PROCEDURES FOR CALLING CONSTITUTIONAL CONVENTIONS UPON APPLICATION BY STATES MONDAY, OCTOBER 30, 1967 U.S. SENATE, SUBCOMMITTEE ON SEPARATION OF POWERS Washington, D.O. The subcommittee met, pursuant to recess, at 10:10 a.m., in room 2228, New Senate Office Building, Senator Everett McKinley Dirksen presiding. Present: Senators Dirksen, Hruska, and Tydings. Also present: Paul L. Woodard, chief counsel, Lawrence J. Brady, minority counsel; Prof. Philip B. Kurland, chief consultant, Prof. Robert G. McCloskey, consultant, and Prof. Alexander M. Bickel, consultant. Senator DIRKSEN. The committee will come to order. I will ask that there be included at this point in the hearings record the text of article V of the Constitution of the United States. (Article V follows:) CONSTITUTION OF THE UNITED STATES 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. Senator DIRKSEN. Senator Ervin is unable to be present at today's session. I think it would be appropriate to insert into the record the statement which he made on August 17, 1967, when he introduced Senate bill 2307. I will also ask that a copy of the bill be made a part of the record. (The statement of Senator Ervin, and S. 2307 follow :) REMARKS OF SENATOR SAM J. ERVIN, JR., DEMOCRAT OF NORTH CAROLINA Mr. President, I introduce, for appropriate reference, a bill to establish procedures for calling constitutional conventions for proposing amendments to the Constitution of the United States upon application of the legislatures of two-thirds of the States, pursuant to Article V of the Constitution. In recent weeks there has been much information, misinformation and ignor. ance displayed on the subject of amending the Constitution by a convention called by the State legislatures. With the sudden realization that thirty-two State legislatures already have called for a new federal constitutional convention, many persons have concluded that the Nation is on the verge of the worst internal crisis since the Civil War. They have warned that if any such convention is called the result will surely be a constitutional nightmare. They foresee a runaway convention proposing wholesale amendments abolishing the Bill of Rights, repealing the income tax, providing for the election of the Supreme Court, and the like. Even those persons who favor a constitutional convention and view it as the highest forum for the expression of the will of the people, are quick to agree that the Congress, in seeking to implement the provision in Article V for the convening of a convention upon application of two-thirds of the States, would be virtually without precedent to guide it in answering the myriad sensitive questions involved. Amendment of the Constitution is too important a subject to remain thus enshrouded in darkness. And I hope by introduction of this bill to evoke some light-through committee hearings-and to reduce to orderly processes the chaos, and, indeed, the anarchy, that threatens in the absence of such legislation. At the outset I should say that the problem dealt with in this bill transcends the issue that brought it to light. It would be grossly unfortunate if the partisanship over State legislative reapportionment-and I speak as a partisan on that issue should distort an attempt at clarification of this process for amendment of the Constitution. For certainly we must recognize that the amendment process in the long-run must command a higher obligation and duty than any single issue that might be the subject of that process. [S. 2307, 90th Cong., 1st sess.] A BILL To provide procedures for calling constitutional conventions for proposing amendments to the Constitution of the United States, on application of the legislatures of twothirds of the States, pursuant to article V of the Constitution Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Federal Constitutional Convention Act." APPLICATIONS FOR CONSTITUTIONAL CONVENTION SEC. 2. The legislature of a State, in making application for a constitutional convention under article V of the Constitution of the United States, shall, after adopting a resolution pursuant to this Act, petition the Congress stating, in substance, that the legislative requests the calling of a convention for the purpose of proposing one or more amendments of a particular nature to the Constitution of the United States and stating the specific nature of the amendment or amendments to be proposed. APPLICATION PROCEDURES SEC. 3. (a) For the purpose of adopting or rescinding a resolution pursuant to section 2, the State legislature shall adopt its own rules of procedure. (b) Questions concerning the State legislative procedure and the validity of the adoption of a State resolution cognizable under this Act shall be determinable by the State legislature and its decisions thereon shall be binding on all others, including State and Federal courts, and the Congress of the United States. (c) A State resolution adopted pursuant to this Act shall be effective without approval by the Governor of the State. TRANSMITTAL OF APPLICATIONS SEC. 4. (a) Within sixty days after a resolution to apply for the calling of a constitutional convention is adopted by the legislature of a State, the secretary of state of the State, or if there be no such officer, the person who is charged by the State law with such function, shall transmit to the Congress of the United States two copies of the application, one addressed to the President of the Senate, and one to the Speaker of the House of Representatives. (b) Each copy of the application so made by any State shall contain (1) the title of the resolution, (2) the exact text of the resolution, signed by the presiding officer of each house of the State legislature, and (3) the date on which the legislature adopted the resolution; and shall be accompanied by a certificate of the secretary of state of the State, or such other person as is charged by the State law with such function, certifying that the application accurately sets forth the text of the resolution. (c) Upon receipt of a copy of any such application, the President of the Senate and Speaker of the House of Representatives shall cause copies to be made thereof and shall forthwith send a copy thereof to the presiding officer of each House of the legislature of every other State. EFFECTIVE PERIOD OF APPLICATIONS SEC. 5. (a) An application submitted to the Congress by a State pursuant to this Act, unless sooner rescinded by the State legislature, shall remain effective for six calendar years after the date it is received by the Congress, except that whenever the Congress determines that within a period of six calendar years two-thirds or more of the several States have each submitted an application calling for a constitutional convention on the same subject all such applications shall remain in effect until the Congress has taken action on a concurrent resolution, pursuant to section 8, calling for a constitutional convention. (b) A State may rescind its application calling for a constitutional convention by adopting and transmitting to the Congress a resolution of rescission in conformity with the procedure specified in sections 3 and 4, except that no such rescission shall be effective as to any application made for a constitutional convention upon any subject after the date on which two-thirds or more of the State legislatures have applications pending before the Congress seeking amendments on the same subject. (c) The Congress of the United States shall have the sole power of determining whether a State's action to rescind its application has been timely taken. CALLING OF A CONSTITUTIONAL CONVENTION SEC. 6. (a) It shall be the duty of the Secretary of the Senate to maintain a record of all applications received by the President of the Senate, and it shall be the duty of the Clerk of the House of Representatives to maintain a tabulation of all applications received by the Speaker of the House of Representatives from the States for the calling of a constitutional convention upon each subject. Whenever the Secretary or the Clerk has reason to believe that such applications made by two-thirds or more of the States with respect to the same subject are in effect, he shall so report in writing to the officer to whom those applications were transmitted, and such officer thereupon shall announce upon the floor of the House of which he an officer the substance of such report. Pursuant to such rules as such House may adopt, it shall be the duty of such House to determine whether the recitation contained in any such report is correct. If either House of the Congress determines, upon a consideration of any such report or of a concurrent resolution agreed to by the other House of the Congress, that there are in effect applications made by two-thirds or more of the States for the calling of a constitutional convention upon the same subject, it shall be the duty of that House to agree to a concurrent resolution calling for the convening of a Federal constitutional convention upon that subject. Each such concurrent resolution shall (1) designate the place and time of meeting of the convention; (2) set forth the particular nature of the amendment or amendments for the consideration of which the convention was called; (3) prescribe the time within which any amendment or amendments proposed by such convention must be ratified by the legislatures of three-fourths of the States or be deemed inoperative; and (4) specify the manner in which such amendment or amendments shall be ratified in accordance with article V of the Constitution. A copy of each such resolution agreed to by both Houses of the Congress shall be transmitted forthwith to the presiding officer of each house of the legislature of each State. (b) The convention shall be convened not later than one year after the adoption of the resolution. DELEGATES SEC. 7. (a) A convention called under this Act shall be composed of as many delegates from each State as it is entitled to Representatives in Congress. Each delegate shall be elected or appointed in the manner provided by State law. Alternate delegates, in the number established by State law, shall be elected or appointed at the same time and in the same manner. Any vacancy occurring in the State delegation shall be filled by appointment of one of the alternate delegates in the manner provided at the time of his election or appointment as an alternate delegate. No alternate delegate shall take part in the proceedings of the convention unless he is appointed a delegate.. (b) The secretary of state of each State, or, if there be no such officer, the person charged by State law to perform such function shall certify to the Vice President of the United States the name of each delegate and alternate delegate appointed or elected pursuant to this section. (c) Delegates shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at a session of the convention, and in going to and returning from the same; and for any speech or debate in the convention they shall not be questioned in any other place. (d) Each delegate and each alternate delegate shall receive compensation at the rate of $50 per day for each day of service and shall be compensated for traveling and related expenses in accordance with the provisions of sections 5701-5702 and 5704-5708, inclusive, of title 5 of the United States Code. The convention shall fix the compensation of employees of the convention. CONVENING OF CONVENTION SEC. 8. (a) The Vice President of the United States shall convene the constitutional convention. He shall administer the oath of office of the delegates to the convention and shall preside until the delegates elect a presiding officer who shall preside thereafter. Before taking his seat each delegate shall subscribe an oath not to attempt to change or alter any section, clause or article of the Constitution or propose additions thereto which have not been specified in the resolution calling the convention. Upon the election of permanent officers of the convention, the names of such officers shall be transmitted to the President, the President of the Senate, and the Speaker of the House of Representatives by the elected presiding officer of the convention. Further proceedings of the convention shall be conducted in accordance with such rules, not inconsistent with this Act, as the convention may adopt. (b) The Congress shall appropriate moneys for the payment of all expenses of the convention. (c) Under such regulations as the President shall prescribe, the Administrator of General Services shall provide such facilities, and each executive department and agency shall provide such information, as the convention may require upon written request made by the elected presiding officer of the convention. PROCEEDINGS OF CONVENTIONS SEC. 9. (a) In voting on any question before the convention each State shall have one vote which shall be cast as the majority of the delegates from the State, present at the time, shall agree. If the delegates from any State present are evenly divided on any question before the convention, the vote of that State shall not be cast on the question. (b) The convention shall keep a daily verbatim record of its proceedings and publish the same. The votes of the States on any question shall be entered on the record. (c) The convention shall terminate its proceedings within one year after the date of its first meeting unless the period is extended by the Congress by concurrent resolution. (d) Within thirty days after the termination of the proceedings of the convention, the presiding officer shall transmit to the Archivist of the United States all records of official proceedings of the convention. PROPOSAL OF AMENDMENTS SEC. 10. (a) Except as provided in subsection (b) of this section, a convention called under this Act may propose amendments to the Constitution by a majority of the total votes cast on the question. (b) No convention called under this Act may propose any amendment or amendments of a general nature different from that stated in the concurrent resolution calling the convention. No controversy arising under this subsection shall be justiciable but shall be determined solely by the Congress of the United States. |