CONSTITUTIONAL CONVENTIONS PROCEDURES WEDNESDAY, APRIL 25, 1984 U.S. SENATE, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC. The subcommittee met, pursuant to call, at 9:30 a.m., in room SD-226 of the Dirksen Senate Office Building, Hon. Orrin G. Hatch (chairman) presiding. Present: Senator Leahy. Staff present: Dick Bowman (committee); Stephen J. Markman, chief counsel and staff director (subcommittee); and Carol Epps, chief clerk (subcommittee). OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH, CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION Senator HATCH. Ladies and gentlemen, this morning's hearing marks the culmination of a long series of hearings by this committee over the past decade on the subject of legislation to set forth procedures for a constitutional amending convention under article V. In particular, the focus of this hearing is upon S. 119, introduced by myself, and Senator DeConcini, and Senator Thurmond, the Constitutional Convention Implementation Act which is currently on the agenda of this committee. S. 119 and its predecessor, during the 97th Congress were both approved without objection by the Subcommittee on the Constitution. During the course of the past several weeks, I have been meeting with the distinguished Senator from Vermont, Senator Leahy, as well as the distinguished ranking minority member of this committee, Senator Biden, in an effort to address remaining differences on this proposal. It is my hope that this morning's hearing will make an important contribution in enabling us to move ahead on this extremely significant legislation. I would like to take this opportunity to extend my appreciation to these Members as well as to other members of the committee for their efforts in attempting to put together responsible legislation in this extremely difficult constitutional area. The present legislation, S. 119, is ultimately grounded in Congress' authority under article V of the Constitution to call a constitutional convention upon the application of a sufficient number of States. (1) Because of the absence of the precedent or any precedent for such a convention, many of the issues involved with S. 119 are issues of first impression and involve matters on which reasonable persons committed to an honest reading of the mandate of article V can disagree. In drafting S. 119, its authors have attempted, to the best of their ability, to be faithful to the text of the amending clause, faithful to the legislative history surrounding its adoption into the Constitution, and faithful to the overall purpose to be served by this provision within our constitutional structure. I would emphasize again, however, that there are a number of difficult issues concerning which responsible Members of Congress may disagree. As a result, the authors of this legislation have, and will continue to be, been receptive to efforts within this committee and within this body to establish the broadest consensus measure possible. In my view, there are perhaps three fundamental principles that lie at the foundation of the pending measure that have determined its provisions First, S. 119 views the alternative amending procedures within article V as essentially symmetrical processes which accord the National and State governments generally equivalent opportunities to propose changes in the Constitution. As a result, this measure accords the States substantial, although not unlimited, autonomy in the constitutional convention process. Second, S. 119 views the constitutional convention process as the principal means by which the States can redress perceived defects in the constitutional process, including those related to the operations of the national government. As a result, this measure attempts to restrict the ability of the Congress, in carrying out its own unquestioned responsibility, to obstruct or impede a constitutional convention genuinely desired by the States. Finally, S. 119 views the constitutional convention as a temporary and independent branch of the National Government. As a result, while it is free to act within its authority to propose amendments to the Constitution, it is also subject to checks and balances designed to ensure that its actions are contained within the proper and limited scope of its authority. In other words, as with any other institution of Government, the powers of the convention are defined and limited powers and subject to check by other institutions of Government. In conclusion, let me again emphasize one point that I have made repeatedly about the pending measure since its original introduction 5 years ago. That is despite the fact that the ongoing efforts by the States to call a constitutional convention on the subject of a balanced budget has clearly increased the sense of urgency for a bill such as S. 119. This measure is neither designed to promote nor to impede the calling of a convention on the balanced budget issue or any other issue. While I recognize the difficulty in totally divorcing the balanced budget issue from the conventions procedures issue, that has been my objective from the outset. I believe that S. 119 represents a good-faith effort to establish genuinely neutral procedures for a constitutional convention on any matter determined by the parties. Ladies and gentlemen, I thank you for your interest in this matter, and, of course, welcome our two outstanding witnesses to the committee this morning. I am conducting another hearing two floors up in the Labor Committee so that Senator Leahy is going to come and complete this hearing. With that I will recess until Senator Leahy arrives, and then he will complete the hearing so that we can establish this very important record. [Brief recess.] [The following was received for the record:] Prepared STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR MR. CHAIRMAN: I COMMEND YOU FOR HOLDING THIS HEARING ON THE MATTER OF ESTABLISHING PROCEDURES FOR CONDUCTING A CONSTITUTIONAL CONVENTION. YOUR PROMPTNESS IN CONVENING THIS HEARING REFLECTS THE HIGH DEGREE OF IMPORTANCE THAT YOU PLACE UPON CONGRESS' BEING PREPARED IN THE EVENT THAT THE REQUISITE NUMBER OF STATES CALL FOR SUCH A CONVENTION. TODAY WE CONSIDER THE PORTION OF ARTICLE V OF THE CONSTITUTION THAT AUTHORIZES THE AMENDMENT OF THAT DOCUMENT BY MEANS OF A CONVENTION--A METHOD WHICH HAS NEVER BEEN USED DURING THE LIFE OF THIS REPUBLIC. WE WILL ALSO EXAMINE PROCEDURES DESIGNED TO EFFECTUATE THIS PROVISION. WHILE THERE MAY BE STRONGLY DIVERGENT VIEWPOINTS ON THE USEFULNESS AND WISDOM OF USING THE CONSTITUTIONAL CONVENTION METHOD OF AMENDING THE CONSTITUTION, THERE SEEMS TO BE A CONSENSUS AS TO WHAT THE MAJOR ISSUES ARE. FIRST, THERE IS THE QUESTION OF WHICH LEGISLATIVE AUTHORITY SHOULD DECIDE WHETHER A STATE APPLICATION CALLING FOR A CONVENTION HAS BEEN ADOPTED IN COMPLIANCE WITH STATE RULES GOVERNING THE APPROVAL OF SUCH A MEASURE. SHOULD THE STATE LEGISLATURE MAKE THIS DETERMINATION, OR, SINCE CONGRESS IS GIVEN THE DUTY OF CALLING A CONVENTION WHEN IT RECEIVES THIRTY-FOUR VALID APPLICATIONS, SHOULD SUCH DECISIONS BE MADE AT THE FEDERAL LEVEL? SECOND, THERE IS THE ISSUE OF THE EXTENT TO WHICH CONGRESS SHOULD INJECT ITSELF INTO THE MATTER OF SETTING THE INTERNAL PROCEDURES OF VOTES REQUIRED FOR THE APPROVAL OF PROPOSED AMENDMENTS, THE NUMBER THIRD, THERE IS THE QUESTION OF WHO SHOULD FUND THE CONVENTION-THE STATES OR THE FEDERAL GOVERNMENT. THESE ARE TOUGH QUESTIONS AND THERE IS NO PRECEDENT TO GUIDE US IN FINDING ANSWERS TO THEM. AS AN ORIGINAL COSPONSOR OF S. 119, I BELIEVE THAT THESE ISSUES HAVE BEEN ADDRESSED BY THIS BILL IN A WAY THAT REFLECTS THE INTENT OF THE FRAMERS THAT A CONSTITUTIONAL CONVENTION BE, IN REALITY, A "STATES'" CONVENTION. ACCEPTANCE OF THIS PREMISE MANDATES THAT THERE BE AS LITTLE FEDERAL INVOLVEMENT IN THE AFFAIRS OF THE CONVENTION AS POSSIBLE. OUR HEARING TODAY WILL NO DOUBT PROVIDE US WITH DIFFERENT PERSPECTIVES AND INSIGHTS ON THESE MAJOR ISSUES. I LOOK FORWARD TO HEARING FROM OUR WITNESSES. |