Committee had attempted in the interim to give a role, however slight, to the Congress. The Committee proposed that the Congress should call a convention if applied for by the legislatures of two thirds of the states. This was quite a natural role for the Congress to assume. First, it was through the Continental Congress that the Convention of 1787 was called into being. Second, it was not clear what other body besides the Congress would be in a position to facilitate the call for a new convention. Presumably, this was not a power which the delegates thought of granting to the executive. The power of amending the fundamental law of the nation was simply irrelevant to the task of the executive, who was but to administer the present laws. The role of the Congress is restricted to calling a convention. It is not empowered to propose amendments. Indeed, it is given no discretion in calling a convention: it "shall” call a convention, if requested to do so. It is given no discretion to call a convention only for certain purposes, such as "general revisions" of the Constitution: it shall call a convention "for an amendment of this Constitution" (emphasis mine).

This resolution was reconsidered during the last week of the Convention in September. On September 10th, Elbridge Gerry moved reconsideration of the resolution. Gerry's concern, however, was not to secure an expanded role for the Congress in the amending process. Rather, he was concerned that two thirds of the states might call a new convention and introduce binding “innovations" upon the remaining states. There was no solicitude here for the power of the Congress to alter the new Constitution.

At that point, Alexander Hamilton seconded the motion to reconsider the resolution, although for a different reason. He argued that the Articles of Confederation did not provide sufficient ease of amendment, and that the new Constitution ought not to fall victim to the same defect. The proposed mode of amendment was inadequate and needed supplementation. The only reason that state legislatures would apply for amendments, Hamilton argued, would be to increase their powers. The new Congress, on the other hand, would be more sensible of the defects of the new Constitution. Here at last, in Hamilton, there is a defen er of the Congress' power to amend. But two points must be observed. First, Hamilton raised this matter in the context of supplying an expanded amending power. He was not distressed by the ease of amending the Constitution, but by the difficulty of amending it. Second, Hamilton did not propose at this point granting the Congress the power to propose, much less to dispose, amendments. He contended only that the Congress (by two thirds vote of both Houses) ought to be empowered to call a convention. This, Hamilton argued, would not be "dangerous," because the "people" would have in the convention the proximate power of proposing and the final power of disposing amendments. Hamilton simply urged that the possible defects of the new Constitution be brought to light from more than

one source.

Madison then concurred that the resolution ought to be reconsidered, but for a third reason. The phrase "calling a convention," he said, was a vague one. Thus, although there were no less than three reasons for reconsideration, none of them turned on a deficiency of Congressional power either to propose or to dispose amendments. The motion to reconsider was accepted 9-1–1.

At this point, Mr. Sherman moved for the first time (just five days before the adjournment of the Convention) that the national legislature be authorized to propose amendments to the states. He added that no amendment ought to be binding without the consent of the several states. Presumably the consent of the "several states" meant the consent of each and every state. Mr. Wilson then moved that the consent of only two thirds of the states be required. Once again the central debate ensued over the states' power vis-à-vis other states to amend the new Constitution. Mr. Wilson's motion was defeated 5-6. Another motion requiring the consent of three fourths of the states was substituted, and it was agreed to without objection. The state delegations clearly wished to maintain a strong control over the disposition of amendments without, however, going so far as to require a unanimity which would be difficult or impossible to obtain.

At this point, Madison introduced a new proposal which embodied the threefourths requirement just adopted. Madison's proposal read: "The Legislature of the U.S. whenever two-thirds of both Houses shall deem necessary, or on the application of two-thirds of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three-fourths at least of the Legislatures of the several States, or by Conventions in three-fourths thereof, as one o

the other mode of ratification may be proposed by the Legislature of the U.S." Madison's proposal was adopted 9-1-1. What is missing from Madison's proposal is the idea of a national constitutional convention, called for by the states. The meaning of this omission was not revealed until Madison commented further upon it later in the week.

On the present day, however, Mr. Rutledge argued that the three-fourths provision, although good in principle, did not offer sufficient protection of the interests of the slave states from the possible designs of the non-slave states. He offered the motion that no amendment should affect the slavery question prior to 1808. Whatever the feelings of the various delegates, this was well understood to be an issue of such intense interest that it must be reckoned with in some form or subvert the entire end of the Convention. It was passed.

The September 12th report of the Committee of Style comprised of Mssrs. Johnson, Hamilton, Morris, Madison, and King—followed the language proposed by Madison on the 10th. Final discussion of this matter occurred on the 15th, the last day of the Convention. Discussion was initiated once again by the concern for what the states might do to one another by means of amendments to the Constitution. Sherman argued that the protection provided in the exemption of the slavery clause from amendment ought to be generalized to other areas of state concerns. Madison, however, argued that further exemptions would be demanded by every state, and that it was better to restrict exemptions from amendments to the barest minimum. Sherman's amendment was defeated, 3-8. Governor Morris then offered a compromise, including with the slavery clause the provision that "no State, without its consent shall be deprived of its equal suffrage in the Senate." This provision, which is arguably the most explicitly anti-democratic provision of the Constitution, was accepted without formal objection, and is the language of the Constitution.

George Mason then raised the question of the Congressional role in amending the Constitution. He argued that both modes of amendment in the Committee report depended too heavily on the cooperation of the Congress. If, as he believed it would, the Congress were to become oppressive, the people would have no convenient manner of effecting amendments to counteract the practices of the Congress. Mason clearly wished for at least one mode of amendment in which the Congress simply was not involved. Morris and Gerry then moved to amend the article to require a convention on the application of two thirds of the states. To this Madison responded that he "did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a Convention on the like application" (emphasis mine). Madison clearly regarded the Congress to be obliged to propose amendments applied for by the states. In saying this, he also clarified the reason why the convention mode was omitted from his motion on September 10th, viz., that the Congress was bound to honor the wishes of two thirds of the states and that this mode was essentially independent of the Congress. Madison went on to say that he "saw no objection . . . against providing for a Convention for the purpose of amendments," save that practical difficulties might attend such a procedure. Such difficulties he seemed to regard as a technical problem, and not one of much substance. Examples include quorums, forms, procedures of the convention, and the like. That he did not regard these difficulties as fundamental is proven by the fact that he did not think them fit subjects for constitutional regulations. The question, however, remains: if regulations for a new convention were not specified in the Constitution, who is to make them?

On this question the Convention of 1787 remained silent. It might be reasonably supposed that Congress could and should provide such regulations as are necessary to facilitate the calling of a new convention if it is requested by two thirds of the states. The limit of Congressional power in this regard would be the point at which it conflicted with the clear intention of the Convention of 1787 to provide a genuine alternative to Congressional proposition of amendments. The convention motion was adopted on September 15th without objection, perhaps the clearest possible testimony that the delegates to the Convention of 1787 did not wish to preclude another convention if two thirds of the states desired one. What other reasonable interpretation could be put on this unanimity is difficult to imagine.

John Sherman once again expressed his fear that some states might amend the Constitution in ways unfavorable to the remaining states. He proposed to remove the requirement that three fourths of the state legislatures be neces

sary to ratify amendments. This he did under a concern for "flexibility," i.e., that future conventions ought to be allowed to adopt, as it were, their own standards of what would count as ratification of their work. His motive for presenting his demand in this form is perhaps clear enough. At any rate, the Convention rejected his motion 3-7-1. The "legislative history" of the Convention of 1787 is thus straightforward: the Convention of 1787 rejected the motion that future conventions are free to propose new modes or new standards for the ratification of new amendments-unless, of course, these new modes or new standards are themselves first adopted in a constitutional way, i.e., by ratification by three fourths of the state legislatures or state conventions. The claims of current opponents of a second constitutional convention-that new conventions will be free to propose new modes of ratification-thus appear to be baseless. An amendment proposed by a new convention, but not yet ratified by three fourths of the states, would not yet be a part of the Constitution. It would have no more standing than an amendment proposed by the Congress, such as the Equal Rights Amendment, which has not yet been ratified by three fourths of the states. This would be so no matter what the delegates to a second constitutional convention asserted. A new convention would itself be constitutional, unlike the first convention which was not itself legitimated under the Articles of Confederation.

The Convention of 1787 was in every way an extraordinary gathering. A second convention, if requested by two thirds of the states, would derive its existence from authority given in the Constitution, and would be bound by that authority. Such a view is consistent with the fact that amendments are listed after the original language of the Constitution. In 1787, Roger Sherman insisted that this procedure be adopted in order to indicate that all amendments are empowered by and in accord with the document which is the Constitution. A rogue convention would be a usurper of the Constitution, and true supporters of the Constitution would be obliged to defend it against excesses with whatever means necessary. Fortunately, there is nothing whatever on the horizon at this moment which would suggest the danger of a rogue convention bent upon opposing the Constitution. Rather, the current requests for another convention seem fully within the spirit of the Constitution.

As the Convention of 1787 drew to a close, Edmund Randolph spoke of the "dangerous power" given to the Congress in the new Constitution. He proposed that the ratifying conventions in the states be authorized to propose amendments to the new Constitution, and that these be deliberated upon by a second constitutional convention. George Mason spoke in support of this plan, expressing once again his fear of the national government. To this plan Mr. Pinckney countered that only confusion could spring from an invitation to the states to propose amendments to be considered by a second convention. He argued that the diversity of views and subjects to be considered at a new convention would be so great that a national government would not be likely to emerge from it. He concluded that "Conventions are serious things, and ought not to be repeated."

The reason for his conclusion is instructive. His reason was that a second convention would be unable to produce agreement. This is a very different concern from that of present opponents of a second constitutional convention, who fear precisely that a new convention would produce agreement. Pinckney said that "the States will never agree in their plans," and for him that was conclusive. But why was general disagreement to be feared? Pinckney referred to the absence of an effective national government in 1787 (indeed, he feared the "contemptible weakness and dependence of the Executive" even in the new Constitution); he said that failing the creation of a national government, there would be a decision "by the sword." Hamilton later echoed this view in Federalist No. 85: "There can, therefore, be no comparison between the facility of effecting an amendment and that of establishing, in the first instance, a complete Constitution." Surely the present situation is not analogous to the circumstance of 1787. Who could reasonably argue that at present the national government suffers from contemptible weakness and too little power? Indeed, it is the power of the national government that has prompted most of the current demands for another constitutional convention. Would a great danger to the republic be found in a sitting convention, empowered only to propose amendments, while the national government continues to govern? Might not the national government govern more carefully and more responsively with such "competition" at hand?

Having seen the difficulty of securing a minimal agreement on the part of jealous states, the delegates to the Convention of 1787 were not about to risk their fragile success before a national government was even established. The plan to instruct the states to propose amendments to a mandated second convention, and hence to continue to operate under the Articles of Confederation, was rejected by all of the state delegations. The new Constitution was then agreed to unanimously. IV.

A mandated second convention was thus rejected in the year 1787. It was rejected, however, because of the need for an immediate, functioning national government with the authority to act independently of the will of each and every state of the union. It was perhaps rejected, too, because a constitution ought not to be "up for amendment" without a clear demand arising for it. Madison made himself clear enough on this in his cool response to Jefferson's notion that the Constitution ought to be reconsidered every generation. Such a mechanical formula-amendment of the Constitution whether it needs it or not, as it wereMadison rejected as unwise. But a second convention was not rejected by the framers out of a fear that the states or the people might agree, i.e., might wish to effect a widely advocated change. Those who now oppose another convention on this ground reveal an anti-democratic sentiment that might even Hamilton blush.

The Convention of 1787 did not fear the convention mode of amendment. Quite to the contrary: the Convention of 1787 began and ended by affirming it. What power was given to the Congress was never conceived as a substitute for state power to amend, but as an addition to it. Three fourths of the states are given the power to dispose amendments, either in conventions or in state legislatures. Two fundamentally different modes of proposing amendments are established, each to offer amendments to correct deficiencies discovered from different perspectives. Madison speaks with his usual clarity in Federalist No. 43: "That useful alterations (in the Constitution) will be suggested by experience could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults." The provision that three fourths of the states dispose of amendments secures the permanence of the Constitution; the provision of different modes of proposing amendments secures its responsiveness and flexibility.

The framers had no intention whatever of constructing an immutable document. The framers' attitude toward amendment of the Constitution is revealed in the several modes for amending the Constitution which they included in Article V when unable to agree on one single mode, they simply established two modes. The new found solicitude for the sanctity of the Constitution on the part of some factions is touching; opposition to another convention, however, is simply not defensible in terms of the understanding of the delegates to the Convention of 1787. Hamilton wrote in Federalist No. 85: "The will of the requisite number (of states) would at once bring the matter to a decisive issue. And consequently, whenever nine, or rather ten States (now thirty four or thirty eight states, respectively) were united in the desire of a particular amendment, that amendment must infallibly take place" (emphasis mine). There appears, to Hamilton's mind at least, no doubt that amendments might be brought forth, singly or otherwise, by the states, and be adopted without the decisive participation of the Congress. Federalist No. 85 speaks in the clearest imaginable language: "the national rulers, whenever nine States (now thirty four states) concur, will have no option on the subject. By the fifth article of the plan, the Congress will be obliged ‘on the application of the legislatures of two thirds of the States (which at present amount to nine), to call a convention for proposing amendments which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof.'

"The words of this article are peremptory. The Congress 'shall call a convention.' Nothing in this particular is left to the discretion of that body. And of consequence all the declamation about the disinclination to a change vanishes in air. Nor however difficult it may be supposed to unite two thirds or three fourths

of the State legislatures in amendments which may affect local interests can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority." Difficulties ought to attend the amending process when it affects only local or special interests; difficulties ought not to attend the amending process when it concerns the liberty of the people. These are not the words of a man who fears a convention relative to the general liberties of the people; they are the words of Alexander Hamilton.

A REVIVAL, JUST IN CASE

(By James J. Kilpatrick)

The Congress has a piece of unfinished business left over from 1971. When the two houses have nothing better to do, which is most of the time, they ought to get at it. This is an act to provide for the holding of a constitutional convention.

Once again the states are applying pressure. At the last count, no fewer than 22 states had filed petitions with Congress, asking that a convention be called in accordance with Article V of the Constitution. The petitioning states want an amendment to require a balanced federal budget. They are going at it the hard way.

Not many persons are acquainted with the "state application" provision of Article V, and this is not surprising; the provision never has been successfully invoked. Every amendment to the Constitution thus far, has come into being through the familiar procedure by which two thirds of each house of Congress approves a proposal and sends it out to the states.

The founding fathers, fearful of an intransigent national legislature, wisely provided an alternative course. "The Congress on the application of the legislatures of two thirds of the several states shall call a convention for proposing amendments." Note that the provision is not discretionary; it is mandatory: The Congress "shall" call.

Over the past 19 years, every state in the union at one time or another has petitioned Congress in this fashion. Amendments have been sought embracing everything from polygamy to prohibition. Early in the century, so many states petitioned for the direct election of senators that Congress itself put in motion the resolution that resulted in the 17th Amendment. At the time of a study by the American Bar Association in 1971, more than 300 such petitions had been filed.

The ABA report stemmed from a sudden onrush of state applications having to do with the issue of reapportionment. Many of the state legislatures were infuriated by the Supreme Court's one-man, one-vote, decree in Baker v. Carr. They set about passing resolutions, many of them identically phrased, demanding that Congres call a constitutional convention to undo what the high court had done.

Then as now, 34 states (representing two thirds of all the states) would have triggered the call. Amazingly, by mid-1967 the count actually got to 32. Sen. Everett Dirksen of Illinois, grand marshal of this remarkable parade, was ecstatic. His colleague, Paul Douglas, was aghast. Douglas suggested that if a 34th application should materialize. Congress ought to refuse the call anyhow. That set Dirksen into flights of oratory scarcely equaled since Cicero took off on the Carthaginians. Such senators as Javits of New York, Proxmire of Wisconsin and Robert Kennedy of New York denounced the very idea of the constitutional convention.

One thing led to another, and in October of 1967 the Senate Judiciary Committee conducted hearings on the whole business. The hearings led to a bill sponsored by Sam Ervin of North Carolina that passed the Senate 84-0 in October of 1971: Then interest waned, and nothing much had been heard of the matter until the latest campaign began to gather momentum.

Prudence suggests that Congress send for the Ervin bill and trot it around the track once more. It seems to be doubtful that 12 more states will make application under Article V, but you never know. It would be far better to provide the machinery now than to hustle up a bill, as the ABA study observed,