A Constitutional Convention

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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5 Responses

  1. That a convention would open the door to all manner of amendments *Congress doesn’t want* is a feature, not a bug. But it’s the reason I suspect that, if the states ever get around to asking for a convention, Congress will find some way to prevent it. And the courts will punt, by calling it a non-judiciable political issue.

  2. Bill Walker says:

    Brett is more right than he knows. The states have asked for a convention call. All 50 states have submitted 750 applications for a convention call. The applications can be read at http://www.foavc.org. The Constitution mandates a convention call if 34 (two-thirds) states so apply.

    As to his comment about the court, he is exactly correct except the court ruled the Congress can veto the Constitution under the political question doctrine. See FAQ 9.1 on the FOAVC web page for further details.

    In short, the government has thus far simply scrapped the Constitution in order so it does not have to call a convention.

  3. The problem, of course, is that the states persist in making requests for a convention which are specific as to subject matter, and differently worded. This gives Congress an opening to deny the convention on the basis that no *particular* call for a convention was joined in by the required number of states. The real confrontation comes when 34 states have made identically worded demands for a convention, taking all wiggle room away.

  4. ohwilleke says:

    The lack of public will to change the document is as much of a factor is the procedural hurdles.

    It would be easy enough to for states to send delegates to discuss proposals for change, hammering out the details until consensus or near consensus was reached, with no legal authority whatsoever. The states could then directly adopt identical resolutions to amend the constitution guided by this non-binding coordination.

    This is essentially the process used for the Bill of Rights, and a similar process is routinely used to propose uniform state laws by the National Conference on Uniform State Laws. Indeed, the American Law Institute with its Restatements of Law, often enough influences judicial behavior despite the fact that neither the ALI, nor its final product has express authority, and despite the fact that the product, unlike Uniform Acts, is not legislatively ratified.

    Also, why should anyone presume that a Convention convened under rules and procedures developed by Congress should behave any differently than Congress itself?

    Congress has the power to propose amendments with a bicameral two-thirds majority, which isn’t a particularly high hurdle — most laws ultimately adopted by Congress have that much support, and veto overrides which happen a few times in almost every Presidency similarly have that much support. A Constitutional Convention doesn’t make proposing and adopting amendments much easier than the Congressional process and Congress is not subject to a single subject rule.

    Nations with similar supermajority requirements, such as states and countries like France, routinely amend their constitutions. The Constitution is not amended in the U.S. as much because it has an air of divinity to it, as because the procedures for amending it don’t work.

  5. “The Constitution is not amended in the U.S. as much because it has an air of divinity to it, as because the procedures for amending it don’t work.”

    No, I think it’s because, barring a convention, amendments are originated in Congress, and thanks to the supine judiciary, Congress no longer NEEDS amendments.

    Take the ERA: Congress wanted it, originated it, the states defeated it, and the courts have, for all practical purposes, implemented it anyway.

    The 27th amendment limiting Congressional pay? The states revive an old amendment, and ratify it, and the courts interpret it so as to deprive it of any consequences.

    Congressional power grabs? The courts hardly ever strike down Congressional usurpation of power, so Congress has no need for amendments extending it’s power. While it has no interest in amendments to contract that power.

    The balanced budget amendment, for instance, or federal term limits, both have easily enough public support to be ratified, but can never get out of Congress.