David Pozen (Columbia Law School) has posted The Common Law of Constitutional Conventions (California Law Review, forthcoming) (19 pages) on SSRN. Here is the 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.
I'm not familiar with Professor Lepore's lecture, but Professor Pozen has this further description:
Throughout much of the lecture, conventions play a starring role. Discussing the Founding, Lepore remarks that “no one” in 1787 “could have predicted that there would never again be a federal constitutional convention,” and she foregrounds Thomas Jefferson’s belief that such conventions ought to occur on a regular basis.1 Discussing the 1800s, Lepore explains that state conventions played a crucial role in abolishing property requirements to vote, curbing legislative malapportionment, and democratizing political life more broadly—and makes the arresting claim that “[t]he convention, not the legislature [or] the court, was the most important constitutional institution of the nineteenth century.” Discussing the present, Lepore blasts originalism for rejecting “the very idea of change” that underpins the philosophy of amendment and contends that, if it is to meet the great challenges of the day, the United States must be open to making fundamental revisions to its fundamental law.
On this account, Lepore seems to completely misunderstand originalism (and indeed to caricature it in a particularly unsophisticated way). Nothing in originalism suggests any opposition to constitutional amendment. Indeed, a central point of originalism is that the Constitution should be changed by amendment, not by nonoriginalist judicial opinions. As Professor Pozen comments in a footnote:
Most originalists would presumably counter that they don’t reject the very idea of legal change so much as insist that it conform to certain rules. See, e.g., Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 HARV.J.L. & PUB. POL’Y 817 (2015).
Exactly.
Posted at 6:10 AM