Testimony of

Arizona Senate President Brenda Burns

before the

U.S. House Judiciary Committee's

Subcommittee on the Constitution

March 25, 1998

Mr. Chairman and Members of the Committee, thank you for allowing me to present my views on the appropriate role of States in remedying the deficiency of the current process for amending the U.S. Constitution. I commend you for addressing this important issue.

Our founding fathers well understood that the changing circumstances of time required that subsequent generations have the flexibility to amend the Supreme Law of the Land. This is reflected in Article V of the Constitution establishing procedures to amend the document.

It is clear from Article V's structure, and the Federalist Papers, that the delegates to the 1787 constitutional convention also understood that States, which are necessarily closer to the citizenry than the U.S. Congress, should play the dominant role in this amendment process. It was recognized that the Constitution itself placed limits upon the sovereignty of the states. While these limitations were deemed necessary to make our union workable by protecting commerce between the states and freedom of contract, the Constitution reserved the powers not granted to the federal government to the States themselves. Since the powers of the States begin where these granted federal powers end, it is clear that, in addition to the founders' intent, logic dictates that States play a major role in maintaining a workable Republic. In practice, unfortunately, the respective roles of the Congress and the States have been reversed.

Article V establishes two means for proposing amendments, but only one for ratification. Under one method, Congress may propose amendments. When passed by two-thirds of each house, these are sent to the states for ratification. Under the second method of proposing amendments, States may almost entirely by-pass Congress. Upon application by two-thirds of the States, Congress must call a constitutional convention. Proposed amendments adopted by the convention members must be submitted to the States for ratification.

The intended primacy of the collective States in amending the Constitution is nevertheless clear from the structure of Article V. Under either procedure established by Article V, it is necessary that three-fourths of the States ratify proposed amendments -- either by the legislatures or by Conventions -- before they alter our Constitution. Moreover, under the second procedure, States largely control this process. Congress' overall role is minimal.

These two options establish the federal government and the State governments as equal partners in proposing amendments. As James Madison observed in Federalist No. 43, Article V "guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State government to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other."

In practice, the States are not equal partners in proposing amendments. In every instance thus far, whether ratified or not, a proposed amendment has been initiated by Congress. A constitutional convention has never been called. The fear of a runaway constitutional convention has stymied efforts to use this mechanism as a vehicle to initiate the amendment process.

The fear of a runaway constitutional convention is rooted in the concept that, once called, delegates will be authorized to essentially re-write this venerated document without check. Ardent opponents of the exercise by states of their right to petition for a convention call have testified to the effect that such a convention might somehow change the ratification procedures so that a new Constitution would not itself need to be ratified, but would change the Constitution without conforming to the specific steps mandated by our Constitution.

The idea of delegates engaging in such a broad re-write would be chilling if the threat were real. But it is not. The scope of a State-initiated proposal through application for a constitutional convention can be limited to a single amendment or group of issues in much the same way a proposal can be limited through a Congressionally-initiated proposal.

The Justice Department made this clear in its 1987 study entitled "Limited Constitutional Conventions Under Article V of the United States Constitution." The report concludes that "Article V was designed to permit limited conventions and that a variety of legal and political means are available to help to enforce such limits." The report recommends that "uncertainties should not lead to a questioning of the legitimacy of the convention method nor to a shirking of the duties of the various parties to put into effect, despite difficulties, the meaning of the various clauses of Article V."

As former U.S. Attorney General Griffin B. Bell stated "I think the convention can be limited . . . the fact is that the majority of the scholars in America share my view. The view that 'you can't do this' among scholars is a minority view." In any case, the Constitution is clear that any proposed amendment at a convention would still need to be ratified by a Super-majority of three-quarters of the States.

Despite the erroneous nature of the arguments espoused by opponents of a constitutional convention, the arguments have raised a serious political problem that effectively neuters an important provision of the Constitution and fundamentally shifts the balance of power toward the federal government.

Repeatedly, policy experts at the American Legislative Exchange Council (ALEC), on which I serve as an Executive Board member, encounter this perceived problem when educating State legislators. The point has become so confused that many conservatives and liberals alike fear the unknown of a constitutional convention call.

In recognition of the dormancy of a critical provision within Article V that limits the ability of States to exercise their proper role in framing proposed amendments, ALEC has adopted a policy supporting a States' Rights Amendment. ALEC's proposal is very similar to House Joint Resolution 84. I commend you for recognizing the practical problems we face that limit the ability of States to play the role in governing our nation that our founders intended. This bill will effectively eliminate those problems.

A major strength of the approach taken by ALEC and sponsors of this resolution is that it eliminates the chief fear among those who oppose a convention call -- that delegates may re-write the Constitution and somehow by-pass the ratification process. By allowing states to propose specific amendments, rather than applying for a convention, it is not even theoretically possible that sweeping changes will be made. In one sense, it simply allows States to propose changes in much the same way that Congress now proposes changes -- through specific language which is visible to all. This obviates the fear of delegates meeting "in secret behind closed doors."

Both H. J. Res. 84 and the ALEC proposal maintain the protections laid out in Article V. Three-quarters of the respective States would continue to be required to ratify proposed amendments. Additionally, both add a new hurdle by giving Congress veto power via a two-thirds majority in each house. Thus, while easing the practical difficulties for States to propose amendments, it limits that ability by making Congress a partner in the process and allowing it to disapprove any measure that, in the view of two-thirds of the Members of Congress, would prejudice the national interest.

In conclusion, I believe this resolution represents a critical, much needed step in the long process of restoring States to their rightful place as a full partner in this democratic republic.

Thank you for this opportunity to express my views.

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