legislatures and find out whether the ones that wanted the Escobedo convention also want a first amendment convention, and so forth, and if not, we do not have the 34 States.

Professor KURLAND. Let us get back to the background of the problem initiated in congressional talk on the subject. Some applications deal with reapportionment of State legislatures. Is that a broad enough coverage?

Professor BICKEL. I would think not.

Professor KURLAND. Why not?

Professor BICKEL. Because the legislature that now asks for reconsideration of the reapportionment process is construing that language realistically-intelligently asking for reconsideration of the reapportionment cases, and that seems to me a very narrow thing which is no different from proposing some language to be voted up or down. It is not enough. A convention has to have a substantial subject within which there is room to maneuver.

Professor KURLAND. That is not the way the amendment process works in terms of congressional initiation.

Professor BICKEL. Čongress is a national forum.

Professor KURLAND. We are going to provide a national forumthe convention will provide a national forum for discussion of particular issues, as the bill is drafted. There is no dispute that the language contained in the State applications cannot confine the convention to that language. What we are talking about is the question of whether the convention will be limited to a particular subject matter. If you look at the 11th amendment, the income tax amendment, the right of women to vote, they were discussed in a national forum. And now the parallel that I suggested-the parallel that I think is intended by Article V-is that we do have to provide the States with a means for initiating a forum for dealing with a particular problem.

Professor BICKEL. I am not arguing that a convention may not propose single amendments. I am arguing that the States cannot hobble it to acting on a single proposition only. Never, in the course of action on the amendment you mentioned, was the Congress restricted to doing that, and that alone. It was never restricted in what constitutional amendments it proposed, and it was never restricted in anything else. If you read through the record of the 39th Congress, as I once did, you see the Congress acting as a full-blooded total legislative body. Everything comes in. They deal with the problems of the 14th amendment. Somebody suggests a constitutional amendment. Somebody brings in some other problem. Somebody brings in the problem of citizenship. How did the 14th amendment evolve? It started with the single issue of Negro rights: What are we to do with these Negroes in the South? And then it developed into what we now see, because a full-bodied, full-blooded legislative process was at work. That seems to me to be real consideration in a national forum.

If the Congress had been hobbled by being restricted to dealing with some single aspect of the Negro problem only, Lord knows what we would have got, if anything at all.

Professor KURLAND. We are often in disagreement on constitutional history. In terms of the subject matter for appropriate discussion in the national convention, the authority is not given to the national convention, but to the States. There is nothing restricting the number of

applications or the number of subjects that may be contained in the applications; is that correct?

Professor BICKEL. Article V says that it takes two-thirds of the States to call a constitutional convention for proposing amendments, keeping it clear on the one hand that it is the convention, not the States, that proposes amendments, and keeping it clear, on the other hand, that it is up to Congress to determine whether two-thirds of the States have concurred at a given moment in a desire for a constitutional change. If the resolutions go in every direction, you cannot tell whether they concur in the same idea.

Senator ERVIN. In my opinion, if one-third of the 34 States wanted to amend the first amendment, and one-third of them wanted to amend the fifth amendment, and the other one-third wanted to amend the sixth amendment, and they asked the Congress to call the convention, setting forth no specific amendments, Congress would be obligated to call a convention.

Professor BICKEL. If I get, over a period of 3 or 4 years, 13 resolutions on Miranda and another 13 on the latest desegregation case in Georgia, or wherever it is, feeling as I do that this thing ought not to be lightly done, I would say that it is jumping to a conclusion that each of these States would be willing to have that convention, even though they knew that it would deal not only with Miranda but with the desegregation problem, and vice versa and also with other problems. And if I were the Congress at that point, I would send the resolutions back to each of these legislatures and ask, "Do you want this? This is the kind of convention you are dealing with. Do you still want it?

And I would venture to say that some legislatures that might have wanted a convention about Miranda would say, "If this is going to be a convention on segregation, too, better call it off. We will concede on Miranda, if they will concede on desegregation." I read article V to mean that this momentous occasion could only occur after the most. careful deliberations and only when everybody knew exactly what they were doing, and I would say that in our hypothetical situation, it could not be said that everybody knew exactly what they were doing. There would be a chance that we could slide into a constitutional convention sort of by happenstance, without everybody being quite aware of what was going on. The thing being as momentous as itwas, I think that good policy would be for the Congress to take pause and to ask everybody, "Is this what you mean?"

Senator ERVIN. I think that the States have the option of calling for the convention or not. What amendments will be proposed will be up to the convention. The States can refuse to ratify the proposals, the States have that protection.

Professor BICKEL. I agree. In my judgment, I am making sure that the States really want it, and want it, really, with full knowledge of what it is all about. After that, the convention is theirs.

Professor KURLAND. Let me ask just one more question. If the emphasis is on a consensus of the States, and their desires, putting aside the problem that has been brought out by the Senator, do you have any question at all that the State legislatures, on reapportionment, have no problem with the consensus question? Aren't they all talking about the same problem, but suggesting different solutions?

Professor BICKEL. They are talking about the same problem, which is very narrow. They want a convention to overrule the one-man, onevote decision.

Professor KURLAND. As I understood the recent colloquy between you and Senator Ervin, you were both in agreement that the States cannot limit the subject matter that is presented at all?

Professor BICKEL. Yes.

Professor KURLAND. If I may quote the Senator, the convention is to be the master of the subject matter, rather than the State legislatures.

Professor BICKEL. Well, yes; but I do not think that Senator Ervin suggested that the convention would only be a runaway general constitutional convention.

Professor KURLAND. That is the difficulty with the logic of your position; it requires a consensus among the State applications as to the appropriate subject matter for calling the convention, but then it recognizes that the convention is not restricted to that subject matter.

Professor BICKEL. You do not allow me a retreat in some measure from the position that only a general convention is permissible. I think that somewhere there is a middle ground; namely, a convention restricted-and hopefully we can make that restriction stick-to some fairly general subject, a subject, for example, of the size of that of the 14th amendment. Once you agree with that, the Senator and I were discussing a very different point; namely, the problem that the Congress would have in determining that a legislature that called for a convention knew what it was calling for, and that all called for the same thing and were aware of what everybody else was calling for.

If you received a resolution which asked for something to be overruled, and 4 years later received another resolution that asked for something else to be overruled, then these two legislatures cannot be assumed to have been addressing themselves to the same kind of a convention. You cannot assume that they both knew that a convention when convened could do both things, and we cannot assume that if they knew that, they would still want a convention.

Professor KURLAND. Let me put this question, which bothers me: Why are you saying, in the terms of the reapportionment matter, that it was too narrow? Because they are talking only of the reapportionment of State legislatures? Are you demanding a general reconsideration of the processes for electing representative officers?

Professor BICKEL. I think that the only way that that problem could be broadened sufficiently, so as to bring it to the point where I would hope that you could restrict the convention to dealing with it only, would be to consider that it was as broad as the problem of the allocation of political power in organs of government, State and Federal, or the entire electoral process.

Short of that, it seems to me that you are too near to the other end of the spectrum; namely, the end where you are putting a one-shot question to a convention and demanding that it answer "Yes," or "No." That is the end of the spectrum that we are obliged to try to avoid. The other end of the spectrum, the general constitutional convention, we are obliged, by policy considerations that I think we all share, to avoid, because it is a horror to contemplate. We are trying to find a middle ground.

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I know that it is getting late. But let me back up a little, because I think that I may have created some confusion. I am talking about two separate problems.

One is the problem, the congressional problem, of making sure that the States have all done together a thing that is within their power and have not acted under a misapprehension of what it is that they can do or what it was that other States want to do. Congress must make sure that there really is a concurrence of two-thirds of the States to call a convention permissible under article V.

That is one problem; really a problem of the relationship between the Congress and the State legislatures.

The other, quite separate problem, which the Congress has to resolve, and we hope that this bill resolves, is what is the constitutional power of the States under article V? What kind of convention can be called? What kind may not be called? We have two ends of a spectrum. At one end is the narrow, one-shot convention, which I think is improper. At the other end is the general constitutional convention which the States may call, but we hope they will not. We hope that we can find some middle ground, which is broad enough to avoid one end of the spectrum, and not so broad as to arouse all of the fears at the other end. We decide, let us say, with respect to apportionment, that the subject is broad enough; or we decide that any convention that is being asked to deal with three separate issues has enough business there to be able to act like a deliberative political body. Well, having decided that, we than go back and look at the resolutions we have, and we now face the other quite separate problem-what did these legislatures ask for? Did they understand what they were asking for in the resolutions that are now before the Congress, for example? As to those, the answer would be "No" in many cases.

I think that if we have three disparate kinds of requests, the answer to all of these ought to be "No," because we cannot assume that a legislature that is asking for a particular kind of convention knew that the convention would also deal with other things. You just could not assume that.

I think the value of this bill, the value of your initiative, Senator Ervin, is that the Congress has now an opportunity to make clear to the States what it is that their powers are under article V. Then, if a bill is passed, when the States act, we will be able to make much sounder assumptions about their understanding of what it was that they were doing, and anyway, solve this problem of the relationship between the Congress and the State legislatures.

But there are two separate problems. And I think that I caused some confusion earlier this morning by speaking of them as interwoven, without making that distinction.

Senator ERVIN. Thank you very much. It has been an interesting discussion. Very informative. This is an intriguing question, particularly because we have so few precedents by which to chart our course. I will ask the reporter to insert at this point in the record the reported decision in the case of Fortson v. Toombs, 379 U.S. 621 (1965). I think the case has been misconstrued by some who have referred to it in these hearings.

(The document above referred to follows:)

(379 U.S. 621)

BEN W. FORTSON, Jr., as SecreTARY OF THE STATE OF GEORGIA, ET AL., APPELLANTS,

v.

HENRY J. TOOMBS ET AL.

No. 300.-Argued Nov. 18, 19, 1964. Decided Jan. 18, 1965.

On Appeal from the United States District Court for the Northern District of Georgia.

E. Freeman Leverett, Atlanta, Ga., for appellants.
Francis Shackelford, Atlanta, Ga., for appellees.

Per curiam

The District Court, having held that the Georgia Legislature was malapportioned (Toombs v. Fortson, 205 F. Supp. 248), enjoined appellants, election officials, "from placing on the ballot to be used in the General Election to be held on November 3, 1964, or at any subsequent election until the General Assembly is reapportioned in accordance with constitutional standards, the question whether a constitutional amendment purporting to amend the present state constitution by substituting an entirely new constitution therefore shall be adopted."* Appellants challenge that provision on the merits. Appellees, while defending it on the merits, suggest alternatively that the issue has become moot.

The situation has changed somewhat since the 1964 election, as both the Senate and the House have new members, and appellees, for whose benefit the challenged provision was added, say it is now highly speculative as to what the 1965 legislature will do and suggest the paragraph in question be vacated as moot.

We vacate this part of the decree and remand to the District Court, to whom we give a wide range in moulding a decree (United States v. Crescent Amusement Co., 323 U.S. 173, 185, 65 S. Ct. 254, 260, 89 L. Ed. 160; International Boxing Club of New York v. United States, 358 U.S. 242, 253, 79 S. Ct. 245, 251, 3 L. Ed. 2d 270), for reconsideration of the desirability and need for the on-going injunction in light of the results of the 1964 election and the representations of appellees. It is so ordered.

Decree vacated in part and case remanded.
Mr. Justice Clark, concurring.

"Although I would prefer to declare this litigation moot and vacate the judgment below, I am joining the opinion and judgment of the Court solely on the basis that it is not reaching the merits regarding the propriety of the order fashioned by the three-judge District Court. In my view, the Court is simply vacating and remanding in order to give the District Court an opportunity to reconsider its order in light of the change in circumstances which has occurred since judgment was entered."

Mr. Justice Harlan, with whom Mr. Justice Stewart joins, concurring in part and dissenting in part.

"This is the first time that the Court, after plenary briefing and argument, has been called on to consider the propriety of interim arrangements prescribed by a district court pending the effectuation of its decision requiring reapportionment of a branch of a state legislature.

"After holding that the House of Representatives of the General Assembly of Georgia was unconstitutionally composed, a decision which is not called into question on this appeal, the three-judge District Court ordered: (1) that the election in 1964 of the legislature to serve in 1965 (the 1965 legislature) might

The entire paragraph reads as follows:

"The defendants are hereby enjoined from placing on the ballot to be used in the General Election to be held on November 3, 1964, or at any subsequent election until the General Assembly is reapportioned in accordance with constitutional standards, the question whether a constitutional amendment purporting to amend the present state constitution by substituting an entirely new constitution therefor shall be adopted; provided, however, nothing in this order shall prevent the submission of amendments to the Constitution of the State of Georgia which are separate as to subject matter, in accordance with Article XIII, Section I, Article 1, of the Constitution of the State of Georgia, 1945. (See Hammond v. Clarke, 136 Ga. 313 [71 S.E. 479, 38 L.R.A.,N.S., 771 for a discussion by the Georgia Supreme Court of what constitutes separate amendments.) Nor shall anything in this order prevent the calling by the General Assembly of a 'convention of the people to revise, amend, or change the constitution' if the representation 'in the convention is based on population as near as practicable' with the members being elected by the people (see Article XIII, Section I, Article 2). Constitution of the State of Georgia, 1945."