Contemporary Questions Surrounding the Constitutional Amending Process

By John R. Vile | Go to book overview

with the Constitution, but would be free to draw up their own rules (with, however, a provision--probably unnecessary and possibly unwise--against unit-rule voting). In submitting amendments to the states, Congress would in turn be authorized to determine if the amendments fit the general subject matter of the convention and how they will be ratified. States would be allowed to reconsider rejections and rescind ratifications prior to approval by three-fourths of the states. All such matters would be subject to judicial review. 92


CONCLUSION

As with any untried mechanism, numerous questions may never be resolved about an Article V convention unless and until such a gathering is actually called. However, in this author's judgment there is no reason that states should be faced with a Catch 22 in which they must accept the possibility of a completely wide open convention to remedy a distinct problem or set of problems. If the states desire a limited convention, the power to limit it is implicit in Congress's ministerial duty to call a convention as well as in the courts' authority, established in Chapter 2, to say what the law is. Moreover, numerous constitutional and political restraints should serve to distinguish, as Jameson tried in the nineteenth century to do, between a "constitutional convention" and a "revolutionary convention." The former is not a mechanism to be feared. If the latter comes, it is less likely to be the result of a system that allows representative institutions at the state and national levels to initiate changes than to result from a system in which such changes are stymied in the name of some overly restrictive view of what the Constitution does or should mean.


NOTES
1.
American Bar Association, Special Constitutional Convention Study Committee, Amendment of the Constitution by the Convention Method under Article V ( Chicago: American Bar Association, Public Service Activities Division, 1979).
2.
See especially, Russell L. Caplan, Constitutional Brinkmanship: Amending the Constitution by National Convention ( New York: Oxford University Press, 1988); Wilbur Edel, A Constitutional Convention: Threat or Challenge? ( New York: Praeger, 1981); and Paul J. Weber and Barbara A. Perry, Unfounded Fears: Myths and Realities of a Constitutional Convention ( New York: Praeger, 1989). Other books and articles are mentioned in the course of discussions in this chapter.
3.
In the 1970s, the fight for legislation was led by Senator Sam Ervin of North Carolina. For analysis of his bill see Sam Ervin Jr., "Proposed Legislation to Implement the Convention Mechanism of Amending the Constitution," Michigan Law Review 66 ( March 1968), pp. 875-902. Also see "Proposed Legislation on the Convention Method of Amending the United States Constitution," Harvard Law Review 85 ( June 1972), pp. 1612-48. More recent legislation has been sponsored by Senator

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