legislative process would have been bogged down_hopelessly, not to mention other highly undesirable results. In a report rendered by the Senate Judiciary Committee in 1897 it was shown that the word "necessary" in the clause had come in practice to refer "to the necessity occasioned by the requirement of other provisions of the Constitution, whereby every exercise of 'legislative powers' involves the concurrence of the two Houses"; or more briefly, "necessary" here means necessary if an "order, resolution, or vote" is to have the force of law. Such resolutions have come to be termed "joint resolutions" and stand on a level with "bills", which if "enacted" become statutes. But "votes" taken in either House preliminary to the final passage of legislation need not be submitted to the President, nor resolutions passed by the House concurrently with a view to expressing an opinion. or to devising a common program of action (e.g., the concurrent resolutions by which during the fight over Reconstruction the Southern States were excluded from representation in the House and Senate, the Joint Committee on Reconstruction containing members from both Houses was created, etc.), or to directing the expenditure of money appropriated to the use of the two Houses. Within recent years the concurrent resolution has been put to a new use the termination of powers delegated to the Chief Executive, or the disapproval of particular exercises of power by him. Most of the important legislation enacted for the prosecution of World War II provided that the powers granted to the President should come to an end upon adoption of concurrent resolutions to that effect. Similarly, measures authorizing the President to reorganize executive agencies have provided that a reorganization plan promulgated by him should be reported to Congress and should not become effective if one or both Houses adopted a resolution disapproving it. Also, it was settled as early as 1789 that resolutions of Congress proposing amendments to the Constitution need not be submitted to the President, the Bill of Rights having been referred to the States without being laid before President Washington for his approval a procedure which the Court ratified in due course. (The Constitution of the United States of America: Analysis and Interpretation) 185-86 (S. Doc. No. 39, 88th Cong., first sess., 1964 ed.) Citations omitted.

The Constitution made the amendment process difficult. It cerainly was not the intention of the original Convention to make it mpossible. Nor is it possible to attribute to the Founders the concept that amendments originating in the States should have much more difficulty in passage than those proposed by Congress. That issue was fought out in the 1789 Convention and resolved in favor of two origiating sources, not one.

Therefore, the committee has concluded that Presidential participation in the operation of article V is not required by the Constition. Indeed, a strong case is made out that the Constitution, as construed throughout our history, precludes such participation by the Executive in the amendment process.

Just as the National Executive is excluded from the amendment process, so the State Executives play no role. Article V assigns to the State legislatures the duty to apply for a constitutional convention just as it authorized the legislatures to be ratifying bodies. Supreme Court decisions have interpreted the term "legislatures" in the ratification clause to mean the representative lawmaking body of the Statenot including the Governor since ratification of a constitutional amendment is not an act of legislation, in the proper sense of the word. The term must have the same meaning in the application clause and the ratification clause of article V.

The role of the Governor is not needed for the voice of the people to be heard in the amendment process. It is heard, first, through their legislative representatives in their State governments; second, by the requirement contained in this bill for the democratic election of convention delegates; and third, in the ratification either by State ratifying convention or State legislature. To require that, in addition to an affirmative vote by two-thirds of the legislatures of the States within a period of 7 years, those votes must be by a two-thirds majority of each legislature (or by whatever other majority is needed to overcome a veto) where the Governor disapproves, is indeed "to pile Ossa on Pelion and leaf-crowned Olympus on Ossa" to create an insuperable barrier to any effective use of this method of constitutional change.

RESCISSION OF APPLICATIONS AND RATIFICATIONS

The question of whether a State may rescind an application once made has not been decided by any precedent, nor is there any authority on the question. It is one for Congress to answer. Congress previously has taken the position that having once ratified an amendment, a State may not rescind.

The committee is of the view that the former ratification rule should not control this question and, further, should be changed with respect to ratifications. Since a two-thirds consensus among the States in a given period of time is necessary to call a convention, obviously the fact that a State has changed its mind is pertinent. An application is not a final action. It merely registers the State's views. A State is always free, of course, to reject a proposed amendment. On these grounds, it is best to provide for rescission. Of course, once the constitutional requirement of petitions from two-thirds of the States has been met and the amendment machinery is set in motion, these con siderations no longer hold, and rescission is no longer possible. On the basis of the same reasoning, a State should be permitted to retract its ratification, or to ratify a proposed amendment it previously rejected. Of course, once the amendment is a part of the Constitution. this power does not exist.

RESOLUTION OF QUESTIONS ARISING UNDER THIS MEASURE

The Committee takes the position that all questions to be resolved by the Congress under the provisions of this measure shall be submitted preliminarily to the Senate and House Judiciary Committees.

1 Hawke ▼. Smith, No. 1, 258 U.S. 221, 229 (1920).

SECTIONAL ANALYSIS

Section 1 provides that the title of the act is the "Federal Constitutional Convention Procedures Act."

Section 2 provides that a State desiring to invoke article V to call a constitutional convention for the purpose of proposing an amendment to the Constitution must adopt a resolution pursuant to this act requesting such a convention and stating the nature of the amendment it wishes proposed. Pursuant to the requirements of this section, the measure is prospective and not retroactive in operation.

Section 3 provides that the procedure to be used by the State in adopting or rescinding a resolution is the same as that used for enacting State laws of general application except that the approval of the Governor is not required. Any questions arising as to the adoption or rescission of resolutions are matters for determination solely by the Congress as part of its responsibility to determine whether article V has been activated. Of course, Congress has no authority to examine the action of the legislature, except to assure itself that the State has used the procedure specified in section 3.

Section 4 provides that within 30 days of the adoption of a resolution the secretary of state or the equivalent officer of the State must send two certified copies to the Congress, one addressed to the President of the Senate and the other to the Speaker of the House. Each copy must contain the title of the resolution, the date upon which it was adopted, and the exact text of the resolution signed by the presiding officers of each house of the State legislature. Within 10 days of receipt, the President of the Senate and the Speaker of the House must report to their respective Houses the identity of the State making application, the subject of the application and the number of States which have thus far applied with respect to that subject. If Congress is in recess or is adjourned, the announcement would be made when Congress was again in session, and as soon thereafter as possible. The two officers must cause copies of the application to be sent to the presiding officers of each of the Houses of the other States, and to each Member of Congress.

Section 5 provides that applications for the convening of a convention are effective for 7 years from date of receipt by Congress. Whenever within a 7-year period there are in effect valid applications on the same subject from two-thirds of the States all the applications remain in effect until Congress has called the convention.

States may rescind applications by adopting resolutions of recission in accordance with the procedures of sections 3 and 4. However, attempted recissions would not be effective after applications have been received by Congress from the requisite two-thirds of the States. Questions concerning the recission of applications are determined solely by Congress.

Section 6 provides that the Secretary of the Senate and Clerk of the House shall maintain a record of the applications received upon each subject. Whenever applications upon the same subject have been received from two-thirds of the States, they must report in writing to the presiding officer of their respective Houses, and such officer shall report to that House the substance of the report. Periodic reports

to each House on the nature and number of petitions received would be advisable, as well.

Each House then determines whether the recitation of the report is correct. Upon such determination it is the constitutional duty of each House under article V to agree to a concurrent resolution calling for the convening of a constitutional convention. The resolution shall set forth the nature of the amendment the convention is to consider and designate the time and place for the convention. Copies of the resolution are to be sent to the State Governors and to each House of each State legislature. The convention must be convened within 1 year of the adoption of the resolution.

Section 7 provides that each State shall elect two delegates-at-large and one additional delegate from each congressional district in the State, in accordance with its usual procedures for the election of Senators and Representatives. Vacancies are filled by appointment of the State Governor. The secretary of state of each State or equivalent officer shall certify to the Vice President of the United States the name of each delegate. Delegates will enjoy the same privileges as do members of Congress under article I, section 6. Delegates are to be compensated for service and travel and related expenses as provided for in the convening resolution.

Section 8 provides that the Vice President of the United States is to convene the convention and administer the oath of office. Each delegate is required to take an oath not to propose or vote in favor of any proposed amendment relating to a subject other than that named or described in the concurrent resolution. This is consistent with the posi tion that the convention's authority is limited by the States' conferral of authority.

Names of the officers of the convention are to be transmitted to the Speaker of the House and President of the Senate. The convention may adopt rules of procedure not inconsistent with this act. Congress is authorized to appropriate funds for the expense of the convention: the Administrator of the General Services Administration is directed to provide the required facilities; and Congress, executive departments. and agencies are required to provide information required by the convention, except as otherwise provided by law.

Section 9 provides that each delegate to the convention has one vote. A daily verbatim record of proceedings must be kept, and the vote of each delegate must be recorded. The convention shall terminate within 1 year of the first meeting unless extended by resolution of Congress. Records of the convention's proceedings are to be transmitted to the Archives within 30 days of the termination of the convention.

Section 10 provides that amendments may be proposed by a majority of delegates to the convention. No amendments with respect to a subject different from that stated or described in the resolution calling the convention may be proposed and any questions relating to this point are to be determined solely by Congress.

Section 11 provides that within 30 days of the end of the convention the exact text of any amendments proposed by the Convention must be transmitted to Congress. Upon receipt of a valid proposed amendment, Congress must adopt a concurrent resolution directing

the Speaker of the House and the President of the Senate to send the proposed amendment to the Administrator of the General Services . Administration. The resolution shall also prescribe the time and manner of ratification by the States. Congress may adopt a concurrent resolution disapproving the submission of the proposed amendment to the States, but only on the grounds (1) that it relates to or includes a subject different from that stated or described in the resolution calling the convention, or (2) that the procedures used by the convention were not in substantial conformity with the provisions of this act. This conforms to the fact that, under article V, Congress has no power to review or veto any action of the convention because of doubts or disapproval on the grounds of policy. Congress' sole function is ministerial. Of course, Congress is under no obligation to transmit an amendment if the convention has exceeded its authority by proposing amendments on subjects other than those designated, or if there were procedural irregularities at the convention of a substantial nature so as to make the actions of the convention ineffective.

If Congress has not adopted a concurrent resolution either transmitting or disapproving the transmission of the proposed amendment within 90 days of continuous session following its receipt, the President of the Senate and Speaker of the House nonetheless are obligated to transmit the proposed amendment to the Administrator of the General Services Administration. This is to assure that Congress may not impede or block the transmittal to the States for the reasons of disapproval of the wisdom of the proposal. The Administrator of the General Services Administration must submit to the States a certified copy of the proposed amendment and any concurrent resolution adopted by Congress setting forth the time and manner for ratification along with a copy of this act.

Section 12 provides that amendments submitted in accordance with this act are valid as a part of the Constitution when ratified by threefourths of the States within the time and according to the manner, by State legislature or State convention, as Congress directs by concurrent resolution. If the transmittal is made in the absence of a concurrent resolution, ratification is by State legislature and within 7 years of transmittal. Ratification by a State legislature shall be according to its own rules for such actions, but does not require the approval of the Governor. Certified copies of State ratifications must be sent promptly to the Administrator of the General Services Administration.

Section 13 provides that States may rescind by the same procedure as that used for ratification, but no rescission may be made after valid ratification by three-fourths of the States. States may ratify after a previous rejection. Any questions concerning ratification or rejection are determined solely by Congress.

Section 14 provides that the Administrator of the General Services Administration shall issue a proclamation that the amendment is part of the Constitution when three-fourths of the States have ratified. Section 15 provides that the effective date of a constitutional amendment shall be that specified in the amendment or, if none, on the date of the ratification by the last State necessary to constitute three-fourths of the States.