(From the Center Magazine, March 1980) Why Risk a A rticle V of the Constitution provides two methods for amending that document. First, Congress may propose amendments by a two-thirds vote of each House, which must then be ratified by three-fourths of the states, either by the state legislatures or conventions, as Congress may direct. All twenty-six amendments to the Constitution have been proposed in this way, and all except one have been ratified by state legislatures. Conventions were mandated by Congress for ratification of the Twenty-first Amendment, because of a belief that gerrymandered, rural-dominated state legislatures did not accurately reflect public attitudes toward Prohibition. Second, the legislatures of two-thirds of the states may make application to Congress to call a convention for proposing amendments. From 1789 to 1974, at least 356 applications were filed with Congress for the calling of a convention, but in fact none has ever been held. Consequently, a discussion of the operation and possible consequences of a convention necessarily requires a certain amount of speculation and prediction. C. Herman Pritchett is a Professor Emeritus of Today's interest in the convention method of amendment arises from the effort to secure an amendment to require balancing the federal budget, by the convention route if necessary. At the present writing, apparently some twenty-eight or twentynine state legislatures have approved applications to call a convention for this purpose. Attention was previously centered on the convention device in 1966 when, after the Senate had defeated a proposed amendment to overturn the Supreme Court's one-person, one-vote decision, Senator Everett Dirksen undertook to secure the same result by convention applications from two-thirds of the states. His campaign fell short by only one state, thirty-three of the necessary thirty-four legislatures responding. It appears that in only one case have the necessary number of states ever filed applications for a convention. In the early part of this century some thirty-one states, meeting the two-thirds requirement at that time, submitted petitions for an amendment to provide for direct election of senators. Congress failed to heed this call for a convention, but eventually proposed the amendment itself. A study by Barbara Prager and Gregory Milmoe in 1975 for the American Bar Association revealed that actually seventy-five applications for direct election of senators had been filed at various times, the largest number ever received by Congress on one issue. They noted fifty-four petitions on apportionment, forty-two on federal tax limitation or repeal of the Sixteenth Amendment, thirty for the outlawing of polygamy, twenty-one for revenue sharing, and nineteen for revision of Article V. Applications in this last category were stimulated by the Council of State Governments, which in 1962 inaugurated a campaign for three so-called "states" rights" amendments. The Drafting of Article V Discussions at the Constitutional Convention in 1787 throw some light on the thinking of the framers concerning the amendment process. They took for granted that the states should have the right to set the amending machinery in motion. In fact, it was the role of Congress that was in dispute at the time. The original draft of the Virginia Plan (Resolution XIII) read: "Provision ought to be made for the amendment of the Articles of Union whenever it shall seem necessary; and that the assent of the National Legislature ought not to be required thereto." (Farrand, 1, 22) In Committee of the Whole on June 11, George Mason approved: "It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account. The opportunity for such an abuse, may be the fault of the Constitution calling for amendment." (Farrand, I, 203) The Committee on Detail, reporting on August 6, revised the language of Resolution XIII, but retained the state monopoly on the amending process: "On the application of the legislatures of twothirds of the States in the Union, for an amendment of this Constitution, the legislature of the United States shall call a Convention for that purpose." (Farrand, II, 188, 557) But on September 10, Elbridge Gerry moved to reconsider this provision, with the support of Alexander Hamilton and James Madison. Hamilton said that the plan, giving the states a monopoly of the amending process, was "not adequate." "The State legislatures will not apply for alterations but with a view to increase their own powers - The National Legislature will be the first to perceive and will be most sensible to the necessity of amendments...." (Farrand, II, 558) . Madison joined in the attack, raising prophetic questions about the role and operation of an amending convention. He "remarked on the vagueness of the terms, 'call a Convention for the purpose,' as sufficient reason for reconsidering the article. How was a Convention to be formed? by what rule decide? what the force of its acts?" (Farrand, II, 558). He then proposed the dual amendment plan which, with some modifications in wording and the addition of two provisos, became Article V. In No. 43 of The Federalist, Madison looked at the language on amendments and found it good: "It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience of one side, or on the other." Experience with Congressional Monopoly Madison's favorable appraisal of Article V has been generally supported by subsequent experience. The amending process has proved to be neither too easy nor too hard, given a real consensus. Excluding the first ten amendments, which must be regarded as really part of the original Constitution, amendments have been adopted at the rate of less than one per decade. Following the Civil War amendments, there was a period of more than forty years during which the Constitution appeared unamendable. This was an era of agrarian discontent, industrial unrest, and growing interest in political and economic reforms. The conservatism of the Supreme Court symbolized by its invalidation of the income tax in 1895 made constitutional amendment seem a necessary step toward achieving liberal legislative goals. Under these circumstances, there was much talk about the necessity of easing the amendment process. In 1913, however, the long liberal campaign for the income tax and direct election of senators succeeded with adoption of the Sixteenth and Seventeenth Amendments respectively. Adoption of the Eighteenth Amendment in 1919 revealed the possibility of a small but dedicated pressure group exploiting the amending machinery successfully. The women's suffrage amendment (Nineteenth Amendment) came in 1920. With six amendments added to the Constitution between 1913 and 1933, the amending process no longer seemed so formidable. Moreover, the liberalization of the Supreme Court's views by President Franklin D. Roosevelt's appointees substantially eliminated liberal interest in further amendments. After the nineteen-thirties, pressure for amendments came principally from conservative political quarters. The increase in executive power and congressional expenditures, the federal government's acceptance of new welfare functions domestically and new responsibilities internationally, the reduced role of the states, and liberal tendencies on the Supreme Court stimulated conservative recourse to the amendment process. During the nineteen-fifties, the Bricker Amendment to limit the federal government's power to enter into international agreements and a proposal to place a ceiling on federal income taxation were conservative measures that failed of adoption. In the nineteen-sixties, efforts to override the Supreme Court's decisions on oneperson, one-vote and Bible reading in the public schools were defeated. The nineteen-seventies saw an organized effort to reverse the Court's abortion decision. Thus far, the only amendment secured by conservative forces was the Twenty-second, limiting the President to two terms. In contrast, the four amendments adopted since 1961 have had a generally liberal character; three of the four extended the franchise. However, the probable defeat of the Equal Rights and District of Columbia Amendments suggests that the era of liberal amendments may be over and that the temper of the country more favorable for conservative amendments. |