New scholarly article explains amendments conventions

To amend the Constitution, approval of an amendment by three fourths of the states (now 38 of 50) is required. But before that, the amendment must first be proposed. The Constitution allows proposal by either (1) two thirds of each house of Congress or (2) a “Convention for proposing Amendments.”

Congress has had a monopoly on proposing amendments because for many years academics, journalists, and other opinion-makers have claimed that the make-up and rules for a convention for proposing amendments are unknown. They and many alarmists claim that Congress could control the convention or it could go rogue or both. Incredibility, prestigious academic journals have published those claims with very little evidence to back them up.

Marquette Law Review—one of the nation’s oldest scholarly law journals—has just accepted an article for publication that corrects all that. It’s by Rob Natelson, the Independence Institute’s Senior Fellow in Constitutional Jurisprudence, and it marshals a massive amount of historical evidence to show that a convention for proposing amendments is simply a “convention of the states,” a frequent kind of gathering in U.S. history, and one whose make-up and procedures are well known.

Among the new evidence are (1) two major court decisions (missed by nearly all previous writers) describing an amendments convention as a “convention of the states,” one from the U.S. Supreme Court and one from the Tennessee Supreme Court, (2) newspaper articles from the 18th, 19th, and 20th century describing a convention for proposing amendments as a convention of the states, and (3) numerous 18th and 19th century official documents and public statements saying the same thing.

Editing will start this summer, with formal publication late in 2020. In the meantime, you can read the article here.