number of delegates. 112 The bill also followed other thoughts Sorensen had about the convention amendatory process:113 exclusion of a state's governor from participation, deletion of a specific expense provision as premature and flexibility in the method of ratification.114

Apparently, after eliminating the State unit vote, it was thought unnecessary to require a two-thirds vote by convention delegates to propose amendments. The bill, however, would require a State legislature to state the nature of an amendment or amendments that it proposed and have Congress determine if there were in effect valid applications made by two-thirds of the States with respect to the same subject.1 115 This determination, together with a provision that Congress disapprove of a proposed amendment by the convention if it related to or included a subject differing from, or that was not included in, the convention's call,116 would afford a large measure of control by Congress in furtherance of its representation of the people. It is not unlikely, moreover, that the bill will be amended in passage to require of a convention the same vote that Congress itself must have to propose constitutional amendments. At least previous consideration was given to this by a House Judiciary Committee when a constitutional limitation regarding federal tax rates was under consideration.117

Nor is the foregoing proposal the only course of action that Congress may take. It could simply take no action at all. There is again precedent in the more probable interpretation of its earlier determination that proposals for limiting or repealing of the federal income tax provisions had insufficient concurrence of the States either as to subject matter or timeliness.118 Even after receiving applications from two-thirds of the States, Congress could follow the precedent it took as to the popular election of Senators by initiating the amendment itself11 and thereby avoiding the questions of the convention alternative. More probably, however, Congress will enact an agreed on version of the proposed legislation. Even then, under a prominent feature of the current proposal and on grounds of previous debate,120 a majority of either House may reasonably decide that there are not enough valid applications in effect.

Finally, Congress could, under section 18 of article I of the Constitution, refer to the electorate the question as to whether malappor

112. Id., § 10(a).

113. Hearings, supra note 86, at 38.

114. S. 623, supra note 109, §§ 3 (a), 12(b); 8(b) and 12(b) and (c). 115. S. 623, supra note 109, §§ 2 and 6 (a).

116. Id., § 11(b) (1); or it could be because procedures specified were not followed, i.e. each delegate to have one vote and the convention should terminate within a year unless the period were extended by Congress, id., § 9. 117. Note 64 supra and text to note 68.

118. Text accompanying notes 78 and 79 supra.

119.

Supra note 30.

120. S. 823, supra note 109, § 6(a) and text to notes 95-100.

59-609 080 60

tioned legislative bodies may still be tolerated. It might let this nation of nomads decide. Even if that would not be a binding decision, it would at least enable Congress to determine whether the States' petitions reflect the will of the people. This latter course of action would seem entirely within the power of Congress under the "necessary and proper" clause contained in that section. A better indication of a real desire for change would seem to be indicated on this question. In the last analysis it is difficult to conceive of the States as entities apart from the people.

CONCLUSION

There is ample precedent showing a certain evolution toward the solution of the problems of a constitutional convention. An alternative method of solution may be indicated, however, as to the reapportionment issue. Short of amendment of article V itself, containing as it does a process of amendment that may not reflect the national will, an impending constitutional crisis may be averted by some direct reference to that will. For the proposed amendment on apportionment is a case where a right of all of the people, achieved after extensive litigation of cases and controversies and change of position, is now sought to be curtailed by a relatively unpublicized attempt to amend the Constitution, potentially by a minority. Since the Court has determined the "one-man-one-vote" principle to be a right of the whole electorate, Congress in this instance at least might take special care to ascertain if there is a present desire to surrender to any degree the right to equal representation.

South Dakota Law Review

VOLUME 9

SPRING 1964

CONFEDERATION vs. UNION

By GEORGE MCGOVERN⭑

"One Country, One Constitution, and One Destiny." Daniel Webster's conclusion and plea, is once again challenged. New anti-Federalists seek to fragment the unitary, national character of our civil rights and duties. They have proposed Constitutional change intended to permit the several states to go their separate ways on public issues of vital national character.

These men have offered to the state legislatures three amendments to the Federal Constitution. The first permits a minority of states to amend the Constitution without application for a national consensus on the proposal. The second subjects Supreme Court judgments relating to federal-state jurisdiction to review by a superior court made up of the Chief Justices of the 50 states. The third permits entrenched minority rule to circumscribe democratic government in the states. All, to Charles L. Black, Jr., Professor of Jurisprudence at Yale Law School, are "radical in the extreme". As a former professor of American history and as a practicing politician, I agree with Professor Black.

It is curious to see how these "radical" proposals have been propelled into prominence and adoption by nearly twenty state legislatures to the point now that there is a serious possibility they will become the law of the land. Less than a year and a half ago, on July 27, 1962, officials representing twelve Southern states, all delegates to the regional meeting of the Council of State Governments, met in Biloxi, Mississippi. Concerned with the effect of federal Constitutional litigation from Brown v. Board of Education to Baker v. Carr on the civil rights posture in their states, these officials adopted two resolutions: the first, to forbid federal judicial intervention in state legislative ap

B.A. 1946, Dakota Wesleyan University; M.A. 1949, Ph.D. 1952, Northwestern University; United States Senator from South Dakota.

1. As quoted in CONG. REC. 8263 (daily Ed. May 15, 1963).

2. 349 US. 294 (1955).

3. 369 U.S. 186 (1962).

portionment, and the second, to curb the jurisdiction of the federal courts and strengthen the Tenth Amendment of the Federal Constitution.

As an example of how a minority proposal without grass roots support can be catapulted to endorsement by a widely respected and influential national conference of responsible citizens, the capable reporter, Fred J. Cook, has chronicled the growth of the Biloxi resolutions. The National Legislative Conference meeting in Phoenix, September 21, 1962, passed a resolution, "Strengthening the states in the Federal System," detailing its Federal-State Relations Committee to report to the December meeting of the General Assembly of the States on how the Constitution could be amended effectively by state initiation for the purpose of strengthening state sovereignty. The members of this Federal-State Relations Committee were selected by the Chairman of the National Legislative Conference, a man of like mind to the Biloxi delegates. Understandably, of the nine man committee he selected, eight strongly supported the state sovereignty proposal. Using the Biloxi resolutions as a base, the Federal-State Relations Committee drafted the three amendments discussed below including the suggested method of having them adopted: upon "application of the legislatures of twothirds of the several states" followed by a national convention and subsequent ratification by three-fourths of the states."

The Council of States Governments, without endorsement but at the Federal-State Relations Committee's request, placed the three amendments before the General Assembly of the States, meeting in Chicago December fifth. The General Assembly, a gathering of state legislators and officials, received copies of the three proposed amendments only on the day they were brought out. There was little debate, no time for the opposition to organize its objections, less for proper reflection on the effect these amendments to our Constitution would have on effective government and Federal-State jurisdiction. Reportedly, the resolutions were brought out, read, debated and passed all in two hours. The votes on these resolutions were as follows:"

4. COOK, THE PROGRESSIVE, (1963). Another history of the proposals may be found in Morgan, “Seventeen States Vote to Destroy Democracy as We Know It," Look, Dec. 3, 1963, p. 76.

5. The efficacy of this method has been attacked by Professor Black in "The Proposed Amendment to Article V: A Threatended Disaster," 72 YALE L. J. 957 (1963). 6. 36 STATE GOVERNMENT 12-15.

Thus, the small group of state officials meeting in Biloxi, Mississippi had obtained apparent endorsement by the General Assembly of the States, a national body of state officials, in just five and one half months. Now, armed with this "national consensus" many state legislators felt empowered to seek adoption of the resolutions in their own legislatures, resolutions which if finally enacted would increase their own powers and those of their state governments.

Still lacking grass roots support and prior to representative public discussion on the resolutions, by July 1963, seven months later, seventeen states had passed one or more of them. The roll call of the states follows:"

7. Information supplied by Council of State Government as of July 1963.