must infallibly take place. There can therefore be no comparison between the facility of effecting an amendment, and that of establishing in the first instance a complete constitution.

In opposition to the probability of subsequent amendments it has been urged, that the persons delegated to the administration of the national government, will always be disinclined to yield up any portion of the authority of which they were once possessed. For my own part I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers; and on this account alone, I think there is no weight in the observation just stated. I also think there is little weight in it on another account. The intrinsic difficulty of governing THIRTEEN STATES at any rate, independent of calculations upon an ordinary degree of public spirit and integrity, will, in my opinion, constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents. But there is yet a further consideration, which proves beyond the possibility of doubt, that the observation is futile. It is this, that the national rulers, whenever nine states concur, will have no option upon the subject. By the fifth article of the plan the congress will be obliged, "on the application of the legislatures of twothirds of the states, (which at present amounts to nine) to call a convention for proposing amendments, which shall be valid to all intents and purposes, as part of the constitution, when ratified by the legislatures of three-fourths of the states, or by conventions in three-fourths thereof." The words of this article are peremptory. The congress "shall call a convention." Nothing in this particular is left to the discretion of that body. And of consequence all the declamation about their disinclination to a change, van

ishes in air. Nor however difficult it may be supposed to unite two-thirds or three-fourths of the state legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.

If the foregoing argument is a fallacy, certain it is that I am myself deceived by it; for it is, in my conception, one of those rare instances in which a political truth can be brought to the test of mathematical demonstration. Those who see the matter in the same light with me, however zealous they may be for amendments, must agree in the propriety of a previous adoption, as the most direct road to their own object.

The zeal for attempts to amend, prior to the establishment of the constitution, must abate in every man, who, is ready to accede to the truth of the following observations of a writer, equally solid and ingenious: "To balance a large state or society (says he) whether monarchial or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work: EXPERIENCE must guide their labour: TIME must bring it to perfection: And the FEELING of inconveniences must correct the mistakes which they inevitably fall into, in their first trials and experiments."* These judicious reflections contain a lesson of moderation to all the sincere lovers of the union, and ought to put them upon their guard against hazarding

* Hume's Essays, vol. I, page 128.-The rise of arts and sciences. (Publius)

anarchy, civil war, a perpetual alienation of the states from each other, and perhaps the military despotism of a victorious demagogue, in the pursuit of what they are not likely to obtain, but from TIME and EXPERIENCE. It may be in me a defect of political fortitude, but I acknowledge, that I cannot entertain an equal tranquillity with those who affect to treat the dangers of a longer continuance in our present situation as imaginary. A NATION without a NATIONAL GOVERNMENT is, in my view, an awful spectacle. The establishment of a constitution, in time of profound peace, by the voluntary consent of a whole people, is a PRODIGY, to the completion of which I look forward with trembling anxiety. I can reconcile it to no rules of prudence to let go the hold we now have, in so arduous an enterprise, upon seven out of the thirteen states; and after having passed over so considerable a part of the ground to recommence the course. I dread the more the consequences of new attempts, because I KNOW that POWERFUL INDIVIDUALS, in this and in other states, are enemies to a general national government, in every possible shape.

PUBLIUS

PREPARED STATEMENT of LAURENCE H. TRIBE, PROFESSOR OF LAW, Harvard

UNIVERSITY

THINKING ABOUT A NEW CONSTITUTIONAL CONVENTION

Chief Justice John Marshall succinctly summarized his justly celebrated approach to constitutional interpretation when he insisted that we "never forget that it is a constitution we are expounding.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819). No less vital as we explore the topic of constitutional alteration is that we never forget that it is a constitution we are amending.

If that aphorism seems opaque, I would propose this overriding criterion for evaluating suggested mechanisms of change pursuant to Article V of the Constitution: The processes we endorse and employ to amend the Constitution must be structured to serve the great purpose of permitting necessary change in our fundamental law, and thereby avoiding constitutional ossification and paralysis, without plunging the Nation into procedural and institutional controversies so profound or protracted that confusion and confrontation, rather than clarity and at least substantial consensus, become the consequences of each attempt to embody new principles in the Constitution's text.

Given that criterion, there seems to me no escape from the conclusion that prudence counsels avoiding, until it has been considerably clarified, the neverused and hence much-controverted Article V device whereby Congress is to "Call a Convention for proposing Amendments . . . on the application of the Legislatures of two thirds of the several States." In present circumstances, given the alternative route of amendment by congressional submission of a proposal to the States, I am convinced that holding an Article V Constitutional Convention, even after enacting legislation designed to put various procedural questions to rest, would be a needless and perilous undertaking-one likely to generate uncertainty where confidence is indispensable, one likely to invite division where unity is critical, one likely to thwart rather than vindicate the will of the American people and damage rather than mend the Constitution.

Particularly in a period of recovery from a decade ruptured by war, political assassination, near-impeachment, and economic upheaval, and particularly in a time when such recovery has already been interrupted by new domestic and international crises, it is vital that the means we choose for amending the Constitution be generally understood and, above all, widely accepted as legitimate. An Article V Convention, however, would today provoke controversy and debate unparalleled in recent constitutional history. For the device is shrouded in legal mysteries of the most fundamental sort, mysteries yielding to no ready mechanism of resolution.

This objection to calling an Article V Convention is based not on misgivings at the prospect of unchecked democracy, nor on any vague apprehension about unsealing a Pandora's box, nor on a reflexive preference for the familiar over the unknown. Inherent in the Article V Convention device is the focused danger of three distinct confrontations of nightmarish dimension-confrontations between Congress and the Convention, between Congress and the Supreme Court, and between the Supreme Court and the States. However democratic an Article V Convention might be in theory, such a convention would inevitably pose enormous risks of constitutional dislocation-risks that are unacceptable while recourse may be had to an alternative amendment process (the congressional initiative) that can accomplish the same goals without running such serious risks.

1. HOLDING A CONVENTION WOULD RISK CONFRONTATION BETWEEN CONGRESS AND THE

CONVENTION

The primary threat posed by an Article V Convention is that of a confrontation between Congress and such a Convention. Upon Congress devolves the duty of calling a Convention on application of the legislatures of two-thirds of the states, and approving and transmitting to the states for ratification the text of any amendment or amendments agreed upon by the convention. The discretion with which Congress may discharge this duty is pregnant with danger even under the most salutary conditions.

Specifically, consider the incidental yet critical disagreements that could arise as Congress endeavored in good faith to discharge its duties under the convention clause. With no purpose whatsoever of avoiding its duties, Congress might nevertheless decide procedural questions arguably within its discretion in a

manner that frustrated the desire of the states to call and conduct a convention-by treating some applications as invalid, or by withholding appropriations until the Convention adopted certain internal reforms, or by refusing to treat certain amendments as within the Convention's scope.

As a result of any of these decisions, the Nation might well by subjected to the spectacle of a struggle between Congress and a Convention it refused to recognize a struggle that would extend from the Convention's own claim of legitimacy to disputes over the legitimacy of proposed amendments. Such a struggle would undoubtedly be judicial as well as political, and thus draw the Supreme Court into the fray. Considering the seriousness with which Congress and the Convention would take each other's challenge in light of the monumental stakes-constitutional power-it is unlikely that either side would surrender before the contest had deeply bruised the Nation. Such a contest between Congress and the Convention, which could flare from a single procedural dispute in the balance of which hung the Convention's fate, the Nation could ill afford.

2. HOLDING A CONVENTION WOULD RISK CONFRONTATION BETWEEN CONGRESS AND THE SUPREME COURT

In the event of a dispute between Congress and the Convention over the congressional role in permitting the Convention to proceed, the Supreme Court would almost certainly be asked to serve as referee. Because the Court might well feel obliged to protect the interests of the states in the amendment process, it cannot be assumed that the Court would automatically decline to become involved on the ground that the dispute raised a non-justiciable political question, even if Congress sought to delegate resolution of such a dispute to itself, as in §3(b) of the Helms proposal, S. 3, 96th Cong., 1st Sess., or to the States, as in § 3(b) of the Hatch proposal, S. 1710, 96th Cong., 1st Sess. In any event, depending upon the political strength of the parties to the dispute, a decision to abstain would amount to a judgment for one side or the other. Like an official judgment on the merits, such a practical resolution of the controversy would leave the Court an enemy either of Congress or of the Convention and the states that brought it into being.

Even in the absence of such a dispute over the Convention's initiation and completion, the Court could become embroiled in a confrontation with Congress over the limits of congressional power under Article V. For example, S. 3, the bill introduced by Senator Helms, entitled the "Federal Constitutional Convention Procedures Act," provides in § 7(a):

"A convention called under this Act shall be composed of as many delegates from each State as it is entitled to Senators and Representatives in Congress. In each State two delegates shall be elected at large and one delegate shall be elected from each congressional district in the manner provided by law."

One may readily guess that, were Congress to adopt such a provision in the exercise of its Article V powers, the Supreme Court would be asked to decide whether the one-person, one-vote rule applies to the election of delegates to a national constitutional convention. See "ABA Special Constitutional Convention Study Committee, Amendment of the Constitution by the Convention Method Under Article V" 34 (1974) (concluding that the rule is applicable). Similarly, a rule prescribed by Congress providing that "a convention called under this Act may propose amendments to the Constitution by a vote of the majority of the total number of delegates to the Convention," S. 3, § 10(a), might well be challenged as an unconstitutional attempt by Congress to regulate the internal procedures of an Article V Convention. See "ABA Study Committee" at 19-20 (characterizing such an attempt as unwise and of questionable validity). Whether the Court, once called upon to vindicate the one-person, one-vote principle or the autonomy of a convention, would invalidate an act of Congress passed pursuant to its Article V powers is no doubt an open question. But the stress that a decision either way would place upon our system is another unwelcome possibility inherent in the Article V Convention device. Like the risk of confrontation between Congress and the states that have called a Convention, the possibility of conflict between Congress and the Supreme Court is, of course, not peculiar to the Article V Convention device. But this device, which carries the potential for such grave clashes of power, should be utilized only if no alternative process is at hand.