Is the Constitution’s Convention for Proposing Amendments a 'Mystery'? Overlooked Evidence in the Narrative of Uncertainty

58 Pages Posted: 27 Jan 2020 Last revised: 13 Jul 2020

See all articles by Robert G. Natelson

Robert G. Natelson

Independence & Montana Policy Institutes

Date Written: June 3, 2020

Abstract

Since the 1960s, leading academics and other commentators have claimed that the composition and protocols of the Constitution’s “Convention for proposing Amendments” are unknowable and/or subject to congressional control. Today those claims are on a collision course with growing public sentiment for an amendments convention to address federal dysfunction.
After reviewing the academic literature, this Article examines the relevant evidence on convention composition and protocols, including Founding-era records, later historical records, and a widely-overlooked Supreme Court decision. This evidence clearly contradicts assertions that convention protocols and composition are unknowable or subject to congressional control. Rather, the evidence informs us that an amendments convention is what the founders called a “convention of the states”—a gathering whose composition and protocols were universally understood by the time the Constitution was ratified.
This Article also describes the composition and protocols and explains how the “convention of states” model fits within the Constitution’s structure.

Keywords: constitutional law, constitutional convention, amendments convention, amendments

JEL Classification: K1, K10, K19, K39

Suggested Citation

Natelson, Robert G., Is the Constitution’s Convention for Proposing Amendments a 'Mystery'? Overlooked Evidence in the Narrative of Uncertainty (June 3, 2020). Marquette Law Review, Vol. 104, 2020, Available at SSRN: https://ssrn.com/abstract=3516847 or http://dx.doi.org/10.2139/ssrn.3516847

Robert G. Natelson (Contact Author)

Independence & Montana Policy Institutes ( email )

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HOME PAGE: http://robnatelson.com

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