By Anthony W. Hawks
When I began this blog in June I wondered whether there would be enough Article V-related topics to sustain it. Fortunately, the summer gave us the debt ceiling debate, which provided a steady flow of commentary because of its many similarities to the flawed Balanced Budget Amendment (BBA). Now, almost simultaneously, we have three significant events relating to an Article V convention that will provide blog topics for many weeks to come.
The first event is the recent release of the Spring 2011 symposium volume of the Tennessee Law Review on “Article V Constitutional Conventions.” This is an understandable but misleading title since an Article V convention was/is intended to focus on proposals for discrete amendments, rather than a general “constitutional convention” where everything is up for grabs. A hard-copy volume can be ordered for $13.00 by contacting Micki Fox, Business Manager, Tennessee Law Review, UT College of Law, 1505 W. Cumberland Avenue, Knoxville, TN 37996-1810 (firstname.lastname@example.org).
The first group of articles discusses the purpose, history, mechanics, and potential dangers of an Article V convention. Most of the authors have now posted their symposium articles on the Internet, including Glenn Harlan Reynolds (who first suggested the symposium and wrote the Foreword); Rob Natelson (who is the only writer to have offered a detailed “how-to” guide to calling an Article Convention); Elizabeth Price Foley (who discusses the range of federalism-restoration amendments that an Article V convention might consider); and two writers who debate the “runaway convention” problem, Michael Stern (here and here), who believes that safeguards can keep a convention in check, and Mary Margaret Penrose, who argues that “runaway” concerns are real and substantial).
A second group of articles each promotes a specific type of constitutional amendment that the various authors would want Congress or an Article V convention to propose, including Randy E. Barnett’s proposal for a Repeal Amendment; renewed calls for an Equal Rights Amendment by Ann Bartow
and for Term Limits by Richard A. Epstein; reform of Article V itself by Timothy Lynch; a Truth-in-Legislation or Single-Subject Amendment by Brannon P. Denning & Brooks R. Smith; and, lastly, a rather surprising amendment requiring that executions be made public. Sanford Levinson closes out the symposium with an afterword, but like the Barnett and Epstein articles, they do not appear to be posted yet on the Internet.
The second event was the recent “Conference on the Constitutional Convention” (www.conconcon.org) at Harvard Law School over a delightful New England autumn weekend (September 23-25, 2011) in Cambridge. Like the TLR symposium volume above, ConConCon, as it was called, had the phrase “Constitutional Convention” in its title, which was both ironic and unfortunate. It was ironic because there seemed to be a consensus at the conference that an Article V convention is not actually a “constitutional convention;” and unfortunate since the biggest obstacle to an Article V convention is the exaggerated fear of a “runaway” convention, which is only likely if a true constitutional convention were held.
I will only hazard a guess as to the number of participants – several hundred perhaps – but attendance aside, it more than met my expectations in a number of ways. First, and foremost, both the presentations and follow-up discussions were serious and, for the most part, well-informed. Second, the conference was ideologically balanced in the both the topics and speakers, which is appropriate since an Article V convention will only move forward on a bipartisan basis. For this, you have to credit the two Co-Chairs Larry Lessig (a passionate and nationally prominent liberal Harvard law professor) and Mark Meckler (co-founder of Tea Party Patriots), who together also set the tone for reasoned debate. Finally, it was reassuring that the speakers and participants came from such a wide variety of backgrounds. This was not an academic conference dominated by legal scholars with an esoteric interest in a long-neglected provision of the Constitution. Rather the participants included scholars, think tank writers and activists, state legislators, community organizers, and even a cable TV host. I will discuss the substance of ConConCon in the next post.
Finally, the third event is new law review article, How To Count To 34: The Constitutional Case for a Constitutional Convention by Professor Michael Stokes Paulsen of the University of St. Thomas School of Law in Minneapolis. This article is important for three reasons: (1) he is one of the few legal scholars to have actually waded through the hundreds of state applications to determine whether there are actually 34 states who have already called an Article V convention; (2) his current article is an update of a seminal article from 1993 (not readily available on the Internet) called A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L.J. 677 (1993); and (3) both articles are founded on the erroneous premise that state legislatures cannot limit their convention applications to a single issue or topic. Indeed, Professor Paulsen concluded in 1993 that there were 45 valid state applications requiring Congress to call a general Article V convention, and today he believes that there remain 33 valid state applications for a general (but only a general) convention. The problem here of course is that a general convention is exactly the type of convention that most states oppose, so if Professor Paulsen’s position prevails, and this the only type of convention that Article V authorizes, then Article V is effectively a dead letter. Fortunately, Professor Paulsen is wrong on this point, as I will discuss in later post.
Copyright © 2011
Anthony W. Hawks. All rights reserved.