Posted by Randy Barnett:
The Value of Petitioning for and Article V Amendments Conventions:
http://volokh.com/archives/archive_2009_05_03-2009_05_09.shtml#1241614060
A new paper by Indiana law professor Gerard N. Magliocca, who blogs
over at [1]Concurring Opinions, contends that Article V petitions for
a convention to propose constitutional amendments is a useful means to
achieve reform by affecting the behavior of Congress and the courts.
You can download it from SSRN [2]here. It is entitled, [3]State Calls
for an Article Five Convention: Mobilization and Interpretation. Here
is the syllabus:
This Essay argues that those seeking constitutional change ought to
take a closer look at using the Article Five procedure by which
state legislatures can petition Congress for a new constitutional
convention. While the chances that such a conclave will occur are
slim and none, the process for calling together such a body is a
useful tool for getting voters to the polls and influencing the
Supreme Court. After looking at some historical examples, the Essay
points out that both parties are using state ballot initiatives to
increase turnout at election time and that doing the same with
Article Five petitions would increase the quality and quantity of
citizen participation. Furthermore, a series of such petitions
would constitute persuasive authority of contemporary
constitutional values no different from the state legislation that
the Justices look to in cases under the Eighth Amendment and the
Due Process Clause.
Here is the structure of the paper:
Part I reviews prior attempts to use the Article Five petition
procedure and shows that, when enough state legislatures join the
cause, Congress almost always provides a remedy to halt the march
to a convention. Part II looks at how putting federal
constitutional issues before the voters in state elections can
increase the quality and quantity of citizen participation. Part
III explains why a critical mass of state petitions should be taken
into account by courts when they are faced with related
constitutional issues.
References
1.
http://www.concurringopinions.com/archives/2009/05/article-five-petitions.html
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1284371
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1284371
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