The Common Law of Constitutional Conventions

19 Pages Posted: 28 Dec 2023

See all articles by David Pozen

David Pozen

Columbia University - Law School

Date Written: December 18, 2023

Abstract

Professor Jill Lepore's Jorde lecture paints a rich portrait of state constitutional conventions as engines of democratization during the 1800s and issues a dire warning about the United States' ongoing amendment drought. Citing their unfamiliarity, however, Lepore declines to consider federal constitutional conventions as a possible corrective. In this response Essay, I argue: first, that Lepore's marginalization of Article V's convention mechanism is in tension with her own historical and normative account; second, that while Lepore's wariness of conventions is entirely understandable given the state of our politics—and entirely commonplace among progressives—it carries significant risks of its own; and third, that constitutional conventions are not as unfamiliar as they might seem and that our long experience with this institution at the state level supplies guidance as to how a federal convention might be made less scary and more legitimate. If we wish to revive the Framers' "philosophy of amendment" and reclaim popular control over fundamental law, we must figure out how to operationalize that philosophy through credible procedures. The common law of constitutional conventions is a vital resource for this task.

Keywords: Article V, constitutional conventions, constitutional amendment, state constitutions, conventionphobia, legal history, law and politics, institutional design

Suggested Citation

Pozen, David E., The Common Law of Constitutional Conventions (December 18, 2023). California Law Review, Forthcoming, Columbia Public Law Research Paper No. 4663760, Available at SSRN: https://ssrn.com/abstract=4663760

David E. Pozen (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

HOME PAGE: http://www.law.columbia.edu/faculty/david-pozen

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
513
Abstract Views
1,954
Rank
104,910
PlumX Metrics