NER Washington forum; A U.S. Constitutional Convention?, part 1

Well I took the position that here was the invasion of the legislative domain and along with it it was moving into a state domain that had been saved to the people of the states by the Constitution itself. The voice you just heard was that of the Honorable Everett McKinley Dirksen the minority leader of the United States Senate. Senior Republican from Illinois. And our guest this week on the NBER Washington forum a weekly program concerned with the significant issues before us as a nation. This week the first of two programs dealing with the proposed United States constitutional convention an assembly that would have the power to rewrite this nation's basic document of government. This program was produced for national educational radio by W am UFA on American University Radio in Washington D.C.. I many are a public affairs director Bill Greenwood. Our guest this week needs little

introduction. Senator Everett Dirksen is the leader of Republican forces and I nation's upper legislative chamber for the purpose of this discussion you should know that he is the leading spokesman in an effort to convene a so-called a constitutional convention an attempt which if successful would be unprecedented since the original drafting of a constitution in 1787. Senator Dirksen would you first explain the background of this constitutional convention controversy what's it all about. Why if maybe he did along with the labor to give full background on some cases from Tennessee and Alabama went to the Supremes court as a good many years ago dealing with the question of how the two branches of a state legislature should be composed and what shook out of that decision was that in both cases meaning

both the General Assembly of the to call that or House of Representatives and the state Senate both had to be selected on the basis of one man one vote. What had obtained before that was that the state legislatures did their own redistricting of legislative districts so that they could give some attention to the economic and the social and the political divisions and interests of the state. Well the interesting thing about that when this question came up before the present chief justice who was then governor of California in 1948 he took precisely that view and said with respect to his own state of California he could well see that in the interest of fair representation you had to allow some leeway. And

so he took a position diametrically opposed to the position he took later in the Baker versus Carr case from Tennessee and other cases which they brought up can jointly recall the same issue was involved. Now what this amounts to in fact is there is the supremum go and ventured into a legislate you feel that has been recognized by Justices of the court before. On one occasion some years ago Justice Frankfurter said when he wanted to go or not to go into what he called a legislative thinking on the ground if the court had no right going into it you see the argument he made was that we had here first a state federal system. Second date rape equal coordinate branches of government and the court had no business in that field. But notwithstanding that

fact. They not only handed down that decision but then they put a time taken on it so to speak and admonished the judges in the field wherever a case was filed by somebody who was agree about what was going on and that they had to get busy and see that these legislatures were reoriented then recompose and that has been going on in a good many states in the union almost to the extent where the election certificates of some state Senate have been invalidated simply because you know newly constituted States and then they would have no right to be there. Well I took the position that here was an invasion of the legislative domain and along with it it was moving into a state domain that had been saved to the people of the states by the Constitution itself. I think

everybody knows who is a bit of a kind of Stooge know it's gone that there is a provision in the Constitution which says that all the powers not a specially delegated to the central government. I reserve respect you and for the people and for the state. So here is a power that was not expressed and delegated and therefore in my judgment it should be in the hands of the state. Now we tried to meet this problem. By introducing a constitutional amendment resolution in the hope that Congress would pass it and send it out to the states for their consideration. Because that's the only way it could become a part of the Constitution. The Constitution itself. We saw that two ways are available in order to get such a matter before the people wanting that if the constitutional resolution

is approved by Congress. It is then sent to the states for ratification and it requires three fourths of the states. The other method which is prescribed by the Constitution is that the states can petition the Congress. And when you get two thirds of the states petitioning the Congress for a constitutional convention the matter can be handled there. So having failed by a few votes I think seven though in the first half and to have a constitutional resolution. Approved by the Congress we thought I would say I was about this other method some spade where I had been down upon it before I took that over but simply because I could not sell the Senate on the idea of such a resolution. I thought we were crying for a constitutional convention. Now we have 32 states.

We need to know what are the prospects for two more state senators. Well I can say to you that a spade work of that kind is going on in at least half a dozen states and we hope and we expect that out of that half a dozen. And it could be one or two more that at least certainly ought to get to states who are willing to join with the other 30 to end the duration of the conflict. Now I should make one point clear to the first two and is that this is mandatory in this country. Article 5 provides that when two thirds of the state habitation that Congress shall provide for a constitution and then and reciting that fact and discussing it back at the time it was done in 1787. Alexander Hamilton who is

co-author of that series of papers called the Federalist makes it very clear that we will leave nothing to the discretion of Congress when a sufficient number of states have potations because if you did why the people would be powerless and any kind of an obstinate Congress could support the will of the people at any time. That's the reason they made it was absolutely mandatory. I sat it out. I want to add one thing to make sure that we get the whole story. A number of articles have been written on this subject under various titles. I see one bias. Which is and they are tampering with the Constitution. Well I can think of the more stupid statement in that regard for the Senate who made it for the very good reason that first there is the people's government. Secondly

this is the people's constitution because the preamble begins with the words leave the people of the United States and so forth. And for a variety of reasons. Do ordain and establish this Constitution. United States yes their government it is their constitution they are entitled to do with it what they will and the people must necessarily speak for their legislatures because they are close to the legislature back home. And since that is a perfectly valid constitutional procedure there is no reason why it shouldn't be done and it shouldn't be labeled on an effort to tamper with the constitution so that I could say that after a hundred and eighty three years. Well as a people I'm entitled to. Have a look see if your getting

back to the country. This would be a strange country indeed. And how could you well contend that we positively of all the virtues like the authority of the people their freedom their rights and their right to alter their government if they want to. As Jefferson only cited in the Declaration of Independence a Senator Dirksen you are very well aware that some members of the Congress say that some of these states on Mario's calling for a convention was passed improperly but some of the state legislatures were Moua portions of time of passing. Do you feel this is a legitimate claim. Well if there were any ability whatsoever to do with such a proposal then it everything that that malformed legislature has done over a long

period of years whether it be appropriating money out of the state treasury whether it be in the field of substantive law. It would fall by the same I give it an anybody in that state aggrieved by any act passed by such a legislature might go into the court and then make the state in the legislature in a state officers show cause why the thing shouldn't fall on the ground it was unconstitutional. Can you imagine the complexity the confusion and everything else it would result as a result of that kind of a preposterous contention along these same lines. You you mention the constitutional fact that Congress must call such a convention However there are some members of the Senate who

say they're going to try to block this if these other two states do pass memorials now how would this happen to you. Do you think maybe this is a blow off. Well obviously what they would try to do would prevent the Senate and the house by a majority vote from approving a resolution. Dictating that a constitutional convention be the details of course would have to be supplied for such a resolution and that is quite in keeping with the Constitution. Now if they got votes enough to do it they would be ignoring Article 5 of the Constitution which says The Congress shall the Congress is mandated and of course your recourse would be to go into the high court since states are parties to the issue and ask for a judgment on the matter and a mandamus proceeding has

never been done for the same Very very same reason that there never has been a constitutional convention in the life of the republic. I sort of lurks and you say the main reason for this convention is to deal with the one man one vote rule. What's wrong with the Khans state legislature. There is nothing wrong with it if a state wants to do it. But what we have here is the intrusion of the federal power to compel a state to do. Now the state legislature wants to do it. I have no objection and many state legislatures have done so. Nobody will correlate that but what you maintain is a careful separation of power interests plus the so called state federal system which the Constitution created. They made it quite clear that they should be first a central

power and the second they just Sisterhood of the state and the rights of the state and as the authority of the central government was very carefully defined. That's the reason they put in that received fuel costs stating the powers not delegated to the government are reserved to the people. They wanted his camp and we want him down have it we want to preserve a vital state federal system because that has been the greatness. That is the reason Senator many say the convention could not necessarily be limited to the one man one vote provision that they could if they wanted to completely rewrite the constitution just for it. Well let's say that by a vast stretch of the imagination

it could become true that a convention calls for a purpose would be expected to stand by that purpose and leave other things kill this second to safeguard it. Then regardless of what a convention does you still go back to the people for a ratification of everything that they do. So you see you haven't changed the basic fact or one there. Another objection to this convention has been a claim that they could conduct their business behind closed doors now would this be permissible. Well have you ever seen the times when there was a large body a DD with a manager that is crying whether it's the Congress of the United States or the Chamber of Deputies of France or the parliament of Britain or name or any other

where a given amount of things I've not done behind closed doors. One of the horrors here is that when we take testimony in the committee of anything from a wide range of people the committee then locks the door and goes to work gets off its goal. It couldn't work any other way. It's like writing a brief in your law office. You couldn't be doing a good brief if they were walking in on you constantly. Or if the telephone was ringing constantly you block out a period of time and lock the door and then you go away from concentrate. So what you're saying really is that this is not as serious as someone playing. Well I I just say it's silly. How are the delegates to a constitutional convention be selected. It would be up to the states just like to buy and how many would there be. Well that's still

another thing that a constitutional resolution would have to provide. How I would imagine each state would have representation Oh sure but would it be equal representation. Well it would be equal in this sense. First you could give each state won and then you could give it a bonus for its population to make sure that every state has one delegate. Now in so doing you're pretty nearly in line with the selection of the House of Representatives. Or you could do it this way. You could give each state the same number of delegates as it has representatives and senators and that has worked out ever since a republic style that in fact is the way our national conventions where so far as their votes are concerned. And that is the way the electoral process under the

Constitution works because each state shall have a number equal to its congressmen and senators. That's why it's so easy Ali to determine what the outcome of that. Election is going to be if you want to do it statistically because one half of the number of representatives and senators would be two hundred and eighty and that's what you'd have to do on it in 18 electoral votes. So we're talking about 10 is quite long to a convention as far as delegates well to the center and if you add 50 states obviously and still is that so I don't believe that is equal to the House and the Senate that would be a total of five hundred thirty five. Now making allowance for absentee is an illness where you can be thinking in the frame of 500 people for a country of this size that is too many.

Senator Dirksen Is there a time limit in which these other two states must petition Congress to call such a thing. No the other contention has been that some of the applications by the states I several years old and therefore they weren't all that. In the same legislative year there is nothing whatsoever in the Constitution that in any way invalidates these applications for that or any other reason. Do you feel that the actual convening of such a convention would appear to be a direct slap of the Supreme Court's check and balance and perhaps can cause some adverse reactions on the part of the justices. No I go back to the very basic premise that it is still a government of for and by the people

and if they want to take a look see why obviously that is not the business of the Supremes. Go are really sure this will be in court is the one and only constitutional code. But that doesn't make any difference. After all we do have something to say about it except we can diminish their salaries or we can chop up their life tenure except for high crimes and misdemeanors unless a gun station is in them. Then you could do it. Some say however that this perhaps could begin a series of actions which would dilute the power of the Supreme Court. Do you foresee that as a threat. Well who ever says it must certainly be confessing his lack of confidence in the people of the United

States. What about the effect on underdeveloped countries in which we're trying to export our form of government. Do you feel this might have some type of an adverse psychological effect. None whatsoever. And in the last analysis they always have to shape a government that is somewhat consonant with the conditions that obtain there. And they and many the very fact that always in true Joe it couldn't affect them what to it. Senator Dirksen your arguments sound very convincing to me. How do you account for the major opposition which is developed in this mine. Well you will find people who probably have not gone into this is there is a feel good and who had rather sentimental about it. When you wave the flag and say Don't tamper with the Constitution the Constitution is our mandate document made by people

who were here long before us. Well as a manmade document unless you want to believe that it's inspired by the Almighty Maybe it ought to be brought up to date in some respect or other. I take it that way when manmade mines put an interpretation on it which you don't agree. Now I am they were and I knew that Abraham Lincoln accepted the decision of the court in the Dred Scott case. Oh but he said he did not agree with it cause he didn't take a constitutional convention. It took a war and out of a lot of bloodletting to settle that issue. And then James of 13 14 and finally the 15th Amendment. But do we have to pay the price of a war in order to have a look see at our own Constitution.

I don't think so Senator Dirksen has a final question Can you perhaps speculate as to when you think this issue maybe was on when we may see such a convention. Well are we going to get the necessary 34 states. Then of course we would go in with a resolution and asked dad to call that right away on the ground. That is of the highest probably. And then left the Senate in the last word. There will now the question you raised that question suppose they do not do it all right and they fly in the face of the Constitution. And then of course we have to see a constitutional remedy and the only remedy that would be would be that the Congress is violating the Constitution and take it to the court for an interpretation. So what you're saying is when these two states come through if they do you're going to put the top

priority label on hold definitely So that was Everett McKinley Dirksen minority leader of the United States Senate a Republican from Illinois. I had our guest this week on the NE our Washington forum next week. Maryland Senator Joseph tidings will continue our investigation of the proposed U.S. constitutional convention. Senator tydings is one of the leading opponents of the proposal. I will take issue with many of the arguments advanced today by Senator Dirksen. Here is an example of what you will hear next week. The petitions which had been submitted by a number of states are really a back door attempt to revoke their one man one vote Supreme Court decision when their one man one vote decision was handed down. It outlawed the rotten borough legislative system in this country it said that every person is entitled to an equal vote in the

legislature. This immediately raised a great how particularly among the vested economic interests and the legislature towards themselves who would be in a sense Mal apportioned out of their seats or with at least half to compete with every other legislator on the basis of equal vote on the basis of equal votes. Twice a Senator Dirksen attempt to demand the Constitution through normal channels which requires a two thirds vote of each house of the Congress the Senate in the House of Representatives and ratification by three fourths of the state legislature. Well he never made it the first step. The Senate never adopted the Dirksen Amendment it was defeated twice. We thought that the attempt was dead. However quietly and almost surreptitiously without the public realizing what was happening the electorate a number of the rotten boroughs state legislatures before they were required to reapportion passed petitions memorializing to Congress under Article 5 to

convene a national constitutional convention. There have been received by the Congress today or there has been action by some 32 state legislatures now all of the action is not similar and not all calling for the same thing and the action on the part of 27 of the legislatures was done during a period when they were illegally apportioned themselves so it's a it's very questionable whether they could legally do what they had attempted to do namely legalize their own illegitimacy and so far as apportionment is concerned. However we faced a situation today where there are 32 states who have acted in some manner or another to petition the Congress to call it National Constitutional Convention. If the Congress were to receive two more petitions Senator Dirksen has said that he will file a Mac or file a resolution which would in effect have the Congress call a national constitutional convention.

Why do some of these states want to mention vested economic interests as one reason would you explain that. Yes under the ole rotten boroughs system where you had say as in the state of Maryland in my state where you had less than 20 percent of the population electing over 50 percent of the membership of one house or another. Secondly you had the legislators themselves in the very legislatures which were ruled as unconscious and unconstitutionally apportion by the courts. These legislate or seeing if they were going to be in a sense required to compete with the entire state are on an equal footing. They immediately rushed through without public hearings without notice or anything petition. That was Maryland Senator Joseph tydings who will appear next week to argue against a U.S. constitutional convention. This program was produced for national educational radio by WMU

FM American University Radio in Washington D.C. I'm an E.R. public affairs director Bill Greenwood inviting you to listen again next week for another edition of The NPR Washington forum a weekly program concerned with the significant issues before us as a nation. This is the national educational radio network.