A Brief Reply to Professor Penrose
5 Pages Posted: 3 Aug 2011 Last revised: 12 Aug 2011
Date Written: August 3, 2011
In her thoughtful and gracious response, Professor Mary Margaret Penrose emphasizes the uncertainty inherent in the Article V State Convention process. See Conventional Wisdom: Acknowledging Uncertainty in the Unknown, http://ssrn.com/abstract=1905548. There are a number of unsettled issues surrounding that process, ranging from administrative matters, such as where the convention will meet, to more complex and controversial questions, such as how it will vote. I agree with her that there are elements of uncertainty in the convention process and that resolving issues in advance of a convention is a laudable goal.
Uncertainty about some things, however, does not mean uncertainty about everything. Moreover, the Framers chose to include the convention method of amendment within Article V precisely to address the problem of uncertainty. Specifically, they understood that there were no guarantees that the federal government they established would be restrained by mere “parchment barriers.” To address this uncertainty, they designed the Article V Convention as a means for the states to resist federal encroachment. The process they established is as yet unused, but it is not unsafe. With appropriate action by the states, it can be made safer still.
Suggested Citation: Suggested Citation