SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOC
57–226
1999
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROVIDE A PROCEDURE BY WHICH THE STATES MAY PROPOSE CONSTITUTIONAL AMENDMENTS
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
ON
H.J. RES. 84
MARCH 25, 1998
Serial No. 86
Page 2 PREV PAGE TOP OF DOC
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
Page 3 PREV PAGE TOP OF DOC
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
Page 4 PREV PAGE TOP OF DOC
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
WILLIAM L. JENKINS, Tennessee
BOB GOODLATTE, Virginia
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
ROBERT C. SCOTT, Virginia
MAXINE WATERS, California
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
MELVIN L. WATT, North Carolina
KERI FOLMAR, Chief Counsel
JOHN H. LADD, Counsel
ROBERT J. CORRY, Counsel
CATHLEEN CLEAVER, Counsel
C O N T E N T S
HEARING DATE
March 25, 1998
OPENING STATEMENT
Page 5 PREV PAGE TOP OF DOC
Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution
WITNESSES
Allen, Hon. George, former member of Congress and former Governor of Virginia
Bliley, Hon. Tom, a Representative in Congress from the State of Virginia
Edwards, Hon. Mickey, former member of Congress and current Professor, Kennedy School of Government, Harvard University, appearing on behalf of Citizens for the Constitution
Lund, Nelson, Professor of Law and Acting Associate Dean of Academic Affairs, George Mason School of Law
Seidman, Michael, Professor of Law, Georgetown University School of Law, appearing on behalf of Citizens for the Constitution
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Allen, Hon. George, former member of Congress and former Governor of Virginia: Prepared statement
Bliley, Hon. Tom, a Representative in Congress from the State of Virginia: Prepared statement with attachments
Page 6 PREV PAGE TOP OF DOC
Edwards, Hon. Mickey, former member of Congress and current Professor, Kennedy School of Government, Harvard University and Seidman, Michael, Professor of Law, Georgetown University School of Law, appearing on behalf of Citizens for the Constitution: Prepared statement
Lund, Nelson, Professor of Law and Acting Associate Dean of Academic Affairs, George Mason School of Law: Prepared statement
APPENDIX
Material submitted for the record
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROVIDE A PROCEDURE BY WHICH THE STATES MAY PROPOSE CONSTITUTIONAL AMENDMENTS
WEDNESDAY, MARCH 25, 1998
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m., in Room 2237, Rayburn House Office Building, Hon. Charles T. Canady [chairman of the subcommittee] presiding.
Present: Representatives Charles T. Canady, Ed Bryant, Bob Goodlatte, Robert C. Scott and Melvin L. Watt.
Page 7 PREV PAGE TOP OF DOC
Staff Present: Keri Folmar, Chief Counsel; Robert Corry, Counsel; John Ladd, Counsel; Cathleen Cleaver, Counsel; Michael Connolly, Staff Assistant; Brian Woolfolk, Minority Counsel.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr CANADY. The subcommittee will be in order.
Good morning. I welcome everyone to the hearing this morning. We're very pleased to have many distinguished Virginians in our midst, including our ranking member.
I would like to begin by reading from a letter written by a distinguished Virginian to a friend. That distinguished Virginian was Thomas Jefferson. He said:
''I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered, and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.''
As the Constitutional Convention in 1787 considered our Constitution, there was significant debate over the procedure for amending the Constitution. Article V of the United States Constitution provides that amendments to the Constitution can be proposed in two ways—by Congress or by constitutional convention. After an amendment is proposed by either method, it must be ratified by the State legislatures or State conventions in three-fourths of the States (currently 38) to become a part of our Constitution.
Page 8 PREV PAGE TOP OF DOC
Under the first method, Congress can propose amendments to the Constitution by a vote of two-thirds in both the House and Senate. This is the method of proposing constitutional amendments that has, in fact, been used. Since the First Congress through the present day, a total of more than 10,000 proposals have been introduced to amend the Constitution. Thirty-three of these were proposed by Congress to the States, and 27 have been ratified.
The second method of proposing amendments is triggered upon the applications or petitions of two-thirds of the State legislatures. Under this method, after Congress receives the applications, Article V provides that Congress shall call a constitutional convention to propose constitutional amendments.
The convention method has never been formally used, although there have been some efforts that have come close to the requisite two-thirds of the States. For example, 32 of the necessary 34 State legislatures have passed resolutions petitioning Congress to call a constitutional convention to propose an amendment requiring a balanced Federal budget.
History shows that the Framers likely intended the convention process to be a viable method of amending the Constitution. In The Federalist No. 43, James Madison wrote of Article V's amendment process that it ''equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side or on the other.''
However, the process by which States may apply for a constitutional convention under Article V is unclear, and there is disagreement over what shape such a convention would take if it were called. As a result of this uncertainty, many commentators have warned of the dangers of a ''runaway convention'' that would exceed its mandate and not necessarily reflect the true spirit of the Constitution and the wishes of the people. The specter of a ''runaway convention'' seems to have been accepted by many as a convincing political argument.
Page 9 PREV PAGE TOP OF DOC
Some scholars counter with a different perspective, which is that the mere threat of a convention can prod the Federal Government into action on the specific issue or amendment that initially drove the effort for a convention. Even though no convention has been called, these commentators reason the existence of the option can have what they refer to as a ''prodding'' effect.
House Joint Resolution 84 proposes an amendment to the Constitution to provide a procedure by which the States may propose constitutional amendments. Also called the ''States' Initiative'', the resolution is sponsored by Representative Tom Bliley, one of our distinguished Virginians with us today, and it currently has eight House cosponsors.
I want to thank Chairman Bliley for his leadership in introducing this measure, and I look forward to continuing the important discussion in Congress over the balance of powers within our constitutional system.
Another distinguished Virginian, Mr. Scott, is recognized.
Mr. SCOTT. Thank you, Mr. Chairman. I appreciate the opportunity to participate in today's hearing on H.J. Res. 84. I am particularly appreciative of the presence, as you have noted, of Virginians here today. Not only is the chief sponsor of the resolution a Virginian, my friend Tom Bliley, with whom I share the City of Richmond and the County of Henrico, but we will also hear from our former Governor, George Allen, who is with us today. I welcome all the witnesses to today's hearing and I look forward to learning more about the proposal.
Page 10 PREV PAGE TOP OF DOC
Thank you very much.
Mr CANADY. Thank you, Mr. Scott.
On our first panel this morning we will hear from the Honorable Tom Bliley of the Seventh Congressional District of Virginia. Congressman Bliley, who is Chairman of the House Commerce Committee, is the primary sponsor of House Joint Resolution 84.
Representative Bliley, we are grateful for your participation here this morning and we appreciate your bringing this issue to the attention of the subcommittee.
Without objection, your full written statement will be made a part of the permanent record of this hearing.
Please proceed, Congressman.
STATEMENT OF HON. TOM BLILEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA
Mr. BLILEY. Thank you, Mr. Chairman. I want to thank you for holding the hearing today on H.J. Res. 84. This legislation, which I have sponsored with Congressman Virgil Goode of Rocky Mount, and seven others, symbolizes what we in Virginia call the ''States' Initiative.''
Page 11 PREV PAGE TOP OF DOC
I thank you. I will submit my full statement for the record and I will summarize.
In 1787, the Founding Fathers included Article V of the Constitution to allow for changes in the Constitution, realizing that as time goes forward, there will be new ideas and there ought to be a mechanism for amendment. It shouldn't be easy, but it should be provided for.
Federalist Paper 43 allows that Madison wanted both the States and the Federal Government to be able to amend the Constitution. As you have stated, Mr. Chairman, in your opening statement, there are two methods that are available today to amend the Constitution. However, only one has been used, and that is the two-thirds vote of both Houses of Congress and then the proposed amendment is sent to the States and, upon ratification by three-quarters of the States, it becomes a part of the Constitution.
The reason the second option has not been utilized you also addressed, in that many people were afraid of a ''runaway convention''; that is, that the convention might be called to deal with a specific problem, or perceived problem, and then, once it convened, it goes forward to do a lot of other things that were unforeseen and unasked for in the original call.
So what we have here is a way to involve the States, which Madison and the Founding Fathers clearly wanted to be involved, and it says that if two-thirds of the States pass an identical resolution to amend the Constitution, it comes to Congress, and if Congress doesn't disapprove by a two-thirds vote of each House, then it would go back to the States, and if three-quarters of the States ratify it, it would become part of the Constitution.
Page 12 PREV PAGE TOP OF DOC
Now, in the last Congress, Senator Ashcroft introduced a similar bill in the Senate. As you mentioned, we have eight cosponsors. It is supported by former Governor Allen, who will testify after me this morning, as well as Governor Jim Gilmore, the current Governor of Virginia, Governor Leavitt of Utah, Governor Sundquist of Tennessee, Governor Voinovich of Ohio, and the Western Governors Association.
I'm not hung up on the two-thirds vote here to block it. I think that number can be dealt with. But I think it certainly should be more than just a simple majority, after two-thirds of the States have already done it.
With that, I will close my remarks and would be happy to answer questions.
[The prepared statement of Mr. Bliley, with attachments, follows:
PREPARED STATEMENT OF HON. TOM BLILEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA
Mr. Chairman:
I want to thank you for holding this hearing today on H.J
Res. 84. This legislation I have sponsored with Congressman Virgil Goode of Rocky Mount, Virginia and 7 others symbolizes what we call in Virginia the States' Initiative.
When the Founding Fathers wrote the Constitution in Philadelphia in 1787, they drew upon life's experiences and history to perfect the ideas and ideals the Constitution embraces. After they finished writing the Constitution, the Founding Fathers were wise enough to know they could not foresee the future. As a result, Article V provides for a mechanism to amend the Constitution.
Page 13 PREV PAGE TOP OF DOC
We all know the Constitution is not perfect, even after 27 amendments. The Constitution has, although, protected the individual liberties all Americans have enjoyed for over two hundred years.
As the proud holder of the seat first held by James Madison, my first objective is to never do any harm to the Constitution. However, the Founding Fathers acknowledged a need to amend the Constitution. The States' Initiative is a direct descendant of Madison's writings.
In Federalist Paper 43, James Madison wrote, ''useful alterations will be suggested by experience. The Constitution moreover equally enables the general and the state governments to originate the amendment of errors as they may be pointed out by the experience on one side or on the other''.
At present, Article V provides for two ways to amend the Constitution.
The first involves the presentation of an amendment by Congress to the states for ratification.
The second is by Constitutional Convention, convened at the request of the state legislatures.
Even with both methods available, to date, all amendments to the Constitution have been enacted following passage by the Congress and ratification by three-fourths of the states.
Page 14 PREV PAGE TOP OF DOC
Some have asserted that the second method has not been as effective as intended by the Framers.
On the Op/Ed pages of the Richmond Times-Dispatch, my local newspaper, Edward Grimsley wrote about the dilemma which would be remedied by the States' Initiative. Edward Grimsley wrote, ''In the hands of the people the amending process could produce some truly wonderful results.''
By allowing the States an effective mechanism to amend the Constitution, more power can be returned to the people. After all, ''We the People'' are the first 3 words of the Constitution.
Why is the States' Initiative necessary? Persuasive arguments have been made that a Constitutional Convention might alter the Constitution more expansively than intended by proponents of a specific proposed amendment. This is known as the fear of a ''run-away'' convention.
The States Iniative implements a more effective method by which states could take the initiative in the process by which the Constitution is amended. This bill allows the states to initiate the amending process that is devoid of the perils of a ''run-away'' Constitutional Convention.
Another problem with a Constitutional Convention is that even if it isn't a ''run-away'' convention (that is, even if the Constitutional Convention met to adopt only one amendment), the mere fact that the states met could have a far-reaching jurisprudential impact. Would the Supreme Court view a Constitutional Convention which kept the pre-existing Constitution as an implicit ratification of prior Supreme Court rulings? This would cause those on the left (who oppose certain Rehnquist Court rulings) and those on the right (who oppose certain Warren Court rulings) a considerable amount of trouble.
Page 15 PREV PAGE TOP OF DOC
To restore the Framers' design, that is a design where the states could initiate the amendment process, our proposal would allow a Constitutional amendment to be presented to Congress after two-thirds of the states indicated approval of an identical amendment via their state legislatures.
If two-thirds of each house of Congress does not agree to disapprove of the proposed amendment, it would be submitted to the states for ratification.
Upon ratification by three-fourths of the states legislatures, the amendment would become part of the Constitution.
I urge your support for this common sense legislation that returns as an option, the power to amend the Constitution to the states, as the Framers intended. While I am not beholden to the exact ratios specified in my amendment, I believe they stand as a good starting point for a discussion of providing states with the power that the Framers envisioned.
The States Initiative is supported by Rep. Nathan Deal (R- GA), Rep. Floyd Spence (R-SC), Rep. Bob Stump (R-AZ), Rep. Jim Kolbe (R-AZ), Rep. Paul Gillmor (R-OH), Rep. Merrill Cook (R-UT), and Rep. John Shadegg (R-AZ). It also is supported by Governor Mike Leavitt of Utah (R), Governor Don Sundquist of Tennessee (R), Governor George Voinovich of Ohio (R), and George Allen, former Governor of Virginia (R) who will testify today in support of the States' Initiative.
H.J. Res. 84 also has the support of the Arizona State Senate President Brenda Burns (R), Speaker of the Ohio House of Representatives Jo Ann Davidson (R) and Ohio State Senate President Richard Finan (R). The Western Governors Association also has endorsed the States's Initiative.
Page 16 PREV PAGE TOP OF DOC
I urge my fellow colleagues to support this common sense legislation that returns as an option, the power to amend the Constitution to the States, as the Founding Fathers intended.
| State of Utah, |
| Office of the Governor, |
| Salt Lake City, UT, June 23, 1999. |
Hon. THOMAS J. BLILEY, JR.,
House of Representatives, Washington, DC.
DEAR CONGRESSMAN BLILEY: Thank you for introducing the resolution to allow states to propose amendments to the Constitution. I'm pleased to endorse the resolution and I encourage its passage. I'm sure I represent the feelings of many governors and state legislators in my hope that Congress will see the merits of your proposal and speedily send it to the states for ratification.
By providing a procedure through which the states can propose constitutional amendments, you are fulfilling the design of our nation's Founding Fathers, who clearly intended states to have this power. You are also helping to restore states as co-equal players in our federalist system, a development long overdue.
States are at a serious disadvantage in the healthy federal-state competition intended by the Founders. Your proposal begins to level the playing field, putting the states on more equal footing with Congress, allowing them to provide a check on federal power. And it does so in a careful, thoughtful way that eliminates any possibility of abuse or swinging of the pendulum too far in favor of the states.
Page 17 PREV PAGE TOP OF DOC
Your proposal properly establishes enough checks and hurdles that only much-needed amendments could ever survive the gauntlet. Two-thirds of state legislatures would have to propose an amendment. That alone is a high barrier. Congress, on a two-thirds vote, would have the ability to kill an amendment, another significant obstacle. And, finally, a proposed amendment would have to go back to the states for ratification by three-fourths of state legislatures. Frivolous, unwise or unnecessary amendments would clearly be weeded on through this process. Even with this amendment, states will have a harder time proposing constitutional amendments than will the Congress. Any fear that this resolution will cause a plethora of amendments to be enacted is unwarranted.
Despite the difficulty of the process, I believe your proposed amendment would provide states with an enormously valuable tool. It would give states the ability to act, to do something meaningful, rather than merely complain, write letters, and plead before Congress. Your proposal is truly fundamental, structural federalism reform, beginning the reversal of decades of centralization at the federal level.
Under your proposal, if Congress imposed an egregious unfunded mandate on the states, state legislators would have the option to begin an amendment drive to rescind the imposition. The movement would likely be ignored by Congress at first, but as momentum built and as states neared the two-thirds mark needed to send a proposal to Washington, the Congress would likely take note and solve the problem itself rather than be forced to vote on a constitutional amendment.
This is the kind of healthy competition, of give and take and checks and balances, expected and envisioned by our Founding Fathers.
Page 18 PREV PAGE TOP OF DOC
To use another example, I believe that if your resolution was in effect today, a proposal would most certainly be circulating in state legislatures requiring a balanced federal budget. As more and more legislatures endorsed the balanced budget amendment, pressure would be exerted on Congress to pass its own budget amendment or be forced to act on the states' version.
While few proposals would ever eclipse all of the barriers to actually become part of the Constitution, the mere existence of this state tool would make the Congress and the federal administration think twice before imposing egregious mandates that violate state prerogatives.
That would be healthy for the states and for the country. It would make for better government with stronger checks and balances. It would keep faith with the Founders' ideals of a balanced federal system, yielding maximum freedom for citizens.
I congratulate you for your vision and wisdom in proposing this resolution, and I heartily encourage its passage.
Sincerely,
| Mich 0. Leavitt, Governor of Utah. |
| State of Tennessee, |
| State Capitol, |
| Nashville, TN, July 24, 1997. |
Hon. THOMAS J. BLILEY, JR., Chairman,
Page 19 PREV PAGE TOP OF DOC
Committee on Commerce,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: Thank you for your leadership in sponsoring House Joint Resolution 84, a Constitutional Amendment allowing states to take the initiative in the constitutional amendment process.
I agree with you and am pleased to inform you of my support for House Joint Resolution 84, which I will communicate to Tennessee's congressional delegation by copy of this letter.
With kindest regards, I am
Sincerely,
| State of Ohio, |
| Office of the Governor, |
| Columbus, OH, July 25, 1997. |
Hon. THOMAS J. BLILEY, JR., Chairman,
Committee on Commerce,
House of Representatives, Washington, DC.
DEAR CHAIRMAN BLILEY: Thank you very much for your letter concerning your proposed Constitutional Amendment to reform the process by which amendments to the Constitution may be implemented.
Page 20 PREV PAGE TOP OF DOC
I am pleased to endorse your amendment, H.J. Res. 84, and I strongly support its passage by the Congress. I certainly agree with you that our Founding Fathers clearly intended the states to have an effective process for initiating modifications to the Constitution.
Your legislation presents a long-awaited and crucial step in the process of reviving a balance in state-federal relations, which was begun with passage of the Unfunded Mandates Reform Act. I have no doubt that we would be much closer to achieving our goal of enacting the Balanced Budget Amendment if the processes outlined in your amendment were in place today.
As you may know, Governors and state legislators will be holding a Federalism Summit this fall, during which we will discuss various proposals to restore a proper balance between the states and the federal government. I look forward to active deliberations on your proposed Constitutional Amendment during this summit meeting.
Thank you for your leadership in restoring a new federalism and your efforts on behalf of states.
Sincerely,
| George V. Voinovich, Governor. |
Hon. THOMAS J. BLILEY, JR., Member,
House of Representatives, Washington, DC.
DEAR TOM: Congratulations on your introduction of an important constitutional change that will allow States to propose amendments to the U.S. Constitution. I commend your leadership in our effort to reinvigorate federalism—and especially for stepping forward to introduce this amendment.
Your amendment embodies the concept of what we in Virginia have been calling the States' Initiative, because it would allow the States to initiate constitutional changes without having to depend on Congress . . . or . . . holding a constitutional convention. It is clear from experience that fear of a ''runaway convention'' has rendered Article Five of the Constitution virtually ineffective, leaving the people without recourse when a recalcitrant Congress refuses to send measures to the States on which there is a strong consensus for ratification.
The true Jeffersonian spirit of the Declaration of Independence—the spirit that a free people have the right to alter or amend their government when they see fit—lives in this amendment. It is especially fitting that a Virginian should be taking the lead on this effort to help revitalize the delicate structure of checks and balances envisioned by our Founding Fathers.
This innovative idea has broad bipartisan support. The Virginia General Assembly adopted a resolution recommending this reform seven years ago, when I was a member of the House of Delegates. Again in 1995, our legislature gave it a strong, bipartisan endorsement through a resolution patrolled by now Congressman Virgil Goode. Just last summer, a group of business leaders and public-spirited citizens in Virginia reaffirmed their dedication promoting this proposal nationally.
Page 22 PREV PAGE TOP OF DOC
We know that constitutional changes are always challenging and controversial. It is typically a long and arduous process. But if every national leader—from the President on down—would match their rhetoric about empowering the States win concrete action, we would get the amendment approved swiftly. In so doing, we would ensure greater freedom and self-determination for future generations of Americans.
Keep up the fight for our Founding Fathers' principles of freedom and limited government.
With warm personal regards from the Netherlands, I remain,
Sincerely,
| Ohio House of Representatives, |
| Office of the Speaker, |
| Columbus, OH, August 26, 1997. |
Hon. THOMAS J. BLILEY, JR., Member,
House of Representatives, Washington, DC.
DEAR CONGRESSMAN BLILEY: Recently you wrote to me asking for my support of H.J. Res. 84, the Constitutional Amendment you, along with other members of Congress, have introduced.
Page 23 PREV PAGE TOP OF DOC
The proposed amendment reflects the discussions at the Federalism Conference held in Cincinnati, Ohio in October of 1995 which involved national organizations representing state legislatures and state legislative leaders.
I applaud your efforts to bring this proposed Constitutional Amendment before the U.S. House of Representatives and hope more members of the House join you as cosponsors of H.J. Res. 84. The states should have an effective way, other than adopting resolutions memorializing Congress to pass constitutional amendments and submit them to the states for ratification, to be involved in the process of proposing amendments. The uncertainties involving being able to limit a Constitutional Convention to only a particular issue or issues, apparently make that option difficult if not impossible to implement.
Thank you for your leadership on this issue.
Sincerely,
| Jo Ann Davidson, Speaker. |
| Ohio Senate, |
| State House, |
| Columbus, OH, November 24, 1997. |
Hon. THOMAS J. BLILEY, JR., Member,
House of Representatives, Washington, DC.
DEAR CONGRESSMAN BLILEY: First of all, I apologize for not responding sooner to your letter of August 5, 1997, relative to HJ.Res. 84. You have my full and enthusiastic support of this amendment.
Page 24 PREV PAGE TOP OF DOC
As the President of the National Conference of State Legislatures, I have served on the Federalism Task Force that has involved Governor Leavitt for the last several years. I participated in the Conference in Cincinnati, Ohio, (my hometown), in which we adopted similar approaches to our concerns about federalism. Unfortunately, the NCSL business meeting was not in a mood to adopt these proposals.
Be that as it may, as an Ohio Senator, I fully support this constitutional amendment. I note with pride that one of my predecessors, Representative Paul Gillmor, is also a sponsor. I would be pleased if you would use my name in an attempt to get other co-sponsors from other Ohio Congressman, including Representative Rob Portman who personally represents me.
If I can be of any help, please let me know.
Sincerely,
| Richard H. Finan, State Senator. |
| Arizona State Legislature, |
| Phoenix, AZ, January 13, 1998. |
Hon. THOMAS J. BLILEY, JR.,
House of Representatives, Washington, DC.
DEAR CONGRESSMAN BLILEY: We are pleased to announce that Arizona's Joint Legislative Study Committee on Federal Mandates unanimously endorsed HJR 84, your proposal for an alternative method to amend the U.S. Constitution. At the annual Committee meeting on December 16, 1997, legislative and Congressional members discussed the unfortunate fact that many Americans are wary of a constitutional convention, and so the states have not made use of their Constitutional right to initiate amendments when circumstances warrant. Your proposal is a common-sense solution which would provide a viable method to states, as intended by our founding fathers.
Page 25 PREV PAGE TOP OF DOC
We have enclosed a copy of the minutes from the meeting which reflect several other innovative discussions including an endorsement of the Federalism Statutory Principles and Proposals developed during the 1997 Federalism Summit of officers of ALEC, NCSL, NGA and CSG, and a positive discussion of a proposal to save Social Security by allowing states to develop alternatives to the failed federal program.
We thank you for your sponsorship of HJR 84 and look forward to a subcommittee hearing on it this year. Please let us know if we can provide assistance in your mission to restore balance to our American system of governance.
Sincerely,
| President Brenda Burns, Co-Chair, |
| Representative Marilyn Jarrett, Co-Chair. |
Page 26 PREV PAGE TOP OF DOC
Mr CANADY. Thank you, Mr. Chairman.
I don't have any questions. Mr. Scott?
Mr. SCOTT. No. I appreciate the testimony and look forward to the other witnesses. Generally we don't interrogate our colleagues. We save that privilege for some of the other witnesses.
Mr CANADY. Mr. Bryant?
Mr. BRYANT. No.
Mr. BLILEY. Well, I thank you very much, Mr. Chairman. I would love to stay with you but I have to chair a markup this morning, so I'm going to have to leave. But I leave here in good hands, with the former Governor of Virginia, and a former colleague of ours here in the House, Governor Allen.
Page 27 PREV PAGE TOP OF DOC
Mr CANADY. Thank you, Mr. Chairman. We appreciate your being with us today.
We now will move to our second panel of witnesses, our second and concluding panel. We have four witnesses on this panel, if you would all come forward. We should have name cards for you.
On our second panel this morning we will first hear from the Honorable George Allen, another distinguished Virginian who is in our midst. Mr. Allen, a former Member of Congress and of the House Judiciary Committee, was Governor of the Commonwealth of Virginia until this past January. He is now a partner in the Richmond law firm of McGuire, Woods, Battle and Booth.
Next we will hear from the Honorable Mickey Edwards. Mr. Edwards, who has served in the U.S. House of Representatives from Oklahoma, is a professor at Harvard University's Kennedy School of Government. He is here today on behalf of Citizens for the Constitution.
Third, we will hear from Professor Nelson Lund. Professor Lund teaches constitutional law and serves as Acting Associate Dean of Academic Affairs at the George Mason University School of Law.
Finally, this morning the subcommittee will hear from Professor Michael Seidman. Professor Seidman is a professor of law at the Georgetown University Law Center and is here today also representing Citizens for the Constitution.
Page 28 PREV PAGE TOP OF DOC
I want to thank each of you for taking the time to be with us today. Without objection, your full written statements will be made a part of the record.
We will use the light here. We would ask that you do your best to summarize your remarks in 5 minutes, although I don't think we will be strictly enforcing the 5 minute rule here today, unless some member of the subcommittee insists.
With that, we will proceed to Governor Allen.
STATEMENT OF HON. GEORGE ALLEN, FORMER MEMBER OF CONGRESS AND FORMER GOVERNOR OF VIRGINIA
Mr. ALLEN. Thank you, Mr. Chairman, and members of the committee.
One of my predecessors as Governor of Virginia, Patrick Henry, observed: ''If there be any real check intended to be left on Congress, it must be left to the State governments.''
Mr. Chairman and members of the committee, you have before you an opportunity to bring forth the thoughts and principles that our Founders embodied in the formation of our Union. I think you realize, or I hope you do, that a new workable avenue for the States and the people to change their Constitution must be crafted, especially since fear of a ''runaway'' constitutional convention has rendered impractical the States' existing constitutional means of initiating constitutional amendments.
Page 29 PREV PAGE TOP OF DOC
H.J. Res. 84 embodies the spirit of a concept that we call in Virginia the ''States' Initiative.'' I thank my good friend, Chairman Tom Bliley, for his outstanding leadership on this measure, as well as so many other efforts to restore and maintain a balance between the rights and prerogatives of the people in the States and the Federal Government.
I think H.S. Res. 84 is a desirable structural change that will creatively restore the balance between the people and the States and their Federal Government. As Governor, I established a council called the Council on Self-Determination and Federalism. I have submitted that report to the subcommittee here.
A subcommittee of that Council, the Subcommittee on Constitutional Amendments, was a bipartisan council of scholars as you will see that in the report. They reached the conclusion that the States Initiative was a way in which the important balance between the Federal and State governments would be appropriately restored.
But it was not just a panel of Virginians who reached this conclusion. Five leading State government organizations also reached the same conclusion at a bipartisan federalism summit that was held in 1995 in Cincinnati, and 30 Governors, who met in historic Williamsburg in 1994, adopted a statement known as the Williamsburg Resolve, which also recognized the importance of an amendment to provide for the States' Initiative.
Now, we all recognize the practical limits of constitutional change as a remedy for Federal policy afflictions. Not every State grievance or misguided Federal law or regulation will be corrected by affording the States the practical ability to initiate constitutional changes. Indeed, the instances in which a large majority of State legislatures will all agree on identical amendatory language undoubtedly will be very, very rare and quite few. It will be reserved for major questions of national importance and obviously shared concern.
Page 30 PREV PAGE TOP OF DOC
Yet the means will be there. That alone will change the dynamics of the relationship between the States and the Federal Government. The States will have a lever to force change upon a future Congress, a future judiciary or a future administration, that may have fallen far out of touch with the decency, values and concerns of the people of the United States.
By allowing the States to initiate constitutional changes without having to depend on Congress or a constitutional convention, the States' Initiative that is reflected in this measure will give the Nation's governors and State legislatures a seat at the table. It's not a seat from which to impose national policy, but a seat from which to voice a perspective that the people of America, who are the true owners of the government, are not being heeded, and we're taking action to make sure that this is corrected.
I think, in this principle, it needs to be understood that the people should be free to chart their own course in their local communities and States. The States' Initiative remains true to the spirit and the genius of the United States Constitution, as our Founders envisioned it. It does not confer new powers upon the States. It simply restores to the States the ability to initiate the amendment process which the fear of a ''runaway'' convention has rendered ineffective.
I believe that you and all the Members of Congress have sufficient faith in the people of the United States to put them and their freedom first. That's exactly the message you'll send if you approve H.J. Res. 84. I respectfully urge you all to take that action.
The United States, as we know, if you look at your history, is still very young, but it's still a very optimistic experiment in human freedom, still defying all the odds. Centuries of dark world experience favored the enslavers over the liberators, the mighty over the just, the privileged few over the downtrodden many. For a comparatively short period of time here in the United States we have been changing all of that. We are perfecting a system of representative democracy that is a beacon for the world and the hope of humanity. Let us not miss this chance to make our freedom more firm, our liberty more lasting, and our people more in control of their lives and their own destiny. Thank you, Mr. Chairman, for allowing me the opportunity to be with you today.
Page 31 PREV PAGE TOP OF DOC
[The prepared statement of Mr. Allen follows:]
PREPARED STATEMENT OF HON. GEORGE ALLEN, FORMER MEMBER OF CONGRESS AND FORMER GOVERNOR OF VIRGINIA
Thank you, Mr. Chairman.
I appreciate the opportunity to be here today. I have fond memories of this committee, on which I had the pleasure of serving on when I was in the House.
And it is indeed a privilege to join my good friend, Chairman Tom Bliley, an outstanding leader in the fight for a balanced federal system. He is to be commended for introducing H.J. Res. 84, which embodies the concept that we in Virginia have been calling the States' Initiative. This constitutional amendment is a necessary structural change if we are to reinvigorate our federalist system and restore the balance between the federal government and the States.
As a former Governor of Virginia, I approach this subject of federal-state relations with a perspective very similar to that of two of my early and esteemed predecessors—Patrick Henry and Thomas Jefferson. Like them—and like many Governors who have served since their time, not only in Virginia but around the
country—I have a healthy distrust of centralized power, especially power centralized in Washington.
Our country was founded on notions of individualistic liberty and limited government, and with the expectation that people would be free to chart their own course and control their own destiny through self-government based in their local communities and their states.
Page 32 PREV PAGE TOP OF DOC
The Founders pledged their lives, fortunes and sacred honor to achieve freedom and independence from an oppressive monarchy in England. With that hard-fought victory won, they were not about to surrender their liberties to an all-powerful central government—this one, on the north banks of the Potomac.
Instead, they took pains to guard against centralized power through an elaborate constitutional system of checks and balances. For the federal government, power was divided among three branches of government and the legislative powers further split between the House and Senate.
At least as important, if not more so, was the shared sovereignty between the States and the federal government. As Patrick Henry concluded, ''If there be a real check intended to be left on Congress, it must be left in the State Governments.''
The power of the federal government was to be limited and enumerated, with all remaining powers reserved by the 10th Amendment to the States and to the people. The onus was on the States to jealously guard their freedoms.
Almost from the beginning of our country's history, however, the federal government began to encroach upon the authority and freedoms intended for the States. As early as 1825, Thomas Jefferson observed:
''I see, as you do, and with the deepest affliction, the rapid strides with which the federal branch of our government is advancing towards the usurpation of all the rights reserved to the States, and the consolidation in itself of all powers, foreign and domestic, and that, too, by constructions which, if legitimate, leave no limits to their power. Take together the decisions of the Federal Court, the doctrines of the President, and the misconstructions of the constitutional compact acted on by the legislature of the federal branch, and it is but too evident that the three ruling branches of that department are in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves all functions foreign and domestic.''
Page 33 PREV PAGE TOP OF DOC
Today, there is virtually no area of public responsibility or private activity in which federal bureaucrats do not assert the power to override the will of the people in the States, through federal mandates, edicts and rulings.
The Framers intended the States to be jealous guardians of their responsibilities and power, but, historically, the States have faced a dilemma in resisting the growth of federal power at their expense. On the one hand, questions regarding the scope of the federal government's jurisdiction are resolved by federal courts, which generally have favored more expansive interpretations of federal power. On the other hand, the States' recourse to the constitutional amendment process has been impeded by Congress' virtual monopoly over the initiation of constitutional amendments.
Use of the Article V ''convention'' method of amendment, intended by our Founders to allow direct State action, has never been used because of fear that a constitutional convention called by the States would become a ''runaway'' assemblage that would seek to rewrite our entire national charter.
So the power has gravitated almost inexorably to Washington, and we have paid a heavy price. While there are winners and losers from issue to issue, the truth is that all of our citizens enjoy less freedom and less opportunity for self-government as a result. Instead of decisions being made in our States and our local communities—where citizens can make their voices and views heard—more and more of the decisions that affect our lives are being made by unelected and unaccountable bureaucrats here in Washington, D.C.
Page 34 PREV PAGE TOP OF DOC
This condition breeds a sense of powerlessness and unconnected distance among our citizens with their government. That feeling of powerlessness in turn breeds apathy and cynicism about the political process. And that apathy and cynicism about the political process can shake the very foundations of our free society and the rule of law on which it is based. They may threaten a society in which, for the first time in the long history of mankind, people were to be regarded as the masters, and government as the servants—not the other way around.
The most insightful framers of the Constitution feared this centralization of power and the resulting loss of freedom and self-determination by the American people. In vain, they fashioned the Tenth amendment as a ''parchment barrier,'' to borrow James Madison's term. But Madison foresaw what we now know from experience: that the Tenth Amendment alone could not restrain federal power. The people in the States must have the means to defend their own ideals and prerogatives. A new, workable avenue for the States and the people to change their Constitution must be crafted. And since fears of a ''runaway'' constitutional convention have rendered impractical the State's existing constitutional means of self-defense.
That was the conclusion reached in Virginia by the Governor's Council on Self-Determination and Federalism, which I established by Executive Order in Virginia in 1994. I would like to submit for the record the report of the Subcommittee on Constitutional Amendments. This distinguished panel included, among others, State Senator (now Congressman) Virgil Goode, former Congressman Caldwell Butler, Judge Robert Bork, and Professor Nelson Lund, from whom you will hear shortly.
It was the conclusion reached by the five leading State government organizations at the bipartisan Federalism Summit in Cincinnati in 1995.
Page 35 PREV PAGE TOP OF DOC
It was the conclusion reached by 30 Republican Governors who convened in historic Williamsburg in 1994. At that eventful meeting, we adopted a statement known as the Williamsburg Resolve, making clear our determination to reclaim the States' prerogatives and to restore the constitutional checks and balances that stand guard in defense of our liberties.
Joined in Williamsburg by the newly elected leadership of the House and Senate, we charted a new course in relations between the federal and State governments. Certainly, some of the results have been heartening.
Almost immediately, the 104th Congress adopted the Unfunded Mandates Reform Act. That legislation has produced a new awareness of and accountability for intergovernmental mandates.
The sweeping welfare reform legislation signed into law the following year marked a turning point, devolving unprecedented authority back to the States to design and run their own welfare systems. Unfettered, the States are proving themselves to be the successful laboratories of democracy our Founders envisioned. In Virginia, where we have built our Virginia Initiative for Employment not Welfare on the twin pillars of the work ethic and personal responsibility, welfare roles are down by more than 42%, thousands of families are on the ladder to self-sufficiency, some earning a paycheck for the first time, and the taxpayers are saving millions of dollars.
But these actions must be seen for what they are—promising first steps on the long road back to a true federalist system of shared sovereignty and limited central power. The policy gains of the moment—indeed of this Congress, and its new leadership since 1994—in no way diminish the urgency or the need for permanently correcting the structural imbalance and enabling the States again become full and equal partners in a federal system of dual sovereignty.
Page 36 PREV PAGE TOP OF DOC
Already the States are struggling to preserve our forward momentum. A recent report by the General Accounting Office concludes that the Unfunded Mandates Reform Act has done little to stem the mandates coming out of federal agencies. Interpretations have exempted some of the costliest mandates (such as Medicaid) as well as significant edicts by regulators at the EPA and elsewhere. Recently published regulations from the Department of Health and Human Services threaten to take away by regulation the flexibility Congress granted the States through legislation over their welfare programs.
Indeed, without structural change, the many positive reforms emanating from Washington in recent years will be in jeopardy of being reversed by a succeeding Congress, by bureaucratic edict, or by judicial fiat. And the people of the States will be no better equipped than they have been in the past to fend off these retrenchments or federal hobbles.
Now, we all recognize the practical limits of constitutional change as a remedy for federal policy afflictions. Now every State grievance or misguided federal law or regulation will be corrected by affording States the practical ability to initiate constitutional changes. Indeed, the instances in which a large majority of state legislatures will agree on identical amendatory language undoubtedly will be quite few, and will be reserved for major questions of national importance.
In short, our freedoms will never be safe when they exist only at the sufferance of federal legislators, federal courts, and federal bureaucrats.
Yet, the means will be there, and that alone will change the relationship between the States and the federal Government. The States will have a lever to force change upon a future Congress or future Administration that may have fallen as far out-of-touch with the decency, values and concerns of the people of the United States.
Page 37 PREV PAGE TOP OF DOC
By allowing the States to initiate constitutional changes without having to depend on Congress or holding a constitutional convention, the States' Initiative reflected in H.J. Res. 84 would give the Nation's governors and state legislatures a seat at the table. Not a seat from which to impose national policy, but a seat from which to voice the perspective that the people of America, the true owners of this government, are not being heeded. It is the principle that people should be free to chart their own course in their local communities and in their States.
Now, this is not a Republican or a Democratic idea. It enjoys broad bipartisan support.
Eight years ago, when I was a member of the Virginia House of Delegates and our state had a Democrat governor and a Democrat majority in the legislature, our General Assembly adopted a resolution recommending this reform.
Then, when I was Governor in 1995, our legislature gave overwhelming bipartisan endorsement to a similar resolution sponsored by Virgil Goode, now a member of Congress.
Just this past year, the Governors of the Western States adopted a call for a new process for amending the constitution along the lines of H.J.Res. 84, in order to ''give states the ability to act in a meaningful way rather than merely complaining, writing letters and pleading their case before Congress and the media.''
Page 38 PREV PAGE TOP OF DOC
The States' Initiative remains true to the spirit and genius of the United States Constitution as our Founders envisioned it. It does not confer new powers upon the States; it simply restores to the States the ability to initiate the amendment process which fear of a runaway convention has rendered virtually ineffective.
If you think about it, the real significance of H.J. Res. 84 is that it will empower the people through their State legislatures to propose constitutional amendments that are broadly supported across the land—everywhere in fact except in the Congress of the United States. And, in that very limited sense, I know that we are asking Congress to commit what may be an act still disfavored in Washington—the voluntary surrender of a bit of power.
Yet, I believe you and the other members of this Congress have sufficient faith in the people of America to put them and their freedom first. And that is the message you will send if you approve House Joint Resolution 84.
I respectfully encourage you to take that action. The United States is still young—still an optimistic experiment in human freedom—still defying the odds. Centuries of dark world experience favored the enslavers over the liberators, the mighty over the just, the privileged few over the downtrodden many. For a comparatively short time here in America, we have been busy changing all that. We are perfecting a system of representative democracy that is a beacon for the world and the hope of humanity.
Let us not miss this chance to make our freedom more firm, our liberty more lasting, and our people more in control of their lives and their destiny. You can trust the people of our nation.
Page 39 PREV PAGE TOP OF DOC
Mr. CANADY. Thank you, Governor Allen.
Mr. Edwards.
STATEMENT OF HON. MICKEY EDWARDS, FORMER MEMBER OF CONGRESS AND CURRENT PROFESSOR, KENNEDY SCHOOL OF GOVERNMENT, HARVARD UNIVERSITY, APPEARING ON BEHALF OF CITIZENS FOR THE CONSTITUTION
Mr. EDWARDS. Mr. Chairman and members of the committee, thank you for allowing me to participate in the hearing this morning.
I have to start by saying that I agree with everything that my former colleagues, Tom Bliley and George Allen, have said, except for their conclusions. [Laughter.]
Since I left the House two Congresses ago, I have continued to try to involve myself in upholding the principles that guided me during the 16 years that I spent here. It was in furtherance of those principles that I agreed to serve as the cochairman of a new group called Citizens for the Constitution, along with two of our former colleagues in the House, Abner Mikva, a liberal Democrat from Chicago, and Jim Courter, a conservative Republican from New Jersey.
During our years in the House, Jim and I did not often agree with Ab on very many things, but we did agree on some fundamental things. Ab considered them important to him, and Jim and I considered them absolutely core principles of the conservative philosophy that he and I were working so hard to advance. So if I could address myself—knowing the realities, Mr. Scott—if I could address myself primarily, at least for the record, to the Republican members who will be voting on this kind of legislation, and as a fellow member of a great party that I appreciated repeatedly electing me to one of its principal leadership positions, let me say that that principle, that fundamental bedrock belief that led Jim Courter and me to take the lead in Citizens for the Constitution, was simply that as a basic protection of the citizens against and intrusive government, the Constitution of the United States is the most important document in world history.
Page 40 PREV PAGE TOP OF DOC
The Founding Fathers placed a great emphasis on providing a framework that would both define government's possibilities and set limits to its powers. They did this by separating the powers of government and by establishing procedures that would require as much caution and deliberation as possible before changing the fundamental rules of our society.
It was as though Thomas Jefferson, James Madison and Patrick Henry could foresee the conservative writers of this century, from Russell Kirk to Barry Goldwater, urging us to be prudent, and warning us that all change is not necessarily progress.
Those of us who grew up in Republican politics believed more than anything in the need to make sure government could not be arbitrary, and that we would have set rules to protect us against the whims of the moment. That is why, when we considered nominees for the Federal courts, we insisted on strict constructionists, people who held firmly to the framework of the Constitution.
Citizens for the Constitution is not a conservative organization any more than it's a liberal organization. On the merits, if we were sitting where you are, some of us would support amendments that others of us would oppose. The only common denominator is our belief that, whatever amendments are offered, by the States or by Members of Congress, they should be considered long and carefully. That means they should be considered at the State level, in the legislatures, where the decision makers are more easily influenced by the voters who live right around the corner from them, and at the national level, by the Congress, where distance allows for more objectivity and a more insulated analysis of the pros and cons and the consequences, both intended and unintended.
Page 41 PREV PAGE TOP OF DOC
I served with people whose names are on this legislation, and I respect them. I know the frustration they feel. I felt it myself for many years. It is tempting for you Republicans to simply say, ''We have the majority now. We can organize to pass the constitutional amendments that we think ought to be passed.'' But whether there's a Republican majority or a Democratic majority, my concerns would be the same. Our basic obligation is to conserve the system that has provided us with more than 200 years of freedom.
It is always tempting to look for panaceas, quick fixes to end our frustrations. But quick fixes are the scourge of a free people. The system we now have allows for the States to be involved through their legislatures, and it allows for the Congress, representing all the States, not just a majority of them, and all regions and interests, religions and economies and philosophies, to be heard.
Any change that shuts out any part of that debate, that removes either the States or the Congress from effective participation in the process of altering the Constitution of the United States, is one we should be very cautious about.
We at Citizens for the Constitution are not here to oppose any specific substantive amendments, and we won't be doing that in the future. Those decisions are yours to make. And while each of us individually may favor some and oppose others, it's not our purpose as an organization to try to influence those decisions, though we do believe it's necessary to start from a basic premise: no change, not ones favored by conservatives and not ones favored by liberals, should be made without the full and broad debate our constitutional system envisions.
Page 42 PREV PAGE TOP OF DOC
One more paragraph.
The Bliley Amendment, which would make it easier to amend the Constitution, is in direct opposition to the fundamental nature of the Constitution itself, which is designed specifically to make it difficult to tinker with the basic rules that we live under. I have no doubt that Mr. Bliley, with whom I worked with and served with for many years, has only the best of intentions. But as a conservative, he should understand that what he proposes is the very opposite of every fundamental conservative principle, and I hope the committee will prudently set his proposal aside and let the system work, as the Founders intended it should work.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Edwards and Mr. Seidman follows:]
STATEMENT OF HON. MICKEY EDWARDS, FORMER MEMBER OF CONGRESS AND CURRENT PROFESSOR, KENNEDY SCHOOL OF GOVERNMENT, HARVARD UNIVERSITY; AND MIKE SEIDMAN, PROFESSOR OF LAW, GEORGETOWN UNIVERSITY SCHOOL OF LAW, APPEARING ON BEHALF OF CITIZENS FOR THE CONSTITUTION
Mr. Chairman and members of the Committee:
Thank you for affording Citizens for the Constitution this opportunity to express our views concerning H.J. Res 84.
As you may know, Citizens for the Constitution, a project of the Twentieth Century Fund/Century Foundation, is a nonpartisan organization devoted to fostering public discussion concerning amendments to the Constitution. We are speaking on behalf of Citizens for the Constitution and not the Twentieth Century Fund. We include among our members Democratic and Republican former members of Congress, high officials in the Carter, Reagan, and Bush administrations, distinguished law professors and lawyers, a former federal judge, and numerous ordinary citizens. We are Democrats and Republicans, liberals and conservatives, who agree about almost nothing except the necessity of preserving the Constitution from unwise attack by those who would turn our foundational charter into a vehicle for achieving narrow partisan advantage.
Page 43 PREV PAGE TOP OF DOC
In recent months, Citizens for the Constitution has been at work developing recommended standards for constitutional amendments entitled '' 'Great and Extraordinary Occasions:' Standards for Constitutional Change.'' We do not believe that these standards, which are still in draft form, should be mechanically applied or that they will resolve all disputes about constitutional change. Nor do we believe that even if the standards are unmet, proposals for constitutional change should necessarily be rejected. Instead, the standards are designed to draw attention to some aspects of the amending process that have been ignored too frequently, provide some guidelines for when resort to it is appropriate, and suggest a process that will ensure that all relevant concerns are debated.
Citizens for the Constitution does not, as a rule, take a position on the merits of pending constitutional amendments. However, since the Bliley Amendment weakens Article V and a constitutional amendment process that has served this country well for over two hundred years, we have made an exception to our founding premise in this case, and oppose the Bliley Amendment.
We believe that a focus on our standards reveals some serious problems with the Bliley Amendment. First, our Standard Eight provides:
Constitutional amendment should have a nonextendable deadline for ratification by the states so as to ensure that there is a contemporaneous consensus by Congress and the states that the amendment is desirable.
This Standard is largely based on our experience with the ratification process for the Equal Rights Amendment. Although many states ratified the Amendment in the period immediately after initial congressional approval, there had been a shift in public opinion by the time that Congress extended the deadline for ratification. It was therefore far from clear that the legislatures in all the ratifying states would have approved the amendment if it had been presented to them after the ratification extension. The perception that the amendment might be adopted, despite the absence of a contemporary consensus supporting it, contributed to the divisiveness that surrounded the struggle over its adoption.
Page 44 PREV PAGE TOP OF DOC
Standard Eight is doubly relevant to the Bliley Amendment. First, we urge Congress to make the deadline for ratification of the Bliley Amendment nonextendable. Second, the Amendment itself should require ratification of new amendments within a nonextendable time period.
Standard Seven is also relevant to the Bliley Amendment. It provides:
Constitutional amendments should be enacted using procedures designed to ensure full and fair debate.
This standard is based upon the belief that we should not alter our fundamental charter of government without a full national dialogue in which all voices are heard. Article V as currently written contains structural guarantees designed to ensure such a debate. Unfortunately, the Bliley Amendment risks short-circuiting these guarantees, thereby leading to the possibility of future constitutional amendments that are unwise and ill-considered.
As currently written, Article V of the Constitution provides two techniques for amending the Constitution: An amendment can be proposed either by two-thirds of both Houses of Congress or by a convention called by two-thirds of the states. In either event, the proposed amendment must be ratified by three-quarters of the state legislatures in order to become law.
Article V was carefully considered by both the Framers and the ratifying conventions. It was designed to steer a middle course between the old Articles of Confederation, which made amendments almost impossible, and a Constitution that could be amended at whim. As James Madison, a principal author of both the Constitution and the Bill of Rights, argued in Federalist 49, the constitutional road to amendment should be ''marked and kept open,'' but should be used only ''for certain great and extraordinary occasions.''
Page 45 PREV PAGE TOP OF DOC
Article V embodied a second compromise as well. Under the Articles of Confederation, the amendment process was completely controlled by the States: Amendment was possible only if there were unanimous consent by the state governments. The Framers of Article V loosened the amendment procedure somewhat, but in exchange for this greater flexibility, they made certain that different constituencies would have an opportunity to deliberate about proposed amendments. The Framers wanted to be certain that state governments, which were closer to the people, would have a very substantial role in the amendment process. However, they also wanted to make certain that the Amendment process was not captured by narrow factions that might, on occasion control the States. Hence, they established a system requiring national deliberation, either by both Houses of Congress, or by a national convention, before an amendment could become law.
For the last two centuries, this system has worked remarkably well. Although some eleven thousand amendments have been proposed, only twenty-seven have been adopted. Most of these amendments have accomplished important goals, and a few of them, such as the Reconstruction Amendments, have crucially redefined the nation. Just as Madison hoped, changes in the Constitution have, for the most part, occurred only on ''great and extraordinary occasions.''
With the benefit of historical hindsight, most of us would agree that the nation is far better off because the system has prevented the vast majority of proposed amendments from being ratified. How many people today regret the failure to pass amendments that would have declared this to be a Christian nation, or that would have guaranteed in perpetuity the property interest of slave-holders in their slaves? These proposals were seriously entertained at one time, yet the careful balance of national and local dialogue required by Article V prevented their enactment. The Framers recognized that amendment proposals would frequently be motivated by short-term political considerations and deliberately made the amendment process arduous so as to sift out proposals that might at first seem advisable but, on further reflection, were unsuited for inclusion in our foundational document. For the most part their plan has functioned exactly as they intended it would.
Page 46 PREV PAGE TOP OF DOC
The Bliley Amendment undermines this compromise in two important ways: It makes the amendment process much less arduous, thereby risking the addition of frivolous or ill-advised amendments, and it truncates the national dialogue, thereby risking the addition of amendments that fail to achieve a national consensus.
As currently written, the Bliley Amendment would permit two-thirds of the state legislatures to avoid either of the methods that now assure a national consensus. The Amendment is written in such a confused and convoluted fashion that it is hard to discern precisely how its framers intend it to function. However, if it is taken literally, it appears to mean that an amendment can be adopted without the necessity of convening a constitutional convention even though it is opposed by all but a small minority of members of Congress.
Section 2 of the Bliley Amendment provides that after an amendment proposal is forwarded to Congress, it ''shall be deemed to be submitted to the several States for their consideration'' so long as ''two-thirds of each House vote against legislation expressly disapproving the proposed amendment.'' At first blush, this language seems to preserve the present two-thirds requirement, albeit in an unnecessarily convoluted fashion. It turns out, however, that even strong majorities of Congress have no power other than to delay a proposed amendment. Section Three of the Bliley proposal provides that after ''the date of the second adjournment of Congress sine die occurring after the proposed amendment is submitted to Congress'' the amendment will be submitted to the states unless ''two-thirds of each House have . . . voted for legislation expressly disapproving the proposed amendment.''
It follows that an amendment could be added to the Constitution even though opposed by two-thirds of the members of Congress. Indeed, even this overstates the extent of Congressional approval that would be necessary. It is crucial to notice that after the second adjournment of Congress, the burden of going forward rests on opponents of the amendment. It is they who must gain passage (by a two-thirds majority) of legislation blocking the amendment, rather than the proponents who must secure passage of legislation favoring it.
Page 47 PREV PAGE TOP OF DOC
There are a number of consequences that follow from this shift in the burden of going forward.
First, it means that even if all 435 members of the House of Representatives opposed an amendment, it could be adopted if it were favored by only one-third of the members of the Senate. Since legislation must be enacted by both Houses of Congress, a bare one-third minority in a single House would allow a proposed amendment to go to the States. One of the most important aspects of the Constitution is its bicameralism requirement. Most measures must be adopted by both Houses of Congress. The Bliley proposal undermines bicameralism for the most important decision that Congress can make—the revision of our founding document. Remarkably, it allows for completely bypassing one House of Congress even in circumstances where the measure is opposed by just short of two-thirds of the other House.
Second, in order to block the amendment, opponents would have to get legislation to the floor of each House. Depending on the rules of each House then in effect, it is entirely possible that a single committee chairman or the leadership might block consideration of such legislation even though it is favored by more than two-thirds of the members of each House.
Third, the amendment by its terms requires two-thirds of the members of each House, rather than two-thirds of those voting, to block passage. Overwhelming majorities of each House might oppose passage, but if a significant number failed to vote, the blocking legislation would nonetheless fail.
Finally, it is significant that the Bliley proposal requires ''legislation'' to block a constitutional amendment. This word does not appear in the original Article V. Of course, the Constitution generally requires that legislation be presented to the President for his signature. The use of the term ''legislation'' in the Bliley proposal might be construed to mean that the President can veto a blocking measure, thereby further complicating the task of those opposed to the amendment.
Page 48 PREV PAGE TOP OF DOC
The net effect of these revisions is to make possible the passage of a constitutional amendment that is opposed by large majorities in each House. It is worth pondering the implications of adding an amendment to the Constitution under these circumstances. The problem is not simply that there is a substantial risk that such an amendment might be frivolous or ill-considered, although that risk alone should give proponents of the Bliley Amendment pause. Even a meritorious amendment that passed in the teeth of this sort of opposition might irreparably change the way in which citizens view the Constitution. In a pluralistic democracy such as ours, where people have many different religious faiths and divergent political views, it is of cardinal importance that the Constitution remain a symbol of national unity. This unifying force would be destroyed if the Constitution came to be seen as embodying the views of only a portion of the country. It would be a tragic mistake for a group to use temporary political ascendancy in the State legislatures to ''read out'' of our foundational charter a significant segment of our society. An amendment passed in the face of such widespread congressional opposition would surely have this effect.
Proponents of the Bliley proposal will doubtless claim that these risks are small, given the requirement that an amendment be adopted by three-fourths of the state legislatures. But if the risks are truly small—if such an amendment is certain to command a national consensus—then its proponents should be able to garner the support of supermajorities of each House. If they are unable to do so, their failure strongly suggests that the proposed amendment cannot withstand the type of national scrutiny that the framers thought essential before changing our foundational document.
Doubtless, proponents of the Bliley Amendment are frustrated by the recent failure of Congress to enact amendments, such as a balanced budget amendment or a term limits amendment, favored by many state legislatures. Without taking a position on the merits of these proposals, we can understand their legitimate concern that some opposition to these amendments may be based on a desire on the part of some members of Congress to entrench their own power. We would hope, however that before approving the Bliley Amendment, Congress takes heed of another of our standards for constitutional amendments. Standard Three provides:
Page 49 PREV PAGE TOP OF DOC
Constitutional amendments should be utilized only when there are significant practical or legal obstacles to the achievement of the same objectives by other means.
In this case, there are good reasons for believing that advocates of the Bliley Amendment can indeed accomplish their objectives by other means. In order to become part of the Constitution, the Bliley proposal must, itself, be approved by two-thirds of each House pursuant to Article V. If there is indeed two-thirds support for the Bliley Amendment, and if the motivation for this support is to facilitate passage of amendments that Congress has previously blocked, then it follows that there ought to be two-thirds support for passage of these amendments. If Congress really thinks that it is desirable to have a balanced budget or term limits amendment, then it should simply adopt these amendments and not tinker with the amendment process itself. Conversely, if Congress is not ready to approve these amendments, then it makes no sense for it to adopt the Bliley proposal in order to facilitate their passage.
The short of the matter, then, is that the Bliley proposal is both unnecessary and unwise. It addresses a ''problem'' that could be solved without changing the basic mechanism for constitutional revision, unravels a compromise that has served the country well for two centuries, and opens the door to amendments that might be adopted without a national consensus. It is contrary to the restraint to which members of Citizens for the Constitution ascribe. We therefore strongly urge its defeat.
Mr CANADY. Thank you, Mr. Edwards.
Professor Lund.
Page 50 PREV PAGE TOP OF DOC
STATEMENT OF NELSON LUND, PROFESSOR OF LAW AND ACTING ASSOCIATE DEAN OF ACADEMIC AFFAIRS, GEORGE MASON SCHOOL OF LAW
Mr. LUND. Mr. Chairman and members of the committee, I am honored to be here. I will summarize my longer written remarks, which I will offer for the record.
During the last two-thirds of this century, I believe it has become clear that our Constitution includes inadequate checks on the centripetal forces that have created the Behemoth of which you are now a part. The principal legal check on those forces was supposed to be the limited and enumerated nature of the powers granted to the Federal Government. The Supreme Court, however, has permitted Congress to expand the reach of Federal power far beyond anything the Framers would have imagined. Despite some recent small steps by the Court in the other direction, the scope of congressional power remains immense and almost completely uncontrolled.
What legal defenses do we, the citizens, now have against the inappropriate extension of Federal power? Under the existing Constitution, very few. The Framers, who were rightly distrustful of ''parchment barriers,'' believed that the jealousy of the State governments would be more efficacious than the formal, legal constraints contained in the Constitution. But that natural jealousy has not proved in the long run to be much of a barrier.
One reason for our current predicament is that Article V of the Constitution effectively gives small congressional minorities a veto over constitutional amendments. One third of either House can prevent Congress from proposing a constitutional amendment to the States for ratification. It should come as no surprise that Congress has never approved a constitutional amendment that decreased its own power in any significant way. Indeed, since the Bill of Rights was adopted, Congress has not even approved any amendments—with the possible exception of the Twenty-First—that reinforced the original plan for a Federal legislature of limited and enumerated powers.
Page 51 PREV PAGE TOP OF DOC
The Framers of the Constitution were well aware of the dangers inherent in giving Congress too much power to block constitutional amendments. As George Mason put it, ''No amendments of the proper kind would be obtained by the people if the Federal Government should become oppressive,'' as he believed would be the case.
On the other hand, the Framers were also worried that giving the States an unchecked power to amend the Constitution might result in a power grab by the States at the expense of the Federal Government.
Both fears were reasonable, and the conundrum was addressed, after considerable debate, by adopting a mechanism through which Congress is supposedly obliged to call a constitutional convention upon the application of two-thirds of the State legislatures. As you know, no such convention has ever been called.
Why not? Although it may surprise you, one possibility is that Congress has for some time been in violation of its legal duty to call a constitutional convention. Some 45 States at one time or another have applied for a constitutional convention in language that does not expressly restrict the application to a convention for the ''sole'' or ''exclusive'' purpose of considering some limited range of proposals, such as a balanced budget amendment.
There is a legal argument, at least colorable and perhaps stronger than that, that this fact implies that Congress is and has been for some time constitutionally obliged to call an Article V convention.
Page 52 PREV PAGE TOP OF DOC
Even leaving aside that unsettling possibility, there are enormous and unresolved questions about the constitutional convention method of proposing amendments. Just to take two examples: there has been considerable debate as to whether the Constitution allows a convention to be restricted to a limited range of topics. And there is considerable doubt——
Mr CANADY. Would you say that again? Could you say that last sentence again. I didn't hear it.
Mr. LUND. Yes. There has been considerable debate as to whether the Constitution allows a convention to be restricted to a limited set of topics or certain proposals. There is also considerable doubt about the extent to which Congress could put substantive or procedural restrictions on a constitutional convention convened under Article V.
Given the considerable uncertainties about the convention method of proposing amendments—which may well be the most significant cause of the fact that a convention has never been called—it makes sense to create a new method through which the congressional blocking power can be reduced.
The concept embodied in H.J. Res. 84 admirably addresses this need. By allowing constitutional amendments proposed by the States to be submitted for ratification, unless disapproved by a two-thirds vote of each House, the proposal would greatly reduce the congressional veto power while still providing a meaningful check on irresponsible action by the States.
Page 53 PREV PAGE TOP OF DOC
If the States were ever to threaten a seriously deleterious expansion of their own power, there should be little difficulty in mustering the necessary super-majorities in Congress. On the other hand, if a sufficient number of States conclude that Congress has irresponsibly declined to propose a needed amendment—especially in cases where the self-interest of its Members is at stake—it is reasonable to hope that at least one-third of one House would be willing to act in a responsible fashion.
I do have some relatively minor reservations about H.J. Res. 84 as currently drafted, but I'm almost out of time so I'll pass over those. I would be happy to discuss them, if anyone has questions.
Let me conclude by reaffirming my view that H.J. Res. 84 would be a useful and appropriate addition to the Constitution, not a cure-all, and not a device that would necessarily lead only to the adoption of what I might consider good amendments. But the fact that I do not see this as a panacea does not qualify my support for the proposal.
Finally, I can't resist noting my suspicion that the likelihood of Congress' approving H.J. Res. 84 is inversely related to the desirability of the amendment. Fortunately, however, it is not my role to try to prove that suspicion wrong.
Thank you.
[The prepared statement of Mr. Lund follows:]
PREPARED STATEMENT OF NELSON LUND, PROFESSOR OF LAW AND ACTING ASSOCIATE DEAN OF ACADEMIC AFFAIRS, GEORGE MASON SCHOOL OF LAW
Page 54 PREV PAGE TOP OF DOC
PROCEDURES FOR STATE INITIATION OF CONSTITUTIONAL AMENDMENTS
Mr. Chairman, and Members of the Committee, I am honored to be here today.
I begin with two propositions that were articulated by James Madison. First, ''if angels were to govern men, neither external nor internal controls on government would be necessary.''(see footnote 1) Second, that ''[i]n republican government, the legislative authority necessarily predominates.''(see footnote 2) I believe this implies that Members of Congress are the most dangerous people in America.
Not the worst people in America, but the most dangerous. In fact, Madison anticipated (correctly, I think) that federal legislators would on the whole be superior to their state counterparts and to the general population with respect to three critical qualities: wisdom, patriotism, and love of justice.(see footnote 3) But even if these qualities will always be disproportionately found in Congress, we still won't get a body of angels. And, less obviously, we won't get an institution that is suited to make most of the important decisions about how to regulate the lives of our citizens. Instead, what we can expect to get is an institution that is well-suited to making certain kinds of decisions. In discussing the appropriate size of political jurisdictions, Madison offered the following analysis:
It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representative too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.(see footnote 4)
Page 55 PREV PAGE TOP OF DOC
Madison might have added, though he did not, that this ''happy combination'' was something easier to describe in words than to maintain in practice. Writing almost half a century later, Alexis de Tocqueville was impressed with how stable the combination had remained. That stability he attributed in large measure (though by no means exclusively) to what he saw as a genuinely novel device in our Constitution. When the thirteen original states created our federal system, they gave the new government the power not only to make laws but to administer them directly, without intermediation by the constitutive states. This idea, which seems obvious to us today, was actually so remarkable that Tocqueville was able to say that there was still no word for the resulting form of government, even several decades after it was put into place. He himself described what we have here in the United States, not as a federal government, but as an ''incomplete national government.''(see footnote 5)
Unlike many of his contemporaries, Tocqueville believed that the greatest threat to our constitutional arrangements lay in a weakening of the federal government that might lead to a dismemberment of the union.(see footnote 6) As we now know, the War Between the States proved him right. But in the longer term, Tocqueville thought that the greater danger lay in the inherent tendency of democratic nations to concentrate power at the center.(see footnote 7) And he has proved right about that, too. It may be worth pausing for a moment to recall part of Tocqueville's explanation for the fragility of decentralized governmental forms:
Not only is a democratic people led by its own tastes to centralize government, but the passions of all its rulers constantly urge it in the same direction.
Page 56 PREV PAGE TOP OF DOC
It may easily be foreseen that almost all the able and ambitious men in a democratic country will labor constantly to increase the scope of social power, for they all hope sooner or later to control it themselves. It is a waste of time to demonstrate to such men that extreme centralization may be harmful to the state, for they are centralizing in their own interests.
The only public men in democracies who favor decentralization are, almost invariably, either very disinterested or extremely mediocre; the former are scarce and the latter powerless.(see footnote 8)
During the last two-thirds of this century, I believe it has become clear that our Constitution includes inadequate checks on the centripetal forces that have created the Behemoth of which you are now a part. The principal legal check on those forces was supposed to be the limited and enumerated nature of the powers granted to the federal government. The Supreme Court, however, has permitted Congress to expand the reach of federal power far beyond anything the framers would have imagined. Despite some recent small steps by the Court in the other direction, the scope of congressional power remains immense and almost completely uncontrolled.
What legal defenses do we now have against the inappropriate extension of federal power? Under the existing Constitution, very few. The framers, who were rightly distrustful of ''parchment barriers,'' believed that the jealousy of the state governments would be more efficacious than the formal, legal constraints contained in the Constitution.(see footnote 9) But that natural jealousy has not proved in the long run to be much of a barrier.
One reason for our current predicament is that Article V of the Constitution effectively gives small congressional minorities a veto over constitutional amendments. One third of either House can prevent Congress from proposing a constitutional amendment to the states for ratification. It should come as no surprise that Congress has never approved a constitutional amendment that decreased its own power in any significant way. Indeed, since the Bill of Rights was adopted, Congress has not even approved any amendments (with the possible exception of the Twenty-First) that reinforced the original plan for a federal legislature of limited and enumerated powers.
Page 57 PREV PAGE TOP OF DOC
The framers of the Constitution were well aware of the dangers inherent in giving Congress too much power to block constitutional amendments. As George Mason put it:
''[N]o amendments of the proper kind would be obtained by the people, if the [federal] Government should become oppressive, as he verily believed would be the case.''(see footnote 10)
On the other hand, the framers were also worried that giving the states an unchecked power to amend the Constitution might result in a power grab by the states at the expense of the federal government.(see footnote 11)
Both fears were reasonable, and the conundrum was addressed, after considerable debate, by adopting a mechanism through which Congress is supposedly obliged to call a constitutional convention upon the application of two-thirds of the state legislatures. No such convention has ever been called.
Why not? Although it may surprise you, one possibility is that Congress has been for some time in violation of its legal duty to call a constitutional convention. Forty-five states have at one time or another applied for a constitutional convention in language that does not restrict the application to a convention for the ''sole'' or ''exclusive'' purpose of considering some limited range of proposals.(see footnote 12) There is a legal argument, at least colorable and perhaps quite strong, that this fact implies that Congress is and has been for some time constitutionally obliged to call an Article V convention.(see footnote 13)
Page 58 PREV PAGE TOP OF DOC
Even leaving aside that unsettling possibility, there are enormous and unresolved questions about the constitutional convention method of proposing amendments. Just to take two examples: There has been considerable debate as to whether the Constitution allows a convention to be restricted to a limited range of topics. And there is considerable doubt about the extent to which Congress could put substantive or procedural restrictions on a constitutional convention convened under Article V.
Given the considerable uncertainties about the convention method of proposing amendments—which may well be the most significant cause of the fact that a convention has never been called—it makes sense to create a new method through which the congressional blocking power can be reduced. The concept embodied in H.J. Res. 84 admirably addresses this need. By allowing constitutional amendments proposed by the states to be submitted for ratification unless disapproved by a two-thirds vote of each House, the proposal would greatly reduce the congressional veto power while still providing a meaningful check on irresponsible action by the states.
If the states were ever to threaten a seriously deleterious expansion of their own power, there should be little difficulty in mustering the necessary supermajorities in Congress. On the other hand, if a sufficient number of states conclude that Congress has irresponsibly declined to propose a needed amendment—especially in cases where the self-interest of its Members is at stake—it is reasonable to hope that at least one third of one House would be willing to act in a responsible fashion.
I do have some relatively minor reservations about H.J. Res. 84 as currently drafted. As it is now written, a specific constitutional amendment would first have to be proposed by 34 states and then ratified by 38 states, including the 34 that had already approved it. I suggest that it would make sense to lower the threshold for proposing amendments—perhaps to a simple majority of the states. Given that three-fourths of the states must ratify, this could hardly raise the risk of irresponsible amendments, and it would somewhat decrease the collective action problems that are entailed in any scheme for state initiation of amendments.
Page 59 PREV PAGE TOP OF DOC
My second suggestion has to do with an ambiguity in Section 1. It is not clear to me whether this language contemplates action by the state legislatures alone, or whether the Governor's approval of the ''legislation'' might be required. I would recommend resolving the ambiguity.
My third suggestion is that some provision be made for the possibility that states might purport to rescind or repeal proposals previously made under Section 1. It would be useful, I think, to specify whether or not such rescissions would be effective.
Finally, I question the advisability of Section 6. Given that the purpose of H.J. Res. 84 is to reduce congressional blocking power over the amendment process, this provision may create unnecessary and undesirable opportunities for congressional mischief.
Let me conclude by reaffirming my view that H.J. Res. 84 would be a useful and appropriate addition to the Constitution. Not a cure-all for the serious deterioration of the principles of federalism that we have witnessed in this century. And not a device that would necessarily lead only to the adoption of ''good'' amendments. But the fact that I do not see this as a panacea does not qualify my support for the proposal.
Finally, I can't resist noting my suspicion that the likelihood of Congress' approving H.J. Res. 84 is inversely related to desirability of the amendment. Fortunately, however, it is not my role to try to prove that suspicion wrong.
Thank you.
Page 60 PREV PAGE TOP OF DOC
Mr CANADY. Thank you, Professor Lund.
Professor Seidman.
STATEMENT OF MIKE SEIDMAN, PROFESSOR OF LAW, GEORGETOWN UNIVERSITY SCHOOL OF LAW, APPEARING ON BEHALF OF CITIZENS FOR THE CONSTITUTION
Mr. SEIDMAN. Thank you, Mr. Chairman.
Mr. Chairman and members of the committee, I, too, appreciate the opportunity to speak for Citizens for the Constitution in opposition to the Bliley Amendment. One of the things our organization has been up to over the past several months is drafting standards that might be useful to people in thinking about whether constitutional amendments are desirable, and we think some of those standards, which are still in draft form, are relevant to the Bliley Amendment. I want to draw special attention to one of them. It provides that constitutional amendments should be enacted using procedures designed to ensure full and fair debate.
Now, Article V, as currently written, contains structural guarantees designed to ensure that kind of debate. In particular, it ensures a dialogue on both the national and local level. Unfortunately, the Bliley Amendment risks short-circuiting those guarantees, thereby leading to the possibility of future constitutional amendments that are unwise and ill-considered.
Page 61 PREV PAGE TOP OF DOC
As currently written, the Bliley proposal would permit an amendment to be adopted, even though it was opposed by all but a small minority of Members of Congress, and even though it was opposed by legislatures representing a majority of the country.
Section 3 of the Bliley proposal provides that an amendment can become part of the Constitution unless two-thirds of each House voted for legislation expressly disapproving the proposed amendment. It follows that an amendment can be added to the Constitution even though opposed by two-thirds of the Members of Congress. Indeed, even this overstates the extent of congressional approval that would be necessary.
It's crucial to notice that the burden of going forward rests on opponents of the amendment. It is they who must gain passage by a two-thirds majority of legislation blocking the amendment, rather than the proponents, who must secure passage of legislation favoring it.
There are a number of important consequences that flow from this shift of the burden. First, it means that even if all 435 Members of the House of Representatives oppose the amendment, it could be adopted if it were favored by only one-third of the Senate. Since legislation must be enacted by both Houses of Congress, a bare one-third minority of a single House would allow a proposed amendment to go to the States.
One of the most important guarantees of deliberation contained in the Constitution is its bicameralism requirement. Measures must be adopted by both Houses of Congress. The Bliley Amendment undermines bicameralism for the most important decision that Congress can make, a revision of our Founding document. It allows one House to be completely ignored, and remarkably, it allows for bypassing one House of Congress even in circumstances where the measure opposed by just short of two-thirds of the other House.
Page 62 PREV PAGE TOP OF DOC
Second, in order to block the amendment, opponents would have to get legislation to the floor of each House. Depending on the rules of each House then in effect, it is entirely possible that a single committee chairman, or the leadership, might block consideration of such legislation, even though it is favored by more than two-thirds of the members of each House.
The net effect of these revisions is to make possible the passage of a constitutional amendment that is opposed by large majorities in each House, and if the amendment is supported by the smallest States by population, it could become part of the Constitution, even though it's opposed by State legislatures representing a majority of the population.
It is worth pondering the implications of adding an amendment to the Constitution under these circumstances. Suppose that, in fact, an amendment was adopted, even though every Member of this House opposed it. In a pluralistic democracy such as ours, where people have many different religious faiths and divergent political views, it is of cardinal importance that the Constitution remain a symbol of national unity. This unifying force would be destroyed if the Constitution came to be seen as embodying the views of only a portion of the country. It would be a tragic mistake for a group to use temporary political ascendancy in the State legislatures to read out of our foundational charter a significant segment of our society. An amendment that passed in the face of such widespread congressional opposition would surely have this effect.
I also want that to draw attention to another of our standards. The standard provides constitutional amendments should be utilized only when there are significant practical or illegal obstacles to the achievement of the same objective by other means. In this case, there are good reasons for believing that advocates of the Bliley Amendment can, indeed, accomplish their objectives without completely redoing the structure of the Constitution.
Page 63 PREV PAGE TOP OF DOC
The Bliley Amendment is motivated, at least in part, by frustration by some over the failure of Congress to enact some amendments widely favored in the States—in particular, a balanced budget amendment and a term limits amendment.
There are two things to be said about this frustration. First, we hardly have too few constitutional amendments. The fact is that more amendments have moved further along in the process in this Congress than at any point in modern history.
The second point is that in order to become part of the Constitution, the Bliley proposal must itself be approved by two-thirds of each House, pursuant to Article V, as currently written. If there is, indeed, two-thirds support for the Bliley Amendment, and if the motivation for this support is to facilitate passage of amendments that Congress has previously blocked, then it follows that there ought to be two-thirds support for passage of those amendments.
I'm afraid that the Bliley Amendment may be another example of using the Constitution as part of symbolic politics, the sort of effort that Citizens for the Constitution opposes.
Instead of voting for a balanced budget or a term limits amendment, Members of Congress can vote for the Bliley Amendment and say they've done something about the problem. But if someone is for, say, term limits, there is a simple way to accomplish that: just do it.
Page 64 PREV PAGE TOP OF DOC
The short of the matter then is that the Bliley proposal is both unnecessary and unwise. It addresses a problem that could be solved without changing the basic mechanisms of our constitutional system, unravels a compromise that has served the country well for two centuries, and opens the door to amendments that might be adopted without a national consensus. It is contrary to the restraint to which members of Citizens for the Constitution ascribes. We therefore strongly urge its defeat.
Mr CANADY. Thank you, Professor.
Mr. Scott is recognized for 5 minutes.
Mr. SCOTT. Thank you, Mr. Chairman. I appreciate the testimony of the witnesses.
The subject we are talking about, the Constitution, is a very important issue, and once you start meddling with the Constitution, you're really dealing with the foundation of our government. Once the Constitution is amended, there is no back-up set of principles to protect us from a transient idea, and that's why this amendment needs to be looked at very closely.
Let me just ask one kind of generic question. If this amendment is passed, is it more or less likely that transient ideas might get into the Constitution?
Mr. SEIDMAN. Who are you addressing the question to, Congressman?
Page 65 PREV PAGE TOP OF DOC
Mr. SCOTT. Anybody that wants to respond.
Mr. SEIDMAN. I think it's much more likely, and that's true for two reasons. One is that it simply makes the process easier. The second reason is that the Framers deliberately set up a process that was meant to be deliberative, so that transient ideas could be weeded out.
You know, if you look at the past history of the country, there were lots of amendments that at one time or another were really popular. One would have declared us forever to be a Christian country, for example. Another would have permanently guaranteed the right of slaveowners to own slaves. It was through a deliberative process, both on the local and national level, that measures like that were sifted out. I think we're the better for it, and I think this would reduce the amount of sifting that went on.
Mr. EDWARDS. Could I add one thing to that?
Mr. SCOTT. Let me ask a follow-up question, and then you can probably answer both at the same time.
There are a lot of State laws that have been overridden, either by the Federal Constitution or by Federal statute. Some of those are very popular. I guess the follow-up question would be whether or not it's more or less likely that the Federal supremacy idea of the Constitution would be easier to attack through this mechanism.
Page 66 PREV PAGE TOP OF DOC
Mr. EDWARDS. What I would like to do is let one of the law professors address that. But I wanted to add one thing to what Professor Seidman said, in terms of your first question.
There is a great frustration, I know, that sometimes people believe that the will of the majority is being thwarted. When I took the oath of office to serve in the Congress, I was aware that one of my jobs was to make sure we did not create a tyranny of the majority. You know, our whole basic purpose is to protect the rights of individuals against whatever majority happens to rise to power at the moment.
I think the Bliley Amendment does make it much more likely that the whims of the moment, drummed up by whatever talk shows happen to be out there, will put pressure on Congress to just simply let things go back to the States and not exercise the deliberative slowing down process that Members of Congress are supposed to provide in our system.
Mr. SCOTT. Governor?
Mr. ALLEN. Congressman Scott, let me try to address your question as well.
The bottom line is that I don't think it has much of a difference one way or the other. I think it needs to be remembered that, at the formation of our Union, there were two ways to amend the Constitution. One way everyone realizes is completely impractical. That one, by the way, which is in the Constitution, completely bypasses Congress. It doesn't matter if all Members of Congress and the Senate are against it.
Page 67 PREV PAGE TOP OF DOC
The reality is that with this proposal, or any sort of variation of it, as far as nullification or voiding of it by Congress; before you got to Congress there would have to be such an overwhelming outcry or call for action to first of all get State legislatures to do this, both the House and the Senate—of all the requisite State legislatures. That's not an easy task at all. And then you would have to get so many of them to adopt the exact same language. The way legislators are; some are like Members of Congress. Every member looks at every comma and every phrase and what's the meaning of each word. To have that across the whole Nation and simply requesting an amendment, whether it's a balanced budget, whether it's term limits, whether it's flag burning, who knows what it may be would be rare and remarkable. The proposed Amendment would then go to Congress, then it would go again back to the States again for ratification. So this elaborate process is simply affording the people, through their legislatures, through the States, another tool to have their will known and expressed.
Now, some people will say that the views of the people, the owners or shareholders of this government, may call that a ''whim''. But it's also the will of the people. All elected leaders are public servants who serve the people. It seems to me there are many protections in this measure—some that may be modified to some extent—that will not increase, to use your term, ''transient'' issues. No one is for transient issues. That's such a negative adjective.
But I just think this proposal allows the owners of this government another tool. There will be many issues that have been debated here before, but it will also allow the people to show their will and have the government reflect their desires.
Page 68 PREV PAGE TOP OF DOC
Mr CANADY. Without objection, the gentleman has three additional minutes.
Mr. SCOTT. Thank you, Mr. Chairman.
A slight follow up to that. I don't know what the other States require, but in Virginia, approving a constitutional amendment only takes a simple majority of both Houses. Do other States have different requirements, in terms of passage?
Mr. ALLEN. You're talking about U.S. constitutional amendments?
Mr. SCOTT. Right.
Mr. SEIDMAN. My understanding, Congressman, is that the general practice is a simple majority, but I'm not an expert on this and I can't speak for all the other States.
Mr. SCOTT. Again, we don't have a back-up document. If someone wanted to amend the ''one man, one vote'', there is no underlying set of principles to rely on. What would it do to the big State/small State balance? I notice some of the information we have says the smallest 38 States comprise only 41 percent of the population. If we're going to amend the Constitution, there ought to be an overwhelming national consensus to tinker with the Constitution.
What would happen to concepts like ''one man, one vote'', and the balance between large States and small States, if this amendment were to pass?
Page 69 PREV PAGE TOP OF DOC
Mr. SEIDMAN. Well, first of all, the Congressman is right. There is no back-up document. The Constitution can be amended to do just about anything, so everything is at risk to constitutional amendments.
When Governor Allen speaks of the will of the people, the fact of the matter is that, under this amendment, a constitutional amendment could be passed when it was opposed by State legislatures representing a majority of the people, if the support was concentrated in the least populated States.
Also, when Governor Allen says this is very unlikely to happen if there's not a national consensus, all that's required to propose an amendment under this amendment is two-thirds of the State legislatures. We currently require three-quarters of the State legislatures to ratify an amendment, so the proposal mechanism actually waters down what we currently require to ratify.
Now, it is true that it would then have to be ratified by three-quarters, but I don't think it necessarily follows that two-thirds is such a tremendous hurdle that it would only happen in circumstances of national emergency.
Mr. ALLEN. Congressman Scott, if I may respond to that, as far as the repeal of one man/one vote, I've heard no one saying that that ought to be repealed. So I don't think there's any logical fear of it.
Now, the question of the minority of States, or the number of States ratifying or proposing this, the number of States proposing this and somehow a minority of States are somehow ratifying——
Page 70 PREV PAGE TOP OF DOC
Mr CANADY. The gentleman's time has expired. Without objection, the gentleman will have one additional minute.
Mr. ALLEN. The concern about the many States that make up a minority of the population somehow putting in a constitutional amendment that is opposed somehow by a majority of the people in fewer States, that same concern could apply right now if the Congress has proposed an amendment to the Constitution and then it has to be ratified by the States. So theoretically, that can happen right now.
Mr. SCOTT. But the problem there is you need two-thirds of the Senate, so you have the Senate, you have the House, and you have the States. So you have three different formulations of the arithmetic, so crossing all those hurdles is a lot different.
I'm sorry. I cut you off.
Mr. ALLEN. But still, under any scenario, it's ratified ultimately by three-quarters of the States. That's your final backstop. The only difference is who is proposing or who is initiating the idea for an amendment to the Constitution.
Should it only be in Congress? Are they the only ones who can initiate amendments? The Founders thought not. This gives a practical means, in the very rare instances, where you can get two-thirds of the State legislatures somehow to agree on the identical language for an amendment.
Page 71 PREV PAGE TOP OF DOC
Mr. SCOTT. Thank you, Mr. Chairman.
Mr CANADY. The gentleman from Tennessee is recognized.
Mr. BRYANT. Thank you, Mr. Chairman. I have two fairly broad questions, one kind for each side here.
I must say, Governor, Congressman and professors, you all make compelling arguments. I would be a terrible judge because I hear one of you and I like that, and then I hear the other side and I also like that. I suspect whoever argues last would probably get my vote.
Let me just throw something out, and I would appreciate it if you could limit your answer, Professor Seidman, because I would like to go to Professor Lund on another question.
Mr. SEIDMAN. I'll try to be brief.
Mr. BRYANT. Perhaps you don't accept one of the premises that Professor Lund makes, but it is certainly something that I know I hear an awful lot, and the Governor makes it, too. Again, I won't do a good job summarizing it.
But how do you respond to the argument that our Forefathers, when they drew up this great document—and I agree with you, it's a magnificent document, the way it works together—but they did not anticipate, nor could they, where we are today, with maybe at least one branch of this government out of control and even superior to the other branches, specifically the Supreme Court and the courts branch, and as citizens viewing that impropriety, that overreach, if you will—again, you may not agree with that.
Page 72 PREV PAGE TOP OF DOC
But assuming it was true, how would you address that? Would it not be prudent to look at changing the Constitution and maybe making it somewhat easier for the people from the States to approach amending the Constitution?
Mr. SEIDMAN. Congressman, I could go on about that all day, but I'll be very brief.
Mr. BRYANT. We all could, I know.
Mr. SEIDMAN. Citizens for the Constitution is not against constitutional amendments, per se. It might be that there should be amendments which should cut back on the power of the Federal Government.
But the point is, the Bliley Amendment itself requires a two-thirds majority of each House to be adopted. If you, for example——
Mr. ALLEN. To reject.
Mr. SEIDMAN. In order for the Bliley Amendment to be adopted——
Mr. ALLEN. Okay.
Mr. SEIDMAN.—it has to be adopted under the current Article V, so it would require two-thirds of each House to pass this very amendment.
Page 73 PREV PAGE TOP OF DOC
If you think that there should be amendments adopted that cut back on the power of the Federal Government, then the sensible thing to do is not get two-thirds vote for the Bliley Amendment, but get two-thirds vote for the amendment that you favor. In other words, I think we ought to do that directly and not tinker with Article V, which has served us well for 200 years, in order to accomplish something that could be accomplished anyway if you, in fact, have two-thirds of your colleagues that favor changing the current system.
Mr. BRYANT. Now, Governor, if I might go to Professor Lund, he has not spoken a lot, other than his opening statement. But since you raised that issue, I would like you to address maybe that response.
Also, again—and I may misstate Professor Seidman's earlier position and I would like you to address it, too. What I think he's saying is the document is so great and meant to be complicated and lay out road blocks, to more or less protect this country from ourselves, from our citizens, from the current whim or whatever it might be.
I just wonder how you would address that, and also, if you would want to respond to your initial position. Do we need protection against ourselves?
Mr. LUND. First, with respect to the argument that why do this when you can just do the needed constitutional amendment, I think there's something to that in a practical sense. I meant to touch on that at the end of my remarks when I indicated that I didn't think this had great prospects, for the same reason that it's needed. So, at least as a practical matter, I think there's something to that.
Page 74 PREV PAGE TOP OF DOC
Now, with respect to the idea of the Constitution protecting us from ourselves, obviously there's a great deal to that and the Constitution shouldn't be too easy to amend. But I don't think the Constitution was meant to protect Congress from the people. That's why the congressional blocking power that exists under current practice seems to me questionable.
I should also point out that the Constitution may not be as hard to amend as we generally assume. In my opinion, the Supreme Court amends the Constitution quite frequently. [Laughter.]
And given the difficulty in the Article V amendment procedures, there are serious difficulties in the people correcting those kinds of constitutional amendments that the Supreme Court, in effect, makes.
Mr CANADY. The gentleman's time has expired. Without objection, the gentleman will have three additional minutes.
Mr. BRYANT. Thank you.
Again, Professor Lund, this is what I hear from the constituents I represent. Certainly I, as a Member of Congress, more so than anyone else in Washington, probably, as the Constitution I think intends, we have to be more aggressive and more responsive to what we hear back in our town meetings. We can be fired every 2 years, and that's the way it should be. But we certainly hear an awful lot of criticism of the Supreme Court and its rulings, the Federal Court system in general.
Page 75 PREV PAGE TOP OF DOC
What would you envision that might come forward under this new procedure from the States that might impact on the Supreme Court and its powers? Just speculate. I know it's a little away from the subject matter here.
Mr. LUND. Generally speaking, I think it would be very hard to tell. I think one possibility, of course, would be, if the Bliley Amendment were made part of the Constitution, the people, through their State governments, might take steps to correct the Supreme Court's term limits decision, which insulated you all from term limits that were quite popular with the people in a number of States. That wouldn't be a direct curtailment of the Supreme Court's general power, but it would be a correction of that constitutional decision by the Supreme Court.
Mr. BRYANT. Let me ask you another question, and anybody can answer. Wouldn't this Bliley procedure sort of turn things upside down? I know the numbers vary, but it reverse the process somewhat.
Wouldn't it make the Members of Congress more vulnerable to reelection? Doesn't it put more pressure on us to respond than the current system, as opposed to where we either vote the will of the people at the end, under the Bliley amendment, or else we might not get reelected?
Mr. EDWARDS. I think it probably makes Members of Congress more vulnerable. I don't know that there's a national need to protect Members of Congress from being vulnerable.
Page 76 PREV PAGE TOP OF DOC
Mr. BRYANT. I agree. I'm for term limits.
Mr. EDWARDS. But I do think it is important to remember that a lot of things have changed. It's true the size of the government has changed, which I don't personally like. But also the means of mass communication, the pressures to move instantly, to be able to turn things around in a hurry, have changed, too. So you have things where it happens that one of these I favor and one I don't. But things like the term limits or balanced budget amendments you don't generate without a lot of careful thought. This mass movement, which puts great pressure on Members of Congress, who might want to say, ''Wait a minute, you know. Let's think about this. Let's think about the consequences of it.'' I dare say that some people who voted for one or the other, you know, come back later and say maybe that was too big a hurry.
Mr. BRYANT. Thank you.
Thank you, Mr. Chairman.
Mr. ALLEN. I would simply add briefly——
Mr CANADY. Without objection, the gentleman will have one additional minute.
Mr. ALLEN. I think it would change the dynamics. It would actually effectuate the original intent of calling for a constitutional convention. That was two-thirds of the States can call for a constitutional convention. It will change the dynamics.
Page 77 PREV PAGE TOP OF DOC
If you saw out across the United States people in favor of some particular idea, or the Supreme Court has made some sort of ruling that is so universally objectionable, then they would be asking for the change. It may be that Members of Congress then, similar to some of the reactions one may get for a constitutional convention being called, would then say let's do this right, let's initiate it ourselves, rather than have it go this way of the States Initiative.
So the more the people somehow can reflect their representative will in the Congress, I think the healthier it is. Those are Jeffersonian principles, the spirit of the Declaration of Independence. So that's good.
Mr. BRYANT. Thank you.
Mr CANADY. Thank you.
The gentleman from Virginia, Mr. Goodlatte, is recognized.
Mr. GOODLATTE. Thank you, Mr. Chairman. I also want to thank you for holding these hearings on this important issue.
Governor Allen, welcome back to this committee. I apologize for missing your opening remarks, but I know that in your tenure as Governor you were, in my opinion, the most effective governor in the country, and probably the most effective governor in a long, long time, in standing up for the rights of the States and citizenry thereof under the Tenth Amendment to the Constitution, and I applaud your effort in that regard. I know this effort is along the same lines.
Page 78 PREV PAGE TOP OF DOC
I wonder if you might comment on one observation that I picked up from Professor Seidman, and that is that only one-third of the Members of Congress are required to be in opposition to this in order for it to go forward, and what would be your opinion of the two-thirds requirement now to get a constitutional amendment to the States? That's definitely a frustration for a number of us who support a number of constitutional amendments that have not passed.
What would your feeling be if we were to have an amendment that simply required a majority of the Congress to send an amendment to the States, instead of the two-thirds now, sort of a compromise between where you are and—?
Mr. ALLEN. You mean changing that aspect of it?
Mr. GOODLATTE. Right.
Mr. ALLEN. I haven't thought about it, and I would have to think long and hard on it.
Mr. GOODLATTE. It would be an improvement over the current situation.
Mr. ALLEN. Well, it could be an improvement. I was focusing more, though, on again looking at the Founders intent at the formation of our Union, that there would be two avenues for amendment, one being the constitutional convention, which, of course, is simply impractical, for many reasons. And so what is being proposed with Congressman Bliley's initiative here, is to restore that balance, that seat at the table, for the people in the States, the governors and the people, to initiate constitutional amendments when Congress has failed to act.
Page 79 PREV PAGE TOP OF DOC
It is not to do anything to change the other avenue of amendment, as far as the congressional initiation of constitutional amendments. I know some people don't think Congress ought to even have the veto power of it, but nevertheless, there is already some compromise in the midst of Congressman Bliley's initiative here, compared to various ideas that have been forthcoming.
Professor Lund mentioned he doesn't like congressional approval one way or the other. You have to recognize the art of the possible. I think, even if you did have just a mere majority of Congress, what your query addresses is that you would still have to get three-quarters of the State legislatures to ratify these measures. That's just another issue. I think this Bliley States Initiative the way to go.
Mr. GOODLATTE. Congressman, Professor Edwards, clearly, you've made an effective transition from a Congressman from Oklahoma to a Harvard University professor. [Laughter.]
Mr. EDWARDS. Actually, I had the beard during a part of one of the terms when I served in the House, and my constituents rose up in anger and thought I had become a ''flaky liberal'', so I had to shave it off. But now I have the freedom to do this. I recommend it to you all.
Can I just make one comment, following up on what George said? The Bliley Amendment would be perhaps less objectionable if there were some kinds of changes to preserve the deliberative process—you know, what I think has been disappearing from the system.
Page 80 PREV PAGE TOP OF DOC
If, for example, there was a requirement that if the States under this procedure sent forth this proposal, you know, that the Congress would be required to act and not let somebody bottle it up, perhaps act by a majority rather than two-thirds, so they could send it back. There are ways that—Tom, when he was here making his opening statement, indicated that it's not locked in concrete. I think the way he has it drafted at the moment, I think it's very counter-productive, in terms of the deliberative process that I think the Founders did envision. You know, I was encouraged that he feels the language is amenable to change.
Mr. GOODLATTE. Do you want to comment on my 50 percent plus one proposal? You still have three-quarters of the States needing to ratify an amendment. It should be difficult to amend the Constitution, but should something that has a tremendous amount of support with the public be bottled up by Congress because it requires an inordinately large number just to get it out.
Mr CANADY. Without objection, the gentleman will have three additional minutes.
Mr. GOODLATTE. Thank you, Mr. Chairman.
Mr. EDWARDS. Well, very quickly, only to say that it depends on how that were done. My principal objection to the way the Bliley Amendment would work in practice is that the one thing that should be required before any constitutional changes take place is that as much deliberation as possible take place, over as long a period of time as is necessary.
Page 81 PREV PAGE TOP OF DOC
When people talk about gridlock, I have told my students that I think the Founding Fathers would come back and they would say, ''Oh, my god, gridlock. It works.'' Because I think that's what they intended. They intended it to be a slow, deliberative process before serious changes were made.
If you did it where it was a quick turnaround, with 50 percent, you know, you might defeat the purpose of getting some national input. I'm concerned about that.
Mr. GOODLATTE. Governor Allen, can you cite some examples of some of the constitutional amendments that have been proposed and have made various degrees of progress here in the Congress that, under this proposed amendment, might have seen the light of day and might have actually reached success? In other words, amendments that would have the support of at least a third of the Members of Congress and would have been ratified by three-quarters of the States.
Mr. ALLEN. Sure. The balanced budget amendments, clearly the one that's been going on for many, many, many years. In fact, I think 34 States, maybe more, asked for a constitutional convention to adopt a balanced budget amendment. I know more than a majority of the Members of Congress have voted for a balanced budget amendment to the Constitution of the United States, as is the case in a vast majority of the States.
I don't mean to get in an argument over the Legislative and Executive branches, but the line item veto is another example. Recently there was a question on the constitutionality of the federal line-item veto. I believe 45 governors, something like that, have the power of the line item veto. I would think that if you would look at resolutions that have been passed by State legislatures, all maybe slightly different, on matters such as term limits, whether they're resolutions or whether they are State laws, would be further examples of issues.
Page 82 PREV PAGE TOP OF DOC
Resolutions have been passed in virtually every State objecting to the Supreme Court's ruling on flag burning, so those are a handful of examples of where I think you would find some broad-based support. First and foremost, though, is the balanced budget amendment to the Constitution. That's where the most action has been taken for well over a decade.
Mr. GOODLATTE. A good point.
Professor Lund, you have noted, as has Governor Allen, that the current mechanism for calling a constitutional convention has not worked.
Mr CANADY. The gentleman's time has expired. The gentleman will have one additional minute.
Mr. GOODLATTE. Thank you.
Would you comment on how that mechanism works? You noted that 45 different States at one time or another have called for a constitutional convention—maybe not all for the same intent and purpose. But how does the mechanism trigger—Who is it that makes the determination that the requisite number of States have called for a convention and now we're going to organize the convention and move forward with it?
Mr. LUND. Congress does, so far by inaction.
Mr. GOODLATTE. And it's your feeling that the Congress could, at this point in time, recognize a call for a constitutional convention?
Page 83 PREV PAGE TOP OF DOC
Mr. LUND. I'm not sure about that. There is a legal argument to that effect. I haven't done enough work on the underlying materials myself to be prepared to say that I believe the argument is valid. But the argument was made by somebody else, not me. I think it's a serious argument.
Mr. GOODLATTE. Does that require a majority vote of both Houses of Congress?
Mr. LUND. The Constitution is not particularly clear about that.
Mr. GOODLATTE. And does the President get a veto of that as well?
Mr. LUND. Presumably not, but the Constitution doesn't spell out the answers to any of these questions.
If I could also add one item to Governor Allen's list of possible constitutional amendments that might come through under the Bliley Amendment, if it were part of the Constitution, something on unfunded mandates, perhaps would be another one that might be proposed.
Mr. GOODLATTE. Thank you, Mr. Chairman.
Page 84 PREV PAGE TOP OF DOC
Mr CANADY. That might be on the top of the list.
The gentleman from North Carolina, Mr. Watt, is recognized.
Mr. WATT. Thank you, Mr. Chairman. I wanted to express my regrets to the members of the panel for not being present for their testimony. I was otherwise engaged, and for that I apologize.
I wanted to express my empathy for Mr. Edwards. When I grew my full beard, my constituents thought I was a ''flaky liberal'' too. [Laughter.]
Until I managed to dissuade them of that notion by consistently fighting off all of these proposed constitutional amendments that my liberal colleagues on this committee keep coming forward with and supporting, in one way or another, the notion that it's somehow a conservative philosophy. But I won't give that speech again today. They've heard it many, many times.
It did strike me as somewhat odd that Mr. Goodlatte would be ignoring the historical bases for the two-thirds rules in the Constitution. It seems to me I've heard him say before that there were some other things that should require two-thirds, such as raising taxes and——
Mr. GOODLATTE. Would the gentleman yield?
Mr. WATT. Oh, yeah. Go ahead.
Page 85 PREV PAGE TOP OF DOC
Mr. GOODLATTE. I didn't advocate that. I asked if that were a more acceptable alternative than the one-third——
Mr. WATT. I was just trying to put it in historical context for you here, so that we kind of keep this in balance.
Having said that, Mr. Chairman, I think I will yield the balance of my time to Mr. Scott, who can deal with the specifics of this far, far better than I.
Mr. SCOTT. Thank you, Mr. Watt.
I want to follow up on the one-third requirement. I think that's almost useless. Because if two-thirds of the States have approved something, all you need is one Senator from each of those States that have already approved it, and half the Senators from the States voting for it, to support it, and then it goes through, you might as well just have some bureaucrat certify that two-thirds of the States have passed it and then send it out for ratification. I mean, it seems almost like a waste of time to have that little fig leaf process.
Mr. SEIDMAN. If I could add a word about that, Congressman, I think it's important, when the committee thinks about one-third versus a majority versus two-thirds, to understand that as the proposal is currently written, the fact that it requires, say, a majority of each House doesn't mean that it requires a majority of the Members of Congress.
Even if it were changed to a majority, the way it's currently structured, if all 435 Members of the House were opposed, it would still go to the States if a majority of the Senate favored it.
Page 86 PREV PAGE TOP OF DOC
Mr. SCOTT. The Constitution ought to be difficult to amend, and it ought not to be kind of legislative work constantly up for grabs in every session of Congress, to reflect the ''will'' of the public. I mean, the will of the public—the Constitution does not reflect the will of the public. It protects those that are not—The freedom of speech only comes into play when someone wants to say something that offends democratically elected officials, to the extent they want to throw them in jail for what they said. Obviously, what is being said and protected by the Constitution cannot possibly be the will of the public. Because we have decided we want to live in a country where people have the freedom to have offensive views, we ought not have the document up for grabs to reflect the will of the people. Flag burning is just one. Other people can come up with some offensive things to say.
The point has been made that we need a deliberative process, and I think the balanced budget amendment is one that went through a deliberative process. It was found that we don't know what ''balanced'' means. Virginia has a ''balanced'' budget, but it has a capital budget which the Federal Government doesn't have, so what is balanced in Virginia is not balanced in the Federal Government.
The constitutional amendment we considered virtually would have required dismantling Social Security as we know it, because of the way the balance is calculated. So I would hope, in closing, Mr. Chairman, I would hope we continue to require this national deliberation, because a lot of things that are very popular can breeze through the States and will be defeated after significant deliberation.
Mr. Chairman, could I have an additional minute?
Page 87 PREV PAGE TOP OF DOC
Mr CANADY. Without objection, the gentleman will have three additional minutes.
Mr. SCOTT. I think my governor would like to get in the last word.
Mr CANADY. That ought to convince Mr. Bryant. [Laughter.]
Mr. SCOTT. The last word on my time.
Mr. ALLEN. Thank you, Congressman.
To put everything again into context, it takes a lot of time for all the State legislatures to do things and have everything get up here. Also understand what changes have been made, in that the Senate used to be elected by State legislators, as opposed to popular elections. That was a check where, if a Senator was not representing the will of the State, they would yank him out of there and the errant Senator would not be reappointed.
Now, as far as the idea that Congressman Scott mentioned—and I guess it somewhat fits in with what Congressman Goodlatte was mentioning, also—a 51 percent vote by Congress on the initiated amendment to the Constitution. In the event that that would get you on the side of this idea, I'm sure that Chairman Bliley would put that amendment to his bill. With this initiative process requiring a majority of both Houses of Congress to pass it, and then be ratified by three-quarters of the States, if that would get you on the side of this idea, Congressman Scott, I know it would swing a lot of folks with it. And I'm sure Congressman Bliley would be very happy to add you on as a sponsor with that friendly amendment.
Page 88 PREV PAGE TOP OF DOC
Mr. WATT. I hope he doesn't agree to do that on my time. [Laughter.]
Mr. ALLEN. I would only add that I don't want to get into the debate over the definition of conservatives and liberals.
Mr CANADY. The gentleman yields back his additional time. I now recognize myself for 5 minutes.
Let me follow up on this business about the role the Congress would play. Under the Bliley Amendment, two-thirds in both Houses have to act affirmatively in order to stop the amendment from moving forward to ratification. This may go to what Mr. Goodlatte said, but I want to make sure we're clear about this.
What would you think about a proposal that required a majority vote of both Houses in order for the amendment to go forward? Mr. Seidman, would you address that, because I'm not sure you addressed that specifically.
Mr. SEIDMAN. To be candid about it, I would still be against it, but I think that would be a big improvement.
One of the things that worries me about the way it's structured now, it's not just that it requires two-thirds of both Houses; it's also that the people who are opposed to the amendment have the burden of getting it to the floor and getting it to——
Page 89 PREV PAGE TOP OF DOC
Mr CANADY. I understand. I'm talking about something that would change it.
Mr. SEIDMAN. Right. That would be a big improvement.
Mr CANADY. Let me ask Mr. Edwards. I'm not sure you addressed that specifically.
Mr. EDWARDS. I think I did. I agree that that would be a very big improvement, if you're required to act on it. If you made that change—as I said to Mr. Goodlatte, I don't know where I would finally come down, but it would make it a much, much better amendment than what Mr. Bliley has so far.
Mr CANADY. Let me stay with Professor Seidman and Professor Edwards and tell me what you think about constitutional conventions. Were the Founders acting appropriately when they included the provision in Article V allowing the States to make application for constitutional conventions? Is that something that should be in the Constitution, a mechanism that should be available for amending the Constitution?
Mr. SEIDMAN. I think it's appropriate. I think it serves the function that Governor Allen mentioned; that is to say, it is a check on an intransigent Congress. But it provides at the same time a national dialogue.
Speaking only for myself——
Page 90 PREV PAGE TOP OF DOC
Mr CANADY. What do you think about the concerns of a ''runaway'' convention to kind of thwart efforts to a constitutional convention?
Mr. SEIDMAN. Speaking only for myself now, and not the organization I represent, I think they're overstated, for a couple of reasons. One is that the representatives of the convention would themselves be elected by the State legislature or by people in the State, and it seems to me unlikely that those representatives would go hog wild and do things that the States didn't approve.
The other is that you have to remember——
Mr CANADY. Haven't we had a runaway constitutional convention before?
Mr. SEIDMAN. Well, I thought it did a pretty good job myself. But the other thing, you do have——
Mr CANADY. But wasn't it, in a fundamental sense, a runaway convention?
Mr. SEIDMAN. It was. The convention was, in some sense, against the law that existed then, you can't do anything to prevent people from doing things that are against existing law.
Page 91 PREV PAGE TOP OF DOC
Mr CANADY. We try all the time on that.
Mr. SEIDMAN. Other than locking them up.
The other point I want to make, it is sometimes forgotten that the convention doesn't automatically put things in the Constitution. Even if you had a runaway convention, the amendments they propose would have to be passed by three-fourths of the State legislatures. It seems to me unlikely that if——
Mr CANADY. That's not what happened in the original runaway convention, is it? Didn't they change the——
Mr. SEIDMAN. It was adopted by a constitutional convention——
Mr CANADY. Again, correct me if I'm wrong, because my memory may fail me on this. But wasn't the method for ratification different under what they proposed than it had been under the Articles of Confederation, and that the whole—I mean, they had a whole new process.
Mr. SEIDMAN. You make a good point, Congressman. But look, all that we can do is follow the constitutional process. The Constitution says, if a constitutional convention adopts amendments, they have to be adopted by three-fourths of the States. Now, if people want to violate the Constitution and embark on some other process, there's nothing we can do about that by changing the Constitution. They'll just violate whatever we——
Page 92 PREV PAGE TOP OF DOC
Mr CANADY. I'm not suggesting that there is. I was just raising—I will yield myself three additional minutes and Mr. Edwards may proceed.
Mr. EDWARDS. Mr. Chairman, just to reemphasize what I said before, we don't have a common position on everything. I am very fearful that a constitutional convention would be a runaway. I agree with you, that I like the results of the first runaway convention, but that's what it was. I have given a lot of speeches around the country warning about the dangers that might flow from a constitutional convention. I share your——
Mr CANADY. So the Founders were nodding when that slipped in.
Mr. EDWARDS. They may have made a mistake or two. I mean, I can think of a few others that were made.
Mr CANADY. What do you think about the argument that Professor Lund did not himself advance, but that he recognizes at least a colorful argument, that Congress may be constitutionally obliged to call a constitutional convention based on the things that have happened in the States thus far.
Professor Seidman, do you have a view on that?
Mr. SEIDMAN. I'm not in a position to express a view. I would want to look at it more carefully. I don't know exactly what the States have done.
Page 93 PREV PAGE TOP OF DOC
Mr CANADY. Let me focus on this. If I understand what you said earlier, Professor Seidman, you think it's a good thing that the constitutional convention method is in the Constitution. Now, it's clear there are uncertainties about how that would work, and that has impeded the use of that method.
Do you think that's a problem?
Mr. SEIDMAN. I'm not so sure. I think in some ways——
Mr CANADY. Let me ask you this. Do you think there are uncertainties?
Mr. SEIDMAN. Yes. It's never——
Mr CANADY. Do you think those uncertainties have impeded the use of that method?
Mr. SEIDMAN. It may be the method is like a loaded gun, which is most effective when it's pointed but not fired.
Mr CANADY. The prodding argument.
Mr. SEIDMAN. That's right.
Mr CANADY. Let me ask you this. Do you think there are any ways that we could help deal with the uncertainties associated with the constitutional convention method? Anyone, Professor Lund, or anyone else can respond. It's not really the subject of the hearing today, but it's related to the issues we're considering.
Page 94 PREV PAGE TOP OF DOC
Mr. SEIDMAN. Congress could pass framework legislation, if it wanted to.
Mr CANADY. Does anybody think that would be a good idea, or a bad idea?
Mr. ALLEN. Congress would pass framework legislation for what? The framework of what Congress thinks the constitutional convention could discuss? Congress is really out of the loop, other than whatever specifics Professor Lund was talking about, as far as the certification——
Mr CANADY. We're not exactly out of the loop. I'll give myself the customary one additional minute.
Congress is not exactly out of the loop, since Congress has to—what's the word here—call a convention. We have to issue the call now. It's supposed to be done upon the application of the legislatures of two-thirds of the several States, that Congress shall call a convention for proposing amendments.
There is something of an active role to be played there. Now, I realize there's a dispute about what would trigger that, and when that obligation would come into effect.
Mr. SCOTT. Would the gentleman yield?
Page 95 PREV PAGE TOP OF DOC
Mr CANADY. I would be happy to yield to the gentleman.
Mr. SCOTT. Is that kind of an administrative thing for which a writ of mandamus could lie?
Mr CANADY. I rather doubt it.
Mr. SCOTT. I mean, if two-thirds have called, we're not——
Mr CANADY. I think this would be viewed—I could be wrong, but I think most courts would view this as a political question and they would not delve into this.
Mr. SCOTT. I would ask unanimous consent that you be given an additional minute for the time I've taken.
Mr CANADY. Well, when my time runs out, we may do that.
Does anybody have a comment on that, or is that an incoherent question?
Mr. LUND. No, it's quite a coherent question. I don't know whether anybody could give you a very coherent answer, though, because the Constitution really is so unspecific and there really are so many unanswered questions about the extent to which, when Congress called a convention, it could specify what was to be done at the convention and how it was to be done.
Page 96 PREV PAGE TOP OF DOC
My own view is that it should do as little as possible in attempting to control the convention, but other people disagree with me. The Constitution just doesn't answer the question, I think, on its face.
Mr CANADY. I appreciate your input on that.
Let me just make a concluding remark. It may be that we'll hold a hearing on that. That might get people all excited, and I'm not sure that's a good idea. But it may be we would hold a hearing on that.
Another thing that has occurred to me, that might be an appropriate thing for us to hold a hearing on, is the subject of the proper standards to use in evaluating proposals for constitutional amendments. Again, that might excite some people, favorably and unfavorably. But we have standards that we all use on this subcommittee when we're looking at various amendments, but it might well be helpful for us to look at that in a more systematic way to further the work of the committee.
Let me point out one thing. We have hearings on amendments here which I don't support. You know, that has happened in this Congress. I think there's a role for the committee to play in looking at issues, even though we may not be particularly convinced that a particular proposal is a good idea. It doesn't hurt to talk about these issues and to give people an opportunity for input, and sometimes other things come out of that that will be valuable, even if we don't move forward with a specific amendment.
Page 97 PREV PAGE TOP OF DOC
With that, I want to thank all of you for taking the time to be here. Your contribution to the hearing has been very helpful to the subcommittee. With that, the subcommittee will be adjourned.
[Whereupon, at 11:25 a.m., the subcommittee adjourned.]
A P P E N D I X
MARCH 25, 1998
Additional Material Submitted for the Hearing Record
Commonwealth of Virginia,
Office of the Governor,
Richmond, VA, March 24, 1998.
Hon. THOMAS J. BLILEY, JR.
House of Representatives, Washington, DC.
DEAR CONGRESSMAN BLILEY: I am writing to thank you for proposing House Joint Resolution 84 and express my support for this important constitutional revision that would create a new process for amending the United States Constitution. By allowing states to propose amendments to the Constitution, your proposal would return more power to the people and take a substantial step towards returning our nation to a truly federalist form of government. For too long the federal government has taken authority from state and local governments and imposed burdensome mandates that strain their limited resources. My Administration is grateful for your efforts to restore the critical balance of power intended by our Founding Fathers.
Page 98 PREV PAGE TOP OF DOC
Your amendment would allow the States to introduce constitutional changes without having to depend on Congress or hold a constitutional convention. This is a critical new mechanism for amending the Constitution considering that Congress has been reluctant to send measures to the States even when there is a solid consensus for change, and fears of a ''runaway convention'' have hindered the possibility of holding a constitutional convention.
This innovative idea enjoys broad support. In 1995, the Virginia General Assembly gave it a strong, bipartisan endorsement through a resolution patroned by now Congressman Virgil Goode, who I understand also cosponsors H.J. Res. 84. I know that constitutional changes require much deliberation, but I also know you have put a great deal of thought into this measure and I want to again express my full endorsement of your efforts.
Thank you, Tom, for your able representation of your Virginia congressional district and your efforts to revitalize the authority of the states to check the power of the federal government.
Very truly yours,
James S. Gilmore, III, Governor of Virginia.
(Footnote 1 return)
The Federalist No. 51, p. 322 (C. Rossiter, ed. 1961).
(Footnote 2 return)
Id.
(Footnote 3 return)
The Federalist No. 10, p. 82.
(Footnote 4 return)
Id. at 83.
(Footnote 5 return)
Democracy in America, p. 157 (J.P. Mayer ed., 1969).
(Footnote 6 return)
Id. at 363-95.
(Footnote 7 return)
Id. at 671-74.
(Footnote 8 return)
Id. at 735.
(Footnote 9 return)
See, e.g., The Federalist Nos. 45-46.
(Footnote 10 return)
II The Records of the Federal Convention of 1787, at 629 (M. Farrand ed. 1937).
(Footnote 11 return)
For a discussion, see Walter Dellinger, The Recurring Question of the ''Limited'' Constitutional Convention, 88 Yale L.J. 1623 (1979)
(Footnote 12 return)
Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L.J. 677 (1993).
(Footnote 13 return)
Id.