We all can read the language and we all can take our view of the language but the one thing we must guard against is a conceit that we can divine how this largely uncharted process will play out when it involves power-hungry entities, like so many nations in the Security Council, struggling for power and even for survival. This is not a matter of reading the Constitution and concluding the way is clear, it is not. Remember our original constitutional convention was done by our founding fathers whom many would agree represented a unique occasion in history for the gathering together of statesman of the highest order. I don't think we can rely on delegates to be of the same quality today.
We do not even know all the questions, we certainly don't know the answers, we do not know who will decide the questions. We do not even know if it will be solved as a legal question, a political question, or some combination of the two. We do not know that would be solved by the Congress of the United States, the Supreme Court, the convention itself, the states in expressing and limiting the scope of their applications for convention, or the states in purporting to bind their delegates. We do not know if the Congress purports to control a convention by legislation containing its "call" as authorized by the Constitution and thereby attempts to extend its authority over the convention, whether that would prevail. And if that method is not accepted we do not know what would happen if Congress simply failed to fulfill its mandatory duty to choose a method for ratification.
Suppose Congress says that the convention shall vote by individual delegates and that the individual delegates shall be elected and apportioned upon the population of every state. Let us then assume that some states comply and other states do not. Let us assume that some states who do not comply send one delegate to represent the whole state. Let us assume when the delegates arrive at the convention, they vote to set the procedure of the convention and declare that each delegate is a free agent not bound by any restrictions placed upon him by his state. Let us further assume that all of these parties at every step of this process have gone to court and asked the Supreme Court and inferior courts to intervene. Let us assume that some courts have done so and some have not, let us further assume that the courts have ruled one way on one issue and another way on the next.
Under this factual pattern anyone who tells you that he knows how this is going to play out is claiming second sight. These hypotheticals are just a fraction of the permutations and combinations which might occur under An Article V process. I would reject the bland assurances of anyone on the subject as being the product of a defective humility quotient.
No one can say that the convention might not runaway. I don't believe it will, I think the language of the Constitution is clear enough where it does speak but I am very concerned about the one man one vote threat. And I am really concerned about the same problems arising in the state conventions, if that method is chosen by Congress, to ratify or reject the proposed amendments. Does one man-one vote apply there? Do the votes of the delegates get registered according to their states or thrown into a general pool? If the latter, combined with a similar procedure in the convention to propose amendments, yes indeed, there could be a disastrous result.
I think it unlikely and one should weigh the probability of the harm. We must also judge the harm, in my view a highly probable certainty of harm, if we do nothing and we passively witness the Republic meander down the road toward the cliff. I think this rather remote risk of a runaway convention is certainly worth taking.
For the record, here is a portion of the ABA report which speaks of apportionment, one must remember that we don't know who will decide these issues, nor do we know how things will play out in a highly charged political atmosphere in which the stakes are infinite:
Apportionment of Delegates
Although there are no direct precedents in point, there is authority and substantial reason for concluding, as we do, that the one-person, one-vote rule is applicable to a national constitutional convention. In Hadley v. Junior College District, the Supreme Court held that the rule applied in the selection of people who carry on governmental functions. While a recent decision, affirmed without opinion by the Supreme Court, held that elections for the judiciary are exempt from the rule, the lower court stated that “judges do not represent people.” Convention delegates, however, would represent people as well as perform a fundamental governmental function. As a West Virginia Supreme Court observed with respect to a state constitutional convention: “[E]ven though a constitutional convention may not precisely fit into one of the three branches of government, it is such an essential incident of government that every citizen should be entitled to equal representation therein.” Other decisions involving conventions differ as to whether the apportionment of a state constitutional convention must meet constitutional standards.
Of course, the state reapportionment decisions are grounded in the equal protection clause of the Fourteenth Amendment, and the congressional decision in Wesberry v. Sanders was founded on Article I, Section 2. Federal legislation providing for a national constitutional convention would be subject to neither of these clauses but rather to the Fifth Amendment. Yet the concept of equal protection is obviously related to due process and has been so reflected in decisions under the Fifth Amendment.
Assuming compliance with the one-person, one-vote rule is necessary, as we believe it is, what standards would apply? While the early cases spoke in terms of strict population equality, recent cases have accepted deviations from this standard. In Mahan v. Howell, the Supreme Court accepted deviations of up to 16.4% because the state apportionment plan was deliberately drawn to conform to existing political subdivisions which, the Court felt, formed a more natural basis for districting so as to represent the interests of the people involved. In Abate v. Mundt, the Court upheld a plan for a county board of supervisors which produced a total deviation of 11.9%. It did so on the basis of the long history of dual personnel in county and town government and the lack of built-in bias tending to favor a particular political interest or geographic area.
Elaborating its views on one person, one vote, the Committee believes that a system of voting by states at a convention, while patterned after the original Constitutional Convention, would be unconstitutional as well as undemocratic and archaic. While it was appropriate before the adoption of the Constitution, at a time when the states were essentially independent, there can be no justification for such a system today. Aside from the contingent election feature of our electoral college system, which has received nearly universal condemnation as being anachronistic, we are not aware of any precedent which would support such a system today. A system of voting by states would make it possible for states representing one-sixth of the population to propose a constitutional amendment. Plainly, there should be a broad representation and popular participation at any convention.
While the representation provisions of S. 1272 allowing each state as many delegates as it has Senators and Representatives in Congress are preferable to a system of voting by states, it is seriously questionable whether that structure would be found constitutional because of the great voting weight it would give to people of one state over the people of another. It can be argued that a representation system in a convention which parallels the structure in Congress does not violate due process, since Congress is the only other body authorized by the Constitution to propose constitutional amendments. On the other hand, representation in the Congress and the electoral college are explicit parts of the Constitution, arrived at as a result of compromises at the Constitutional Convention of 1787. It does not necessarily follow that apportionment plans based on such models are therefore constitutional. On the contrary, the reapportionment decisions make clear that state plans which deviate from the principle of equal representation for equal numbers are unconstitutional. As the Supreme Court stated in Kirkpatrick v. Preisler:
“Equal representation for equal numbers of people is a principle designed to prevent debasement of voting power and diminution of access to elected representatives. Toleration of even small deviations detracts from these purposes.”
In our view, a system allotting to each state a number of delegates equal to its representation in the House of Representatives should be an acceptable compliance with one-person, one-vote standards. We reach this conclusion recognizing that there would be population deviations of up to 50% arising from the fact that each state would be entitled to a delegate regardless of population. It would be possible to make the populations substantially equal by redistricting the entire country regardless of state boundaries or by giving Alaska one vote and having every other state elect at large a multiple of 300,000 representing its population or redistrict each state on the new population unit. None of these methods, however, seems feasible or realistic. The time and expense involved in the creation and utilization of entirely new district lines for one election, especially since state election machinery is readily available, is one factor to be weighed. Another is the difficulty of creating districts crossing state lines which would adequately represent constituents from both states. There is also the natural interest of the voter in remaining within his state. Furthermore, the dual nature of our political system strongly supports the position that state boundaries be respected. Abate v. Mundt, although distinguishable regarding apportionment of a local legislative body, suggests an analogy on a federal level. The rationale of the Court in upholding the legislative districts within counties drawn to preserve the integrity of the towns, with the minimum deviation possible, could be applicable to apportionment of a convention. The functional interdependence and the coordination of the federal and state governments and the fundamental nature of the dual system in our government parallel the relationship between the county and towns in Abate. Appropriate respect for the integrity of the states would seem to justify an exception to strict equality which would assure each state at least one delegate. Thus, a system based on the allocation of Representatives in Congress would afford maximum representation within that structure.
