How does a Constitutional Convention come into existence? And how does it get organized?
Let us begin with the 1935 Constitution. It said: “The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose”
It was clear under this provision that the first step to take, if a constitutional convention was desired, was to vote whether to have a constitutional convention or not and when. This decision could only be made “by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately.” After this initial decision was made, Congress, as an ordinary legislative body, could then go about deciding the number, the qualifications, and the manner of choosing the delegates to the Convention. This is how it was done in preparation for the 1971-1972 Constitutional Convention.
The 1973 Constitution also had its version: “The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit the question of calling such a convention to the electorate in an election.” We had no occasion to use the provision.
The current Constitution now says: “The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.”
The current provision is both clear and unclear.
It is clear that to call a constitutional convention a vote of two-thirds of all the members of Congress is needed.
But it is still unclear as to whether the two Houses should vote in joint session and jointly or separately. In other words, the problems that have plagued the manner of proposing amendments are also problems regarding calling a constitutional convention.
Reports have it that a committee in the House of Representatives is pushing for election of delegates to a constitutional convention to coincide with the national elections in May 2010. What is needed to put such a proposal into action?
The first step would normally be four both Houses to pass a resolution calling for a constitution convention. However, theoretically, the decision to call a constitutional convention and the decision as to the time when and the number, qualifications, and the manner of choosing the delegates can be done in one legislative act. Is this what the House Committee resolution attempting to do? But to attempt it this way would be to invite trouble because the legislative act would need the vote of two-thirds of all the members of Congress. Two-thirds vote would be needed because the act embodies the initial call to a convention.
The more efficient way would be to first approve a resolution calling for a constitutional convention and next, by a separate act, decide on the details about the constitutional convention. This separate act would require merely ordinary legislation. As I said above, this is how it was done in preparation for the 1971-1972 Constitutional Convention.
The question now, however, is not just whether it would be wise to mix the selection of delegates to the constitutional convention with the election of national and local officials in May 2010. The prior question is whether the current Congress will be able to approve a resolution calling for a constitutional convention and thereafter pass a law setting down the needed mechanics for organizing a constitutional convention before the May 2010 elections.
I agree with those who say that this is no longer possible. To try to achieve this, or even just to approve a bare call of a constitutional convention, will mean facing the same obstacles as the obstacles to proposing amendments through a constituent assembly, or even more obstacles. Until now there is no firm decision as to whether Congress, when performing constituent acts, must be in joint session. Neither is there a decision on whether they must vote jointly or may vote separately.
I therefore suggest that Congress abandon this project now and focus instead on more doable matters which some say are urgent. For instance, what?
* * * * * *
I suggest that a law be passed soon setting down who should act as President in the event that by June 30, 2010, neither a President, Vice-President, Senate President, or Speaker has been chosen or has qualified. The Constitution has been asking for such a law since 1987.
If Congress is not inclined to pass such a law, I suggest another way of meeting a worst case scenario by June 30, 2010. I suggest that, before the end of the current term, the Senate elect a Senate President from among the senators who will be staying on after the next elections. Such Senate President will then be able to act as President should elections fail. It is important to make this choice before the end of the current term, while the Senate has a full complement, in order to avoid the controversy of whether the remaining twelve senators would constitute a quorum to elect a Senate President. We should avoid a repetition of the controversy in Avelino v. Cuenco when the Court was confronted with the problem of whether less than thirteen senators could elect a Senate President.
31 August 2009
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