I would unhesitatingly have supported the constitutional death- There then are the pleadings. I do not pretend to a capacity to decide the case. It certainly isn't ripe for summary judgment on the pleadings. I am fearful only that if the case goes to issue in this manner, the result will be chaos whichever side prevails. For, like Judge Learned Hand, I am apprehensive that if nothing protects our democracy and freedom except the bulwarks that the Court can erect, we are doomed to failure. Thus, I would answer the question that purports to be mooted today, whether the court-ofthe-union amendment should be promulgated, in the words of that great judge: " And so, to sum up, I believe that for by far the greater part of their work it is a condition upon the success of our system that the judges should be independent; and I do not believe that their independence should be impaired because of their constitutional function. But the price of this immunity, I insist, is that they should not have the last word in those basic conflicts of "right and wrong between whose endless jar justice resides." You may ask then what will become of the fundamental principles of equity and fair play which our constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say what will be left of those principles; I do not know whether they will serve only as counsels; but this much I think I do know that a so ciety so riven that the spirit of moderation is gone, no court I find then that I have come neither to praise nor to bury Caesar. I should only remind those who would destroy Caesar of the self-destruction to which the noble Brutus was brought; nor can the Antonys among us — who would use Caesar for their own ends - rejoice at his ultimate fate. For Caesar himself, I should borrow the advice given Cromwell by Wolsey: "I charge thee, fling away ambition: By that sin fell the angels." 18 HAND, THE SPIRIT OF LIBERTY 164 (2d ed. 1953). (Notre Dame Lawyer, Symposium 1964) PROPOSING CONSTITUTIONAL AMENDMENTS BY CONVENTION: SOME PROBLEMS Arthur Earl BonfieldTM All of the existing amendments to the United States Constitution were proposed to the states by a two-thirds vote of both Houses of Congress. Proponents of the three provisions under discussion here seek to avoid this procedure. They are attempting to invoke an alternative means of submitting to the states amendments to our fundamental law. In addition to the direct Congressional initiation of the amending process, Article V1 provides that "on the Application of the Legislatures of two-thirds of the several states [Congress] shall call a Convention for proposing amendments." The present paper will consider some of the difficult questions raised by the current effort to utilize this particular mode of "proposing" amendments to our Constitution. At the outset, it should be noted that many of the significant questions that will arise in the present attempt to propose amendments to our fundamental law by convention will not be resolvable in the courts. Strong dicta even go so far as to insist that all questions arising in the amending process are nonjusticiable.' But there is evidence of a substantial nature to the contrary. It would indicate that some of the questions which may arise in this process can be settled on the merits by the judiciary. However, those that are beyond the capacity of the courts to decide because they are nonjusticiable Assistant Professor of Law, University of Iowa College of Law; B.A., Brooklyn Col lege; LL.B., LL.M., Yale Law School. 1 U.S. Const. art. V. The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of the Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress. 2 See Coleman v. Miller, 307 U.S. 433, 457 (1939) (concurring opinion). Dowling, Clarifying The Amending Process, 1 WASH. & Laz L. Rev. 215 (1945). In Coleman v. Miller, the Court held that the effectiveness of a state's ratification of a proposed amendment which it had previously rejected, and the period of time within which a state could validly ratify a proposed amendment, were nonjusticiable political questions within the exclusive and irrevocable determination of Congress. 3 See id. at 457-59 (concurring opinion). Proclamation under authority of Congress that an amendment has been ratified will carry with it a solemn assurance by the Congress that ratification has taken place as the Constitution commands. Upon this assurance a proclaimed amendment must be accepted as a part of the Constitution, leaving to the judiciary its traditional authority of interpretation.... Undivided control of [the amending] process has been given by the Article exclusively and completely to Congress. The process itself is "political" in its entirety .. and is not subject to judicial guidance, control or interference at any point. See also text accompanying note 22 infra, and Dowling, note 2 supra. See Leser v. Garnett, 258 U.S. 130 (1922); Dillon v. Gloss, 256 U.S. 368 (1921); National Prohibition Cases, 253 U.S. 350 (1920); Hawke v. Smith, No. 1, 253 U.S. 221 (1920); Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798). This article will not attempt to fully explore the extent to which the Courts can or should take it upon themselves in suits properly before them to independently resolve the vari political questions will be resolvable solely by Congress. Its decision in such cases will be final and conclusive on the courts. Nevertheless, "in the exercise of that power Congress... is [still] governed by the Constitution."" I. The first question raised by the current effort to propose amendments to our National Constitution via a convention concerns the sufficiency of the resolutions sponsored by the Council of State Governments for this purpose.' Are they proper applications for a "Convention" within the meaning of Article V? If they are not, their adoption by the legislatures of two-thirds of the states would neither authorize nor compel Congress to summon a convention empowered to propose amendments to the Constitution. The reasons for this are several. In the first place, the United States is a government of delegated powers. Consequently, it possesses no authority save that conferred upon it by the Constitution. Article V, the only provision in the Constitution dealing with its amendment, must therefore be deemed exhaustive and not merely illustrative of the Federal Government's powers in this regard. That provision explicitly provides two modes for proposing constitutional amendments. Only one of these contemplates the convening of a convention empowered to propose amendments. Such a "Convention” is authorized by Article V only when two-thirds of the state legislatures have made "Applications" for one. As a result, applications within the meaning of Article V from two-thirds of the state legislatures must fairly be deemed absolute prerequisites to the summoning of such a body." There is a second reason why valid Article V applications from the requisite number of state legislatures must be deemed prior conditions to the summoning of any convention empowered to propose amendments. If these applications are not prerequisites to such a convention call, on its own say-so, a majority of Congress could validly summon such a body. By the same simple majority, Congress could determine the convention's make-up and mode of operation. It could therefore provide that the convention could propose amendments to the states by a mere majority of its delegates. But Article V insists that a two-thirds vote be required by both Houses of Congress, or that two-thirds of the state legislatures make “Application" for a “Convention,” before an amendment to the Constitution may be proposed ous questions that may arise in the amending process. On the justiciability of questions arising in the amending process see ORFIELD, AMENDING THE FEDERAL CONSTITUTION 7-36 (1942); Clark, The Supreme Court and the Amending Process, 39 Va. L. Rev. 621 (1953); Note, 70 HARV. L. REV. 1067 (1957). 5 Coleman v. Miller, 307 U.S. 433 (1939); ef. United States v. Sprague, 282 U.S. 716 (1931). 6 Coleman v. Miller, supra note 5, at 457 (1939). 7 Amending the Constitution to Strengthen the States in the Federal System, 19 State Government 10 (Winter No. 1 1963). 8 See ORFIELD, AMENDING The Federal ConSTITUTION 40 (1942); Corwin & Ramsey, The Constitutional Law of Constitutional Amendment, 26 NOTRE DAME LAW, 185, 196 (1951); Black, The Proposed Amendment of Article V: A Threatened Disaster, 72 YALE L.J. 957, 96264 (1963). 9 The terms of Article V in no way suggest that Congress may not convene such a body by the usual vote required for Congressional action. Consequently, no more than a majority vote would seem to be required to "call a Convention." to the states. This reflects the conviction of the founding fathers that the seriousness of this kind of action demands a national consensus of the sort required to achieve such two-thirds votes. Permitting a majority of Congress, on it own say-so, to call a convention empowered to propose constitutional amendments approved by a simple majority of the latter's delegates would, therefore, frustrate the well-reasoned intentions of the founding fathers in this respect; for the kind of consensus required to secure a two-thirds vote of Congress or applications for a "Convention" from two-thirds of the state legislatures would no longer be required to trigger the amending process. There is a further reason why Congress may not call a convention empowered to propose amendments to the Constitution until it has received the kinds of applications contemplated by Article V from the requisite number of state legislatures. "A high degree of adherence to exact form... is desirable in this ultimate legitimating process." "10 Because of the uniquely fundamental nature of a constitutional amendment, attempts to alter our Constitution should not be filled with highly questionable procedures which could reasonably cast doubt on the ultimate validity of the provision produced. The procedure followed in any effort to amend the Constitution should be so perfect that it renders unequivocal to all reasonable men the binding nature of the product. Consequently, Article V must insist upon a firm and unyielding adherence to the precise procedures it provides. This unusual need for certainty in the process of amending our fundamental law also lends additional force to the assumption that the precise procedures provided in Article V must be deemed exclusive. Prior discussion demonstrates that in the process of "proposing Amendments" to the Constitution by "Convention," Congress resembles those state legislatures that are empowered to create such a body only after a demand for such action by the people at the polls." That is, Congress may not call a convention empowered to "propose" amendments to the Constitution unless it receives from two-thirds of the state legislatures the kinds of applications for such action that are contemplated by Article V. As a consequence, the resolutions sponsored by the Council of State Governments and adopted by the legislatures of several states must be carefully scrutinized in order to determine their adequacy in this respect. If these resolutions are not applications for a convention within the meaning of Article V in no case would Congress be authorized or obligated to call a "Convention" pursuant thereto. The resolutions sponsored by the Council of State Governments provide as follows: Resolved by the House of Representatives, the Senate concurring 10 Black, supra note 8, at 963. 11 See Iowa Const. art. X, § 3; Nev. Const. art. XVI, § 2; N.Y. Const. art. XIX, § 1; S.D. Const. art. XXIII, § 2; Tenn. Const. art. XI, § 3. 12 Amending the Constitution to Strengthen the States in the Federal System, 19 State Government 10, 11-14 (Winter No. 1 1963). It can be argued with substantial persuasiveness that these resolutions are not applications for an Article V "Convention." Article V clearly specifies that Congress "shall call a Convention for proposing Amendments." The process of proposing amendments contemplates a conscious weighing and evaluation of various alternative solutions to the problems perceived. As Professor Charles Black has noted: The process of "proposal" by Congress, contained in the first Common sense alone suggests that Article V contemplates a deliberative convention that would itself undertake fully to evaluate a problem, and propose those particular solutions that it deems desirable. The reason for this is that amendments to our National Constitution are chiefly matters of national concern. Consequently, all the alternatives should be carefully explored and debated on a national level, and the details of any proposed amendments fully worked out on a national level, before they are sent to the states for their more locally oriented action of ratification. With this in mind, it can reasonably be assumed that the two modes provided for "proposing" amendments found in Article V were to be symmetrical. Whether "proposed" by Congress or a "Convention," the problem at which any amendment is directed is to be "considered as a problem, with [an evaluation] of a wide range of possible solutions and an opportunity to raise and discuss them all in a body with national responsibility and adequately flexible power. Consequently, the "Convention" contemplated by Article V was to be a fully deliberative body — with power to propose to the states as amendments any solutions to the problem submitted to the “Convention” that it deemed best. 9914 If Article V contemplates this kind of a “Convention . . . for proposing Amendments," the resolutions sponsored by the Council of State Governments should be deemed insufficient applications within the meaning of that provision. Instead of requesting a deliberative convention with full power to propose to the states any amendments dealing with the subject in question that it thinks proper, these resolutions demand "a convention for the purpose of proposing the following article as an amendment to the Constitution of the United States." As a result, the resolutions in issue really call for a convention empowered solely to approve or disapprove in a mechanical way the text of specific amendments that have already been "proposed" elsewhere. In this sense, the proponents of these resolutions seek to make the "Convention" part 13 Black, supra note 8, at 962. 14 Id. at 963 (emphasis added). |