DOCUMENT RESUME ED 109 049 SO 008 496 TITLE Amendmert of the Constitution by theConvention Method under Article V. Revisionof "Amending the U.S. Constitution by Means of aNational Constitutional Convention" (August1972). INSTITUTION American Bar lssociation,Chicago, Ill. PUB DATE 74 NOTE 102p. AVAILABLE FROM American Bar Association,Circulation Department, 1155 East 60th Street, Chicago,Illinois 60637 ($3.50) EDPS PRICE MF -$0.76 HC -$5.70 PLUS POSTAGE DESCRIPTORS *Change Agents; ChangeStrategies; Civics; *Constitutional History; *ConstitutionalLaw; Government (Administrative Body);Laws; Organizational Change; 0:ganizationalCommunication; Political. Issues; *Political Science;Politics; Social Change; Social Sciences;United States History *United States IDENTIFIERS Article 5; Constitutional Convention; Constitution ABSTRACT This report sets forth certainconclusions reached by American the Special ConstitutionalConvention Study Committee of the committee was Bar Association afterconducting a two-year study. The ramifications of the constitutionalconvention formed to evaluate the down method of initiating amendments tothe U.S. Constitution as set in Article 5. It analyzed andstudied all aspects of lawconcerned with calling a national constitutionalconvention. Particular attention was given to the questionof whether a convention's jurisdiction can be limited to thesubject matter giving rise toits call, or whether the convening of aconstitution as a matter of constitutional law opens the conventionto multiple amendments and the consideration of a newconsitution. Article 5, the originsof the provision, intent of the Framers,and history and workings ofthe The' article since 1789, formed backgroundmaterial for the research. major conclusion reached fromthe study is that a national constitutional convention can b,channeled so as not to be the unleashing of a radical forcein the system, but rather anorderly mechanism of effecting constitutionalchange when circumstances require its use. Appendicesillustra'-e and cross-reference the report.(Author/ND) U S OEPARTMENT OF HEALTH EDUCATION 4 WELFARE NATIONAL INSTITUTE OF EOUCAT ION `H 10 FN I F'RU I XA, 'L 1, R F F ROA' 110 Pt 14,1 N OR ilk 41/.0.0N ORIUIN 4, N. ,,f h OR ORIN,ONS NT A ,t N NI REPRF SE NI N 'ItN 0 NS' ,`, 15 01 Fr,-. ON I">, V Naia . 0.412, PE I N'II,' , II)NAL 'N F PP() 1, PI ,4f -, 1144-4 42 Additional copies available at $3.50 each. Sendorders to the American Bar Association, Public Service Activities Division,Department A, 1155 East 60th Street, Chicago, Illinois 60637., 00004 "m Copyright , 1974 `American Bar Association 00005 American Bar Association Special The Honorable C. Clyde Atkins, Constitutional Chairman Convention Study P.O. Box 3009 Committee Miami, Florida 33101 Warren Christopher, Esq. 611 West 6th Street Los Angeles, California90017 Professor David Dow University of Nebraska College of Law Lincoln, Nebraska 68508 John D. Feerick, Esq{. 919 Third Avenue --- New York New York10022 Adrian M Foley, Jr. Esq. Gateway I Newark, New Jersey 07102 The Honorable Sarah T. Hughes Federal Courthouse 1100 Commerce Street Dallas, Texas 75221 Dean Albert M. Sacks Harvard University Law School.c, Cambridge, Mas,sachuseits 02138 00006 The Honorable William S Thompson Suitt. 205, Building B Superior Court of DC Washington D.0 20001 Samuel W. Witwer, Esq. 141 West Jackson Boulevard Chicago, Illinois 60604 ....., .... IV I * Contents vuResolutions adopted by the ABAouse of Dele- gates, August 1973 ixForeword REPORT OF THE ABA SPECIAL CONSTITU- TIONAL CONVENTION STUDY COMMITTEE 1 Introduction 5 Issues presented 11 Discussion of Recommendation 11 Authority of an Article V Convention 17 Power of Congress 20 Judicial review 25 Role of executive 25 (i)President 28 (ii)State governor 30 Article V applications 30 (i) Content 31 (ii) Timeliness 32 (iii) Withdrawal of applications 33 Article V Convention 33 (I) Election of delegates 34 (ii) Apportionment 37 (iii) Members of Congress as delegates 37 Ratification 39 Conclusion 41Citations 47 APPENDICES 47 A Proposed Federal bill with commentary 59 B Article V applications submitted since 1789 79 BIBLIOGRAPHY Resolutions 1 The following WHEREAS, the House of Delegates, at itsJuly resolutions were 1971 meeting, created the COnstitutionalConven- approved by the tion Study Committee "toanalyze and study all American Bar questions of law concerned with thecalling of a Association national Constitutional Convention,including, but House of De le- not limited to, the questionof whether such a the gates in August, Convention's jurisdiction can be limited to 1973, upon the subject matter giving rise to its call, orwhether the of recommendation convening of such a Convention, as a matter of the ABA Con- constitutional law, opens such a Convention to consideration of a stituticnial Con- multiple amendments and the vention Study new Constitution ",,and Committee, WHEREAS the Constitutional ConventionStudy Committee so created has intensivelyand exhaus- principal questions :$ tively analyzed and studied the of law concerned with thecalling of a national constitutional convention and hasdelineated its conclusions with respect to these questionsof law in its Report attached hereto, NOW, THEREFORE, BE ITRESOLVED, THAT, with respect to the provisionof Article V of the United States Constitutionproviding that "Con- gress ... on theApplication of the Legislatures of two-thirds of the several States,shall call a Con- vention for proposing Amendments" tothe Con- u stitution, 1. Itis desirable for Congress to establish proce- duresforamendingtheConstitution by means of anational constitutional conven- tion. 2. Congress has the power toestablish procedures limiting a convention to the subject matter whichisstated in the applications received from the state legislatures. 3. Any Congressionallegislationdealing with 00009 VI I $ `p I11 '14 $ such a process for amending the Constitution should provide for limited judicial review of Congressionaldeterminationsconcerning a constitutional convention. 4 Delegates to a convention should be elected and representation atthe convention should be in conformity with the principles of repre- sentative democracy as enunciated by the "one person one vote"decisions ofthe Supreme Court. BE IT FURTHER RESOLVED THAT the House of Delegates authorizes the distribution of the Report of the Constitutional Convention Study Committee for the careful consideration of Federal and statelegislators and others concerned with constitutional law and commends the Report to them, and BE IT FURTHER RESOLVED, THAT representa- tives of the American Bar Association designated by the President be authorized tc, present testi- mony on behalf of the Association before the appropriate committees of the Congress consistent with this resolution. t' t VIII T 00010 Foreword by Our Committeeoriginated from a suggestion and the Council of theSection of Individual Rights Responsibilities that a specialcommittee represent- ing the entireAssociation be created toevaluate the ramifications of theconstitutional convention method of initiatingamendments to the = United adopted States Constitution.The suggestion was by the Board ofGovernors atits meeting' in Williamsburg, Virginia, onApril 29, 1971, and was accepted by the Houseof Delegates at itsmeeting in July 1971. autho- in forming theCommittee, the Association rized it to analyze andstudy all questions oflaw concerned with the callingof a national constitu- to, tional convention,including but not limited the question of whether aconvention's jurisdiction giving rise to can be limited tothe subject matter its call, or whetherthe convening of aconvention a matter ofconstitutional law, opens a conven-- tion to multipleamendments and theconsideration of a new constitution. The Committee thusconstituted consists of two United States DistrictJudges, a Judge of the Superior Court of theDistrict of Columbia, a former present and a formerlaw school dean two presidents of stateconstitutional conventions, a former Deputy AttorneyGeneral of the United States, and a privatepractitioner with substantial experience in theamending process. Warren ComprisingtheCommittee are. Christopher, a Californiaattorney, former Deputy Attorney General ofthe United States, andVice President of the LosAngeles County BarAssocia- tion, DavidDow,, former Deanand currently Professor of Law NebraskaCollege ofLaw,, a IX .0001.47' member ofNebraska'sConstitutionalRevision Commission and a former member of the Board of Directors of the American Judicature Society; John D. Feerick a New York attorney who served asadvisor to the Association's Commission on Electoral College Reform and a member of. the Association's Conference on Presidential Inability and Succession;, Adrian M. Foley Jr., a New Jersey attorney a member of the House of Delegates, and President of the Fourth New Jersey Constitutional Convention (1966);, Sarah T. Hughes, United States District Judge for the Northern District of Texas; Albert M. Sacks, Dean The Harvard Law School and former chairman of the Massachusetts Attor- ney General's Advisory Committee on Civil Rights and Civil Liberties; William S. Thompson, Judge of the Superior Court of the District of Columbia, chairman of the Association's Committee on World Order Under Law and a member of the Associa- tion'sCommittee onFederalLegislation; and Samuel W. Witwer, an Illinois attorney, a member of the Board of Directors of the American Judica- ture Society,, and President of the Sixth Illinois Constitutional Convention (1969-1970).