Should a convention be called to amend the U.S. Constitution?

Amending by convention is open-ended and dangerous

The goals are two which I share. The convention route, however, is one which many pro-life, fiscally conservative Illinois legislators refuse to take, noble as the goals are. And for good reason. The route of a constitutional convention would be costly, fraught with peril and possibly a dead end.

A national constitutional convention is to be called by the Congress upon the petition of two-thirds (34) of the state legislatures. Over 20 state legislatures have recently petitioned for a convention on the balanced budget issue; 14 have petitioned for a convention on the right-to-life issue.

Legislatures in many states have embraced the convention petitions as they might adopt a resolution setting up a joint committee on something-or-other: with debate but without the deep sense of responsibility and caution which should attend a request to change our nation's basic document. Indeed, I am as convinced that the general public is unaware of the convention fever sweeping the legislatures as I am that a convention petition should not be passed without full awareness and extraordinary consensus of the general public.

The vote on a convention petition should be taken only with the most serious, considered deliberation and only in the most extraordinary circumstances, if ever at all. There will be those who will argue that the staggering federal deficit and the slaughter of the unborn make the convention extremely critical, and I agree that both issues are extremely serious conditions infecting our land. But I am so unconvinced of the chance for success through a convention and so concerned about the degree of risk involved in that process that I must focus my thoughts on the convention issue itself, not on the goals, and I urge others to do likewise.

The convention method of amendment is provided for in Article V of our nation's Constitution, but that provision is so scantily defined that there are no constitutional safeguards such as exist in the well-worn method of Congress proposing amendments. The Constitution merely states that Congress shall call a convention to propose amendments to the Constitution upon the petition of two-thirds of the state legislatures, a provision apparently intended to allow popular causes to gain a forum without the endorsement of the Congress.

But there are no guidelines as to how the convention would be constituted. It would be perfectly legal (though not very likely), for example, for Congress to appoint themselves as delegates. And even though it is much more likely that delegates would be elected from congressional districts, they would therefore be likely to mirror the philosophy of the congressmen themselves. How would that improve the hopes of success?

If the Congress which refuses to "do the right thing" in proposing amendments being sought by the movements is the same Congress which would be in charge of the ground rules for a constitutional convention, how can that parliamentary body be trusted to "do

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the right thing" in structuring a constitutional convention?

Attempts have been made by former Senator Sam Ervin (D., N.C.) and by Congressman Henry Hyde (R., 111.) to pass legislation governing a convention, but Congress has refused to pass even such preparatory laws. Even if the "Ervin bill" were to pass, it could be amended to suit Congress' purposes at the point of an actual convention call.

The chief pitfall in the convention route is the scope of the convention's work. Proponents say the convention could be limited to the issues embraced in the petitions, that the entire Constitution itself would not be opened to review. But what real assurance is there? Nothing but a study by the American Bar Association. And if there's one thing one learns in working alongside lawyers, it is that they are skilled in arguing both sides of the same question. A legal opinion is not fact; it is assertion.

The salient facts are two: the constitutional language is not clear enough to assure a limited convention, and the only precedent in history warns of the difficulty of remaining within limits in such a convention.

The constitutional convention which gave us our current document was called in 1787 for the limited purpose of proposing amendments to the Articles of Confederation, our first charter. The product of the convention was a totally new document, the Constitution of the United States. That time we were lucky.

What would come of a "limited" convention in the 1980's? The "Constitution of the Newstates of America," perhaps, a document already drafted by the Center for the Study of Democratic Institutions? This new constitution, already poised for the opportunity of a national constitutional convention, treats the practice of religion as a "privilege"; drastically centralizes government; sets up a planning board and a regulatory board as branches of government equal with the executive, legislative and judicial branches; provides for national zoning and for regulation and outright state control of all economic enterprises.

Do we want to pursue a course which could open up our precious Constitution to assault by the purveyors of bright ideas who already say, in the words of Robert Hutchins, founder of the Center

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for the Study of Democratic Institutions, that "the Constitution says nothing about the principal concerns of the day?"

The Illinois experience with our 1970 state constitutional convention and its product has put Illinois on the list of the least likely states to petition Congress for a convention. Our experience with a costly convention participated in chiefly by people who would never have to face the voters for any office again has taught us the folly of allowing doubts and dissatisfactions with one or two issues to lead us through quiet revolution.

Any state legislator considering a convention petition should look to the Illinois experience, to the national convention of 1787, and to his conscience to settle the question, one of the most important questions on which he'll be called to vote.

The central question is: Does the end justify the means? To my mind, no end could justify the means of a federal constitutional convention in this day and age.

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Rep. Penny Pullen (R. 4th District) of Park Ridge is a member of the committees on executive, human resources and rules

FOR THE third time in this century, the number of petitions by state legislatures to call a constitutional amending convention under the provisions of Article V of the U.S. Constitution is now approaching the requisite number of states. As of March 1, 1979, 28 states have submitted a convention call dealing with the subject of a balanced budget at the federal level. Only six more are needed to compel Congress to call a convention for proposing amendments. Many Americans are now asking themselves what will happen when the 34th state petitions Congress? The best answer is that no one knows for sure because Article V's convention call option is not self-executing since it provides no procedure for establishing a convention.

In order to avoid the uncertainties that such a situation would present to the American people, Congressman Henry J. Hyde (R., 111.) introduced HR 1964 in the U.S. House of Representatives on February 8, 1979. That bill, also known as the Federal Constitution Convention Amendment Act, would set up orderly procedures so that Congress could implement the provisions of Article V and, therefore, eliminate most uncertainties about the convention process. Without the bill, the concerns of proponents as well as opponents of a convention could well multiply.

Given this situation, those who oppose the very idea of a constitutional amending convention should either seek to repeal the con-con provision of Article V or support passage of the Hyde bill in order to make it work. But right now those opponents are doing neither. They are simply crossing their fingers and hoping that 34 states will not exercise the option granted to them by Article V.

The states are entitled to petition Congress to call a convention, and inaction by Congress on a procedures bill is equivalent to playing Russian roulette with the Constitution. The need for such a bill is as old as Article V itself.

Attempts to use the provisions of Article V are by no means new in American history. The American Bar Association estimates that over 300 state petitions requesting a constitutional call on various subjects have been sent to Congress since 1787. And twice in this century such petitions have come within one vote of requiring a convention. Between 1906 and 1912, 31 of the required 32 states (two-thirds of a 48-state union) passed resolutions calling for a convention which would address itself to an amendment dealing with the direct popular election of U.S. Senators.

But before action was taken by the 32nd state, the U.S. Senate itself, after a decade of defeating the same amendment, passed what became the 17th Amendment on May 6, 1912. By April 8, 1913, three-fourths of the states had ratified, thus eliminating the need for a convention. But the threat of a convention called by the states was widely credited with forcing Congress to act.

More recently, between March 25, 1963, and May 1, 1971, 33 states petitioned for a convention to consider the so-called "Dirksen Amendment" which was designed to strip the federal courts of jurisdiction over the apportionment of state legislative districts.

It was in anticipation that 34 states would pass the Dirksen Amendment convention call that former Senator Sam Ervin (D., N.C.) first introduced a convention procedures bill in 1967. That bill in an amended form passed the Senate in 1971 and again in 1973 but failed both times in the House. The current Hyde bill, H.R. 1964, is substantially the same as Ervin's.

During hearings on the Ervin bill in June of 1971, the Congress then, as now, debated what contingency plans, if any, should be made for the possibility of a convention. Of course, there was no precedent for what action Congress should take under the provisions of Article V since Article V is not self-executing. Then, as now, those who opposed the very idea of a convention were also opposed to the passage of the Procedures Act. They argued at that time that the passage of such a Convention Procedures Act would encourage the 34th state to act.

Who's afraid of a con-con anyway? Critics often say they fear that a convention would run wild and rewrite the entire Constitution or major sections of it. They point to the Philadelphia Convention of 1787 which was called for the purpose of revising the Articles of Confederation and which opted to draft a new charter.

But the Hyde bill would limit the subject matter of a convention. Even if the worst fears of con-con opponents

were realized and the convention went beyond the subject matter of the call, Article V still mandates that three-fourths of the states must ratify the proposal of the convention in the same way that congressionally initiated amendments have been ratified in the past. The Articles of Confederation contained no such protection.

That bill would also provide for the election of delegates from the several states in the same manner as those states now elect members of Congress. As further insurance against capricious action by a convention, the bill designates the Congress as the final arbiter of the validity of state petitions, and provides that states must pass those petitions in the same manner as they now pass statutes, but without the need for gubernatorial approval.

The Hyde bill also stipulates that Congress shall appropriate the monies necessary for the convention, that the convention shall keep a verbatim transcript of its debates, and that the convention shall finish its business within one year after its convening. It provides that Congress may disapprove an amendment if it goes beyond the scope of the call of the convention, but it further provides that the Congress may not reject an amendment for substantive reasons. The Congress would then be empowered to transmit the proposed amendment to the states for ratification. The legislatures of three-fourths of the states must ratify within seven years of the date of transmittal.

The Hyde bill does allow a state the opportunity to rescind ratification of a proposed amendment by the same process by which it ratified the proposed amendment, except that no state may rescind once there are valid ratifications by three-fourths of the states. Finally, the Hyde bill empowers Congress with the authority to settle all questions concerning state ratification or rejection of amendments proposed to the Constitution.

Given all these safeguards against a comprehensive overhaul of the Constitution, it seems clear that passage of the Hyde bill would insure a limited and responsible constitutional convention that would do much to provide a public expression of the popular will on specific issues. I believe that the framers at Philadelphia in 1787 intended to provide the states such a method for by-passing the national Congress because this by-pass procedure benefits those popular causes which have more grassroots support in state legislatures than they do in the Congress.

The Balanced Budget Amendment and the Human Life Amendment are two conservative proposals that stand excellent chances of rallying the support of 34 state legislatures. But neither amendment stands much chance of

gaining the support of two-thirds of both houses of the Congress, given its current makeup. Proponents of either amendment who oppose the Hyde bill may be deying themselves their only chance to gain a national forum for their views.

In conclusion, I strongly believe that the Hyde bill and Article V as currently written are in the public interest. The states continue to have a vital role in the evolution of our Constitution. I believe that this was what the framers of 1787 intended. They hoped to perpetuate beyond their own time a federal system of two-tiered government where the national Congress could learn from the experimental laboratories of its component political subdivisions — the states. They further sought to guarantee a continuing legal identity for the states by directly involving them in the amending process, not only for the continuing legitimacy that this would lend to the charter, but also for their own protection against the possible powerful encroachments of the central national government. This, it seems to me, is just one more illustration of the genius and amazing foresight of the "Founding Fathers."

Sen. Mark Q. Rhoads (R., 6th District) of Western Springs is minority spokesman of the Elections and Reapportionment Committee and serves on the Appropriations II Committee and Revenue Committee. He introduced Senate Joint Resolution 27 on March 27 calling for the General Assembly to petition Congress to call a U.S. constitutional convention for the limited question of a balanced budget amendment.