Jenner, Albert E.

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Observations on the Proposed Alteration of the Constitutional Amendatory Procedure

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Notre Dame Law ReviewVolume 39 | Issue 6 Article 29-1-1964Observations on the Proposed Alteration of theConstitutional Amendatory ProcedureAlbert E. JennerFollow this and additional works at: http://scholarship.law.nd.edu/ndlrPart of the Law CommonsThis Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by anauthorized administrator of NDLScholarship. For more information, please contact lawdr@nd.edu.Recommended CitationAlbert E. Jenner, Observations on the Proposed Alteration of the Constitutional Amendatory Procedure, 39 Notre Dame L. Rev. 625 (1964).Available at: http://scholarship.law.nd.edu/ndlr/vol39/iss6/2OBSERVATIONS ON THE PROPOSED ALTERATION OFTHE CONSTITUTIONAL AMENDATORY PROCEDURE*Albert E. Jenner*The enactment of the amendments now under consideration would, Ifeel, lead to an outright revolution in this country, a revolution not in thegradual sense, but a fighting one conducted by the nation's great majoritieswho would be, in that eventuality, under the complete domination and sub-jection of minorities of both states and people.The first of these proposals, the - subject of the present inquiry, wouldalter the amendatory process prescribed by Article V of the Constitution. Itis designed to vest the amendatory power in the state legislatures to the ex-clusion of the Congress.The sponsors of these amendments seem to have erred, strategically atleast, in going beyond their first proposition for it is the remaining two amend-ments, that calling for the overruling of Baker v. Carr and the last to createa "Court of the Union" to review the rulings of the United States SupremeCourt, which betrayed their underlying purpose and intent, thus giving warn-ing of the extremes to which the minority group of states and the minoritieswithin these states might go.The adoption of the first of these amendments would effect a completeredistribution of governmental power, channelling to the states much of whichnow rests with the federal Congress. The ultimate result would be a confed-eration or league of states similar to that under the Articles of Confederationof 1777. No longer would we maintain in the central government the powerand jurisdiction so essential to the preservation of the Union. While thestates would be afforded sufficient sovereignty to devote their attentions topurely local problems, their participation in the national picture would bebarely adequate to make known the parochial views of the fifty separatejurisdictions. It should be noted in this connection that this process would notbe a mere transference of power to the states as states, but to the state legisla-tures. The importance of this distinction is obvious upon the slightest consider-ation of the present maldistribution of representation in the legislative bodies.The inequalities presented by these apportionments would thus be preserved,and, by the increase of power, worsened. A representative form of govern-ment would vanish.Apparently, then, the lessons of the errors and impracticality of theArticles of Confederation have been lost to the amendments' sponsors. Theblood bath of the Civil War, fought in great part to accentuate the indis-solubility of the Union, will have been for naught.Political, as well as legal, repercussions would ensue. There would be* The following article is Mr. Jenner's oral presentation at the Notre Dame- LawSchool on February 29, 1964, as edited by the Editorial Board of the Lawyer.** Well-known trial lawyer and partner in the Chicago firm of Raymond, Mayer, Jenner& Block; LL.B., University of Illinois; long-time active member of the Chicago, Illinois, andAmerican Bar Associations.NOTRE DAME LAWYERprecluded any possibility of a national forum for the debate of national andinternational issues. Limited debating societies would obtain in each of thefifty states. With Nebraska as the only state with a unicameral legislature,we would be left with ninety-nine such societies.How, then, did such proposals ever come about? While there is gen-eral agreement that the danger of their passage is slight, the meanderedmethod of their genesis is highly pertinent to a fair evaluation. The spon-sorship rests with the general assembly of the Council of State Governments,a normally conservative group and one of our most highly respected organi-zations and institutions. It consists almost exclusively of legislators of con-siderable prominence and ability from each of the several states selected fromcommissions on interstate cooperation existing in each of the states. TheNational Legislative Council, an affiliate of the Council of State Governments,was the initial proponent and drafter of the amendment. While this NationalLegislative Council meets annually, the general assembly convenes only halfas often. This fact, as we shall see, becomes quite significant. In Septemberof 1962, with a meeting of the general assembly but three months distant,the National Legislative Council met, fully realizing that whatever proposalswere not submitted in December to the general assembly would not be actedupon for at least two additional years. It issued a report critical, in a fairlystatesmanlike but direct fashion, of the action of the Congress and the execu-tive department of the federal government over the preceding decade, whichaction, it alleged, had served to erode the powers and functions of the states,an erosion which had progressed to that point where the Union itself might beadversely affected. While it is true that the Union depends upon alert, dynamicand powerful states for its most effective functioning, the Council, rather thandiscuss the central requisites of that delicate balance between Union andstate, chose to devise a "meat-cleaver" method of rectification. Rather thanrestore the scale's balance, if such seemed necessary, the Council's amendmentsso weighted the opposite pan as to plummet the scale to the ground.This report was circulated among the delegates and a committee drawnup to draft the present amendments. The actual draft of these amendmentswas not submitted to the delegates of the general assembly until the openingday of its convention. In the course of but one day, the day following theopening, the delegates read, debated, and acted favorably upon all three ofthese amendments. Hence, as a special order of business, on the sixth ofDecember, 1962, it was proposed completely to revamp the government ofthe United States. The complete unpreparedness of these delegates to passupon motions of such moment is perhaps best evidenced by the fact that thesecond amendment received fewer favorable votes than the first, and the thirdstill fewer. This suggests that the delegates became relatively more informed asthe afternoon wore on.Under Article V of the Constitution, amendments may be initiated eitherby the Congress or by the legislatures of the several states; the latter methodhas never been used. Under the former, the Congress, on a two-thirds voteof both Houses, submits the proposal to the state legislatures or to state con-OBSERVATIONS ON AMENDATORY PROCEDUREventions. The proposal becomes a constitutional amendment when and if itis ratified by three-fourths of such legislatures or conventions, depending uponwhich avenue Congress has chosen. At present, then, the consent of thirty-eight such legislatures or conventions conditions the adoption.The alternative method requires the Congress, upon the application of two-thirds of the state legislatures, to "call a convention for proposing amend-ments." Nothing further is said concerning what this convention is to do.The proposals which emanate from that convention take effect in the samemanner provided for the alternative passage, namely, ratification by three-fourths of the state legislatures or state conventions.The general assembly's proposal seeks to eliminate completely the na-tional convention method of amendment. It further proposes to abolish thestate convention alternative method of amendment regardless of whether theoriginal proposal was initiated by Congress or by a national convention. It isintended, then, that the state legislatures control the amendatory process.Also, if three-fourths of the state legislatures submit identical proposals byway of application, then the Congress is required, by purely ministerial pro-cedures, to certify these proposed amendments to the very same state legisla-tures. This empty course of action serves to circumvent completely the Con-gress, relegating the entire amendatory procedure to the mercy of the statelegislatures. The potential effects of this procedure to the. Constitution neednot be listed. The combined effects of this and the other two amendmentswould possibly include the destruction of the Supreme Court of the UnitedStates, the elimination of Congress, and the sharp modification of at leastthe first eight amendments to the Constitution, at least as applied to the statesvia the Fourteenth Amendment.As an incidental point, it is interesting to note that Section Two of theseresolutions recites that the article shall be inoperative unless ratified, withinseven years of the date of its submission, by the legislatures of three-fourthsof the several states. This is apparently an adroit attempt to prevent theCongress from employing the state convention alternative method, ,which itis empowered to do under the Constitution. Yet it is only through this alter-native method that any semblance of representation of all the people can beobtained.Finally, the amendment under consideration is perhaps the most extra-ordinary and astounding governmental proposal of recent times. If there is atpresent an imbalance in the federal-state area of action (and such an im-balance is by no means conceded), correction of the defect lies in thestrengthening of the states under our present system and not in the virtualdemolishing of the Congress by its reduction to a pleasant debating society.

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Observations on the Proposed Alteration of the Constitutional Amendatory Procedure

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