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Following are excerpts from an "open letter" by California attorney
Peter Lepiscopo to the legislatures of the states considering the
planned Conference of States and what it could mean for the United
States and the Constitution. Peter Lepiscopo is a San Diego, California
attorney who writes about matters concerning Constitutional law, history
and government. For more information, contact the author at 2635 Camino
del Rio South, Suite 108, San Diego, California 92108; phone (618) 299-
5343.

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ATTORNEY WARNS STATES TO BE CAUTIOUS OF PLANNED COS

(Spotlight, March 13, 1995)

It is worth reviewing the amendment procedure set forth in Article V of
the U.S. Constitution in order to insure the proper context is
established for analyzing the matters addressed in this opinion.

Article V establishes a two-step process for amending the U.S.
Constitution. These include methods of proposing amendments and
procedures for ratifying amendments.

PROPOSING AMENDMENTS:

Article V provides two methods for proposing amendments: Either by two-
thirds vote of both houses of Congress, or on application of the
legislatures of two-thirds of the states to Congress to call a
constitutional convention.

My research indicates all amendments made thus far have been pursuant to
the first method and that no amendment has been proposed by a
constitutional convention.

Article V provides that proposed amendments can only become effective by
either of two procedures. These include by ratification of the
legislatures of three-fourths of the states or by conventions of three-
fourths of the states. It is in Congress's sole discretion to decide
which method of ratification is required.

Both methods of ratification, by legislatures or conventions, call for
action by deliberative assemblages representative of the people, which
it was assumed would voice the will of the people.

OONFERENCE OF THE STATES

The Conference of the States (COS) has been proposed by the Council of
State Governments (CSG), whereby legislatures of the states adopt
resolutions that commit them to participate in the Conference of the
States.

The purported object of the CSG and the COS is to "enhance excellence in
state government through leadership" and "compete for power in the
federal system."

The CSG also contends that the COS will produce a result that "has no
force of law or binding authority."

In a pictorial summary the CSG provides an overview of the six steps
that comprise convention and conducting the COS. The following is a
brief summary and critique of each of those six steps.

Step 1: Each state legislature passes a "Resolution of Participation,"
which provides that a state will participate in a COS. In addition, each
state legislature is to appoint a bipartisan delegation of four
legislators (presumably two from each house, assuming a bicameral
legislature and the governor.)

This step immediately raises the question: Why must each state take
legislative action (i.e. pass a Resolution of Participation) in order to
attend a conference that does not result in anything that has the "force
of law or binding authority?"

As will be demonstrated below, it is my opinion that the COS is intended
to result in something that will have legal effect.

Step 2: After a "significant" majority of states have passed Resolutions
Of Participation a COS will be held in an "historical city" such as
Philadelphia. The term "significant" majority means, in reality, a
constitutional majority, to wit: two-thirds of the states. This is made
clear in Step 6.

The question then becomes: Why must a constitutional majority of states
pass Resolutions of Participation? It is my opinion that the answer is
simple. If constitutional action is decided upon at the COS, then there
will be the necessary constitutional majority present to take such
action.

For all practical purposes once a constitutional majority of states have
passed Resolutions of Participation, the remaining states will want to
be represented at the conference.

Accordingly, it is my opinion that all states will pass Resolutions of
Participation and attend the conference, thus presenting a number of
states that exceed a constitutional majority.

Step 3: The COS is held and solutions to problems are "discussed,
refined, and voted upon."

First, the use of the term "conference" is troubling because it is my
opinion that the council was careful not to use the term "convention."

In the context in which the COS is being convened, the term "conference"
is synonymous with "convention." This is true because the Constitutional
Convention of 1787 was comprised of a group of delegates who were sent
by the legislatures of the several states to propose recommendations to
Congress regarding amending the Articles of Confederation.

Second, there is no precise agenda prior to convening the conference. In
addition, there are no restraints on the subject matters that can be
raised at the conference.

Although the council makes an oblique reference to the alliance of power
between the states and federal government, for all practical purposes
any problem can be framed in those terms.

Accordingly, it is probable, if not inevitable, the conference will
raise, debate and vote on issues never contemplated or debated by
legislatures that passed Resolutions of Participation.

Third, the conference will make its own rules and procedures, which were
not approved by the legislatures.

Fourth, and most alarming, there is no guarantee that the conference
will not ask Congress to call a constitutional convention.

As mentioned above, there is no case law concerning the second method of
proposing amendments to the Constitution. If the conference decides that
it wants to turn itself into a constitutional convention it need only
make "application" to Congress.

As will be discussed below, the Supreme Court has interpreted Article V
to place complete discretion in Congress when the amendment procedures
set forth in Article V are invoked. Furthermore, and as will be
discussed below, there is Supreme Court authority to support the
proposition that the courts will not intervene in or interfere with the
amendment process.

If the conference decides to become a constitutional convention, that
action might not be reviewable by the courts, there may be no way to
stop it once commenced.

Step 4: The COS will produce a written document entitled "States
Petition." The council indicates that the petition is a "new instrument
in American democracy" and "constitutes the highest form of
communication between the states and Congress."

Presently, the highest form of communication between the states and the
Congress is an "application" to convene a constitutional convention (see
Article V).

Does the council mean to say that the petition would be supreme to
Article V? Or, more likely, does it mean to say that the petition is
tantamount to an "application" to Congress pursuant to Article V?

Whichever is the case, the council is not being honest with its use of
terms, nor with its intentions.

Step 5: A copy of the petition is taken back by the delegates to their
respective legislatures for approval, including ones that contain
constitutional amendments. As mentioned above in Step 2, the document
produced by the conference clearly contemplates one that has "force of
law" and "binding authority."

In our constitutional form of government, there is nothing with greater
force of law or binding authority than the Constitution and its
amendments.

Step 6: After passed by a constitutional majority (i.e. two-thirds) of
the legislatures of the states, the petition is presented to Congress.
Here the council declares that, "Ignoring a constitutional majority of
states would signal an arrogance on the part of Congress."

One consequence of the conference can be a petition that calls for a
constitutional convention. Thus if the conference does not convert
itself into a constitutional convention during Step 3, it can still
accomplish that end in Step 6.

DANGERS OF THE COS

The predominate danger mentioned above is that in Step 3, the conference
will decide to make "application" to Congress to convert itself into a
constitutional convention.

Alternatively, there is a danger that the petition will serve as an
"application" to Congress to call a constitutional convention.

The hidden danger of all of this is there may not be a remedy once this
process begins.

In order to completely understand the import of the COS, a review of
U.S. Supreme Court decisions interpreting Article V is necessary.

It is important to again note that all Supreme Court decisions have
dealt exclusively with the first method of proposing an amendment (i.e.,
the Congress proposes the amendment).

Remember, no case has addressed the situation where the legislatures of
the several states have asked Congress to call a constitutional
convention.

The first controversy over Article V occurred with the adoption of the
Eleventh Amendment.

In the case of Hollingworth v. Virginia, 378 U.S. (Dall.) 378 (1798),
the issue was: When Congress proposes an amendment, must the president
of the United States provide approval?

The Supreme Court answered this question in the negative, reasoning that
Article V is not a typical piece of legislation but rather is a specific
procedure to amend the Constitution.

The next controversy occurred with ratification of the 18th Amendment,
which concerned prohibition.

In 1917 Congress passed a joint resolution proposing the prohibition
amendment. In its resolution, Congress included a provision that the
amendment must be ratified by the necessary number of states within
seven years.

The controversy arose in the case of Hawke v. Smith, 253 U.S. 221
(1920), which concerned an Ohio statute that submitted approval of
constitutional amendments to the people of Ohio through the referendum
process.

The Supreme Court concluded Article V required approval of amendments
not by the people directly, but by three-fourths of either the
legislatures of the several states or of conventions of the several
states.

Another example of Congress's discretion under Article V is illustrated
in Dillon v. Gloss, 256 U.S. 368 (1921) (the 18th Amendment), where the
Supreme Court held that Congress has complete discretion under Article V
to fix specific time limits for ratification of proposed amendments.

The case that provided the COS with the tools to harness the amendment
process is Coleman v. Miller, 307 U.S. 433 (1939).

In June 1924, Congress proposed an amendment to the Constitution known
as the Child Labor Amendment. In January 1925, the Kansas legislature
passed a resolution rejecting that amendment.

Twelve years later in January 1937 the Kansas Senate re-introduced the
amendment. Twenty senators voted in favor and a like number voted
against. The tie was broken by the lieutenant governor, who voted in
favor of the amendment, which was subsequently passed by the Kansas
House of Representatives.

A suit was filed in the Kansas Supreme Court by the 20 senators who
voted against the amendment and members of the House of Representatives
requesting the court to nullify the vote.

The senators and representatives contended that the lieutenant governor
was not part of the Kansas legislature for Article V purposes and,
therefore, he could not cast the vote.

They claimed the previous rejection in 1925 served to kill the amendment
in the state of Kansas. In addition, they said the amendment was not
ratified in a reasonable time (i.e., the 13 year hiatus between
Congress's proposing and Kansas's ratification of the amendment).

The Kansas Supreme Court could not nullify the approval of the
amendment. The senators and representatives sought review in the U.S
Supreme Court.

In Coleman the Supreme Court concluded the dispute was political in
nature and, therefore, the courts should not interfere. Specifically,
the Supreme Court concluded:

"The previous rejection (in 1924 and subsequent ratification in 1937)
should be regarded as a political question pertaining to the political
departments, with ultimate authority in Congress in the exercise of its
control over the promulgation of the adoption of the amendment."

In short, in Coleman the Supreme Court decided that if there was any
impropriety in the manner in which a state ratified an amendment, the
remedy rests not in the courts but in Congress.

Accordingly, the hidden danger of the COS is that if the conference
decides to convert itself into a constitutional convention or to treat
the petition as an "application" to Congress, then the conference's
actions cannot be stopped.

It is my opinion that the COS and the methods used to facilitate it
would be interpreted to be political in nature, thus shielding it from
judicial scrutiny. What follows are possible scenarios that might occur.

Scenario One: During Step 3, the conference decides that it wants to
make "application" to Congress to call a constitutional convention.

Congress could determine that the conference has no authority to make
"application" under Article V. Or it could accept the "application" and
call a constitutional convention.

The conference could then be converted into such a convention.

It appears that pursuant to Coleman, Congress would be exercising its
political discretion and exclusive power under Article V. Accordingly,
no judicial review could be sought.

This is not far fetched if one recalls that the delegates sent to
Philadelphia in 1787 went there with strict guidelines to consider only
amendments to the Articles of Confederation.

Once convened, however, the delegates converted into a constitutional
convention, tossed out the Articles of Confederation, and drafted a new
document.

It is my opinion that what occurred in Philadelphia from May through
September 1787 was guided by Divine Providence and will not occur again
in the history of this country.

Accordingly a constitutional convention must be avoided.

Scenario Two: Upon completion of Step 4, the conference could send the
petition to the Congress as an "application." Similar to Scenario One,
Congress would have complete discretion under Article V to decide upon
accepting or rejecting the petition as an "application."

Scenario Three: In Step 6, the petition is transmitted to Congress.
Similar to Scenario Two, Congress could accept the petition as an
"application" and call a convention.

One might argue that limiting provisions in the "Resolution of
Participation" could serve to provide a basis for a court challenge.
While this might work, it should not be considered 100 percent safe
because Coleman could be applied to prevent a court challenge.

State legislatures should not pass any resolution to send any delegates
to a COS. This is the only way to insure that a Constitutional
convention is not convened.

This is not to say that a self-appointed delegation, which is not
sponsored by the state legislature, cannot attend or visit the COS, but
rather state legislatures should not  provide any legislative sanction
to any delegation to the COS.

Second, there is nothing that prevents a state from debating certain
proposed amendments within its own legislature. Then they could provide
those amendments to its own congressional delegation for introduction in
Congress.

If it is desired, then, the safest way to amend the Constitution is
through the first method outlined in Article V (i.e., whereby the U.S.
Congress proposes the amendment).

This procedure insures that there will be no runaway convention that
results in altering the foundation of our constitutional form of
government.

Finally, if any state legislature is resolved in sending delegates to
attend the COS, then I recommend that the following limiting language be
inserted into the "Resolution of Participation."

   Resolved, that . . . participation in any Conference of the States
   shall in no way be interpreted or construed to be consent by the state to
   be an application to Congress under the amendment procedure set forth
   in Article V of the Constitution of the United States.

   Be if further resolved, that [the state's] participation in any
   Conference of the States shall in no way be interpreted or construed
   to be for the purpose of amending or proposing amendments to the
   Constitution of the United States.



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