FEDERAL CONSTUTIONAL CONVENTION Mr. Gerry moved its " sion which permitt and thus subvert and Alexander Hamilton 5 on the ground that, as the Federal State constitutions, any proviStates to obtain a convention, stitutions, might not be proper." motion, but for another reason. Hamilton objected to the present form of the article because he did not believe the proposed manner for introducing amendments was adequate. He thought there should be an additional method. The National Legislature, in his view, would be the first to perceive the necessity of amendments and should, therefore, also be empowered, when two-thirds of each branch of the National Legislature concurred, to call a convention." In addition, he pointed out that it would be essential to provide an expeditious method for amending the new document and not to rely on the State application process alone to remedy defects which Hamilton thought were very soon to become evident in the fabric of the new government. He also thought that if the article was not changed "the State legislatures will not apply for alterations but with a view to increase their own powers." The Convention proceeded to study several measures (proposed by Roger Sherman, of Connecticut, and James Wilson, of Pennsylvania) which would have injected the National Legislature into the process for proposing amendments, but discussion was postponed in order to take up a proposition moved by Madison. Madison's proposal left proposed amendments entirely in the hands of the National Legislature either (1) upon application of two-thirds of the several States or, (2) when deemed necessary by two-thirds of both Houses of Congress. This proposal read: The Legislature of the US whenever two-thirds of both Houses shal deem necessary, or on application of two-thirds of the Legislatures of the several States, shall propose amendments to this Constitution, which shall be valid for all intents and purposes as part thereof, when the same shall have been ratified by three-fourths at least of the Legislatures of the several States, or by Conventions in three-fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the U. S.18 The Madison proposal, except as modified by provisions added at the end thereof to pacify the protests of slavery interests, was finally accepted." The Committee on Style and Revision reported back the article as article V. It read: The Congress, whenever two-thirds of both Houses shall deem necessary, or on the application of two-thirds of the legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes, as part thereof, when the same shall have been ratified by three-fourths at least of the legislatures of the several States, or by conventious 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 1808 shail in any manner affect the and sections of article." Considerable discussion was had on the article in this form before final agreement was reached. Objections were made to the provisions which would give the Congress plenary powers over the amending procedure. On the motion of Gouverneur Morris and Elbridge Gerry, the article was amended so as to require that a convention be called upon application of two-thirds of the States.16 This amendment was adopted over the misgivings of Madison who "did not see why Congress would not be as much bound to propose amendments PART II VALIDITY OF STATE APPLICATIONS REQUESTING CONGRESS TO CONVENE A CONSTITUTIONAL CONVENTION CHAPTER 4 ACTION OF GOVERNOR ON STATE APPLICATIONS Insistence that the convention clause of Article V is mandatory raises many questions concerning the validity of applications calling for a convention. One involves gubernatorial consent. How, for example, shall Congress classify the petition from the State of Pennsylvania which was vetoed by its Governor. Article V states that Congress shall call a convention on the application of the "Legislatures of two-thirds of the several States" and there is no indication, from the language of the article, whether the term "legislature" means action solely by the legislative houses of the States or whether it includes the established channels for statutory enactments, including the assent of the governors. In deciding whether gubernatorial action affects the validity of a State application, it is necessary to determine the meaning of the word "legislatures" as set out in article V providing that: The Congress * * * on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments The word "legislature" is used 13 times in the Constitution as originally adopted and 7 times in its amendments. However, the term "legislature" in different circumstances does not always imply, as noted in Smiley v. Holm,' the performance of the same function. Ordinarily, the legislature acts as the lawmaking body in each State government. Under the Federal Constitution, it performs additional duties. It was intended to act, as noted in the Smiley case, as an electoral body, under article I, section 3, in the choice of United States Senators, prior to the adoption of the 17th amendment; as a ratifying body, under article V, with respect to proposed amendments, and as a consenting body, with regard to the acquisition of lands by the United States under article I, section 8, clause 17.* Wherever, therefore, the term "legislature" is used in the Constitution, it is necessary to consider the nature of the particular action in view. Legislatures, in calling upon Congress to convene a convention, would not seem to be acting in the exercise of a lawmaking power but as agencies of the Federal Government, discharging a particular duty in the manner which the Constitution requires. The matter of a Federal constitutional convention pertains exclusively to Federal affairs-not State domestic issues-and State legislatures, in soliciting the Congress, would be acting as representatives of the people of the State under the power granted by article V. The article FEDERAL CONSTITUTIONAL CONVENTION 11 therefore imports a function different from that of lawmaker and renders inapplicable the conditions which usually attach to the making of State laws. Furthermore, the Constitution speaks as of the time it was adopted, and in the beginning very few of the original States granted the veto power to their governors." As further indicia that action by governors was not intended, the Constitution uses the terms "executives" and "legislatures" in its text, and both terms were well-understood expressions. Article I, section 3, clause 2 gave the "executive" of the State authority to fill, temporarily, vacancies in the office of Senator," and article IV, section 3, clause 1 forbids the formation of new States by the junction of two or more States or parts of States without the consent of the "legislatures" of the States concerned. In fact, the Constitution expressly identifies the members of State legislatures and requires members of the several State legislatures to support the Constitution." Article IV, section 4, guarantees the protection of every State against domestic violence on the application of the "legislature" or of the "executive" when the legislature cannot be convened. If the framers of the Constitution had intended that "legislature" include gubernatorial action, it could have used the word "State" which could include the governor, or some other expression such as "the legislature with the approval of the executive." Both terms are in no way novel, and both are used in other provisions of the Constitution. The functions of a legislature as contained in article V are at odds with the ordinary duties of a deliberative body in conducting its statutory business. By way of analogy, the Supreme Court, speaking of ratifications of amendments by State legislatures, stated that— * ratification by a State of a constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the State to a proposed amendment. By the same reasoning, it would follow that the application process, like ratification, would fall within the same category as a select proceeding under article V. Another Supreme Court decision which would seem to remove the executive branch of the State government from participation in the application process is Hollingworth v. Virginia. In that case it was argued that the 11th amendment was invalid in that the joint resolution passed by the Congress proposing the measure to the States was never submitted to the President of the United States for his approval. In a footnote to the case, Mr. Justice Chase rejected the contention that the President's approbation was necessary by stating to the Attorney General: There can, surely, be no necessity to answer that argument. The negative of the President applies only to the ordinary cases of legislation: he has nothing to do with the proposition or adoption of amendments to the Constitution." It therefore would not be incongruous to conclude that since the President has no functions to perform in the submission of amendments to the States for ratification, the actions of State governors, similarly, are unnecessary in the application process under article V. Ames states that: "1 The most reasonable view would seem to be that the signature of the chief executive of a State is no more essential to complete the action of the legislature 12 FEDERAL CONSTITUTIONAL CONVENTION upon an amendment to the Federal Constitution than is that of the President of the United States to complete the action of Congress in proposing such an amendment. OITATIONS Pennsylvania Session Laws (1943) p. 922; Montana's Governor vetoed a petition relating to income tax but the petition sought congressional action under the first method of amendment and not a convention. Montana House Journal (1951) pp. 506-507. U. 8., Constitution, Art. I, sec. 2, al. 1; U. 8., Constitution, Art. I, sec. 3, cl. 1. U. 8., Constitution, Art. I, sec. 3, cl. 2 (twice). U. 8., Constitution, Art. I, sec. 4, cl. 1. U. 8., Constitution, Art. I sec. &, cl. 17. U. 8., Constitution, Art. II, seo. 1, al. 2. U. 8., Constitution, Art. IV, sec. 3, cl. 1. U. 8., Constitution, Art. IV, seo. 4, (twice). U. S., Constitution, Art. V, (twice). U. 8., Constitution, Art. VI, el. 3. U.S., Constitution, Art. XVII, ol. 1. U. 8., Constitution, Art. XVII, el. 2 (twice). U. B., Constitution, Art. XIV, sec. 2. U. 8., Constitution, Art. XIV, sec. 3. U. 8., Constitution, Ait. XVIII, sec. 3. U. 8., Con stitution, Art. XX, 800. 6. 285 U. 8. 855, 365 (1932). 48miley v. Holm, Secretary of State, 285 U. 8. 355, 365-366 (1932), citing Hawke v. Smith No. 1, 253 U. 8. 231, 231 (1920); Leser v. Garnett, 258 U. 8. 180, 137 (1922). Ot. Hawke v. Smith No. 1, 253 U. 8. 221, 230 (1920). Only two states had veto powers by the chief executive, Massachusetts and New York-Massachusetts, Constitution (1780), abap. 2, sec. 1, Thorpe, American Charters Constitutions and Organic Laws, III, 1909; Laws of New York (1789), chap. 11. Olanse 2 was changed by clause 2 of the 17th amendment but the term "executive” was again used. U. 8., Constitution, Art. VI, cl. 8. Hawke v. 8mith No. 1, 253 U. 8. 221, 229 (1920). 3 Dall. 376 (U. 8. 1798). Ibid. p. 380. U. 8., Congress, House, 54th Cong., 2d Sess., 1897, House Doc. 353, pt. 2, p. 298 (1807), Ames, The Proposed Amendments to the Constitution of the United States During the First Century of its History, P. 208. CHAPTER 5 CONGRESSIONAL POWER TO REGULATE STATE APPLICATION PROCEDURE Another issue pertaining to State applications is whether Congress may regulate the procedures of State legislatures in proposing constitutional conventions. As noted earlier the amending power conferred by article V of the Constitution is manifestly a Federal function in which the States take part in proposing constitutional conventions and ratifying amendments.' At the same time, however, State legislatures are not subject to absolute congressional control. While the act of petitioning or ratifying is a Federal function, the legislature performing the act is nonetheless the State legislature and a clear distinction must be kept in mind between acts which are necessary and proper for Congress to carry out constitutional requirements, and those which in any way seek to restrict the freedom of action of State legislatures. Certainly, Congress may not dictate to the States what they may or may not suggest in proposing a constitutional convention or when they may propose it. Such action would be beyond the scope of article V, either expressed or implied. Nor may Congress pick the legislature which is to ratify its proposals. In 1866, for example, when the 14th and 15th amendments were under consideration in the United States Senate, resolutions were offered, providing among other things, that the amendment be submitted, not to the State legislatures then in session, but to future legislatures. These proposals were defeated. It was pointed out that the Constitution referred to those legislatures in existence at the time the amendment was submitted. If they failed to act upon the proposal, it was possible that future legislatures may, but Congress had no right to withdraw the power from the existing legislatures and say, that those in existence in 1869 shall not act upon it, but those of 1870 or 1872 may act. While Congress may, as will be discussed later, set a reasonable time within which States must ratify amendments, it appears that it is without power to choose a future legislature or a session of a legislature. This is for the reason that article V provides generally, and without restriction, that amendments become effective when ratified by the legislatures of three-fourths of the States. To permit Congress to so restrict State legislative action would be a misconstruction of article V. When the Founding Fathers framed the Constitution of 1787, they did so against the background of State laws and legislatures and customs which were already in existence. When they wrote the Constitution they made provision for those laws and they recognized State legislatures as bodies in being. Cooley, in his book on constitu tional limitations, points out that when a constitution is adopted there are in existence at the time of adoption known and settled rules and usages, which form a part of the law of the State or Nation, in reference to which their constitutions are evidently framed, and where |