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The Constitution is a source of political faith to many people [1]; it is almost revered in some quarters. So why would anyone suggest changing it, not just slightly, but substantially altering its provisions? In fact, a number of academics and political activists have lately suggested just that, arguing that a constitutional convention ought to be called, as provided by Article V of the Constitution. Just last September Harvard Law School hosted the “Conference on the Constitutional Convention”, which brought together advocates of a convention from both the left and right of the political spectrum. Both Lawrence Lessig’s left-leaning Fix Congress First and Mark Meckler’s right-leaning Tea Party Patriots co-sponsored the event . The idea of a constitutional convention has also garnered support from other quarters. The Tennessee Law Review devoted its Spring 2011 issue to constitutional convention scholarship. Larry Sabato of the University of Virginia proposed a number of amendments and advocated for a convention in his 2007 book A More Perfect Constitution. In 2006 Sanford Levinson of the University of Texas published Our Undemocratic Constitution arguing for the calling of a constitutional convention. The proponents of calling a convention come from all manner of political ideology, as do the opponents of a convention. But just what is an Article V constitutional convention? Why should it be called? What would it do? I will explore a number of these issues associated with such a convention in an upcoming series of blog posts. To start out, I will define an Article V convention and discuss several concerns surrounding it.

Article V of the Constitution provides two separate methods for amending the Constitution. The first, and historically favored option, states that when two thirds of both houses of Congress propose an amendment and three fourths of the state legislatures or state conventions called especially for amending the constitution ratify an amendment, it shall be part of the Constitution. The amendments that we are familiar with were ratified in this fashion. Article V also provides another method, which has never been used. With this method, two thirds of the state legislatures direct Congress to call a convention for proposing amendments, and the convention’s proposed amendments then have to be ratified by three fourths of the states.

The obvious precedent for a convention is the Philadelphia Convention of 1787 [2]. Article V quite clearly was not a guide for this convention, since it hadn’t been written yet. At the same time, the idea of a convention was very much on the framers’ minds when they drafted Article V, if only because they were acting as a constitutional convention themselves. In light of this, it is important to note that some consider the convention to have been illegal [3]. The Continental Congress authorized the convention only to amend the Articles of Confederation. Instead, the Convention threw out the Articles almost from the start, and they drafted the Constitution out of whole cloth. The Articles of Confederation required unanimous consent by the state legislatures for any change. However, the Convention ignored this requirement. They allowed only 9 of the 13 states to ratify, and the convention bypassed the state legislatures by requiring the calling of a special ratifying convention in each state. These aren’t new observations, and they didn’t go unnoticed at the time (for one contemporary defense of the Convention, see James Madison’s Federalist No. 40).

I don’t mean to attack or defend the Convention, just to note the possible precedent it creates. The worry among some opponents of a modern-day convention is that it might well run amok like the one before it; that is, it might exceed whatever mandate it is given [4]. The particular fear is that if there is support for a very narrow change, such as a balanced budget amendment, or perhaps an amendment concerning campaign finance reform, that a convention would disregard this limited purpose and re-draft the Constitution as it saw fit. There remain the natural questions of whether the Philadelphia Convention does in fact create this precedent; whether the Article V process would permit it; and, just who would decide such matters: Congress? The States? The Supreme Court? The President?

There has been much legal ink spilled over these points and others associated with a modern-day convention [5]. From my humble point of view, much of this is in vain. If a modern-day convention re-wrote the Constitution and three fourths of the states ratified it, which is no small feat to be sure, could Congress or anybody else interfere? Congress might well be jealous of losing its power to some newly constituted body and so try to prevent acceptance of the new constitution. Congress certainly has significant power to put towards such a goal. But in a power struggle between the old Congress and the newly created constitution, only a lawyer would imagine that lawyerly quibbles would play a determinative role in such a combat. After all, this is supposing that the people had been sufficiently worked up to ratify the new constitution in three fourths of the states. An attempt to block it based on legal quibbles, or still baser concerns, by the Congress, the President, or the Courts would definitely create a constitutional crisis, but not one that the Constitution could resolve by its own force [6].

Still, there are a number of uncertainties about how a convention could be called, how it would operate once it was called, and what powers (specific or general) it might have. There is uncertainty about whether a convention could be limited to a specific amendment or subject area; about what role Congress properly plays in determining when to call a convention; about what role the Courts could play, or might choose to play, especially in light of the Court’s political question doctrine; and about several other concerns besides [7].

Given all these concerns and uncertainties about the process, why would anyone want to change the Constitution using this method? It is important to note that this method of amendment effectively bypasses Congress, reducing it to a ministerial role. This may be helpful if an amendment is designed to reduce Congress’s power. But just what sorts of changes are being proposed? Next time, I plan to give a sample of different proposed amendments, some quite small in scope, but others affecting more substantial change in our constitutional system.

Mark Rawls is a first-year student at William & Mary Law School.

[1] See e.g. Sanford Levinson, Constitutional Faith.

[2] But see Natelson, Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693 at 715-719, for other contemporary American conventions of a similar sort.

[3] See Ackerman, We The People, vol. I, Foundations, pp. 41-42, 173-79, 194-95, 201, 216. But see Natelson, supra n.2, at 719-723, for a different opinion.

[4] For a sample of reactions against a constitutional convention on this ground, see e.g. Steven Hayward, Con-Con-Con Job; Doug Mataconis, The Case Against An Article V Constitutional Convention; The John Birch Society, Beware of Con-Cons; Mary Margaret Penrose, Conventional Wisdom: Acknowledging Uncertainty in the Unknown, 78 Tenn. L. Rev. 789 (arguing that there is currently too much uncertainty about and too litle safeguards in calling a convention).

[5] See e.g. Natelson, supra n.2; Penrose, supra n.4; the Tenn. L. Rev. volume 78 generally, and the citations therein; even William & Mary’s own William Van Alstyne has commented on the matter, see Does Article V Restrict the States to Calling Unlimited Conventions Only? – A Letter to a Colleague.

[6] Consider for instance the Civil War amendments. The Southern states only passed these amendments under military occupation and explicit coercion. The government was even pressing two separate beliefs about whether the southern states remained actual states during the war, as it suited the government’s purpose at the time. Is such a wanton show of force a legitimate manner to ratify an amendment? The Court decided it wasn’t an appropriate body to reach the merits of the question, and placed almost all authority for declaring an amendment to the constitution as ratified in the Secretary of State. See Ackerman, vol. II, Transformations, ch. 4. My point here is that on important matters of state, legal forms and proprieties are not always viewed with overarching importance. I don’t mean to suggest, however, that there is no significance to the matter. A convention would almost surely want to be though of as legitimate, and it is hard to see how three fourths of the states would ratify something that was widely believed to be an illegitmate or illegal document. But the force of legal arguments probably ends here, with the general public perception of the convention process.

[7] For a good overview of these issues, see Sabato, ch. 7, or Note, Article V Constitutional Conventions: A Primer, 78 Tenn. L. Rev. 663.

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Recently several scholars have been discussing Resolution VI and what implications it might have towards theories of constitutional interpretation. They refer to Resolution VI under the Virginia plan, the plan drafted largely by James Madison and presented by Edmund Randolph (both of Virginia) at the Constitutional Convention in Philadelphia in 1787. The resolution, as amended and ratified by the convention, states that Congress shall have the power,

“[T]o legislate in all Cases for the general interests of the Union, and also in those Cases in which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the Exercise of Individual Legislation.” (See here.)

Although the convention adopted this language, which seems to give the federal government considerable power, the language does not appear in the Constitution that they eventually drafted. So what relevance, if any, does it have for modern constitutional interpretation? To answer this question, it is necessary to first explain a few of the innumerable methods of constitutional interpretation found in legal scholarship.

One of the most common interpretive methods is originalism. There are at least two main branches of this approach. The first is known as original intent originalism and the second as original public understanding originalism (see also [1]). For the original intent originalist, Resolution VI is important because it helps determine the framers’ intent. However, original understanding originalists are more prevalent among modern-day originalists, and the resolution is much less authoritative for them. This is because the Philadelphia convention held its meetings in secret, the text of Resolution VI was not made known to the public, nor does it appear in the constitution.

Another common constitutional interpretive method is known as living constitutionalism (see also [2]). This method looks at some historical sources, but does not bind itself to either original intent or original understanding. Resolution VI might be important to a living constitutionalist since it hints at the intended structure of the federal government, but it would not control their theory.

One well-known constitutional scholar, Jack Balkin of Yale Law School, recently suggested that the distinction between living constitutionalism and originalism is a false one (see also [3]). He claims, “Constitutional interpretation requires fidelity to the original meaning of the text and to the principles stated by the text or that underlie the text. But fidelity to original meaning does not require fidelity to the original expected applications of text and principle.”

To Balkin the importance of Resolution VI is that it offers a way to understand the enumerated powers, most specifically the Commerce Clause of the Constitution. Resolution VI generally states that the federal government has the authority to legislate on important national matters or matters where the states individually would not produce optimal results. According to Balkin, the principles behind Resolution VI were the “animating purpose” that motivated the Committee of Detail that drafted the actual text, and these principles led to the enumeration of federal powers in Article I, Section 8.

To Balkin Resolution VI is a boon to supporters of a large federal government and most specifically to the post-New Deal commerce clause jurisprudence often criticized by originalists. The argument goes, loosely, that given our modern interconnected and complex economic environment, Resolution VI’s principle of granting power to the federal government when state legislation would not be optimal validates extensive federal powers.

But not everyone agrees with Balkin. To be sure, his is only one theory of many, and there are probably as many theories of constitutional interpretation as there are constitutional scholars, if not more. Some of those theories, such as original public meaning originalism, would reject the use of Resolution VI out of principle. Other theories might look to Resolution VI on a more conditional basis.

Kurt Lash of the University of Illinois College of Law recently posted a paper about Resolution VI. He argues against Balkin and others who view Resolution VI as an important interpretive tool, saying that a “close reading of the historical sources, . . . shows that the framers did not view Article 1, Section 8, as having operationalized the general principle of Resolution VI. . .” Lash also claims that Resolution VI played no role in the public debate over the ratification of the Constitution. He posted a series of articles at the Volokh Conspiracy, a libertarian leaning blog, describing his paper. His articles prodded a response from Jack Balkin, to which Lash replied in turn [5].

While there is too much detail to get into here, the arguments for and against using Resolution VI as an interpretive aid to various theories of constitutional interpretation are interesting and worth reading. To get a bigger picture of these arguments, the papers mentioned at [3] and [4], as well as the blog posts at [5] offer a good overview of the issue.

[1] See e.g. Whittington, Constitutional Interpretation (1999); Scalia, A Matter of Interpretation (1997).
[2] See e.g. Strauss, The Living Constitution (2010); Breyer, Active Liberty (2005).
[3] See his book, Living Originalism; also Balkin, Commerce
[4] See Lash, ‘Resolution VI’: The Virginia Plan and Authority to Resolve ‘Collective Action Problems’ Under Article I, Section 8
[5] Lash originally made three posts at the Volokh Conspiracy: (i) here, (ii) here, and (iii) here. Balkin responds at his blog here. Lash replies.

Mark Rawls is a first-year student at William & Mary Law School.

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The right of trial by jury is a cherished and essential feature of American law. Though the institution of the jury originated in England, the framers of the Constitution were very keen on incorporating it into our own legal system. Ironically, even before the establishment of our constitutional republic, the denial “of the benefit of Trial by Jury” to the American colonies was an explicit complaint lodged against England in the Declaration of Independence. After the revolutionary war, one of the main concerns the states expressed towards ratifying the proposed articles of the Constitution was the lack of an express right to a jury trial in civil cases. As a result, the 7^th Amendment was proposed and ultimately adopted as part of the Bill of Rights.

Most Americans are not aware that their rights of trial by jury are treated differently in criminal and civil cases. Article 3, Section 2 of the Constitution, along with the 6^th Amendment, provides unqualified language for the right to juries in all criminal trials, whereas the 7^th Amendment reads:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Setting aside the negligible restriction of the $20 minimum, the way one reads this amendment regarding the “rules of the common law” can produce two significantly different interpretations of the scope of the right of trial by jury guaranteed therein. One way to read this language is that the right of trial by jury shall be preserved no matter what, and in addition, no fact tried by a jury shall be otherwise re-examined by a court except as allowed by the rules of the common law. The second way to read the amendment is that both the preservation of the right to trial by jury and the re-examination of facts tried by juries are subject to the rules of the common law.

By its own terms, I am inclined to adopt the first reading, since it does not make grammatical sense to say “the right of trial by jury shall be preserved…than according to the rules of the common law.” It is also grammatically ambiguous whether the “rules of the common law” clause applies to both the trial by jury clause and the re-examination clause, or only the re-examination clause. But even if there is no grammatical issue, the history surrounding the desire for a definite right to trial by jury in civil cases (as referenced above) strongly suggests that the 7^th Amendment was simply a civil law counterpart to that right as expressed in the 6^th Amendment, provided the $20 minimum was met.

Under this interpretation, nothing should impede a plaintiff’s or defendant’s wish for a jury trial in civil cases before federal courts. However, since the advent of civil litigation mechanisms available to judges under the Federal Rules of Civil Procedure, parties’ rights to civil jury trials have been frequently violated. A clear example of this arises from the power of federal district court judges to grant summary judgment during the discovery phase of civil trials.

Summary judgment is commonly viewed as “the primary procedure used to avoid unnecessary civil trials.” It is a procedure which allows judges to decide a case before trial in favor of one party, if that party convinces the judge “that there is no genuine dispute as to any material fact” in the case. This improperly involves the judge in matters strictly reserved for juries, since they alone are constitutionally recognized as the triers of fact. In other words, it doesn’t matter under the 7^th Amendment whether a judge feels there are no genuine factual disputes, or that a reasonable jury could not find otherwise. Moreover, the same Federal Rules of Civil Procedure recognizing the power of summary judgment also affirm that “[t]he right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute . . . shall be preserved to the parties inviolate.”

From this perspective, summary judgment seems to be an unconstitutional contradiction of the right to trial by jury in federal civil cases. However, if the alternative interpretation of 7^th Amendment is correct, summary judgment may be permissible if it comports with the rules of the common law. The Supreme Court has interpreted the “rules of the common law” clause in the 7^th Amendment to refer to the substance of the English Common Law as it was in 1791 – the year the Constitution was ratified (Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 435–36 & n.20 (1996)). As one 7^th Amendment scholar points out, prior to 1791 “a court itself never decided the case without a determination of the facts by the parties or the jury, however improbable the evidence might be.” Though there were a number of common law procedures at the time which resembled summary judgment in some respects, none of those procedures violated this core tenet of the common law. Id. Thus accepting the constitutionality of summary judgment due to its partial similarity to these old procedures would be a misunderstanding of the substance of these procedures.

It seems then that no matter how one reads the text of the 7^th Amendment, summary judgment does not belong in our federal legal system. If the founders had wanted federal judges to engage in subjective factual forecasts on behalf of juries before civil trials, they wouldn’t have constitutionally enshrined a right of trial by jury in the first place. The fundamental purpose of trial by jury is to prevent judges from wielding the law upon individuals beyond the bounds of common reason and fairness. Giving judges the choice of upholding the very institution designed to impose judicial accountability appears to be putting the cart in front of the horse.

 Andrew Lindsey is a first-year student at William & Mary Law School. 

It is a rare American who does not have an opinion about the meaning of our Constitution. From the most informal settings of household discussion to the highest venues of public debate, constitutional controversies are continuously contemplated and confronted in our society. This is something that sets us apart from many countries, and is something that our founding fathers would be proud of. They believed that a politically engaged electorate was necessary to keep America alive and free, and they encouraged perpetual scrutiny of our founding document. Most people care about our Constitution because they are aware that, ultimately, they can change it. But out of the entire framework of fundamental powers, protections, and procedures designed by the founders, were there any provisions that they deemed too important to change?

Article 5 of the Constitution establishes the processes that can lead to adoption of constitutional amendments. Amendments to the Constitution can modify any part of the Constitution in any way, with two explicit restrictions. Article 5 states in part that “…Amendments…shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified…Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Today, the first Article 5 restriction is moot. Nonetheless, it provides instructive context for interpreting the second restriction. In addition to the plain language of the first restriction, we know from its history that it means what it says. The founders were intent on avoiding constitutional movements to change slavery before 1808, and this was the firmest way to do so. While the language of the second restriction may not seem as plain, the manner in which it is included with the first restriction strongly suggests that it is equally “unamendable,” regardless of the date.

As strange and seemingly undemocratic as this restriction may seem, it has remained largely unnoticed in our political discourse. In addition to the relative infrequency of successful constitutional amendments, many citizens are unaware that this restriction exists, and courts have had little occasion to review it. Consequently, even those individuals who are familiar with the restriction’s location and meaning pay little attention to it. Whether this clause of the Constitution will continue to remain on the sidelines of our constitutional conversations is hard to say, however two scenarios in particular seem increasingly likely to trigger further consideration.

The first scenario relates to Washington D.C.’s constant efforts to achieve statehood. Those familiar with the past and current struggles for stronger D.C. voting rights will recall that one of, if not the main, impediments for granting statehood to D.C. is the issue of senatorial representation. For reasons having to do with constitutional law, as well as the effect that more senators from D.C. would have on the partisan balance of Congress, attempts to increase Congressional representation for D.C. voters have remained unsuccessful. As a result, citizens of D.C. have made a number of compromise proposals involving the assumption of semi-statehood, wherein the District would be treated as a state with limited representation in one or both houses of Congress, as opposed to the standard Congressional representation afforded to the other 50 states. Although the second Article 5 restriction has never been invoked to deny these proposals, opponents to D.C. statehood would be wise to turn to it in the event these proposals are ever seriously deliberated.

The second scenario involves circumstances of election law. It is now commonplace for senatorial candidates to take their political campaigns to court. During this process, states become preoccupied with recounts, eligibility disputes, and other challenges. Meanwhile, constituents are left with only one senator in Congress to vote for, and represent the entire state. Fortunately, this has never happened at a time when every single vote was needed in the Senate to decide a crucial political matter such as implementation of universal health care or a raising of the debt ceiling. Regardless, such divisive political standoffs where legislation can hang in the balance of just one senator’s vote seem to be on the rise. Because of these trends, it is probable that more internal and external political pressure will be exerted on states to provide for the timely filling of senate seats. The second Article 5 restriction is a perfect avenue to add a constitutional dimension to this pressure.

There may come a time in our country when we wish to decide whether we should be able to amend provisions that our Constitution, by its own terms, has preserved indefinitely. Fortunately or unfortunately, such a decision does not appear to be on our immediate political horizons.

Andrew Lindsey is a first-year student at William & Mary Law School. 

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On the program, Julie discussed the Constitutional Conversations program and our 2011 Constitution Day Program: “Why Civic Education is Essential to a Healthy Democracy” on September 15 at 6:30pm at the Williamsburg Library.

The video from Tuesday’s program can be seen below: