convention for proposing Amendments...."'12 The answer to the question concerning the role of the state governor in this process revolves around the meaning of the word "Legislatures” as used in Article V.

The Supreme Court has held that the term "legislature" in a particular clause of the Constitution depends upon the type of activity that the legislature is called upon to perform. In Smiley v. Holm, 113 the Supreme Court held that when a state legislature prescribes the time, place, and manner of holding elections under Article I, Section 4 of the Constitution, it is enacting legislation and in that context "legislature" means the entire legislative process of the state, including the executive veto. As stated by the Court, "[w]herever the term 'legislature' is used in the Constitution it is necessary to consider the nature of the particular action in view. 114

In Hawke v. Smith, No. 1,115 the Supreme Court struck down a provision in Ohio's constitution requiring ratification of proposed constitutional amendments by popular referendum. The Court found this to be invalid because Article V required ratification by "legislatures" and that a popular referendum was not a "legislature" within the sense the term was used in Article V. The Court wrote as follows:

The only question really for determination is: What did
the framers of the Constitution mean in requiring
ratification by "Legislatures"? That was not a term of
uncertain meaning when incorporated into
Constitution. What it meant when adopted it still means
for the purpose of interpretation. A Legislature was then
the representative body which made the laws of the
people. 116

Ratification of a proposed amendment, the Court stated, was not an act of legislation within the proper sense of the word, but merely an expression of assent for which no legislative action is authorized or required. The Court further held that the power to ratify a proposed amendment to the Federal Constitution had its source in the Federal Constitution; and the act of ratification by a state

112. U.S. CONST: art. V.

113. 285 U.S. 355 (1932).

114. Smiley v. Holm, 285 U.S. 355, 366 (1932). See also Note, 70 Harv. L. Rev., supra note 74, at 1074.

115. 253 U.S. 221 (1920).

116. Id. at 227.

derived its authority from the Federal Constitution to which the state and its people had assented. 117`

The term "legislatures" in Article V thus means the representative body which ordinarily makes the laws. The function given to this agency by Article V is a federal function derived from the Constitution. Consequently, when state legislatures apply to Congress for an Article V convention they are not acting as lawmakers under their state constitutions but as federal agents performing a federal function. They are representatives of the people of the State under the power granted by Article V. The article imports a function different from that of lawmakers and renders inapplicable the conditions which usually attach to the making of state laws, such as the governor's approval. 118 The Ervin legislation follows this viewpoint by providing that a state's application for a convention need not be approved by the state's governor, 119

The final issue for discussion is whether the Vice-President has a role in the Article V convention process. Article I, Section 3 provides that, “[t]he Vice-President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."'120 If the Senate is equally divided on the calling of a constitutional convention, may the Vice-President cast his vote to break the tie? As in the case of the President, Article V makes no specific reference to the Vice-President, nor do the debates of 1787. There exists, however, evidence that the framers did not intend for the Vice-President to have a role in the amending process. 121

In applying the same reasoning to the Vice-President as applies to the role of the President, it appears that the VicePresident should likewise have no role in the amending process. Just as the power of the President to veto legislation under Article I,

117. Accord. Leser v. Garnett, 258 U.S. 130, 137 (1922). See also Petuskey v. Rampton, 307 F. Supp 235 (1969), ver'd on other grounds, 431 F.2d 378 (10th Cir. 1970), cert. denied, 401 U.S. 913 (1971).

118. C. BRICKfield, Staff of House Comm. on the Judiciary, 85th CONG.. 1ST SESS.. PROBLEMS RELATING TO A FEDERAL CONSTITUTIONAL CONVENTION 10-11 (Comm. Print 1957) Thereinafter cited as C. Brickfield]. Ser State ex. rel. Sanstead v. Freed, 251. N.W.2d 898 (N.D. 1977) (lieutenant governor could not vote upon final disposition of resolutions proposing amendments to the U. S. Constitution): Opinion of the Justices to the Senate, 366 N.F.2d 1226 (Mass. 1977) (signature of Governor not required on resolutions calling for a national convention). 119. S. 1272, supra note 14. § 3(a); But see Black, supra note 16, at 209-10, where the author argues that state governors should not be excluded from the amendinent by convention process of Article V.

120. U.S. CONST. art. 1. § 3.

121. In 1803. Pierce Butler, then Vice-President of the United States, who had been a delegate from South Carolina to the 1787 Convention, stated on the floor of the Senate, "It was never intended by the Constitution that the Vice-President, should have a vote in altering the Constitution."

3 M. FARRAND, supra note 27, at 400.

Section 7 applies only to ordinary legislation, so should the power of the Vice-President to cast a deciding vote in the Senate. It would be anomalous if the Vice-President were to have a role in the amending process, but not the President or the state governors. Hollingsworth and Hawke, which held that the President had no role in the amendment, process should apply to the Vice-President by analogy. Provision is made in the Ervin legislation for the VicePresident to convene the constitutional convention, administer the oath of office, and preside until the delegates elect a presiding officer. 122

E. REPRESENtation At and DelegateS TO AN ARTICLE V CONVENTION.

One of the most important issues concerning an Article V convention is representation. Should each state have one vote, should delegates be apportioned strictly on the basis of population, or according to some other scheme?

It seems reasonable that the framers, when devising the convention method, contemplated a convention substantially similar, if not identical, to the one they were then attending. The 1787 convention was organized on the basis of state representation. Each state had one vote. Seven states, a simple majority, constituted a quorum, a majority of those states present being competent to decide all questions. 123 The provision in Article V for a separate ratification stage was adopted after it was pointed out in the debates that if the convention were to have both the power to propose and to adopt amendments, 124 a majority of the states could bind the whole union.

The entire scheme for amendment as provided for in Article V is evidence that the framers viewed amendments to the Constitution as alternations in the fundamental compact between the states. In this compact each state is the theoretical and legal equal of the others, regardless of such differences as wealth or population. Article V provides that whenever two-thirds of the legislatures of the several states apply, a convention shall be called. This convention shall then propose amendments which when ratified by the legislatures of three-fourths of the several states or by conventions in the states, shall be valid. The states have an equal

122. S. 1272. supra note 14. § 8(a).

123. M. Farrand, The FramiNG OF THE CONSTITUTION OF THE United States 57 (1962). 124. Supra note 42 and accompanying text.

voice in both the application stage and in the ratification stage of the amending process. It would be illogical to assume that the framers did not intend for the states to have an equal voice during the convention. 125 Madison wrote in The Federalist No. 43 concerning Article V, “[i]t morcover equally enables the general and state governments to originate the amendinent of errors as they may be pointed out by experience on one side or another."126 While the amendment power ultimately rests with the people, it is exercised by them through the states, and, in the legal contemplation of the Constitution, cach state is regarded as an equal. As stated by one eminent authority, Article V:

recognizes the concept of dual constituency of the
Federal Government. A ratification significs not only the
assent of a section of the people of the United States,
expressed by their agent, but that of a state, regarded as a
political community, as well, and the vote of New York..
. has no more weight than that of... Nevada. Likewise,
no state may be deprived of its equal sufferage in the
Senate without its consent. Finally, a convention is to be
called upon the application of two-thirds of the states, and
here also the shout from New York has no more weight
than the whisper from Nevada. 127

It is interesting to note that the legislation originally drafted by Senator Ervin provided for representation modeled after the 1787 convention; i.e., each state having one vote. 128 Senator Ervin, however, was forced to modify this, after hearings, presumably as the result of political pressure from the populous states. S. 1272 provides that a convention shall be composed of as many delegates from each state as it is entitled to Senators and Representatives in Congress, 129

The American Bar Association's Special Study Committee believes that convention representation should be guided by the Supreme Court's "one man, one vote" rule. It suggests representation identical to that of the states in the House of

125. See Hearings on S. 2307, supra note 14, at 33 (remarks of Senator Hruska); Note, 85 Harv. L.. Rev., supra note 16, at 1625.

126. THE FEDERalist No. 43 (Cooke ed. 1961) (emphasis aclclecl).

127. Platz, supra note 59, at 29.

128. "In voting on any question before the convention each state shall have one vote which shall be cast as the majority of the delegates from the state, present at the time, shall agree." S. 2307, 90th Cong., 1st Sess., 59(a) (1967).

129. §. 1272, supra note 14, § 7(a).

Representatives. 130 Another writer has suggested a bicameral convention modeled after Congress.'

131

Those who disagree with the idea of representation at an Article V convention patterned after the 1787 convention either ignore the clear intent of the framers, 132 or in the alternative argue that even if this was their intent we should no longer be bound to follow it. 133

If the argument that a convention should be based upon proportionate representation is followed to its logical conclusion, then representation at an Article V convention should be totally on the basis of one man, one vote. There is no compelling reason, once the intent of the framers is cast aside, to accord each state even a minimum of one delegate, since even this would result in population deviations of up to fifty percent. While the specific language of Article V arguably does not bar a convention based upon proportionate representation according to population, such a convention would be an anomaly within the Article V scheme of amendment. The application and ratification provisions of Article V clearly give each state an equal vote. This language cannot be ignored. What would be the advantage of having a convention, based solely upon proportionate representation by population, propose amendments which would have to be ratified with each state having one vote. Such an interpretation would merely place a barrier upon the practical use of this method. If each state had an equal vote at an Article V convention, amendments proposed from such a convention would stand a far greater chance of adoption because majority agreement and compromise would already have been hammered out between the states at the convention level.

The clear intent of the framers, that an Article V convention should be based upon equal state representation, is an inherent constitutional requirement of Article V. While on occasion, when exceptional circumstances were present, the Supreme Court has wandered away from the strict intent of the framers," 135 the traditional approach of the Court being to follow the clear intent of

130. A.B.A. Study, supra note 2, at 35-36.

131. Note, 70 Harv. L. Rev., supra note 74, at 1076 n.50.

132. Kauper, The Alternative Amendment Process: Some Observations, 66 Mich. L. Rev. 903, 909 (1968) (hereinafter cited as Kauper]: Note, 70 HARV. L. Rev., supra note 74, at 1075.

133. Bonfield, supra note 60, at 988; McClesky, Along the Midway: Some Thoughts on Democratic Constitution-Amending, 66 Mich. L. Rev. 1001, 1006-07 (1968); Note, 85 HARv. L.. Rev., supra note 16, at 1625-27; A.B.A. Study, supra note 2, at 35.

134. See A.B.A. Study, supra note 2, at 36.

135. See, eg, Brown v. Board of Educ., 347 U.S. 483, 489 (1954): Home Building Ass'n v. Blaisdell, 290 U.S. 398, 442-43 (1933); Missouri v. Holland, 252 U.S. 416, 433 (1920); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819).