A new paper by Indiana University-Indianapolis law professor Gerard Magliocca, who blogs over at 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 here. It is entitled, 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.
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