The kinds of amendments likely to be considered are reflected in those introduced in the Congress this year, including those that would abolish the income tax, require a balanced budget, permit prayers in public schools, elect the Supreme Court, regulate pornography, limit social security taxes, restore to the States certain rights taken away by the Court, require the advice and consent of the House to treatymaking, allow each State to enact its own legislation on questions of decency and morality, preserve our Nation's spiritual heritage, and establish the paramount right of society and the individual to be protected from crime.

Other proposals contained in various State applications for a constitutional convention over the years have included world federal government, State control of education, revision of article V, provision for a higher court above the Supreme Court, abolition of Federal enterprises, the allocation of oil and mineral rights, and changes in the electoral college. The current church-state debate in New York over its proposed new State constitution illustrates the bitterness as well as the strength of both those who feel that the first amendment "wall" is not high enough and those who might be inclined to lower it.

Whatever one's party or philosophy, whatever his position on a particular amendment or his faith in our State legislative bodies, the prospect of wide-open dabbling with the classic work of 180 years ago can only fill the constitutionalist with alarm. Unlike 1787, there is today no nationwide need or demand for such a Convention. There are no flaws in our system requiring so radical a step. There is no difficulty as is true of some State constitutions-in invoking the usual amendment route.

I realize that such a convention could do no more than the Congress can already do; namely, propose amendments for ratification by at least 38 States. But Congress does not merely propose amendments. It first approves them on the basis of its own insight into Federal constitutional problems. Neither the members of a new Convention, nor the State legislatures-or State conventions-which ratified their proposals, could possibly have the same knowledge of Federal problems as the Congress or the same degree of responsibility for meeting them. The Convention route has the effect, in the absence of Federal legislation, of practically bypassing the body who will bear the burden of implementing any amendments, and whose members by definition better reflect the national interest and long-range perspective than either the State legislatures or a temporary convention whose delegates need not run for reelection. I note, for example, that seven State legislatures have petitioned for a convention to propose the so-called "Liberty Amendment"-which would repeal all Federal income, gift, and estate taxes, liquidate most Federal programs, and necessitate a national sales tax. But I doubt if very many of the Congressmen and Senators from those same seven States would ever vote for such an irresponsible proposal.

It was for these reasons that I proposed last spring that the Congress involve itself in this wholly unused amendment route-the convention route by enacting legislation for the implementation of that portion of article V; and it is for these reasons that I commend Chairman Ervin for his initiative in introducing the pending bill.

In my opinion, the basic legal premise of S. 2307 is valid. The constitutional authority of the Congress to establish rules and procedures regularizing the use or application of principles set forth in the Constitution has been too frequently exercised to be doubted today. Moreover, because State legislatures in proposing amendments via the convention route are performing a Federal function derived from the Federal Constitution, they could not be heard in court to complain about the imposition of reasonable standards and procedures by the Federal Congress, so long as their fundamental right to amend the Constitution is not thereby impaired. Article V, it should be noted, gives to the Congress both the responsibility for calling such conventions and the separate responsibility-which could logically be exercised at the convention's close of determining the mode of ratification for any amendments proposed. It also contains certain restrictions on the subject matter of proposed amendments. The original Constitution itself was submitted to the Congress for that body to submit to the States in accordance with the original call of the Convention; and Federalist Papers 43 and 85 seem to assume that future amendments would be considered piecemeal, not wholesale.

Thus it would appear that the authors of the Constitution clearly contemplated the enactment of legislation such as S. 2307 giving Congress a role prescribing the convention-amendment process; and the courts, by ruling that other congressional actions of this kind-with respect, for example, to ratification are "political" questions, have made clear that they will not question the right of Congress to enact such legislation. In short, I fully concur with Chairman Ervin that Congress has both the power and the duty to implement article V, to prevent the crisis and chaos that would otherwise result and to restrict any such convention to those topics that are specified in the applications of State legislatures. These limitations, the clarification of the rescission and ratification processes and the assertion of congressional review all represent commendable steps forward.

Much to my regret, however, other portions of S. 2307 as presently drafted contain serious flaws which, if enacted, would make the threat of a national constitutional convention more dire than ever. Indeed, I regard these flaws as dangerously destructive to our basic constitutional principles.

Under section 7(a) the delegates to such a convention could be appointed instead of elected. I know of no modern precedent or acceptable reason for permitting the very State legislatures who call such a convention to avoid by State statute the popular election of their delegates. A Constitutional Convention is the embodiment of the ultimate power of the people; surely its membership must be directly chosen by the people it purports to represent if we are not to turn the clock back to the days before the direct election of Senators.

Under section 9(a) each State delegation to such convention is to have one vote, regardless of size. That proposal is so flagrantly in violation of the one-man, one-vote doctrine and so obviously contrary to the very notion of a representative body-that even a constitutional convention founded on such a premise could not withstand judicial injunction. I am assuming, I might add, that "Representatives in Congress" in section 7(a) as a basis for convention apportionment means "representatives to the U.S. House of Representatives”

as it does elsewhere in the Constitution. Any other meaning would be an unnecessary distortion of the convention's representatives. History and the Constitution make special provision for equal suffrage in one of the two Houses of Congress; and considerations of diplomacy and sovereignty have necessitated it in the U.N. General Assembly; but neither of those bodies is a proper precedent for a constitutional convention convoked in the name of the people with power to submit far-reaching amendments. In addition, the proposed unit rule for each State delegation would, even if each State's vote were properly weighted, place a curb on dissent and diversity which should not be imposed by the Congress but at best adopted or not adopted voluntarily by each State, as is now the case at our political conventions.

Finally, under section 10(a) such conventions would propose amendments by a majority of the total votes cast. The Congress, on the other hand, can propose amendments under article V only by a two-thirds vote in both Houses. A convention, for the reasons previously indicated, will not be entitled to the same confidence in its deliberations, in my opinion, as the Congress; and it would be most unwise to make even easier its submission of amendments.

The combination of section 9 (a) and 10 (a) is particularly disturbing. Any amendment submitteed by the Congress has first been approved by not only two-thirds of the Senate-which means at least 34 States and possibly all of them-but also two-thirds of the House, which means at least 290 Members who, even if they came from the smallest constituencies, would still represent roughly two-thirds of the population. But under section 9(a) and 10(a), after 34 States which might represent as little as 30 percent of the population had called the convention, 26 States representing one-sixth of the population could propose new amendments, before 38 States which could represent less than 40 percent of the population ratified them. Such a possibility drastically upsets the very checks and balances on which the Union was founded. And if under section 7(a), the delegates in those 26 States were appointed and not elected, the travesty on democracy contained in this process would be even more shocking. Therefore, I strongly urge the amendment of S. 2307 to provide that all delegates shall be elected and represent a substantially equal portion of their State's population, that each deleagte shall have one vote to be individually cast, and that a two-thirds vote of the convention shall be required to submit amendments for ratification. In the absence of such changes, this bill will do more damage than it prevents.

I would also respect fully urge:

(1) Reduction of the 6-year period provided in section 5(a) during which two-thirds of the States may propose the same amendments via the convention route, in view of the 2-year period in which a two-thirds vote of each House must be obtained to propose amendments via the congressional route;

(2) A cooling-off period in section 6 of at least 1 year between receipt by the Congress of the necessary two-thirds applications and specific authorization by the Congress of so potentially drastic a convention:

(3) A requirement in section 3 that such applications be the product of the same legislative processes at the State level as such State requires for the enactment of a State law, as distinguished from memorials to

the Congress-but not including approval by its Governor which, I must inform my friend from Maryland, I now agree could not be constitutionally required;

(4) A requirement in section 6 that the Secretary of the Senate and the Clerk of the House report annually to their respective bodies on the applications on file, to prevent the kind of surprise which came upon the Congress this year;

(5) The deletion as premature of those provisions attempting to specify now the method and time period of ratification in section 6(a) (3) and (4) and the compensation of delegates in section 7(d); and (6) I am submitting a list of seven very minor and largely technical or clarifying amendments as an appendix to this statement.

I appreciate, Mr. Chairman, the spirit with which Senator Ervin has put forward this draft bill without committing himself to all of its provisions; and I know that this committee's deliberations will be guided by that same devotion to our Constitution and admiration for its authors that guide every practitioner of the law. (The appendix referred to follows:)

APPENDIX

TECHNICAL OR CLARIFYING AMENDMENTS TO S. 2307

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Senator DIRKSEN. Thank you, Mr. Sorensen.

Do you have any questions, Senator Hruska?

Senator HRUSKA. I just have one question, Mr. Sorensen. It is a splendid statement and I commend you for it. It is restrained and it is factual in many, many ways. I would respectfully differ with some of the suggestions that you make by way of amendment.

Can an analogy really be drawn between the necessity to act on a resolution in Congress by a two-thirds vote within a period of 2 years in order to get a proposal for an amendment properly submitted to the State legislatures, and the other situation of having the legislatures limited to a 2-year period in which to petition Congress for a convention?

I cannot quite follow you when you suggest that, since Congress must act within 2 years, therefore everything else by way of proposing a constitutional convention must be done within 2 years.

Mr. SORENSEN. I am frank to say, Senator, that I think the calling of a national constitutional convention is such a serious step that it should not be made easy, it should be made difficult.

Senator HRUSKA. And it should not be made hastily. Some legislatures meet only 60 days, some 90 days, and since it is an event of great rarity, don't you think that they ought to discuss it at one session, come back a couple of years later and say, "Where do we stand now?" That would give them an opportunity to act studiously and properly?

Mr. SORENSEN. Each legislature meets at least every 2 years, and some of them do meet every year, so that the 2-year period would certainly give every legislature a chance. Perhaps as Senator Proxmire suggested, a 4-year period would be an acceptable compromise.

I do not, however, underestimate the difficulty of getting a twothirds vote of the Congress even in a single 2-year period, so that I think that the process of amending the Constitution is difficult under either route.

Senator HRUSKA. Of course, 2 years is a misleading term not intentionally, but in fact, because of some of the legislatures being allowed to meet only 60 or 90 days. Now that is not 2 years, but rather 60 or 90 days and between the time of proposing a resolution and its adoption, it has to go through two Houses, and so on. If we put it in terms of legislative sessions perhaps that would be a little easier to understand, would it not?

Mr. SORENSEN. Yes.

Senator HRUSKA. It is one possibility.

On another score on page 9 of your statement you suggest the requirement that such applications-excuse me, I withdraw my question. I had hastily read that and understood that there was a proposal to include the signature of the Governor.

Mr. SORENSEN. No.

Senator HRUSKA. It is the State legislature by itself that takes that action, is it not?

Mr. SORENSEN. Yes.

Senator HRUSKA. And, of course, there is that reference to Federalist Paper No. 85 of Mr. Hamilton which pretty much goes into that situation.

Mr. SORENSEN. Yes, Senator.

Senator HRUSKA. Those are all the questions I have.

Mr. SORENSEN. I am sorry that my friend from Maryland is not here because, while I admire the effort which he has made on this matter, I do have admiration for Nebraska lawyers, and I must agree with you that the Governor and the President are not a part of the article V process.

Senator HRUSKA. Thanks very much. Those are all the questions I have.

Senator DIRKSEN. Mr. Sorensen, where Congress fails to act in amending the Constitution, and you only have this one remaining route; namely, the applications of the States, have you any comment upon the inclusion in those applications of limitations on the subject matter that you would like to see handled in a convention?

Mr. SORENSEN. I believe that the provisions in S. 2307 which would require the State legislatures to set forth in their applications the specific matters on which they believe a convention should be held, and then the subsequent requirement that the convention limit itself to that subject matter, are valid.

Senator DIRKSEN. Are you of the opinion that under the present language of article V that is an entirely open question?

Mr. SORENSEN. Yes.

Senator DIRKSEN. And that the Congress could not put restrictions or inhibitions on a convention?

Mr. SORENSEN. I would be very much afraid of that.