(St. Louis Univesity Law Journal--1971) CONSTITUTIONAL CONVENTIONS: PRECEDENTS, PROBLEMS, AND PROPOSALS

THOMAS A. GILLIAM*

INTRODUCTION

The evidence suggests that, after nearly one hundred years, there is a possibility of a second constitutional convention. If this be the case, solutions to the problems of a twentieth-century convention will soon become necessary. The problems themselves, perhaps, may be grouped into categories, the most immediate being those centering around the issue of Congressional discretion in calling a convention when the legislatures of two-thirds of the states request it, in view of seemingly mandatory phrasing of article V of the Constitution. If so, inquiry follows regarding the extent to which a convention is to be controlled, its composition (to insure that its members represent the people) and the subject matter of its deliberation (to insure that any constitutional change proposed reflects not a wholesale tampering with the Constitution, but deals with a particular alleged dissatisfaction). Then there may remain the issue of what alternatives are available even beyond those that are constitutionally provided. In the remainder of this article the available precedents, pertinent Congressional history, and the most important scholarly writings will be examined and evaluated and a few conclusions will be made.

Article V of the Constitution requires that:

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 this Constitution, when ratified by the Legislatures of threefourths 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...

The only remaining precondition is that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." It could be thought, since the convention method of proposing amendments is initiated by the states, that it is the function of Congress to propose amendments from time to time on particular controversies, and that of states to apply through the convention method for general revision of the Constitution. Still, that does not seem to have been the general

Thomas A. Gilliam, Assistant City Attorney, Denver, Colorado; Member of the Colorado Bar.

intent of the Framers, whose debates reflect that a convention was only a means of providing the states with an alternative should the national legislature refuse to act on some desired constitutional change. However, James Madison felt that the article enabled both the general and state governments "to originate the amendment of errors."2 A fear of another convention was expressed then, as now, although Hamilton felt that if it were requested by the requisite number of states, Congress had no alternative but to call one. This expression of fear and of limitation may have been precipitated by the precedent of the Convention of 1787 itself. Its delegates had disregarded the instructions from the Continental Congress to simply amend the Articles of Confederation, although in the end the Framers still sought the approval of the Congress of the draft product."

Senator Sam J. Ervin, Jr., the noted authority of Constitutional law in the Senate, most recently involved in the problems of article V, notes that the Founders did not place the new government in the strait-jacket that inhibited the Confederation (the inability to change fundamental law without the consent of every state), but instead compromised between those who would utilize state legislatures as the sole means of initiating amendments, and those who would lodge it in the national legislature." Nevertheless, with the adoption of the Constitution, a new federalism developed with Congress taking the lead as to the amendatory power. While the impetus for inclusion of the Bill of Rights came from the states, it was Congress that initiated the first ten amendments, thereby becoming an active participant in the continuing constitution-making process of 1787. Also, while conceiv

1. M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 20304 (1937). 2. The Federalist No. 43[42] (J. Madison); that every amendment is a single proposition, see The Federalist No. 85 (A. Hamilton).

3. See Carson, Disadvantages of a Federal Constitutional Convention, 66 MICH. L. REV. 921 (1968), citing Charles Pickney of North Carolina in the closing debate of the Philadelphia Convention, September 15, 1787, that "Conventions are serious things and ought not to be repeated."

4. The Federalist No. 85 (A. Hamilton).

5. American Enterprise Institute, Special Analysis: A Convention to Amend the Constitution? (1967) found in Hearings on S. 2307 Before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 90th Cong., 1st Sess. 128 (1968), citing J. BECK, THE CONSTITUTION OF THE UNITED STATES 173 (1924).

6. Ervin, Proposed Legislation_to_Implement the Convention Method of Amending the Constitution, 66 MICH. L. REV. 875, 881 (1968).

7. Rhode Island, it has been noted, did not participate in the Convention of 1787 and did not ratify the Constitution until more than a year after the required ninth state had done so. Forkosch, The Alternative Amending Clause in Article V: Reflections and Suggestions, 51 MINN. L. REV. 1053, 1067 (1967).

8. Brickfield, Staff of the House Committee on the Judiciary, 8th Cong., 1st Sess., Problems Relating To A Federal Constitutional Convention 7 (Comm. Print 1957), notes that as early as 1789 New York and Virginia made application for a general convention for inclusion of the Bill of Rights. This was also the concern of the closing debate of the Convention of 1787 with reference to holding another convention for this purpose, see note 3 пирта.

ably those amendments could have been incorporated in the main body of the Constitution, Congress added them as separate articles of amendment and set a pattern for the amendatory power that has been followed ever since.

That Congress has a large measure of control over the process of amendment was further illustrated by Hollingsworth v. Virginia.' "In that case, questions were raised as to the effect and validity of the Eleventh Amendment limiting the judicial power, including the question as to whether the amendment was void for not having been submitted by Congress for Presidential approval. It was questioned whether this failure of submission contravened section 7 of article I of the Constitution, requiring such approval of every Congressional order, resolution or vote.10 The Court held that the procedure adopted for the amendment was valid even though it had been urged that it was no answer to the question to observe that the two-thirds vote of Congress needed to initiate amendments was the same vote that would override the executive's negative. This did not answer the question, it was argued, because his reasons for disapproval might be so satisfactory as to reduce the vote below the constitutional proportion,11

The Court's holding in Hollingsworth appears to have been predicated upon the premise that the first ten amendments had not been submitted for Presidential approval, the Court reasoning that the proposition or adoption of amendments was unconnected with the ordinary business of legislation.12 The case has been taken ever since, with reference to a state's application for a constitutional convention, as also not requiring the submission to a state's governor of the application.13 And while it has been urged that the exclusion of the executive is more appropriate to a parliamentary system where executive and legislative functions are intertwined," with reference to gubernatorial power, it has been pointed out that in the beginning very few of the original states lodged veto power in that office.15 And in regard to the Presidency, the Founding Fathers could have included his office expressly as a third participating agency of the Government had it been their desire to do so. It also appears that the participation of the Vice-President in the amendatory process was not contemplated.1

13. See e.g. Ervin, supra note 6, at 888-89.

14. McCleskey, Along the Midway: Some Thoughts on Democratic Constitution-Amending, 66 MICH. L. REV. 1001, 1014 (1968).

15. Brickfield, supra note 8, at 1.

16. Forkosch, supra note 7, at 1054 n.10, citing 3 FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 400 (1911); Staff Report to the House Comm. on the Judiciary, 82nd Cong., 2nd Sess., Problems Relating to State Applications for a Convention to Propose Constitutional Limitations on Fed

INTERIM PRECEDENT

After these initial clues to the States' amending power, little light was shed on this area in the first one hundred years of constitutional history, for during that century only ten petitions for a constitutional convention were received from the states.17 There was little to note in this interim period except that the Congressional refusal to permit several states to withdraw their approval of post-Civil War amendments was probably more attributable to the temper of the time than related to the question of whether States may rescind their applications before two-thirds have completed the petitioning process.18 Finally, however, in 1887, Judge John A. Jameson filled the breach of commentary on the subject with an extensive work wherein he inquired of the typical American constitutional convention generally: Is this institution, it might be asked, subject to any law, to any restriction? What claims does it itself put forth, and what do the precedents teach, in relation to its nature and powers? When called into existence, is it the servant, or the master, of the people, by whom it was spoken into being?19

In distinguishing the functions and purposes of the revolutionary convention, so often confounded with the constitutional convention,20 Jameson viewed the latter as being subaltern to and never supplanting the existing organization and never governing." He asserted that sovereignty is not vested in the states but in the Congress that represents all of the people.22 In view of the shared power to propose amendments, he felt that delegates to a constitutional convention also ought to be elected by the entire electoral body.23 While conceding that the delegates should be given the liberty to discharge in some measure their essential function of deliberation, 24 Jameson found from precedent generally that a constitutional convention has no inherent rights and exercised delegated power only.25 Consequently, unless the convention could point to express general authority to propose amendments at will, it could be restricted to a specific mandate.20 The end product of the convention's deliberations, he concluded, was

eral Tax Rates, 103 (Comm. Print 1942), citing from Annals 8th Cong., 1st Sess., remarks of Pierce Butler, who had been a member of the Convention of 1787.

17. Brickfield, supra note 8, at 7.

18. Bonfield, The Dirksen Amendment and the Article V Convention

Process, 66 MICH. L. REV. 949, 967 n.70 (1968).

19. J. JAMESON, A TREATISE ON CONSTITUTIONAL CONVENTIONS, THEIR HISTORY, POWERS, AND MODES OF PROCEEDING 2 (4th ed. 1887).

20. Id. at 6-9.

21. Id. at 10.

22. Id. at 51-52.

23. Id. at 258-69.

24. Id. at 364.

25. Id. at 408, citing Wells v. Bain, 75 Pa. 39 (1874), where a court enjoined commissioners appointed by a convention from holding an election on the convention's terms when the enabling legislation had provided otherwise. 26. J. JAMESON, supra note 19, at 412.

subject to legislative review before submission to the people.27

Jameson clearly did not envision a runaway federal convention, although perhaps he realized its possibility since he made so strong an argument for control. The states, in any event, were receptive to his point of view and thereafter forwarded petitions only for specific reforms.28 The greatest demand was that for the direct election of Senators, and, from 1893 to 1911, a total of seventy-three petitions were received by the Congress from thirty-one legislatures on that subject.29 This was an impressive request, if not the requisite one, for there is scholarly research that only around two-thirds of the states then existing had so petitioned.30 The Senate had blocked passage of a House resolution for a constitutional amendment for the popular election of Senators, and, only after such incisive state demand, did it concur in the resolution submitting the Seventeenth Amendment to State legislatures for approval.31 This, of course, may have been an indication that the Senate, at least, did not believe that it could control the action of a constitutional convention in this area in which it had an obvious vested interest, though it is doubtful this decision was made on strictly constitutional grounds. It has been observed, however, that Congress, by taking the easy way out, hardly refuted Jameson's theory of the ancillary role of a constitutional convention and did not decide this all important, pivotal issue.32

JUDICIAL PRECEDENT

As previously noted, the Supreme Court's early determination that submission by Congress of an amendment for Presidential approval is not constitutionally required was probably predicated upon the fact that the Bill of Rights itself had not been so submitted.3 Thus, regard may have been given to the course of action that Con

27. Id. at 421. Jameson's conclusion as to a reasonable time limit for ratification of amendments was "that an alteration to the Constitution... has relation to the sentiment and the felt needs of to-day, and that, if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress," id. at 634. Jameson also concluded that a State, after once taking action on an amendment, might reconsider and reverse its previous action prior to binding action by the States. Id. at 624-33.

28. These ranged from the prohibition of polygamy to world federal government, Brickfield, supra note 8 at 74.

29. Id. at 7.

30. Id. at 74 and House Comm. on the Judiciary, State Applications Asking Congress to Call a Federal Constitutional Convention, 86th Cong., 1st Sess. 7 (Comm. Print 1959), also prepared by Brickfield, where he indicates that "on one occasion, at least, more than the necessary two-thirds of the number of States then comprising the Union had submitted applications seeking a convention on the same subject matter", citing to 23 app. Table 2, Item 1, relating to the direct election of Senators.

31. Brickfield, supra note 8, at 8.

32. American Enterprise Institute, Special Analysis found this in Hearings, supra note 5, at 129.

33. Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378, 380 (1798).