State Calls for an Article Five Convention: Mobilization and Interpretation

Abstract

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.