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02/07/2020

Robert Natelson: Is the Constitution’s Convention for Proposing Amendments a 'Mystery'?
Michael Ramsey

Robert G. Natelson (Independence & Montana Policy Institutes) has posted Is the Constitution’s Convention for Proposing Amendments a 'Mystery'? Overlooked Evidence in the Narrative of Uncertainty (57 pages) on SSRN.  Here is the abstract:

The Constitution provides that amendments may be proposed for ratification by Congress or, on demand by two thirds of state legislatures, by a “Convention for proposing Amendments.” The Constitution’s framers designed the convention mechanism as a way to circumvent a recalcitrant Congress.

A convention for proposing amendments has never been held. One reason is that many legal commentators, including some at the pinnacle of academia, contend convention composition and protocols are utterly unknown and/or that Congress should dictate them. Convention opponents have disseminated those contentions widely, thereby discouraging state legislatures from applying for a convention.

This Article shows that this narrative of uncertainty has little merit. The commentators have overlooked extensive Founding-Era evidence defining what an amendments convention is, how it is composed, and what its protocols are. They also have overlooked a Supreme Court case and other nineteenth and early twentieth century sources confirming the Founding-Era evidence.

The Article examines the historical record, describes the established protocols, and explains how the founders’ model fits into the overall constitutional structure.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.")