the Constitution, is therefore a threshold question. Article I, section 8, clause 18 of the Constitution invests authority in Congress to

"Make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States."

The provision clearly authorizes the Congress to pass legislation that would give effect to the convention method of constitutional alteration. This would be a direct function of its article V authority to "call" a convention pursuant to petitions by two-thirds of the States.

OBJECTIVES OF ACT

I am introducing legislation, the "Constitutional Convention Implementation Act," which would fill in the interstices of article V. It is particularly important that this body act on this, or similar legislation, in view of the fact that at least 30 States legislatures have already purported to submit petitions to Congress for the convening of a constitutional convention on the subject of a balanced budget amendment. I would hope that this act, however, could be considered separately from the merits of this specific amendment. The "Constitutional Convention Implementation Act" is designed to establish what are basically neutral procedures to guide the conduct of constitutional conventions generally. While the imminence of a convention of the matter of a balanced budget has clearly created the urgency for this legislation, the act is designed neither to facilitate nor obstruct the eventual achievement of a balanced budget amendment, or any other constitutional amendment.

One must look to the policy underlying the establishment of the convention form of amendment in order to construct a fair procedures bill. Even a cursory analysis of the original constitutional convention (convened under the auspices of the articles of confederation) would suggest that the final provision of article V resulted from a compromise between those delegates who sought to invest proposal authority solely in Congress and those who sought to invest it solely in the State legislatures. The two modes of initiating amendments were viewed as essentially equivalent alternatives, each of which was to serve as a check upon the intransigence of either the National Legislature or the State legislature in the matter of proposing constitutional revision.

In view of this fundamental purpose, I believe that legislation giving effect to the convention method of amendment should be such that resort to its use will not render the Constitution "too mutable" (the Federalist No. 43) while at the same time insuring that it will not be rendered null and void because it is too cumbersome a method. The amendment process should never be one that can be successfully employed with great ease, yet neither should it be a process totally incapable of being used to alter the Constitution. It is this general philosophy that guides congressionally-initiated amendments and would seem most appropriate with respect to convention-initiated amendments as well.

PROVISIONS OF ACT

I would like to briefly discuss the provision of this act and explain their justification. I should add at the outset my debt to the efforts of our former colleague, Senator Sam Ervin. While my bill differs in a number of respects from legislation that Senator Ervin successfully shepherded through the Senate in 1971, its basic structure is closely related to that legislation. This measure has been reintroduced in the present Congress as S. 3 by our distinguished colleague from North Carolina (Senator Helms).

Section 1 of my bill states that its short title is the "Constitutional Convention Implementation Act of 1979."

APPLICATIONS FOR CONVENTION

Section 2 states the manner in which States are to make applications for a constitutional convention. It states simply that the legislature shall state, within its application for a convention, the "General Subject" of the amendment or amendments to be proposed. It is expected that the application is to be sufficiently precise so as to enable Congress to determine whether or not the application ought to be aggregated with the applications of other States. It would not, for example, be enough for a State to say that it desired a convention for the purpose of "improving the functioning of the executive branch of the Federal Government," and have it aggregated with an application specifying its desire for a convention for the purpose of "considering changes in the length of the presidential term of office."

The purpose of the initiating process is to determine that there exists some form of consensus among the States on the matter of a relatively well-defined area of amendment. This consensus cannot fairly be said to be in evidence if aggregation is to be permitted of applications that are, at best, only incidentally related.

On the other hand, it cannot reasonably be expected that identical, or even nearly identical, language be employed in petitions that ought to be aggregated

Such a requirement is highly unrealistic with respect to fifty diverse State legislative bodies; the imposition of such a rigid rule would effectively render the alternative method of amendment provided in article V useless. Further, to the extent that a petition was required to be precise, either with respect to the specific amendment sought, or the specific language sought, there would be little use for the convention itself. To limit the convention to the consideration of a single, meticulously worded amendment is to make the convention a farce. In order for the convention to be a meaningful part of the article V process, it must have some leeway within which to exercise its legitimate discretion.

LIMITED CONVENTIONS

That this discretion, however, is not without its limits is the subject of section 2(B), and, indeed, is the basic theme of the "Constitutional Convention Implementation Act." This section states that the procedures provided in the act are to be followed in the case of applications for what are commonly referred to as "limited conventions." Such conventions are defined for the purposes of this act as conventions "for the purpose of proposing one or more specific amendments to the Constitution of the United States." Implicit in this section is the recognition that the States may call for the convening of either "limited" or "general" conventions; it is, however, simply with respect to the former that the terms of this act apply.

A "general" convention would be one in which the States petitioned for a convention, not with any specific or limited purposes in mind, but for the purpose of making whatever revisions were deemed necessary or desirable by the convention itself. It is this sort of convention that poses such great concerns to most observers, including myself. I am far from confident that a contemporary "General" convention could do much to improve upon the work of Madison, Hamilton, and Mason. While there is no way that Congress, through passage of a simple statute, could preclude the States from requesting a "general" convention—this is their right under article V-neither is Congress precluded from clarifying that the States are fully within their rights in seeking a "limited" convention.

There is significant academic dispute as to the possibilities of a "limited" constitutional convention. Prof. Charles Black of the Yale Law School, for example, believes that the constitutional convention is a "free agent," sovereign and without limitations. According to this theory, the convention represents the premier assembly of the people, and is therefore supreme to all other Government branches and agencies.

I would disagree with this interpretation. The constitutional convention, while clearly a unique and separate element of the Government-a new branch of the Government, so to speak-is subject to the same limitations and checks and balances as the other, permanent branches of the Government. A constitutional convention, as its name clearly implies, is a constitutional entity; it is appointed under the terms of the Constitution and subject to all of the express and implied limitations imposed by that document. As observed by Professor Jameson in his classic work on constitutional conventions:

"The convention's principal feature is that it is subaltern-it is evoked by the side and at the call of a government pre-existing and intended to survive it, for the purpose of administering to its special needs. It never supplants the existing organization. It never governs. Though called to look into and recommend improvement in the fundamental laws, it enacts neither them nor the statute law; and it performs no act of administration."

The Federal constitutional convention is an instrument of the Government, and acts properly only when it acts in conformity to its authorized powers.

There is nothing in the language of article V to suggest that the convention method of amendment cannot be limited to a single area of amendment, although the article states that the convention is to be convened for the purpose of proposing "amendments," resort to the plural is made also describing the scope of Congress' proposing authority. The symmetry between the competing processes of constitutional amendment is emphasized by Madison in the Federalist No. 43 in discussing the objectives of article V:

"That useful alterations will be suggested by experience, could not be foreseen. It was requisite therefore that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extrewe facility which would

render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. It moreover equally enables the general and the State governments to originate the amendment of errors as they may be pointed out by the experience on one side or on the other."

It was clearly contemplated that the convention anticipated specific amendment or amendments, rather than general revisions, and that no distinction was to be drawn between the competing methods of amendment in this respect.

To enable Congress to propose specific constitutional amendments while allowing the States only to propose general constitutional revision is to confer markedly unequal powers of amendment upon these governments, an intention contradicted by the unanimous weight of documentary evidence. If the States are to have no ability to control the actions of a convention in the form of their convention applications, then there will be strong disincentives for them to seek such conventions. In the absence of broad based dissatisfaction with the existing constitutional system, why should they want to create the threat or possibility of a convention acting beyond the scope of the application? Why, in seeking to originate the "amendment of errors" described by Madison, should the States have to risk total revision of the constitutional system?

It is anomalous that in seeking to correct what might be a narrow defect in the system that the States should have to place the entire system in jeopardy? What better means could there be to "perpetuate the discovered faults' of the system? What better means could there be to place the convention system of amendment in an unequivalent position to the congressional system of amendment? What better means could there be to completely discourage any and all resort to the convention means of constitutional amendment?

It is the States, not Congress, that ought to properly have the ability to limit the scope of the convention, through the convention applications. While Congress, under section 6 of the "Constitutional Convention Implementation Act," is empowered to specify in its call for the convention the scope of permissible deliberations, it is performing basically an administrative, nondiscretionary function in doing so; it is simply translating the State applications into a formal convention call.

APPLICATION PROCEDURES

Section 3 of the act specifies that the procedures to be followed in making a convention application are generally to be those established by the States themselves. Section 3 (a) states that for the purpose either of adopting a resolution or withdrawing one (pursuant to section 6) the State legislature is to follow the same rules of procedure that govern the enactment of a simple statute, except that the action is to be considered valid without the assent of the Governor of the State.

Thus, the term "legislatures" in article V is treated in the same manner for the purpose of convention applications as it has traditionally been treated for the purpose of amendment ratification. It has generally been thought that, had the Founders intended to require gubernatorial participation in the amendment process, they would have made express reference either to the need for ratification or proposal by the "States," or by the legisltaures with the assent of the "Executive." As the Supreme Court has observed in Lester v. Garnett 258 U.S. 130, 137 (1922):

"The function of the State legislature in ratifying a proposed amendment to the Constitution, like the function of Congress in proposing the amendment, is a Federal function derived from the Federal Constitution; and it transcends any limitations sought to be imposed by the people of a State."

In an analogous decision, the Court in the early case of Hollingworth v. Virginia 3 Dall. 376 (1798) interpreted the provision of article V to require the exclusion of the national executive from the amendment process.

Section 3(b) provides further that questions concerning the validity of application procedures are to be decided by the State legislatures themselves. While recognizing that, in pursuit of their authority under article V, the States are acting in a quasi-Federal capacity, rather than in a purely State role, it would nevertheless be incongruous for any body to determine whether or not there has been procedural regularity in a State legislative action other than the State legislature itself.

In Field v. Clark 143 U.S. 649 (1892), it was decided by the Supreme Court that the procedural requirements of the legislative process were presumed to

have been satisfied when legislation was formally certified by the appropriate legislative officers. Rather than intruding Congress or the courts into this area, there is no reason why this traditional rule ought not to continue to apply with respect to convention application actions. There is no compelling reason why article V should require sacrifice by the State legislatures of their right to regulate their own proceedings.

TRANSMISSION OF APPLICATIONS

Section 4 of the act specifies the means by which the States are to transmit their applications for a convention to Congress. Section 4(a) states that, within 30 days of the adoption by a State of an application, the appropriate official is to transmit copies to the President of the Senate and the Speaker of the House of Representatives.

Section 4(b) directs the States to include within these applications: the title of the resolution, the exact text of the resolution, the date of adoption, and an official certification. In addition, States are encouraged, but not compelled, to list in the application other effective State applications which are deemed to concern substantially the same subject. While such a listing is not expected to be conclusive with respect to Congress, it is nevertheless considered that such a listing will be useful to Congress in carrying out its responsibilities in aggregating similar applications.

Section 4 (c) requires each house to establish a public record of each State application, and to notify each State legislature of the fact of each application. Through internal procedures to be determined by each House of Congress, Congress would be charged with making its decisions on whether or not to aggregate applications within the 10-day period following each new application. The criteria would be whether or not the applications referenced the "same general subject or subjects."

As observed earlier, it is the objective of this language to ensure the existence of some real consensus among the States with respect to the need for constitutional revision in some relatively circumscribed area. At the same time, in order not to interfere with the legitimate freedom of action of a convention, there ought not to be the requirement of extreme precision, either in the text or in the subject-matter. The language contained in the bill is designed to draw some rough balance between these requirements.

In order to ensure that the consensus for a constitutional amendment remains a relatively "contemporaneous" one (see Dillon v. Glo88 256 U.S. 368 (1921)), section 5(a) states that an application shall be effective for no longer than a 7-year period, with shorter effective periods contained within the body of an application to be respected. The court in Dillon stated that,

"Proposal and ratification are not treated as unrelated acts but as succeeding steps in a single endeavour, the natural inference being that they are not to be widely separated in time . . . must reflect the will of the people in all sections at relatively the same period which of course ratification scattered through a long series of years would not do . . . We do not find anything in article V which suggests that an amendment once proposed is to be open for ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective."

Similarly, State convention applications and the “calling” of a constitutional convention are not unrelated acts, but necessary, succeeding steps in a single endeavor. There should be a "reasonable" relationship in time (see Coleman v. Miller, 307 U.S. 433 (1938)) between these actions. There is the same need to avoid staleness of applications to Congress as there is to avoid staleness of amendment proposals to the States.

In view of the fact that every amendment proposed by Congress, except one, since the 18th amendment has contained a 7-year time limitation either in the body or in the enacting clause, it was decided to use the same period for determining effectiveness of applications.

Section 5(b) authorizes States to withdraw their applications at any time prior to the time that there are a sufficient number of valid applications before Congress to enable it to call a convention. There would seem to be no valid policy reason for denying them this right. Indeed, in order to insure that the amendment process reflects the notion of "contemporaneous consensus," it is vital that the States have the right to reconsider and reverse their application decisions.

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