373 Mass. 877 | Mass. | 1977
The Justices of the Supreme Judicial Court respectfully submit these responses to the questions set forth in an order adopted by the Senate on June 7, 1977. The order recites that there is pending before the Senate a resolution “calling for a national constitutional convention to consider an amendment to the Constitution to protect the right to life of human beings” (House No. 5984). A copy of the resolution, submitted with the order, refers to “all” human beings, “including their unborn offspring at every stage of their biological development.”
The order further recites that grave doubt exists as to the constitutionality of the resolution if adopted, and propounds the following questions:
“1. Does the resolution require the signature of the Governor?
“2. Would the resolution, if adopted in concert with two thirds of the other States, require Congress to call a national constitutional convention, or is it merely a request?
“3. Has the Massachusetts legislature the power to limit the agenda of the constitutional convention to the single issue proposed by the resolution?”
In response to our invitation for briefs, a brief was filed by the Attorney General.
1. The first question is whether the resolution calling for a national convention requires the signature of the Governor under art. V of the United States Constitution. Article V provides: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments____”
The function of a State Legislature in amending the Constitution of the United States constitutes a Federal function derived entirely from the Constitution of the
We answer this question in the negative.
2. The second question asks whether an adoption of the resolution by “two thirds of the other States” would require Congress to call a constitutional convention. Article V provides that Congress “on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments...” (emphasis added). The Supreme Court, in United States v. Sprague, 282 U.S. 716, 730 (1931), interpreted “shall” to mean “must.” Alexander Hamilton said, “The words of this article are peremptory. The Congress ‘shall call a convention.’ Nothing in this particular is left to the discretion of that
The Massachusetts Constitution requires the Justices of the Supreme Judicial Court to give opinions to the Legislature “upon important questions of law, and upon solemn occasions.” Part II, c. 3, art. 2. This provision has been construed to mean that such opinions may be required only respecting pending matters in order that assistance may be gained in the performance of a present duty. See Answer of the Justices, ante, 867, 869-870 (1977); Answer of the Justices, 148 Mass. 623, 626 (1889). The Senate is requesting us to define Congress’s duties regarding constitutional conventions rather than its own. Moreover, the Senate has based its question on the hypothesis that a sufficient number of States propose the same resolution. It is well settled that we cannot answer abstract questions of law or hypothetical questions. Answer of the Justices, 364 Mass. 838, 846 (1973). Cf. Dyer v. Blair, 390 F. Supp. 1287, 1289 (N.D. Ill. 1974) (ripeness). We respectfully decline to answer the question whether Congress must call a convention if the resolution is “adopted in concert with two thirds of the other States.”
3. The third question poses similar difficulties. The Senate asks whether the Legislature has “the power to limit the agenda of the constitutional convention to the single issue proposed by the resolution.” This question presupposes that two-thirds of the State Legislatures will demand a convention on the same issue. We stated above that we cannot answer hypothetical questions. In the event that the requisite number of State Legislatures demand a con
The third question may be read, however, as inquiring whether the resolution in its present form, petitioning the Congress to call a convention “for the purpose of proposing the following article as an amendment to the Constitution of the United States,” is an “Application” within the meaning of art. V. Although this question can be finally answered only by Congress, it does relate to a present duty of the Legislature, and hence presents a solemn occasion. The founding fathers anticipated that State Legislatures would propose specific amendments to the Constitution. James Madison said that the Constitution “equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.” The Federalist No. 43,286 (Modern Library 1937). And Alexander Hamilton said that “every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly.” The Federalist No. 85, 572 (Modern Library 1937). Ervin, Proposed Legislation to Implement the Convention Method of Amending the Constitution, supra at 880-885.
It has been cogently argued that resolutions requesting a specific amendment rather than a fully deliberative convention should be deemed insufficient applications. See,
We therefore decline to answer the third question in its present form, but we believe the pending resolution is an “Application” within the meaning of art. V.
In summary, we answer:
Question 1: “No.”
Question 2: We respectfully ask to be excused from answering this question because there is no “solemn occasion.”
Question 3: We decline to answer this question in its present form, but we are of opinion that the pending resolution is an “Application” within the meaning of art. V.
The foregoing answers and opinions are submitted by the Chief Justice and the Associate Justices, subscribing hereto on the twenty-fourth day of August, 1977.
Edward F. Hennessey
Francis J. Quirico
Robert Braucher
Benjamin Kaplan
Herbert P. Wilkins
Paul J. Liacos
Ruth I. Abrams