Excerpt Senate Hearings, Committee on the Judiciary CHAPTER VI CONSTITUTIONAL AMENDMENT BY CONVENTION 1 The Constitution of the United States, Article V, providing an amending process 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 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. Of the four possible ways of amending the Constitution, only two have been used: All amendments except the twenty-first were initiated by two-thirds vote of both Houses of Congress and ratified by the legislatures of three-fourths of the States. The twenty-first amendment was initiated in the same manner as the others but was ratified by conventions in three-fourths of the States. So far the Congress has never called a convention to prose amendments. Consideration of the provision for initiation of amendments by a convention called by Congress at the petition of two-thirds of the State legislatures raises a number of questions. How did the provision come to be included in the Constitution? How frequently, and on what subjects, have State legislatures petitioned Congress for a convention? To what extent does it lie within the discretion of Congress to determine when a convention shall be called? How close together in time and in subject matter must petitions be to count toward the requisite two-thirds? What is the effect of a resolution rescinding a petition? If Congress should decide to call a convention, how would it be organized? Could its powers be limited? It is hoped that the discussion which follows will throw some light on the above and related questions, although it does not purport to answer them definitively. An attempt has been made to summarize the more significant historical information, to outline the major constitutional issues, and to analyze the various possible lines of argument with respect to each of these issues. ARTICLE V IN THE CONSTITUTIONAL CONVENTION OF 1787 On May 29, 1787, shortly after the Constitutional Convention had met and organized, Edmund Randolph of Virginia and Charles Pinckney of South Carolina presented general plans for a new Constitution. In both plans the States were given a voice in the initiation of con 1 Prenared by Legislative Reference Service, Library of Congress. stitutional amendments. Article 13 of the so-called Virginia plan, presented by Randolph, stated simply― that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary; and that the assent of the National Legislature ought not to be required thereto. 2 Article 16 of the Pinckney plan, which closely resembled the amending procedure finally adopted, read as follows: If two-thirds of the legislatures of the States apply for the same, the legislature of the United States shall call a convention for the purpose of amending the Constitution-or should Congress with the consent of two-thirds of each House propose to the States amendments to the same the agreement of two-thirds of the legislatures of the States shall be sufficient to make the said amendments parts of the Constitution. The ratifications of the conventions of - States shall be sufficient for organizing this Constitution.' When article 13 of the Randolph plan was discussed in Committee of the Whole House on June 11, Madison reported that Several Members did not see the necessity of the resolution at all, nor the propriety of making the consent of the National Legislature unnecessary. Colonel Mason and Randolph supported the resolution, Colonel Mason arguing that It would be improper to require the consent of the National Legislature, because they may abuse their power, and refuse their consent on that very account. The opportunity for such an abuse may be the fault of the Constitution calling for amendment. The Convention (in committee) then voted to postpone consideration of the words "without requiring the consent of the National Legislature," and passed the other provision in the clause. This vote was ratified by the Convention on July 23.* When the Committee on detail reported on August 6, the amending provision (article XIX) was worded as follows: On the application of the legislatures of two-thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a convention for that purpose." On August 30, article XIX was agreed to, with no opposition, although Gouverneur Morris suggested that the National Legislature should be left at liberty to call a convention whenever it pleased.' Then, on September 10, only a week before the Convention adjourned, Elbridge Gerry moved to reconsider article XIX. "This Constitution" he said "is to be paramount to the State constitutions. It follows, hence, from this article that two-thirds of the States may obtain a convention, a majority of which can bind the Union to innovations that may subvert the State constitutions altogether." Hamilton seconded the motion, but on the grounds that "the State legislatures will not apply for alterations, but with a view to increase their own powers"; he wanted the National Legislature to be given power to call a convention, on the vote of two-thirds of each branch. Madison made an interesting observation on the vagueness of the Max Farrand (ed.), The Records of the Federal Convention (New Haven, 1937), vol. I, p. 22. The account of the convention proceedings contained in this section is taken from Farrand's four-volume work. For a detailed discussion of the history of article V in the convention, see Paul J. Schelps, The Significance and Adoption of Article V of the Constitution, Notre Dame Lawyer, vol. 26, pp. 46–67 (Fall, 1950). Farrand, III, p. 601. Farrand, I, pp. 202-3; II, p. 84. Farrand, II, p. 188. >p. 467-8. wording of article XIX: "How was a convention to be formed? By what rule decide? What the force of its acts"? Following this discussion the Convention voted to reconsider, nine States to one, New Hampshire being divided." Sherman then moved to add the words: "or the legislature may propose amendments to the several States for their approbation; but no amendments shall be binding until consented to by the several States." After this motion had been amended by inserting "threefourths of" before "the several States" (in the proviso), Madison moved to postpone consideration of the amended proposition to take up the following: The Legislature of the United States whenever two-thirds of both Houses shall deem necessary, or on the application of two-thirds of the legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three-fourths at least of the legislatures of the several States, or by conventions in three-fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the United States." With the slavery proviso added, Madison's proposition passed, nine States to one, with New Hampshire's vote again divided. When the committee of style reported on September 12 the amending article was worded as follows: The Congress, whenever two-thirds of both Houses shall deem necessary, or on the application of two-thirds of the legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes, as part thereof, when the same shall have been ratified by three-fourths at least of the legislatures 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 1808 shall in any manner affect the - and sections of article 10 This article was not taken up until September 15, when the Constitution was ordered to be engrossed. Sherman wanted more protection of the rights of the States. Mason thought the proposed amendment procedures "exceptionable and dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case." " Morris and Gerry moved to amend, to require a convention on application of two-thirds of the States. Madison "did not see why Congress would not be as much bound to propose amendments applied for by two-thirds of the States, as to call a convention on the like application. He saw no objection, however, against providing for a convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum, etc., which in constitutional regulations ought to be as much as possible avoided." 12 The motion of Morris and Gerry was then unanimously agreed to. On this same day, after being further amended to safeguard the equal representation of the States in the Senate, article V, along with the other provisions of the Constitution, was ordered to be engrossed.13 The history of article V is an erratic one, and the recorded debate concerning its provisions is scanty. It is interesting to note, however, that the participation of the States in the process of initiating amendments appears to have been taken for granted. There were differences of opinion as to the desirability of having any provision for amendment, and, if there was to be one, of excluding the National Legislature from having a voice in it. With regard to State participation in the proposal of amendments, however, the only real point at issue. was what form it should take. PREVIOUS USAGE OF THE STATE PETITION PROCEDURE 14 The contrast between the apparent expectation of the framers as to the importance of State initiation of amendments and the actual use made of the procedure is startling. General petitions were presented to Congress in 1789 by New York and Virginia. The next petition, also general in nature, was by Georgia in 1833. Later in the same year Alabama petitioned with respect to an amendment against the protective tariff. Shortly before the Civil War six State legislatures petitioned for the calling of a drafting convention. 15 These 10 petitions appear to have constituted the entire output for over 100 years. In the past 50 years petitions have been much more numerous. The largest number of petitions so far recorded on a single subject called for a convention to initiate an amendment providing for the popular election of Senators. A total of 55 petitions were adopted, representing 29 State legislatures. This movement took place chiefly between 1901 and 1911. In second place comes the current incometax limitation proposal, on which 24 States have petitioned. Beginning with New York in 1906, 18 States petitioned for a convention on the subject of prohibiting polygamy. These are the only three subjects on which a substantial number of petitions have been recorded. One to half a dozen petitions have been adopted on a wide range of subjects, including antitrust control, repeal of the eighteenth amendment, taxation of tax-exempt securities, regulation of hours of labor and minimum wages by Congress, method of apportionment and presidential tenure. In addition, several legislatures have adopted petitions calling for a convention without specifying any object. Altogether there appear to have been over 100 petitions in the last half century, but many of these represent second and third petitions from several of the State legislatures on the subject of popular election of Senators. 14 Information in this section concerning petitions adopted up to 1930 is based chiefly on Federal Constitutional Convention, Senate Document No. 78, 71st Cong., 2d sess. (1930) and Wayne B. Wheeler, "Is A Constitutional Convention Impending?", Illinois Law Review, Vol. 21, pp. 782 ff. (Apr. 1927). Petitions on the income tax proposal are listed in Appendix A of this report. The following list of additional petitions is not intended to be complete: Taxation of securities, previously tax-exempt, by federal government: Idaho 1929, C. R. 69:455; California, 1935, C. R. 79:10814. General constitutional convention: Wisconsin, 1929, C. R. 71:2590, 3369. Repeal of Eighteenth Amendment: Massachusetts, 1931, C. R. 74: 45; New York. 1931, C. R. 75:48; Wisconsin, 1931, C. R. 75:57; Rhode Island, 1931, C. R. 75:495-6; New Jersey, 1932, C. R. 75:3299. Regulation of wages and hours by Congress in intrastate commerce: California, 1935, C. R. 79:10814. Change of method of apportionment of congressmen: Iowa, 1941, C. R. 87:2494. Limitation of presidential tenure (either action by Congress or by convention requested): Iowa, 1943, C. R. 89:2516, 2728; Illinois, 1943, C. R. 89:2516-7. Distribution of Federal revenues (see ch. II, this report): Nebraska, 1949, C. R. 95:7893-4; Iowa, 1951, O. R. (daily), Apr. 17, pp. 4045-6; Maine, 1951, C. R. (daily), June 4, pp. 6186-7; New Hampshire, 1951, O. R. (daily), Aug. 2, pp. 10929-31; New Mexico, 1952, C. R. (daily), Feb. 11, 1962. In view of the difficult es in tabulating p titions--one of which is that petitions are not always presented to Congressmost of th Agures in this section must be regarded as approximate. Hertain V. Ames, Th Proposed Amendments to the Constitution of the United States During the First Con ury of Its History Was irgton, U. 8. Government Printing Office, 1897), p. 283. (H. Doc. No. 353, p. 2, 54th Cong.) Only in the case of the provision for popular election of Senators has the petition procedure proved influential in amending the Constitution. The seventeenth amendment was, of course, initiated by Congress, but between 1894 and 1902 the Senate four times blocked passage of resolutions adopted by the House.16 Following the flood of State petitions for the calling of a convention the Senate finally concurred in the resolution initiating the amendment. The history of the State petition procedure suggests that from a political standpoint it is nearly always simpler for the advocates of an amendment to concentrate their efforts on persuading Congress to initiate it by a two-thirds vote of both Houses than to secure the adoption of petitions by the legislatures of two-thirds of the States. The exception in the case of the seventeenth amendment is easily explained by the Senate's direct involvement in the proposal. At the same time, the sharp rise in the number of petitions in the past 50 years-some 10 times the number in the first 100 years-makes one hesitate to predict that it will continue to be a vehicle for lost causes. WHEN IS A CONVENTION TO BE CALLED? In providing that— The Congress * * on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments Article V leaves unanswered many important questions. How closely must petitions be related in time to be counted toward the necessary two-thirds? In subject matter? Should a petition be counted if it is later rescinded by the legislature? If it is vetoed by the governor? Is the role of Congress simply the ministerial one of issuing a call for a convention when two-thirds of the States have applied, or can it determine for itself the desirability of calling a convention? To what extent will the courts review the action of Congress in calling or in failing to call a convention? 1. The nature and extent of Congress' responsibilities In the light of the history of the amending article in the Constitutional Convention, it is reasonably clear that when two-thirds of the States have made application Congress is to call a convention, not consider whether one should be called. Our constitutional history makes it equally clear that the duty to call a convention is one to be enforced by the Congress itself. It is unlikely that the courts would attempt to compel the Congress to perform a positive act in furtherance of a constitutional obligation. Failure to call a convention would be comparable to the failure after the census of 1920 to make a reapportionment of seats in the House of Representatives, contrary to the requirement of article I, section 2. When it comes to judicial review of action taken by Congress in calling a convention, the answer is not so clear. Specific rulings of the courts are referred to below, in connection with particular problems of interpretation. In general, it may be said that the Supreme Court has been increasingly inclined to leave to the political branches of the Government the decision of questions arising out of the amending process. In Coleman v. Miller, which presented several issues concerning the ratification of the twenty-first amendment, Mr. Justice 1 Wheeler, op. cit., p. 786. |
