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As for the rule that delegates vote as individuals, this strikes me as a prudent concession to the principle of popular control, for reasons already discussed. I think it falls well within Congress' plenary power over convention procedures)

G. p. 9. Sec. 10. (a). I would strike this subsection and begin Sec. 10 with present subsection (b).

H. p. 10, Sec. 11 (b). Beginning with the word “not” in line'8, I would strike the rest of that line and the whole of lines 9 through 12. I would substitute: "adopted a concurrent resolution approving the submission of the proposed amendment to the states."

(Even in terins of the bill as it stands, I see no reason for limiting the possibility of disapproval to the ground that the proposal's general nature is different from that stated in the concurrent resolution. Suppose, for example. the convention had failed to abide by the procedures set up in Sec. 9. Would the Congress be obliged by Sec. 11 (b) to approve the proposals anyway? But my more general reason for suggesting this alteration is that I do not think we cau anticipate the possibilities for procedural irregularities and disputes, and I therefore do not think Congress should surrender in advance its last opportunity to take a hand in this amending process. I assume, as I have all along, that Congress could not withhold approval merely because it objected to the policy of a proposal, but the line between policy and procedure can be fuzzy and unpredictable, and I would feel easier if Congress were left to determine it as the issue arises, rather than by a prospective disclaimer of this sort.)

Now for a final observation. The more I think about this bill as it stands, the more it seems to me to facilitate amendment proposals by minority political forces. But I think that those who feel a grievance because minority claims are currently being overridden should reflect that "facilitation" (if there is such a barbarous word) is a two-edged sword. By making it easier to embody minority views in constitutional amendments they also make the amendment process easier for an overweening majority to exploit. The elimination of the Governor from the application process, the provision for decision by a simple majority in the convention, the surrender of all but the narrowest congressional control, the whole imperative, automatic spirit of the bill would set a precedent for a majority to follow in working its will on minorities in the future. The only provision that looks the other way is the present provision for one-state-one-vote in the convention, and that could be wiped out in five minutes. What would remain would be a congressionally-established precedent for relatively easy constitutional amendment. As a believer in minority rights, I would think twice before setting such a precedent.

BIBLIOGRAPHY

CALLING OF A FEDERAL CONSTITUTIONAL CONVENTION BY STATE PETITION

Selected References

Black, "The Proposed Amendment of Article V: A Threatened Disaster," 72 Yale Law Journal 957 (1963).

Black, "Proposed Constitutional Amendments: They Would Return Us to Confederacy." 49 American Bar Association Journal 637 (1963).

Bonfield, "Proposing Constitutional Amendments by Convention: Some Problems," 39 Notre Dame Lawyer 659 (1964).

Brickfield, Cyril F., Problems Relating to a Federal Constitutional Convention, (Doc. Dis., George Washington University School of Law), published as a committee print, Committee on the Judiciary, United States House of Representatives, 85th Congress, 1st Session, (1957).

Caldwell, Freund, Bernard, "Debate of Three Proposed Constitutional Amendments," 53 Illinois Bar Journal 1040 (1965).

A Convention to Amend the Constitution?—Questions Involved in Calling a Convention upon Application by State Legislatures, American Enterprise Institute, Special Analysis No. 5, 90th Congress, June 16, 1967.

Corwin and Ramsey, "The Constitutional Law of a Constitutional Amendment," 26 Notre Dame Lawyer 185 (1951).

"Rewrite the U.S. Constitution? Interview With Senator Everett Dirksen," 62 United States News and World Report 63 (June 5, 1967).

241

Ervin, "Federal Constitutional Convention Act," Congressional Record (Daily Edition, August 17, 1967), pp. $11757-59.

Federal Constitutional Convention, Senate Document No. 78, 71st Congress, 2nd Session (1930).

Fennell, "States Rights Amendments-Debates of the 'Founding Fathers' Cast Doubts on Current Proposals," 35 New York State Bar Journal 465 (1963). Fensterwald, "Constitutional Law: The States and the Amending Process-A Reply," 46 American Bar Association Journal 717 (1960).

Forkosch, "Alternative Amending Clauses in Article V: Reflections and Suggestions," 51 Minnesota Law Review 1053 (1967).

Graham, "The Role of the States in Proposing Constitutional Amendments," 49 American Bar Association Journal 1175 (1963).

Grinnel, "Petitioning Congress for a Convention: Cannot a State Change Its Mind?" 45 American Bar Association Journal 1165 (1959).

IIruska, "The Reapportionment Crisis," Congressional Record (Daily Edition. May 10, 1967) pp. 86650-55.

Hurst, "Memorandum Regarding Pending Proposals to Amend the United States Constitution," 36 Wisconsin Bar Bulletin 7 (1963).

Jameson, John A., A Treatise on Constitutional Conventions-Their History, Powers and Modes of Proceeding, (4th Ed., 1887).

Jenner, "Observations on the Proposed Alteration of the Constitutional Amendatory Procedure," 39 Notre Dame Lawyer 625 (1904).

McGovern, "Confederation vs. Union," 9 South Dakota Law Review 1 (1964). Martig, "Amending the Constitution Article V: The Keystone of the Arch," 35 Michigan Law Review 1253 (1937).

Martin, "The Amending Power: The Ebinger Proposal," 40 American Bar Association Journal 767 (1954).

Monroe, "To Preserve the United States: A Brief for the Negative on Three Current Plans to Amend the Constitution," 8 St. Louis University Law Journal 533 (1964).

Note, "Proposed Constitutional Amendments: A New Definition of Federalism,” 12 Journal of Public Law 448 (1963).

Note, "Proposing Amendments to the United States Constitution by Convention,” 70 Harvard Law Review 1067 (1957).

Note, "Rescinding Memorialization Resolutions," 30 Chi-Kent Law Review 339 (1952).

Orfield, Lester B. Amending the Constitution (Ann Arbor: 1942).

Packard, "Constitutional Law: The States and the Amending Process," 45 American Bar Association Journal 161 (1959).

Packard, "The Inherent Safety in Calling a Convention for the Purpose of Proposing Amednments to the Constitution of the United States," 56 Dickinson Law Review 373 (1952) ; 13 Alabama Lawyer 141 (1952).

Packard, "Legal Facets of the Income Tax Rate Limitation Program," 30 ChiKent Law Review 128 (1952).

Packard, "A Study in the Invalidity of Memorialization Rescission Resolution," 13 Alamaba Lawyer 309 (1952); 34 Chicago Bar Review 31 (1952); 30 ChiKent Law Review 339 (1952); 57 Dickinson Law Review 86 (1952). Platz, "Article V of the Federal Constitution," 3 George Washington Law Review 17 (1934).

Proxmire, "One-Man, 10-Vote Advocates Beating Dead Horse," Cong. Rec. (Daily Edition, March 22, 1967), pp. 84209–10.

Pullen, "The Application Clause of the Amending Provision of the Constitution," (Unpub. Dissertation, University of North Carolina, Chapel Hill, 1951). Rhoads, "Three Proposed Amendments to the United States Constitution—A Challenge to Our Form of Government," 35 Pennsylvania Bar Association Quarterly 8 (1963).

Scheips, "The Significance and Adoption of Article V of the Constitution," 26 Notre Dame Lawyer 46 (1950).

Shanahan, "Proposed Constitutional Amendments: They Will Strengthen FederalState Relations," 49 American Bar Association Journal 631 (1963).

Simon, "Quiet Campaign: One State's Story," 50 Saturday Review 20 (July 15, 1967).

Sorenson, "Quiet Campaign to Rewrite the Constitution," 50 Saturday Review 17 (July 15, 1967).

Sprague, "Shall We Have a Federal Constitutional Convention, and What Shall It Do?" 3 Maine Law Review 115 (1910).

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Swindler, "Current Challenge to Federalism; The Confederating Proposals," 52 Georgetown Law Journal 1 (1963).

Tuller, "A Convention to Amend the Constitution-Why Needed-How May It Be Obtained?" 11 North American Review 369 (1911).

Tydings, "Constitutional Convention-False Alarm," Congressional Record (Daily Edition, March 22, 1967) pp. 84231-43.

Tydings, "Speaking Out: They Want to Tamper with the Constitution; States Calling for a National Constitutional Convention," 240 Saturday Evening Post 10 (July 17, 1967).

Tydings, "Validity of Constitutional Convention Petitions Regarding Reappor tionment," Congressional Record (Daily Edition, April 19, 1967) pp. S5451. Tydings. "Who Wants a Constitutional Convention?" Congressional Record (Daily Edition, May 10, 1967) pp. S6655-57.

United States Congress. Joint Committee on the Economic Report and the Select Committee on Small Business of the House of Representatives, Constitutional Limitations on Federal Income, Estate, and Gift Tax Rates (Comm. Print), 82nd Congress, 2nd Session, 1952.

United States House of Representatives, Committee on the Judiciary, Hearings before Subcommittee No. 3, Amending the Constitution Relative to Taxes on Incomes, Inheritances and Gifts, 85th Congress, 1st Session, 1958.

United States House of Representatives, Committee on the Judiciary, Problems Relating to State Applications for a Convention to Propose Constitutional Limitations on Federal Tax Rates (Comm. Print), $2nd Congress, 2nd Session, 1952.

United States House of Representatives, Committee on the Judiciary, State Applications Asking Congress to Call a Federal Constitutional Convention (Comm. Print), 86th Congress, 1st Session, 1959.

United States House of Representatives, Committee on the Judiciary, State Applications Asking Congress to Call a Federal Constitutional Convention (Comm. Print), 87th Congress, 1st Session, 1961 [NOTE: Both this and the preceding item are summaries and updating of the Brickfield item, op. cit.] United States Senate, Committee on the Judiciary, Hearings before a Subcommit tee on S. J. Res. 23, Proposing an Amendment to the Constitution of the United States Relative to Taxes on Incomes, Inheritances, and Gifts. 83rd Congress, 2nd Session, 1954.

Wheeler, "Is a Constitutional Convention Impending?" 21 Illinois Law Review 782 (1927).

"Amending the Constitution to Strengthen the States in the Federal System," 19 State Government 10 (Winter No. 1, 1963).

"Hearings Scheduled on Bill Implementing Article V," 25 Congressional Quar. terly Weekly Report 2179 (Oct. 27 1967).

"Reapportionment Convention Call Issued by 32 States," Congressional Quar terly Weekly Report, pp. 439-40 (March 24, 1967).

О

The Committee on the Judiciary, to which was referred the bill (S. 215) to provide procedures for calling constitutional conventions for proposing amendments to the Constitution of the United States, on application of the legislatures of two-thirds of the States, pursuant to article V of the Constitution, reports favorably thereon with one amendment and recommends that the bill as amended do pass.

EXPLANATION OF THE AMENDMENT

The committee has adopted the following amendment to S. 215: In section 5(a), on line 10, strike "g" and insert "6".

PURPOSE OF THE BILL

The purpose of this bill is to provide the procedural machinery necessary to effectuate that part of article V of the Constitution of the United States which authorizes a convention called by the States to propose specific amendments to the Constitution. The bill does not purport to deal with the situation in which the States have issued call for a convention to propose a general revision of the Constitution. This limited purpose of the bill derives from two considerations. First, American history since shortly after the adoption of the Constitution reveals no expression of a desire on the part of the American people for any general constitutional revision. It does reveal sporadic expressions by the people of the States of a desire to

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provide limited changes in the Constitution. Second, it is the committee's opinion that the machinery appropriate for a convention undertaking a complete rewriting of the Constitution calls for a greatly different procedure from that which would be appropriate for a convention called for the more limited purposes contemplated by this bill. The committee is of the opinion that a call from the States for a general constitutional convention is so remote that there is no need, at this time, for providing the machinery for such a convention. It is the committee's view that a convention call for proposing specific amendments has from time to time, and especially recently, come near enough to fruition to make it appropriate for the provision of the necessary machinery in order to avoid the chaos that would result in the event that the call came and the procedures were not spelled out in advance.

The bill offered here is not intended to effectuate or preclude the proposing for submission to the States of any particular amendment that may, at the moment, be the subject of debate. Although the impetus for this legislation was initially provided by the public concern over accumulating petitions for a convention to consider an amendment regarding reapportionment, the committee has not considered the legislation in the narrow light of any single issue. The committee believes that the responsibility of Congress under the Consti tution is to enact legislation which makes article V meaningful. This responsibility dictates that legislation implementing the article should not be formulated with the objective of making the Convention route a dead letter by placing insurmountable procedural obstacles in its way. Nor on the other hand should Congress, in the guise of imple menting legislation, create procedures designed to facilitate the adop tion of any particular constitutional change.

In recommending S. 215 to give effect to article V, the committee has been deeply conscious that this is "constitutional legislation" which will have to meet the unforeseen circumstances of our country's future. Its concern has been with the long-term needs of America.

The committee urges passage of this bill now in order to avoid what might well be an unseemly and chaotic imbroglio if the question of procedure were to arise simultaneously with the presentation of substantive issue by two-thirds of the State legislatures. Should article V be invoked in the absence of this legislation, it is not improba ble that the country will be faced with a constitutional crisis the dimensions of which have rarely been matched in our history.

LEGISLATIVE HISTORY

This legislation was first introduced by Senator Ervin, Chairman of the Senate Committee on the Judiciary, Subcommittee on Separation of Powers, on August 17, 1967. Hearings on the bill, S. 2307 of the 90th Congress, first session, were held by the subcommittee on October 3 and 31, 1967, and subsequently published. Thereafter the bill was revised and reintroduced in the 91st Congress, first session, as S. 623: the Subcommittee reported S. 623 to the full Committee on the Judiciary on June 19, 1969, where no action was taken on the measure dur ing the 91st Congress. The legislation was reintroduced in the 92d Congress on January 26, 1971, as S. 215. On April 27, 1971, the Subcom mittee on Separation of Powers reported the measure to the full Committee on the Judiciary.