1 No contests in Democratic Party according to fig- Leonard Wood only candidate entered. Taft and Stassen only candidates entered. 5 6 14 out of 16 votes for Taft; none for Stassen. Comments: The 1920 contest would seem to bear out Choice Whether or not leading contenders on Wilson and Clark only candidates entered. 46 ballots; Wilson never got less than 73% of the Wis. delegation's vote. Write-in votes for all major candidates. 4 Only 76 write-in votes for McAdoo. Write-in votes for McAdoo and Smith. 5 Norris only candidate on ballot; write-ins for Roosevelt only candidate on ballot. Write-in votes for Dewey, Taft, and Vandenberg. 9 Write-in votes for Dewey, Stassen and MacArthur. 13 Comments: Even though there are a large number of maries. 10 11 (The following is an excerpt from an unpublished manuscript by Dr. Paul T. David, University of Virginia, entitled "Equitable Representation in State Legislatures: Senator Clark's Proposals for Federal Action," dated August 16, 1960. It concerned Senate Joint Resolution 215, introduced in the 86th Congress by Senator Joseph S. Clark, of Pennsylvania, which proposed an amendment to the U.S. Constitution and provided for ratification by conventions in the States. A companion bill, S. 3781, dealt with how ratifying conventions shall be held in the States when this mode of ratification is specified by Congress.) THE CONVENTION SYSTEM OF RATIFICATION (By Paul T. David) The notion that an amendment of the Federal Constitution might be possible as a means of reforming representation in State legislatures is not entirely new. The writer recalls a casual discussion of the idea some years ago with Senator Clark's administrative assistant, James L. Sundquist. We were not under the impression that the idea was original with either of us, but so far as we were aware, it had never been reduced to writing or buttressed with the kind of research that would be necessary as the earliest preliminary step. The idea would never have seemed promising if it had been necessary to rely upon the consent of the State legislatures under the procedure that has been most often used in amending the Federal Constitution. From the first it appeared desirable to make use of the alternative procedure for ratification by conventions in the States, under which prohibition repeal was achieved in less than 10 months from the time when the repealer amendment passed Congress. But even this intended procedure left many questions for study. What would happen to a proposed amendment on which the legislatures had a direct interest in preventing action? Could they simply refuse to submit such a proposal to ratifying conventions in the States? Or could they provide for the conventions, but make them so unrepresentative as to prejudice action? What ultimate authority resides in Congress to deal with obstructionist tactics in State legislatures either in anticipation or after the fact? 1 DEBATE BEFORE PROHIBITION REPEAL 1 All of these questions of constitutional strategy were examined at length by scholars, publicists, and legislators during the controversy that preceded repeal of the prohibition amendment. The State legislatures were generally under attack by the proponents of repeal from 1918 to 1933, first, for having ratified 1 Before going to the Center for Advanced Study in the Behavioral Sciences, the writer was encouraged to work on the problem of a Federal amendment by John E. Bebout and John P. Wheeler, Jr., of the National Municipal League, the latter of whom was directing the League's State Constitutional Studies Project and kindly supplied a set of the research documents it was then producing. Of these, the most important was the prepublication version of "State Constitutions: Reapportionment" (National Municipal League, 1960), by Prof. Gordon E. Baker of the University of California, Santa Barbara. After studying this report, the first draft of a proposed amendment was prepared by the writer in December 1959, rapidly revised in conversations at the center, reproduced, and circulated for discussion by a group of friendly critics. The problems that then came to the surface required further work. leading to a more elaborate draft. This was presented in a 15-page memorandum, reproduced at the center, on Mar. 3, 1960; about 50 copies of this eventually got into circulation. (Prof. A. Leo Levin of the University of Pennsylvania Law School, previously noted as one of the fellows at the center, was especially helpful on the problems involved in the preparation of the Mar. 3 draft.) Through Mr. Sundquist, Senator Clark indicated interest in introducing the proposed amendment. After the memorandum of Mar. 3, 1960, became available, it was used as the basis for further work by members of the Senator's staff. At conferences on May 12 and 13, 1960. attended by Bernard Fensterwald, Jr., of the staff of the Senate Committee on the Judiciary; Alan Rosenthal, an APSA congressional fellow assigned to Senator Clark's office; Mr. Sundquist; and the writer, it was agreed that the most satisfactory drafting formula would consist of the proposed joint resolution, worded as briefly as possible and with a grant of authority to Congress to deal with details, and the two bills, each of which would incorporate a portion of the detail previously included in the proposed amendment. Drafts along these lines were prepared, were later redrafted extensively by the Legislative Counsel of the Senate and by Senator Clark, and reached introduction on June 29, 1960. See Congressional Record of that date, pp. 13827-13836, and reprints of this material distributed by Senator Clark's office. the 18th amendment, allegedly at the instance of pressure group activity and while popular attention was turned in other directions; and second, for remaining so much under the same influences that repeal would be hopeless if it had to go through the State legislatures. Those favoring repeal favored using the convention system of ratification in order to make repeal possible. But since, up to that time, no proposed amendment had been ratified by that means, there was great uncertainty concerning what was involved. The relevant language of article V of the Constitution merely states that amendments shall become valid "when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress." Some of the experts on constitutional law, led by former Attorney General A. Mitchell Palmer, were of the opinion that Congress could exercise exclusive authority over the ratifying conventions, and that in any event it could supersede State action to any extent it found necessary. Others, led by James M. Beck, a former Solicitor General, took conservative States' rights positions to the effect that all authority to call and regulate the conventions remained exclusively in the State legislatures." THE 1933 EXPERIENCE In the event, Congress put forward the article that was to become the 21st amendment without any specification as to how or by whom the required ratifying conventions in the States should be called; but the possibility remained open that Congress might later enact legislation if sufficient need appeared. In 43 States, the legislatures promptly acted, in 38 States the conventions met, and in 37 the amendment was ratified. No less than 21 States provided that if Congress should prescribe the manner of holding the conventions, their own laws were to be superseded, thus conceding the authority of Congress. New Mexico took an opposite position. In three States, the State courts were called on for rulings concerning State legislative authority. The Ohio court, with the others in general agreement, took the line that calling a convention to ratify an amendment of the Federal Constitution is a Federal function, "which, in the absence of action by the Congress, the State legislature is authorized to perform." In performing this function, it was held that the State legislatures were not bound by existing provisions of State constitutions or laws. The forms of a deliberative assembly were maintained in bringing the conventions together. The delegates ranged in number from 3 to 329, but in most States the process became much like the electing and convening of Presidential electors. Generally the ballot carried one list of delegates identified as favoring the amendment and another identified as opposing it; 25 States provided for electing the delegates at large. Only a few States made any provision for the election of unpledged delegates." The net effect of the 1933 experience was thus to establish the feasibility of the convention system of ratification and to demonstrate how readily it could develop as a popular referendum. The latent powers of Congress remained in doubt, but the dispositions of the State legislatures and courts seemed to confirm that those powers were extensive. RESEARCH BY ABRAHAM WEINFELD Some years later, the various lines of historical evidence in regard to the intentions of the framers of the Constitution were reviewed, along with the experience of 1933, in the previously cited article by Abraham Weinfeld. In the records of the Federal Convention of 1787, he found no suggestion of any desire to vest exclusive authority over ratifying conventions in the States, much evidence of distrust of the State legislatures, and no evidence of any intention to withhold authority from Congress. Orfield, op. cit., pp. 56-57; Everett S. Brown, "The Ratification of the Twenty-first Amendment." American Political Science Review, vol. 29, December 1935, pp. 1005-1017: Abraham C. Weinfeld, "Power of Congress over State Ratifying Conventions," Harvard Law Review, vol. 51, January 1938, pp. 473-506. Brown, op. cit., pp. 1008-1009. See also Everett S. Brown, "Ratification of the Twenty-First Amendment to the Constitution of the United States" (1938), in which are reprinted the State laws and convention records for all of the States taking action. Weinfeld, op. cit., pp. 500–502. Brown, article previously cited, pp. 1010, 1018. The elaborate machinery of elections that now rests so completely in the hands of the States mostly did not exist in 1787; the notion that Congress could provide for calling the conventions as easily as the States was in no way foreign to the thinking of the time. It was exemplified, in fact, in the provision of article V, so far never used, under which Congress may "call a convention for proposing amendments." when requested by a sufficient number of States. The obvious reason for adding ratification by conventions as an alternative to ratification by the legislatures was to provide a means of action that could operate even when the legislatures were reluctant or unwilling. The context of the debates indicates that Madison and Hamilton thought they were achieving that objective, yet it would be defeated if the legislatures were presumed to control use of the alternative procedure. The Federal courts have had no occasion to pass directly on the issues, but when dealing with analogous matters, have upheld the authority of Congress. Weinfeld was thus able to end his article as follows: "These general considerations as well as the proceedings of the Federal convention, the decisions of the Supreme Court of the United States and of the highest courts of some States, and the conduct of many State legislatures when ratifying the 21st amendment, all lead to the conclusion that Congress has power to call and necessarily to regulate ratifying conventions in States." THE CLARK PROPOSAL ON RATIFYING CONVENTIONS Senator Clark concluded early in his consideration of the proposed amendment that any provisions on how ratifying conventions should be held in the States could better be introduced separately, rather than as a part of the joint resolution proposing the amendment. A bill for the purpose was readily available (H.R. 299, 75th Congress, 1st sess.) This was a proposal for general legislation by Representative James W. Wadsworth, Jr., in 1937, which provided mainly that in any case when ratification by conventions in the States was proposed by Congress, the convention in each State shall be composed of delegates elected at large. Other provisions were added in preparing the Clark bill. Unless other dates are specified by Congress, the required delegates are to be elected in each State at the time of the congressional election coming next after the amendment is proposed. They are to meet on the 28th day after their election, and to remain in session until the proposed amendment has been ratified or rejected by a majority of the delegates. Under these provisions, some formal action to put the State's election machinery In motion might still be required of the legislature in most States; in others, general State laws on the holding of ratifying conventions, enacted in 1933, might suffice. Should any legislature prove recalcitrant in getting the proposal on the ballot at the next congressional election, there would be time for Congress to consider additional measures before other elections had passed and the 5-year period for ratification, written into the text of the amendment, had elapsed. All need for State legislative action could probably be eliminated by relatively simple additions to the proposed Federal legislation. The Governor or the State secretary of state, for example, could be authorized to provide, by regulations generally in accord with the election practice of the State, for such action as may be necessary to nominate one list of candidates for delegate favoring any proposed amendment and another list opposing it, and to place the two lists on the ballot under suitable designations. This would be on the basis of the legal view that the holding of a ratifying convention is a Federal function for which Congress may provide. It would therefore be desirable in that case to authorize such Federal appropriations as might be necessary to reimburse the States for their necessary special expenses in holding the conventions, and to limit the number of delegates to be elected in any State. Op. cit., p. 506. Italics supplied. The argument is concisely reviewed, and other authorities quoted and cited, in Örfield, op. cit., pp. 56-61. |