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08/21/2019

Matthew Steilen: The Constitutional Convention and Constitutional Change
Michael Ramsey

Matthew J. Steilen (State University of New York (SUNY) at Buffalo, Law School) has posted The Constitutional Convention and Constitutional Change: A Revisionist History (Lewis & Clark Law Review, forthcoming) (65 pages) on SSRN.  Here is the abstract: 

How do we change the federal Constitution? Article V tells us that we can amend the Constitution by calling a national convention to propose changes, and then ratifying those proposals in state conventions. Conventions play this role because they represent the people in their sovereign capacity, as we learn when we read McCulloch v. Maryland. 

Nearly everyone would agree, however, that most constitutional change is not formal constitutional change under Article V, but informal change — change by interpreting the Constitution, altering the workings of government, or even changing political practices. Because courts, executive agencies, and political parties do not represent the people the way conventions do, these mechanisms are sometimes said to be anti-democratic or even illegitimate methods of change. Yet they are dominant nonetheless. 

What is not often discussed is that Article V itself contains another mechanism for constitutional change. In fact, Article V permits both conventions and legislatures to be used for amendment, and, as it happens, all but one of the twenty-seven amendments to the Constitution have been made by legislatures. If conventions alone represent the people in their sovereign capacity, then why don’t we actually use them to change the federal Constitution? Are we to conclude that most of the amendments are in some way defective? 

To show why Article V might have permitted the use of legislatures to amend the Constitution, this paper examines a series of political texts on the convention, written between the seventeenth and eighteenth centuries. Writers in this line defended the power of Parliament or the American colonial assemblies to alter the frame of government. From their point of view, the people could be present in the legislature, and when they were, the legislature could establish fundamental law. 

This perspective helps to explain the rightful place of informal constitutional change in our system. The people can be represented by the institutions of government itself, and when they are, those institutions can claim an authority to alter the constitution. In this sense, the popular sovereignty described in McCulloch is dynamic: it can be present in different institutions at different times. Presidents have repeatedly claimed just this authority. From the perspective of the writers examined here, the legislature could too. It was when corruption stopped up legislative routes of popular constitutional change that the people could move outside government entirely, to a convention, where they might alter the constitution to better secure their property and liberty. 

The history set out here directly challenges the orthodox historical account, based largely on the work of Gordon Wood, that has dominated the legal academy for nearly 50 years. It focuses on the same key state — Pennsylvania — and argues in detail that Wood’s interpretation of the use of the convention there is incorrect. The paper emphasizes political context rather than ideology, and in so doing offers a more nuanced, and more realistic, view of the place of the convention in American constitutional change.

Via Larry Solum at Legal Theory Blog, where it is "Download of the Week" and "Highly Recommended."