AALS Constitutional Law Section Panels

Two interesting-seeming panels at the Annual Meeting of the American Association of Law Schools, January 4-8, 2012, one on American citizenship and one on Article V. The descriptions are included below, together with information on how to submit proposals if you want to be considered as a possible presenter.

1. American Citizenship in the 21st Century

American citizenship, whether acquired by birth or naturalization, has become intensely controversial in the past five years. Two provisions of the Constitution relate to it most directly: the requirement in Article II that the President must be a “natural born citizen” (coupled with varying requirements for length of citizenship for service in the House and Senate), and the Citizenship Clause of the Fourteenth Amendment, which recognizes birthright citizenship for “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”

However, unlike in many contemporary constitutions, there is no complete constitutional definition of citizenship or description of its privileges, responsibilities, or qualities. Much of the process of its acquisition or recognition is governed by statutes passed under Congress’ authority “to establish an uniform rule of naturalization.” Congress and state legislatures are debating proposals to amend the Fourteenth Amendment to eliminate birthright citizenship or to seek to do the same thing by state or federal statute. Others insist that Congress lacks authority to vary the current rule, and that states have no role to play in regulating or determining citizenship. Many believe that this issue is sure to come before the federal courts in the near future.

In the immigration context, proposals to provide a “path to citizenship” for undocumented aliens are seen by some as indispensable to comprehensive immigration reform, while others decry any measure to do this as “amnesty.” In either case, the presence of as many as 12 million undocumented aliens exerts a significant effect on the machinery designed to regulate immigration and citizenship, and may by default create in practical terms two tiers of citizenship, reviving the old common-law concept of the “denizen.” Beyond this, the nature of American citizenship is contested at the philosophical and political level, with arguments drawing on history, political theory, and comparative law and policy.

What does American citizenship mean today? How has its meaning changed over time? What is the future of the concept and the policy and legal apparatus that maintains it. Our first panel is open to participants who submit thought-provoking and original abstracts on any aspect of this issue, whether doctrinal, theoretical, economic, comparative, or empirical.

2. Article V: “To All Intents and Purposes”

Proposals to amend the Constitution have arisen in a variety of context in the last decade, quickening in pace as the ideological gulf within our society widens. Activists of both parties have repeatedly called for specific amendments to change certain features of the Constitution or overturn Supreme Court interpretations of its meaning. Others, both on the right and left, have begun to organize a serious effort to spark a call from Congress for a new Constitutional Convention to propose amendments.

Article V, the mechanisms setting up the amendment process, is little understood and seldom taught as part of the Constitutional Law curriculum. Many political scientists and scholars criticize Article V as requiring too great a consensus for a proposed amendments. Others express concern that the Convention mechanism, which has never been used, could open the political system to sudden radical change without adequate democratic participation and public deliberation. Quite remarkably, the most recent Amendment actually adopted (in 1992) was proposed by the First Congress in 1789, and approved by legislatures over a 200-year window, leading to suggestions that the Article V mechanism has inadequate limits on its workings.

How does Article V really work? How has its practical function changed since Madison proposed the first Amendments (many of which were not adopted; the others of which became the Bill of Rights)? What light is shed on it by the fact that the Convention designed two features in the Constitution that could never be amended? What can we learn from the two periods — the aftermath of the Civil War and the Progressive Era — when political movements and popular majorities made effective use of Article V? What are the perils and promises of the Convention mechanism? What is the role of Congress in the process? How does popular constitutionalism play into the process? Is it time to use Article V to amend Article V?

Again, the Section invites abstracts on any aspect of Article V, again from a wide variety of perspectives, and including descriptive, analytical and normative work.

If any academics in the audience want the organized to consider them as possible panel participants, they should submit an abstract (no more than five pages) by June 30, 2011 to

Prof. Garrett Epps
President, Section of Constitutional Law
University of Baltimore School of Law
1415 Maryland Ave
Baltimore MD 21201
gepps@ubalt.edu
(212) 837-4956