duly approved becomes a valid part of the Constitution. Since the Constitution is the supreme law of the land (Article VI), any addition thereto or revision thereof, if adopted in conformity with its terms, also partakes of the attributes of supreme law.

To be sure, if, for example, the clause of Article V, stipulating that "no State, without its Consent, shall be deprived of equal Suffrage in the Senate," were to be deleted by a duly approved amendment, a radical alteration of our Federal system will have been effected; but the latter fact, it may fairly be argued, scarcely can detract from the validity of the amendment whereby such deletion was consummated. Can there be such a thing as an unconstitutional constitutional amendment? Would not this be a contradiction in terms? Questions such as these have of course never been resolved.

Moreover, as long as the Supreme Court regards the written Constitution as the supreme law of the land, it is hardly likely that it would deign to hold invalid a duly approved constitutional amendment. The Court did of course pass on the merits of contentions challenging the validity of the Eighteenth and Nine teenth Amendments, but only to the extent of rejecting such contentions sum marily (United States v. Spraque, 282 U.S. 716 (1931); Leser v. Garnett, 258 U.S. 130 (1922)). These decisions are viewed by Westel W. Willoughby as definitively disposing of the notion "that there are inherent limitations upon the amending power [or] that there are some matters which cannot legally be justified even by a constitutional amendment" (Fundamental Concepts of Public Law, pp. 250-251 (1931)). Elsewhere the latter author concluded that "the fundamental error of all those who have sought to place inherent limitations upon the amending power . . . is that they necessarily start with the assumption that the Constitution is in the nature of an agreement or compact between the States, or that it implies an understanding between them, or between them and the National Government, that the allocation of powers as provided for in the original instrument shall not be changed in any of its more important or essential features. It is surprising to this writer that this theory which, since the Civil War, has been so decisively rejected by the American people and by the courts, should again be brought forward to support a constitutional argument" (The Constitutional Law of the United States, Vol. I, p. 600 (2d ed., 1929); accord, Wheeler, op. cit., p. 801; Platz, op. cit., pp. 25, n. 41, 26).

A model bill establishing the procedure for calling a constitutional convention and regulating the composition thereof is contained in Problems relating to state applications for a convention to propose constitutional limitations on federal tax rates, op. cit., pp. 21-24.

APPENDIX

UNITED STATES CONSTITUTION, ARTICLE V

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; 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.

[AMERICAN ENTERPRISE INSTITUTE]

SPECIAL ANALYSIS
(June 1967)

A CONVENTION TO AMEND THE CONSTITUTION?

(Questions Involved In Calling A Convention Upon Applications By State Legislatures)

Genesis of Article

INTRODUCTION

Shortly before the closing session of the Federal Convention of 1787, George Mason of Virginia addressed himself to a proposal by James Madison to provide

a method for amending the Constitution. This proposal, reported out of the Committee on Style and Revision as Article V, "left proposed amendments entirely in the hands of the National Legislature. . . ." The proposal as it stands, Mason said, is "exceptional and dangerous." If the proposing of amendments depends ultimately upon Congress, he continued, then "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." *

Gouverneur Morris of Pennsylvania then proposed that the article be amended to require Congress to call a convention to propose amendments upon application of two-thirds of the states. His proposal was seconded by Elbridge Gerry of Massachusetts, and adopted. Thus Article V provides that amendments may be proposed (1) by the Congress, or (2) by a convention upon application of twothirds (34) of the state legislatures.

Article V provides, in pertinent part, 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 three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other Mode or Ratification may be proposed by the Congress...

Twenty-five amendments to the Constitution have been proposed by the Congress and ratified by the states since the Convention of 1787. The alternate route of amending the Constitution-proposed amendments hammered out by delegates in convention assembled and submitted to the states for ratification-has never been followed, and there are few signposts to guide those states attempting to travel this path.

Reaction to Report on State Applications

On March 18, 1967, Fred P. Graham, of the New York Times, reported that “A campaign for a constitutional convention to modify the Supreme Court's oneman, one-vote rule is nearing success ." and that "most of official Washington has been caught by surprise.”* “The Legislatures of Illinois and Colorado," wrote Graham, "formally asked Congress this week to call a constitutional convention, bringing to 32 the number of states that have taken this step."

Reaction to Graham's story was immediate. "At no time has Congress or the country been willing to open the basic structure of our Government and the character of our liberties to the unpredictable whims of a new convention," editorialized the Washington Post. "It is difficult to believe that well-informed legislators will risk such hazards to our constitutional underpinnings if they know what they are doing. This back-door assault on the Constitution should be stopped." The League of Women Voters charged that "Blitz methods" had been used in securing the petitions, and that "at least 24 of the 32 legislatures were malapportioned at the time they passed the resolutions."

997

Then, on March 21, 1967, Senator Everett Dirksen (R. Ill.) was interviewed by reporters. "We are working on five" legislatures, Dirksen stated, and predicted the number of petitions "will shortly go up to 33 and then 34.” Continuing, he stated that the matter "would have the highest privilege" and would go directly before the Senate. In that event, observed the Washington Evening Star, "we will be in for one of the wildest, most emotional and most confusing battles royal of this or any other Congress-with a full-fledged liberal filibuster very possibly tossed in for good measure.' ." Dirksen said a filibuster could be overcome.

Objecting to charges that the movement for a convention had been a "backdoor assault," Senator Dirksen said, "Why, this has been an open and aboveboard matter in every legislature." 10

1 Brickfield, Problems Relating to a Federal Constitutional Convention, House Committee on the Judiciary, 85th Cong., 1st Sess., p. 5 (Comm. Print 1957) (hereinafter cited as Brickfield).

2 Madison, Journal of the Federal Convention, p. 737 (Scott ed. 1893).

On March 22, 1967, Senators Joseph D. Tydings (D. Md.) and William Proxmire (D. Wisc.) addressed the Senate in opposition to a constitutional convention. Describing the efforts of proponents of a constitutional convention as closely resembling "an assault by the Marx Brothers on Fort Knox," Tydings stated that:

1

... despite any impressive totals of the number of State legislatures which have asked Congress for some kind of action regarding State legislature apportionment, the number of States which have at any time asked Congress for a convention to propose a malapportionment amendment is at least four and probably seven States short of the necessary 34. And of the 30 memorials which apparently have been enacted asking for such a convention, 24 are certainly void, because they were enacted by legislatures which were themselves unconstitutionally malapportioned at the time. . .

Senator Proxmire also questioned the validity of many of the petitions, stating that he had

received a study from the Library of Congress that indicates all but six of the 32 legislatures calling for a constitutional convention on apportionment were illegally constituted at the time they approved the memorials to Congress calling for such a convention. . .

3

994

Reaction of the press to the prospects of a constitutional convention appear to be about evenly divided. The Washington Post, in a second editorial, urged the states "not to put themselves in the posture of trying to tear the Union to pieces." and noted with approval that a bill had been introduced in the Maryland legislature to rescind its petition.3 Commenting on the speeches of Senators Proxmire and Tydings, the Post stated that they "may not be on solid ground in urging Congress to reject the resolution because 26 of the 32 legislatures passing it were improperly apportioned, but that is certainly a good reason for the states themselves to reconsider their rash action."

996

A brief comment in National Review observed that "The sudden prospect of a convention has made flocks of liberal editorialists unhappy-or, perhaps, embarrassed that the thing is going to happen despite their vigorous efforts to ignore it for three years. Really, could 32 state legislatures have acted in secret, or did the press decide that what we didn't know couldn't hurt us?" David Lawrence summed up what is perhaps the unstated fear of some when he wrote that

7

Congress probably would much rather have action on a single amendment involving the reapportionment problem than to have a whole gamut of issues opened up for constitutional amendment . . . there are no limits on the questions that a constitutional convention can consider.

The delegates to the convention from the several states could take action to prevent the federal government from using public funds as a means of interfering in activities which are explicitly reserved to the states by the Constitution. There are, in fact, opportunities for a complete shift of power from the federal government back to the states if the device of a national constitutional convention now is put into operation."

Some of the questions that have arisen-and will continue to arise-in connection with the current movement by the states to invoke the constitutional convention provision of Article V are discussed in the sections that follow. EFFORTS TO INVOKE THE CONVENTION PROVISION PRIOR TO THE 88TH CONGRESS

As pointed out in a House Judiciary Committee staff report, it is "a far from easy task" to obtain an accurate tabulation of the total number of petitions requesting a constitutional convention. The present practice is for the Speaker of the House and President of the Senate to refer such petitions to a congressional committee.10 Most petitions appear to be referred to the House and Senate

1 113 Congressional Record, S4231, March 22, 1967 (daily ed.).

2 Ibid.

3 113 Congressional Record, S4209, March 22, 1967 (daily ed.).

4 The Washington Post, March 24, 1967, Editorial.

5 The bill failed to pass.

The Washington Post, March 24, 1967, Editorial.

719 National Review (April 11, 1967), p. 1.

8 The Washington Evening Star, "Constitutional Rebellion Looms," (March 22, 1967), 9 Staff of House Committee on the Judiciary, 82nd Cong., 2d Sess., Problems Relating to State Applications for a Convention to Propose Constitutional Limitations on Federal Tax Rates, p. 5 (Comm. Print 1952).

10 Ibid. But see Proposed Legislation, p. 48, infra.

Judiciary Committees, although a few applications seeking a convention to limit federal income taxing powers have been referred to the Committee on Ways and Means of the House, and to the Committee on Finance of the Senate. The Judiciary Committee staff report concluded that locating the text of state applications for constitutional conventions in public records depends "less upon diligence than on chance." If a petition is properly transmitted, its receipt is noted in the Congressional Record. But the staff report observed that "the index to the Congressional Record is indeed weak stratum upon which to base a call for a Federal convention.

1

More than 200 Applications for Conventions

Fred P. Graham, former Chief Counsel of the Senate Subcommittee on Constitutional Amendments, and currently New York Times Washington correspondent, writing in the December, 1963, issue of the American Bar Association Journal, lists 206 petitions applying for a constitutional convention." These were filed prior to 1963. These petitions have covered many subjects: direct election of Senators, limitation on federal taxing power, prohibition of polygamy, general revision of the Constitution, world federal government, repeal of the 18th Amendment, Presidential tenure, treaty-making, taxation of federal and state securities, protective tariffs, wages and hours, gasoline tax, tidelands problem, control of trusts, grants-in-aid, popular ratification of amendments, constitutionality of state enactments, revision of Article V, and the Townsend plan.3

It is interesting to note that only "10 petitions constituted the entire output for the first hundred years of our Federal Government under the United States Constitution."* Between 1893 and 1911, however, 31 state legislatures adopted a total of 73 petitions relating to the election of Senators. This is the largest number of petitions calling for a convention on a particular subject.5

Writing in 1957, Brickfield stated that:

The second largest number concerned the Federal power over the taxation of incomes on which 32 applications have been submitted by 27 States. Beginning with New York in 1906, 27 States have petitioned for a convention on the subject of prohibiting polygamy, and 29 petitions from 22 States have sought a general revision of the Constitution without specifying a particular subject. These are the four subjects on which the greatest number of petitions have been received.

From 1 to 8 petitions have been presented to Congress on a wide variety of subjects including world federal government, limitation of Presidential tenure, repeal of the 18th amendment, taxation of tax-exempt securities, regulation of hours of labor and minimum wages by Congress, treatymaking, and methods of apportionment. In all, there have been over 195 petitions in the last 60 years-as distinguished from 10 in the first 100 years-of our Nation. However, many of the petitions adopted since the turn of this century represent second and third petitions from several of the State legislatures, and some legislatures have rescinded their earlier actions. Since 1957, however, the number of applications calling for a convention on the subject of state legislature reapportionment has greatly increased, and that subject now ranks well within the top four subjects on which the greatest number of petitions have been received.

It should be pointed out that there is considerable disagreement on what constitutes a valid effective petition and how petitions are to be counted. If Article V "requires merely that two-thirds of the States submit applications, a convention has long been overdue."1

As Graham has pointed out, analysis of state applications submitted to Congress "reveals that, although most amounted to little more than a political gesture and a waste of time, some of them did contribute directly to the eventual adoption of an amendment,' ," the most notable example being the 17th Amendment providing for election of senators by the people.

1 Ibid.

2 Graham, "The Role of the States in Proposing Constitutional Amendments," 49 A.B.A.J., pp. 1175, 1179-83 (December, 1963b).

3 See Brickfield, p. 74.

4 Ibid., p. 7.

5 Ibid.

6 Ibid., pp. 7-8.

7 Ibid.

8 Graham, "The Role of the States in Proposing Constitutional Amendments," op. cit., p. 1176.

EFFORTS TO INVOKE THE CONVENTION PROVISION BEGINNING WITH THE 88TH CONGRESS Background-The Reapportionment Decisions

On March 26, 1962, the United States Supreme Court, in the landmark case of Baker v. Carr.1 made the field of state legislative apportionment subject to federal judicial review. Dissenting, Mr. Justice Frankfurter said that the Court reversed "a uniform course of decision" and that the decision was "a massive repudiation of the experience of our whole past."

Prior to Baker, the courts held that suits to compel legislative reapportionment were political in nature, and thus nonjusticiable in federal courts.2 Rejecting this argument when raised in Baker, Mr. Justice Brennan, writing for the Court, stated:

it is the relationship between the judiciary and the coordinate branches of the Federal Government and not the federal judiciary's relationship to the States, which gives rise to the "political question.' Mr. Justice Frankfurter, perhaps anticipating public response to the Baker decision, wrote:

The Court's authority-possessed of neither the purse nor the sword— ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.* Having held that the federal courts have jurisdiction in apportionment cases, the Court remanded the case to the lower court for further proceedings.

5

In December, 1962, the 16th Biennial General Assembly of the States endorsed three proposed amendments to the Constitution, and recommended that the states petition Congress for a constitutional convention for the purpose of proposing these amendments. Two of the proposed amendments are outside the scope of this Analysis, the third sought to nullify the holding of Baker v. Carr, supra, by limiting the jurisdiction of the federal judiciary so as to exclude suits involving state legislative apportionment, Response to the General Assembly's proposed amendments was contagious: during the first eight months of the First Session of the Eighty-eighth Congress (1963) the legislatures of eighteen states submitted to Congress thirty-eight applications calling for a constitutional convention to propose amendments to the Constitution of the United States. This was almost four times as many applications as were submitted to Congress in the first century of the Constitution, and by far the largest number to be adopted in any one year. Twelve of these applications for a constitutional convention dealt with apportionment of state legislatures.

After this initial activity on the part of the states, the controversy sur rounding apportionment of state legislatures shifted temporarily to the law reviews. The quiet was to be short-lived however, for on June 15, 1964, the Supreme Court handed down a decision which went beyond its assertion of jurisdiction in Baker v. Carr, supra. In the case of Reynolds v. Sims, the Court held that, "as a basic constitutional standard, the Equal Protection Clause requires that both houses of a bicameral state legislature must be apportioned on a population basis."" Explaining the reasoning of the Court, Chief Justice Warren wrote:

1 Baker v. Carr, 369 U.S. 186 (1962).

2 See. e.g., Colegrove v. Green, 328 U.S. 549 (1964).

3 Baker v. Carr, op. cit., p. 210.

4 Baker v. Carr, op. cit., p. 301 (Frankfurter, J., dissenting), emphasis added.

5 See, e.g., Dixon, "Apportionment Standards and Judicial Power," 38 Notre Dame Law, 367 (1963); Hanson, "Courts in the Thicket: The Problem of Judicial Standards in Apportionment Cases." 12 Am U. L. Rev. 51 (1963); Lucas, "Legislative Apportionment and Representative Government: The Meaning of Baker v. Carr," 61 Mich. L. Rev. 645 (1963); McKay, "The Federal Analogy and State Apportionment Standards," 38 Notre Dame Law. 387 (1963); and Weaver & Hess, "A Procedure for Non-Partisan Districting : Development of Computer Techniques." 73 Yale L.J. 288 (1963).

6 Reynolds v. Sims, 377 U.S. 533 (1964).

The Council of State Governments, a joint governmental agency of the states, supported by appropriations of the state legislatures, holds a General Assembly of the states biennially.

8 See Shanahan, "Proposed Constitutional Amendments: They Will Strengthen FederalState Relations," 49 A.B.A.J. 631 (July, 1963) for a general discussion of these proposed amendments. But see Black, "Proposed Constitutional Amendments: They Would Return Us to Confederacy," 49 A.B.A.J. 637 (July, 1963) for a different interpretation of how these proposals would affect federal-state relations.

9 Ibid., p. 568.