whether a state should be able to rescind its ratification of a proposed amendment or withdraw a rejection vote. In view of the confusion and uncertainty which exists with respect to these matters, we believe that a uniform rule would be highly desirable. The difficult legal and policy question is whether a state can withdraw a ratification of a proposed amendment. There is a view that Article V envisions only affirmative acts and that once the act of ratification has taken place in a state, that state has exhausted its power with respect to the amendment in question.80 In support, it is pointed out that where the convention method of ratification is chosen, the state constitutional convention would not have the ability to withdraw its ratification after it had disbanded. Consequently, it is suggested that a state legislature does not have the power to withdraw a ratification vote. This suggestion has found support in a few state court decisions 81 and in the action of Congress declaring the ratification of the Fourteenth Amendment valid despite ratification rejections in two of the states making up the three-fourths. On the other hand, Article V gives Congress the power to select the method of ratification and the Supreme Court has made clear that this power carries with it the power to adopt reasonable regulations with respect to the ratification process. We do not regard past precedent as controlling but rather feel that the principle of seeking an agreement of public support espoused in Dillon v. Gloss and the importance and comparatively permanent nature of an amendment more cogently argue in support of a rule permitting a state to change its position either way until three-fourths of the states have finally ratified.*82 *These views of the Committee are in accord with the rule which is expressed in S.1272 and its predecessor, S.215, which was unanimously passed by the Senate in October 1971. supra. See page 4, Conclusion Much of the past discussion on the convention method of initiating amendments has taken place concurrently with a lively discussion of the particular issue sought to be brought before a convention. As a result, the method itself has become clouded by uncertainty and controversy and attempted utilization of it has been viewed by some as not only an assault on the congressional method of initiating amendments but as unleashing a dangerous and radical force in our system. Our two-year study of the subject has led us to conclude that a national constitutional convention can be channeled so as not to be a force of that kind but rather an orderly mechanism of effecting constitutional change when circumstances require its use. The charge of radicalism does a disservice to the ability of the states and people to act responsibly when dealing with the Constitution. We do not mean to suggest in any way that the congressional method of initiating amendments has not been satisfactory or, for that matter, that it is not to be preferred. We do mean to suggest that so long as the convention method of proposing amendments is a part of our Constitution, it is proper to establish procedures for its implementation and improper to place unncessary and unintended obstacles in the way of its use. As was stated by the Senate Judiciary Committee, with which we agree: "The committee believes that the responsibility of Congress under the Constitution is to enact legislation which makes article V meaningful. This responsibility dictates that legislation implementing the article should not be formulated with the objective of making the Convention route a dead letter by placing insurmountable procedural obstacles in its way. Nor on the other hand should Congress, in the guise of implementing legislation, create procedures designed to facilitate the adoption of any particular constitutional change." 83 The integrity of our system requires that when the convention method is properly resorted to, it be allowed to function as intended. Respectfully submitted, SPECIAL CONSTITUTIONAL CONVENTION STUDY COMMITTEE C. Clyde Atkins, Chairman Warren Christopher David Dow John D. Feerick Adrian M. Foley, Jr. Sarah T. Hughes Albert M. Sacks William S. Thompson July, 1973 Citations '2 J. Story, Commentaries on the Constitution of the United States $ 1826 (5th ed. 1905). 'The Federalist No. 43, at 204 (Hallowell; Masters, Smith & Co. ed. 1852) (J. Madison). 'J. Wheeler, The Constitutional Convention: A Manual on its Planning, Organization and Operation xili (National Municipal League Series 1, No. 4 1961); see R. Hoar, Constitutional Conventions 1-3 (1917). *See A. Sturm, Thirty Years of State Constitution Making: 1938-1968, at 51-80, 132-37 (National Municipal League 1970). $369 U.S. 186 (1962). *377 U.S. 533 (1964). "See Black, "The Proposed Amendment of Article V: A Threatened Disaster." 72 Yale L.J. 957 (1963); Fensterwald, "Constitu tional Law The States and the Amending Process A Reply," 46 A.B.A.J. 717 1960). Oberst, "The Genesis of the Three States Rights Amendments of 1963." 39 Notre Dame Lawyer 644 (1964); Shanahan, "Proposed Constitutional Amendments: They Will Strengthen Federal-State Relations," 49 A.B.A.J. 631 (1963). 'See American Enterprise Institute, A Convention to Amend the Constitution: Questions Involved in Calling a Convention Upon Applications by State Legislatures (Special Analysis No. 5, 1967). 'See Martin, "The Application Clause of Article Five," 85 Pol. Sci. Q. 616, 626 (1970). Ervin, "Proposed Legislation to Implement the Convention Method of Amending the Constitution," 66 Mich. L. Rev. 875, 878 (1968). "See Hearings on S. 2307 Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 90th Cong., 1st Sess. (1967); S. Rep. No. 336, 92nd Cong., 1st Sess. (1971); 117 Cong. Rec. 36803-06 (1971). 12 The literature in this field deals with various proposals to "reform" Article V by easing, restricting, or otherwise altering the means of proposing amendments to the Constitution through the convention method. See, e.g.. L. Orfield, The Amending of the Federal Constitution, Chap. VI (1942); McCleskey. "Along the Midway: Some Thoughts on Democratic Constitution-Amending." 66 Mich. L. Rev. 1001, 1012-16 (1968). 13 "On the other hand, some have suggested that state legislatures will be less likely to seek a national constitutional convention if they are more aware of the risks and uncertainties of the convention method. See, e.g., Buckwalter, "Constitutional Conventions and State Legislators," 20 J. Pub. Law 543 (1971). "J. Wheeler, supra note 3, at xv. There have been occasions on which state constitutional conventions have successfully exceeded limitations placed upon them. Conventions in Georgia (1789), Illinois (1862 and 1869), Pennsylvania (1872), Alabama (1901) and Michigan (1907) all violated legislative directives - either procedur. al, substantive, or both. See R. Hoar, supra note 3, at 111-115. The Virginia Convention of 1901 and the Kentucky Convention of 1890 both wrote major changes in suffrage into their creations, and then proclaimed the new constitutions as law without holding the legislatively mandated popular referenda. (Referenda conducted under the suffrage provisions of the old constitutions would have resulted in disapproval of the new instruments.) 15 Article 1, § 5, of the Constitution gives the House of Representatives the authority to judge challenges to the election of its members. Since 1798, the House has seen fit to exercise this power through procedures enacted into law. Act of Jan. 23, 1798, Ch. 8, 1 Stat. 537. Subsequent modifications of that law appear in 2 U.S.C. §§ 201-226 (1970). Precedents for the use of this class of legislation, despite recognition that the rules enacted by one Congress in this area cannot bind a successor Congress, may be found in 1 Hinds, Precedents of the House of Representatives § § 680, 719, 833 (1907). In 1969 Congress passed the Federal Contested Elections Act, U.S.C. §§ 381-96 (1970). In the House Report Accompanying that legislation appeared the following: Election contests affect both the integrity of the elected process and of the legislative process. Election challenges may interfere with the discharge of public duties by elected representatives and disrupt the normal operations of the Congress. It is essential, therefore, that such contests be determined by the House under modern procedures which provide efficient, expeditious processing of the cases and a full opportunity for both parties to be heard. H.R. Rep. No. 569, 91st Cong., 1st Sess. 3 (1969). Similarly, Congress decided in 1877 to establish procedures for handling electoral vote disputes for President rather than adopt ad hoc procedures, as it did in 1876 to resolve the Presidential election dispute of that year. That ad hoc resolution led to a great deal of criticism of Congress, as many felt the issue had been decided on the basis of political bias rather than facts. See generally 3 U.S.C. § 15 (1970); Rosenbloom, A History of Presidential Elections 243 (1965). 16 The Federalist No. 43, supra note 2. 17 J. Jameson, A Treatise on Constitutional Conventions; Their History, Powers, and Modes of Proceeding § 585, at 634 (4th ed. 1887); cited with approval in Dillon v. Gloss, 256 U.S. 368, 375 (1921). 18 The Federalist No. 43, supra note 2, at 204. 191 The Records of the Federal Convention of 1787, at 22 (Farrand ed. 1937) (hereinafter cited as Farrand). 20 2 Id. 188 (emphasis added). 21 Weinfeld, "Power of Congress over State Ratifying Conventions," 51 Harv. L. Rev. 473, 481 (1938). 26 The Federalist No. 85, at 403 (Hallowell; Masters, Smith & Co. ed. 1852) (A. Hamilton). 27 T. Cooley, The General Principles of Constitutional Law in the United States of America 15 (2d ed. 1891). 28 Georgia, Massachusetts, New Hampshire, and Pennsylvania provided for amendments by convention; Delaware, Maryland and South Carolina provided methods of amendment, but not through conventions; New Jersey, New York, North Carolina and Virginia lacked any provisions for amendment; and Connecticut and Rhode Island did not adopt constitutions at that time. The constitution of Vermont (then considered a territory) provided for amendments through convention. Weinfeld, supra note 21, at 479. |