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In Copyright


How do we change the Federal Constitution? Article V tells us that we can amend the Constitution by calling a national convention to propose changes and then ratifying those proposals in state conventions. Conventions play this role because they represent the people in their sovereign capacity, as we learn when we read McCulloch v. Maryland.

What is not often discussed is that Article V itself contains another mechanism for constitutional change. In fact, Article V permits both conventions and leg-islatures to be used for amendment, and, as it happens, all but one of the 27 amendments to the Constitution have been made by legislatures. If conventions alone represent the people in their sovereign capacity, then why don’t we actu-ally use them to change the Federal Constitution? Are we to conclude that most of the amendments are in some way defective?

To show why Article V might have permitted the use of legislatures to amend the Constitution, this Article examines a series of political texts on the conven-tion written between the seventeenth and eighteenth centuries. Writers in this line defended the power of Parliament or the American colonial assemblies to alter the frame of government. From their point of view, the people could be present in the legislature, and when they were, the legislature could establish fundamental law.

This perspective helps to explain the rightful place of constitutional change by government. The people can be represented by the institutions of government, and when they are, those institutions can claim an authority to alter the Con-stitution. In this sense, the popular sovereignty described in McCulloch is dy-namic: it can be present in different institutions at different times. Presidents have repeatedly claimed just this authority. From the perspective of the writers examined here, the legislature could too. It was when corruption stopped up legislative routes of popular constitutional change that the people could move outside government entirely, to a convention, where they might alter the Con-stitution to better secure their property and liberty.

The history set out here directly challenges the orthodox historical account, based largely on the work of Gordon Wood, that has dominated the legal acad-emy for nearly 50 years. It focuses on the same key state—Pennsylvania—and argues in detail that Wood’s interpretation of the use of the convention there is incorrect. The Article emphasizes political context rather than ideology, and in so doing offers a more nuanced, and more realistic, view of the place of the convention in American constitutional change.

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Lewis & Clark Law Review

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© 2020 Matthew J. Steilen