There is an interesting short piece on Justices Scalia and Ginsburg and their views of constitutional amendments. This short news story touches upon a variety of issues that I have discussed at this blog and in scholarship. Scalia writes "I certainly would not want a constitutional convention," Scalia told moderator Marvin Kalb. "Whoa! Who knows what would come out of it?" But, he explained, he once calculated what percentage of the population could prevent an amendment to the Constitution and found it was less than 2 percent. "It ought to be hard, but not that hard," Scalia said. The fear of a constitutional…
Readers of this blog may remember that I have argued that the Constitution allows for the states to call for a limited Article V convention and that this convention can even be limited to deciding whether to propose a specific amendment. See also here and here. Under this legal regime, a runaway convention would be unconstitutional.
Two interesting posts on this subject have been recently written. First, Michael Stern, a former House of Representatives Senior Counsel, agrees that the states can apply for an Article V convention limited to deciding whether to propose a specific amendment. Relying on scholarship from yours truly, from Robert Natelson and from himself, Stern argues that text, structure, purpose, and history support this conclusion. Stern’s post is an excellent summary of the scholarship and itself is a form of blogging scholarship.
Second, Robert Natelson describes three different waves of constitutional scholarship on the subject of limited conventions. The first wave:
consisted of publications from the 1960s and 1970s, typically by liberal academics who opposed conservative efforts to trigger a convention. Examples include articles by Yale’s Charles Black, William and Mary’s William Swindler . . . and Harvard’s Lawrence Tribe.
Typically, these authors concluded that an Article V “constitutional convention” (as they called it) could not be limited to a single subject. The mistakes these authors made can be attributed partly to the agenda-driven nature of their writings, and their failure to examine many historical sources. They seldom ventured beyond The Federalist Papers and a few pages from the transcript of the 1787 Constitutional Convention.
I would add that these authors did not engage in a careful effort to read the constitutional text.