-
4
-
-
34249330675
-
Majority and supermajority rule: Three views of the capitol
-
1119 hereinafter McGinnis & Rappaport, Three Views
-
See John O. McGinnis & Michael B. Rappaport, Majority and Supermajority Rule: Three Views of the Capitol, 85 Tex. L. Rev. 1115, 1119 (2007) [hereinafter McGinnis & Rappaport, Three Views].
-
(2007)
Tex. L. Rev.
, vol.85
, pp. 1115
-
-
McGinnis, J.O.1
Rappaport, M.B.2
-
5
-
-
78650569448
-
-
See infra Section III.D.
-
See infra Section III.D.
-
-
-
-
6
-
-
78650525310
-
-
U.S. Const, art. V.
-
U.S. Const, art. V.
-
-
-
-
7
-
-
85055295483
-
A general theory of article V: The constitutional lessons of the twenty-seventh amendment
-
734
-
No amendment has ever been passed under the national convention method, nor has a national convention ever been called. See Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L.J. 677, 734 (1993). Only once, for the Twenty-First Amendment, has Congress employed state conventions, rather than state legislatures, to ratify an amendment. See Russell L. Caplan, Constitutional Brinksmanship: Amending the Constitution by National Convention 126 (1988).
-
(1993)
Yale L.J.
, vol.103
, pp. 677
-
-
Paulsen, M.S.1
-
8
-
-
78650556905
-
-
Of course, the fact that one purpose of the provisions was to avoid providing any entity with a veto does not mean that it was the only purpose. The enactors might have had other purposes, such as ensuring deliberation or an efficient amendment process
-
Of course, the fact that one purpose of the provisions was to avoid providing any entity with a veto does not mean that it was the only purpose. The enactors might have had other purposes, such as ensuring deliberation or an efficient amendment process.
-
-
-
-
9
-
-
78650566780
-
-
Article VII of the Constitution, which provided that the Constitution took effect when nine of the thirteen states ratified it, used state conventions rather than the state legislatures in part because it was believed that the state legislatures had interests that would lead them to oppose the new Constitution
-
Article VII of the Constitution, which provided that the Constitution took effect when nine of the thirteen states ratified it, used state conventions rather than the state legislatures in part because it was believed that the state legislatures had interests that would lead them to oppose the new Constitution.
-
-
-
-
10
-
-
78650534909
-
-
Madison, supra note 1, at 89-90.
-
Madison, supra note 1, at 89-90.
-
-
-
-
11
-
-
78650583624
-
-
The Federalist No. 43, at 246-47 (James Madison) (Clinton Rossiter ed., 1961)
-
The Federalist No. 43, at 246-47 (James Madison) (Clinton Rossiter ed., 1961).
-
-
-
-
12
-
-
84895356790
-
Does Article v Restrict the States to Calling Unlimited Conventions Only? A Letter to a Colleague
-
See Caplan, supra note 7, at x; William W. Van Alstyne, Does Article V Restrict the States to Calling Unlimited Conventions Only? - A Letter to a Colleague, 1978 Duke L.J. 1295, 1305 (1978).
-
(1978)
1978 Duke L.J.
, vol.1295
, pp. 1305
-
-
Van Alstyne, W.W.1
-
13
-
-
0042101347
-
Amending the Constitution: A Letter to a Congressman
-
198
-
See Charles L. Black, Jr., Amending the Constitution: A Letter to a Congressman, 82 Yale L.J. 189, 198 (1972) [hereinafter Black, Letter to a Congressman] (stating that "[t]hirty-four times zero is zero" in reference to the view that if two-thirds of the states apply for a limited convention, these applications should not be considered valid);
-
(1972)
Yale L.J.
, vol.82
, pp. 189
-
-
Black Jr., C.L.1
-
14
-
-
70349469767
-
The recurring question of the "limited" constitutional convention
-
1624
-
Walter E. Dellinger, The Recurring Question of the "Limited" Constitutional Convention, 88 Yale L.J. 1623, 1624 (1979); Paulsen, supra note 7, at 738.
-
(1979)
Yale L.J.
, vol.88
, pp. 1623
-
-
Dellinger, W.E.1
-
15
-
-
78650565561
-
-
See Paulsen, supra note 7, at 738
-
See Paulsen, supra note 7, at 738.
-
-
-
-
16
-
-
78650584943
-
-
note
-
My argument does not require resolution of this issue-it is enough for there to be reasonable arguments on each side-because my primary claims are that nonconforming amendments are undesirable and that there is a method for eliminating them. The only area where I come close to relying on the limited convention view is my suggestion that state legislatures should announce that they believe this interpretation and regard it as unconstitutional for Congress or the national convention to depart from their limitations. See infra Section V.B. But this does not assume the constitutionality of a limited convention. It merely asserts that it is reasonable for state legislatures, who believe it, to announce that they do. State legislatures that do not believe it can always announce that they believe that the conventions should follow the restrictions as a matter political morality, even though they are not legally required to follow them. Similarly, if the courts were to conclusively rule that the convention need not follow state directions, the legislatures can continue to advocate those directions on the basis of political morality.
-
-
-
-
17
-
-
78650553112
-
-
U.S. Const. art. V
-
U.S. Const. art. V.
-
-
-
-
18
-
-
78650575434
-
-
See Black, Letter to a Congressman, supra note 13, at 198; Paulsen, supra note 7, at 738
-
See Black, Letter to a Congressman, supra note 13, at 198; Paulsen, supra note 7, at 738.
-
-
-
-
19
-
-
78650544064
-
-
Paulsen, supra note 7, at 740
-
Paulsen, supra note 7, at 740.
-
-
-
-
20
-
-
78650566169
-
-
It might also be argued, in favor of an unlimited convention, that the role of the convention in proposing amendments appears to be similar to the role of Congress in proposing amendments, and there are no restrictions on Congress's authority to propose amendments. See Black, Letter to a Congressman, supra note 13, at 198-99. But see infra note 25 (responding to this argument)
-
It might also be argued, in favor of an unlimited convention, that the role of the convention in proposing amendments appears to be similar to the role of Congress in proposing amendments, and there are no restrictions on Congress's authority to propose amendments. See Black, Letter to a Congressman, supra note 13, at 198-99. But see infra note 25 (responding to this argument).
-
-
-
-
21
-
-
78650578302
-
-
Paulsen, supra note 7, at 739; see also Dellinger, supra note 13, at 1624
-
Paulsen, supra note 7, at 739; see also Dellinger, supra note 13, at 1624.
-
-
-
-
22
-
-
78650548740
-
-
That the language speaks of a convention for proposing "Amendments" rather than "an Amendment" surely does not change this result. A limited convention might be restricted to two subjects. Moreover, the language needed to be broad enough to cover both unlimited and limited conventions
-
That the language speaks of a convention for proposing "Amendments" rather than "an Amendment" surely does not change this result. A limited convention might be restricted to two subjects. Moreover, the language needed to be broad enough to cover both unlimited and limited conventions.
-
-
-
-
23
-
-
78650543404
-
-
See Van Alstyne, supra note 12, at 1305 (arguing that a national convention is most likely to be called in response to some "particular event" and that a limited convention would be the appropriate way to address a specific concern)
-
See Van Alstyne, supra note 12, at 1305 (arguing that a national convention is most likely to be called in response to some "particular event" and that a limited convention would be the appropriate way to address a specific concern).
-
-
-
-
24
-
-
78650543403
-
-
There are at least two other structural arguments that support recognizing limited conventions. First, the possibility of a runaway convention means that the national convention process might subject amendments to less strict requirements than the congressional amendment process. Second, the possibility of a runaway convention means that the states may refuse to call a convention on a subject for fear that the convention will act on other subjects. This has the effect of significantly weakening the national convention process. While these structural arguments are relevant, I make similar arguments in the normative section of the paper and therefore will not develop them further here
-
There are at least two other structural arguments that support recognizing limited conventions. First, the possibility of a runaway convention means that the national convention process might subject amendments to less strict requirements than the congressional amendment process. Second, the possibility of a runaway convention means that the states may refuse to call a convention on a subject for fear that the convention will act on other subjects. This has the effect of significantly weakening the national convention process. While these structural arguments are relevant, I make similar arguments in the normative section of the paper and therefore will not develop them further here.
-
-
-
-
25
-
-
78650568786
-
-
The Federalist No. 40 (James Madison), supra note 11, at 222-23
-
The Federalist No. 40 (James Madison), supra note 11, at 222-23.
-
-
-
-
26
-
-
37249025667
-
Philadelphia revisited: Amending the constitution outside article v
-
See Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. 1043, 1048 (1988);
-
(1988)
U. Chi. L. Rev.
, vol.55
, pp. 1043-1048
-
-
Amar, A.R.1
-
27
-
-
56349084346
-
The consent of the governed: Constitutional amendment outside article V
-
465
-
Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 Colum. L. Rev. 457, 465 (1994).
-
(1994)
Colum. L. Rev.
, vol.94
, pp. 457
-
-
Amar, A.R.1
-
28
-
-
78650526247
-
-
The argument that the role of the national convention is similar to that of Congress, which enjoys unrestricted authority to propose amendments, can also be rebutted. See supra note 19. One might argue that the role of Congress is actually shared by the states and the convention, because the states decide whether the convention should meet. Thus, one cannot infer that the convention, rather than the states, enjoyed the power to decide what subjects to discuss
-
The argument that the role of the national convention is similar to that of Congress, which enjoys unrestricted authority to propose amendments, can also be rebutted. See supra note 19. One might argue that the role of Congress is actually shared by the states and the convention, because the states decide whether the convention should meet. Thus, one cannot infer that the convention, rather than the states, enjoyed the power to decide what subjects to discuss.
-
-
-
-
29
-
-
78650533971
-
-
For a variety of views on Congress's power over formation and operation of the convention, see A Constitutional Convention: How Well Would It Work? 8 (Am. Enterprise Inst. 1979) (presenting views of Walter Berns, Gerald Gunther, Antonin Scalia, and Paul Bator)
-
For a variety of views on Congress's power over formation and operation of the convention, see A Constitutional Convention: How Well Would It Work? 8 (Am. Enterprise Inst. 1979) (presenting views of Walter Berns, Gerald Gunther, Antonin Scalia, and Paul Bator).
-
-
-
-
30
-
-
78650551366
-
-
See Caplan, supra note 7, at 119 (arguing that the selection method of delegates "is up to each state")
-
See Caplan, supra note 7, at 119 (arguing that the selection method of delegates "is up to each state").
-
-
-
-
31
-
-
60950224095
-
The proposed amendment of article V: A threatened disaster
-
964
-
See Charles L. Black, Jr., The Proposed Amendment of Article V: A Threatened Disaster, 72 Yale L.J. 957, 964 (1963) (arguing that Congress has power under the Necessary and Proper Clause to regulate the mode of election of the convention).
-
(1963)
Yale L.J.
, vol.72
, pp. 957
-
-
Black Jr., C.L.1
-
32
-
-
78650566168
-
-
U.S. Const, art. I, § 8, cl. 18
-
U.S. Const, art. I, § 8, cl. 18.
-
-
-
-
33
-
-
77950679062
-
-
514 U.S. 779, 781
-
It might be thought that the states would not have any power to regulate the selection of delegates if the convention is deemed a national government entity, and it is thought that the states do not have any reserved legislative authority as to such entities. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 781 (1995). In that event, Congress would be obligated to establish a method for selecting delegates. See Black, Threatened Disaster, supra note 29, at 964.
-
(1995)
U.S. Term Limits, Inc. v. Thornton
-
-
-
34
-
-
0345832925
-
The convention method of amending the united states constitution
-
23-24
-
Even if the convention is a federal government entity, Congress's regulation must still be necessary and proper for carrying it into execution. Cf. Gerald Gunther, The Convention Method of Amending the United States Constitution, 14 Ga. L. Rev. 1, 23-24 (1979) (arguing that Congress has certain powers under the Necessary and Proper Clause as to the convention, but may not impose substantive regulations on the convention). Under one view of this analysis, one would ask whether the congressional regulations allow the convention to perform its job more effectively.
-
(1979)
Ga. L. Rev.
, vol.14
, pp. 1
-
-
Gunther, G.1
-
35
-
-
78650533970
-
The role of congress in determining incidental powers of the president and of the federal courts: A Comment on the horizontal effect of "The Sweeping Clause,"
-
793-94
-
The classic article on the horizontal use of the Necessary and Proper Clause is William Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of "The Sweeping Clause," 36 Ohio St. L.J. 788, 793-94 (1975).
-
(1975)
Ohio St. L.J.
, vol.36
, pp. 788
-
-
Van Alstyne, W.1
-
36
-
-
78650551704
-
-
Even if the convention is not deemed a federal government entity, it might be argued that Congress has the authority to regulate it based on its power to call the convention. I find this argument to be quite a stretch, but it might be defended by those with a much broader view of federal power
-
Even if the convention is not deemed a federal government entity, it might be argued that Congress has the authority to regulate it based on its power to call the convention. I find this argument to be quite a stretch, but it might be defended by those with a much broader view of federal power.
-
-
-
-
37
-
-
78650579600
-
-
See Caplan, supra note 7, at 118-19 (arguing that Congress has limited powers over the convention, which do not include the authority to regulate the method of election of the convention delegates)
-
See Caplan, supra note 7, at 118-19 (arguing that Congress has limited powers over the convention, which do not include the authority to regulate the method of election of the convention delegates).
-
-
-
-
38
-
-
78650555578
-
-
See Paulsen, supra note 7, at 738 (describing the constitutional convention as an assembly of the people)
-
See Paulsen, supra note 7, at 738 (describing the constitutional convention as an assembly of the people).
-
-
-
-
39
-
-
78650547773
-
-
See Black, Threatened Disaster, supra note 29, at 964 (arguing that Congress has power under the Necessary and Proper Clause to regulate the voting rule at the convention)
-
See Black, Threatened Disaster, supra note 29, at 964 (arguing that Congress has power under the Necessary and Proper Clause to regulate the voting rule at the convention).
-
-
-
-
40
-
-
77952136309
-
Proposed legislation on the convention method of amending the united states constitution
-
1634
-
See Caplan, supra note 7, at 119 (arguing that voting matters are "within the discretion of the convention itself); see also Note, Proposed Legislation on the Convention Method of Amending the United States Constitution, 85 Harv. L. Rev. 1612, 1634 (1972) (arguing that Congress must decide on the initial voting rule at the convention, but that it would be unconstitutional for Congress to require more than a simple majority vote and that the convention may vote to alter the voting rule). One might question how the convention could decide on the voting rule, since it would need a voting rule to decide on the proper voting rule. Despite the circular quality of this resolution, legislatures make this type of determination all the time. For example, every two years, the House of Representatives starts out the new Congress without any promulgated voting rule, relying instead on the common law voting rule to enact new rules.
-
(1972)
Harv. L. Rev.
, vol.85
, pp. 1612
-
-
-
41
-
-
84937297076
-
The constitutionality of legislative supermajority requirements: A defense
-
491 n.40
-
See John O. McGinnis & Michael B. Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 Yale L.J. 483, 491 n.40 (1995). This method could be used by the convention as well. There is a strong argument that the common law or default rule for the convention would be majority rule. The convention could then use that voting rule to adopt a stricter rule, such as a supermajority rule.
-
(1995)
Yale L.J.
, vol.105
, pp. 483
-
-
McGinnis, J.O.1
Rappaport, M.B.2
-
42
-
-
78650544705
-
-
Having the convention decide voting rights, however, would be more difficult than having it decide the voting rule. The default rule for voting rights is less clear than for the voting rule. Probably, the most likely default rule would equalize voting rights for states, since Article V gives each state an equal vote at both the application and ratification stage. Using this default rule, the convention might then adopt other voting rights, such as those based on population. While the small states might resist such a move, the larger states would resist equal voting rights, and some compromise might be necessary
-
Having the convention decide voting rights, however, would be more difficult than having it decide the voting rule. The default rule for voting rights is less clear than for the voting rule. Probably, the most likely default rule would equalize voting rights for states, since Article V gives each state an equal vote at both the application and ratification stage. Using this default rule, the convention might then adopt other voting rights, such as those based on population. While the small states might resist such a move, the larger states would resist equal voting rights, and some compromise might be necessary.
-
-
-
-
43
-
-
78650524989
-
-
U.S. Const, art. V.
-
U.S. Const, art. V.
-
-
-
-
44
-
-
78650574433
-
-
Moreover, it is not clear whether there would be judicial review of these congressional decisions or the others discussed in this Section
-
Moreover, it is not clear whether there would be judicial review of these congressional decisions or the others discussed in this Section.
-
-
-
-
45
-
-
78650571561
-
-
Of course, if Congress does not regulate the convention, there may be other problems. Uncertainty about the voting rule and voting rights at the convention may also lead to divisions among the delegates. Indeed, it is possible that the disputes about the voting rights might lead some delegates to walk out of the convention
-
Of course, if Congress does not regulate the convention, there may be other problems. Uncertainty about the voting rule and voting rights at the convention may also lead to divisions among the delegates. Indeed, it is possible that the disputes about the voting rights might lead some delegates to walk out of the convention.
-
-
-
-
46
-
-
78650575748
-
-
Another possible way that a nonconforming amendment might be enacted is if the convention successfully changes the way that an amendment is ratified. A convention that sought to dramatically change the Constitution might propose an amendment that not only incorporates dramatic changes, but also purports to change the method by which it is ratified (such as decreasing the number of state legislatures required for ratification from three-quarters to two-thirds). The original Philadelphia Convention of 1787 adopted a new ratification method, which was accepted by the country. Although there is a strong argument that such a change in the ratification method placed in the amendment that the convention passes would be constitutionally invalid, the country might nonetheless accept it. Consequently, state legislatures would need to consider this possibility, even though it seems unconstitutional
-
Another possible way that a nonconforming amendment might be enacted is if the convention successfully changes the way that an amendment is ratified. A convention that sought to dramatically change the Constitution might propose an amendment that not only incorporates dramatic changes, but also purports to change the method by which it is ratified (such as decreasing the number of state legislatures required for ratification from three-quarters to two-thirds). The original Philadelphia Convention of 1787 adopted a new ratification method, which was accepted by the country. Although there is a strong argument that such a change in the ratification method placed in the amendment that the convention passes would be constitutionally invalid, the country might nonetheless accept it. Consequently, state legislatures would need to consider this possibility, even though it seems unconstitutional.
-
-
-
-
47
-
-
77951863634
-
Originalism and the good constitution
-
1736-37, 1753
-
See John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution, 98 Geo. L.J. 1693, 1736-37, 1753 (2010) [hereinafter McGinnis & Rappaport, The Good Constitution].
-
(2010)
Geo. L.J.
, vol.98
, pp. 1693
-
-
McGinnis, J.O.1
Rappaport, M.B.2
-
48
-
-
23044532121
-
Our supermajoritarian constitution
-
805-06
-
John O. McGinnis & Michael B. Rappaport, Our Supermajoritarian Constitution, 80 Tex. L. Rev. 703, 805-06 (2002) [hereinafter McGinnis & Rappaport, Our Supermajoritarian Constitution].
-
(2002)
Tex. L. Rev.
, vol.80
, pp. 703
-
-
McGinnis, J.O.1
Rappaport, M.B.2
-
49
-
-
78650578947
-
-
note
-
While I use the double supermajority rule in the congressional amendment process as the basis for comparison, one might wonder whether that procedure or some other one is the optimal supermajority rule. For a discussion of some of the considerations relevant to determining the optimal supermajority rule, see McGinnis & Rappaport, Three Views, supra note 4, at 1170-83. In this Article, I shall assume that the congressional rule does correspond to the optimal rule, since I believe it is plausible and there is no obvious alternative one. Of course, one might argue that a weaker supermajority rule is optimal. And one might further argue that making the national convention process subject to a weaker rule would only operate to improve the Constitution, not weaken it, especially from the perspective of those who believe that the states should be given a greater role in the governance of the nation. This argument would have force except that, as developed below in the text, allowing runaway conventions actually makes the national convention amendment process less likely to be used and therefore reduces the power of the states in the constitutional system.
-
-
-
-
50
-
-
78650562887
-
-
note
-
It is true that if the states apply for an unlimited convention, that might result in a less strict amendment process than the congressional amendment process as well. But there are at least two defenses of the states' application for an unlimited convention that distinguish it from a runaway convention. First, an unlimited convention might be needed if the states believe there are serious problems facing the nation but are unable to agree on a subject in advance of the convention. Given the dispersed nature of the state legislatures, especially when the Constitution was written, an unlimited convention was necessary, even though it might have involved less scrutiny. Second, when the states apply for an unlimited convention, they are in essence choosing to delegate their decision to the convention. Thus, they have at least exercised the scrutiny necessary to determine that they need to delegate the decision. By contrast, under a runaway convention, the states have determined, not that they need to delegate, but that they do not need to do so. The convention contradicts, rather than follows, their decision.
-
-
-
-
51
-
-
78650530634
-
-
That the fear of a runaway convention is a real one is suggested by the fact that concern about a runaway convention has so often been mentioned. Many of those expressing these concerns have used it to argue against using the national convention procedure. See Russell L. Caplan, Constitutional Brinksmanship: Amending the Constitution by National Convention, at vii (1988)
-
(1988)
-
-
Caplan Russell, L.1
-
52
-
-
78650562553
-
The proposed constitutional convention
-
(quoting Arthur Goldberg, The Proposed Constitutional Convention, 11 Hastings Const. L.Q. 1, 2 (1983) ("There is nothing in Article V that prevents a convention from making wholesale changes to our Constitution and Bill of Rights."));
-
(1983)
Hastings Const. L.Q.
, vol.11
, pp. 1-2
-
-
Goldberg, A.1
-
53
-
-
78650576079
-
-
May 24
-
Caplan, supra, at viii (quoting Press Release, Henry J. Reske, United Press Int'l, Special Constitution Package: Hi-tech Constitution? (May 24, 1987) (available at LexisNexis) (expressing Justice Brennan's fear of "the trauma of redoing the Constitution" and calling a constitutional convention "the most awful thing in the world"));
-
(1987)
United Press Int'l, Special Constitution Package: Hi-tech Constitution?
-
-
Reske, H.J.1
-
54
-
-
78650527244
-
-
Caplan, supra, at 81 (quoting 125 Cong. Rec. 3159 (1979) (recording Senator Barry Goldwater as stating that in the event of a convention, "every group in this country... is going to get its two bits in and we are going to wind up with a Constitution that will be so far different from the one we have lived under for 200 years that I doubt that the Republic could continue"))
-
Caplan, supra, at 81 (quoting 125 Cong. Rec. 3159 (1979) (recording Senator Barry Goldwater as stating that in the event of a convention, "every group in this country... is going to get its two bits in and we are going to wind up with a Constitution that will be so far different from the one we have lived under for 200 years that I doubt that the Republic could continue"));
-
-
-
-
55
-
-
78650571232
-
-
Mar. 28, 1979, at AlO (relating President Carter's correspondence with the Speaker of the Ohio House of Representatives in which he expressed his opinion that a convention is a "radical and unprecedented action" that "might do serious, irrevocable damage to the Constitution")
-
Caplan, supra, at 81-82 (quoting Edward Walsh, President Denounces 'Political Gimmickry' of Drive to Balance Budget by Constitution, Wash. Post, Mar. 28, 1979, at AlO (relating President Carter's correspondence with the Speaker of the Ohio House of Representatives in which he expressed his opinion that a convention is a "radical and unprecedented action" that "might do serious, irrevocable damage to the Constitution"));
-
President Denounces 'Political Gimmickry' of Drive to Balance Budget by Constitution, Wash. Post
-
-
Walsh, E.1
-
56
-
-
78650552327
-
A balanced U.S. budget debated in connecticut
-
Mar. 19
-
Caplan, supra, at 84 (quoting Richard L. Madden, A Balanced U.S. Budget Debated in Connecticut, N.Y. Times, Mar. 19, 1985, at B4 (recounting Thomas I. Emerson's statement that the uncertainty of a constitutional convention could result in a "constitutional crisis that could tear the country apart"));
-
(1985)
N.Y. Times
-
-
Madden, R.L.1
-
57
-
-
78650558187
-
-
Caplan, supra, at 85 (quoting MacNeil/Lehrer NewsHour (PBS television broadcast Mar. 24, 1986) (transcript #2736) (stating Senator Paul Simon's opinion that, with regard to a convention to propose a balanced budget amendment, "number one, we don't know what kind of a budget amendment they might draft. Second, that constitutional convention can... modify the Bill of Rights, they can put an abortion amendment in the Constitution, they can [raise] all kinds of havoc."))
-
Caplan, supra, at 85 (quoting MacNeil/Lehrer NewsHour (PBS television broadcast Mar. 24, 1986) (transcript #2736) (stating Senator Paul Simon's opinion that, with regard to a convention to propose a balanced budget amendment, "number one, we don't know what kind of a budget amendment they might draft. Second, that constitutional convention can... modify the Bill of Rights, they can put an abortion amendment in the Constitution, they can [raise] all kinds of havoc."));
-
-
-
-
58
-
-
78650584613
-
-
Caplan, supra, at 85 (quoting Public Papers of the Presidents of the United States: Ronald Regan, 1982 (interview with reporters from the L.A. Times, Jan. 20, 1982) (available at http://www.reagan.utexas.edu/archives/ speeches/1982/12082e.htm) (reporting President Reagan's stance that a convention for a balanced budget amendment was "a last resort, because then once it's open, they could take up any number of things))
-
Caplan, supra, at 85 (quoting Public Papers of the Presidents of the United States: Ronald Regan, 1982 (interview with reporters from the L.A. Times, Jan. 20, 1982) (available at http://www.reagan.utexas.edu/archives/ speeches/1982/12082e.htm) (reporting President Reagan's stance that a convention for a balanced budget amendment was "a last resort, because then once it's open, they could take up any number of things"));
-
-
-
-
60
-
-
0347094245
-
Issues Raised by Requesting Congress to Call a Constitutional Convention to Propose a Balanced Budget Amendment
-
628
-
Laurence H. Tribe, Issues Raised by Requesting Congress to Call a Constitutional Convention to Propose a Balanced Budget Amendment, 10 Pac. L.J. 627, 628 (1979) (calling a convention to consider a balanced budget amendment "needless and perilous... likely to generate uncertainties where confidence is indispensible... to invite division and confrontation where unity and cooperation are critical... to thwart rather than vindicate the will of the American people and damage rather than mend the Constitution");
-
(1979)
Pac. L.J.
, vol.10
, pp. 627
-
-
Tribe, L.H.1
-
61
-
-
78650571055
-
An Address to the American Bar Association's Bicentennial Showcase Program (Aug. 9, 1987), reprinted in Combating Chicanery about the Constitution
-
Sept. 1987, available at
-
Phyllis Shlafly, An Address to the American Bar Association's Bicentennial Showcase Program (Aug. 9, 1987), reprinted in Combating Chicanery About the Constitution, The Phyllis Schlafly Report, Vol. 21, no. 2 (Sept. 1987), available at http://www.eagleforum.org/psr/1987/sept87/ psrsept87.html (quoting former Chief Justice Warren Burger as stating, "There is no way to put a muzzle on a Constitutional Convention," and James Madison as stating, "Having witnessed the difficulties and dangers experienced by the first Convention, which assembled under every propitious circumstance, I should tremble for the result of a second.").
-
The Phyllis Schlafly Report
, vol.21
, Issue.2
-
-
Shlafly, P.1
-
63
-
-
78650525308
-
State Calls for an Article Five Convention: Mobilization and Interpretation
-
Gerard N. Magliocca, State Calls for an Article Five Convention: Mobilization and Interpretation, 2009 Cardozo L. Rev. de novo 74, 77-78 (2009).
-
(2009)
2009 Cardozo L. Rev. de Novo
, vol.74
, pp. 77-78
-
-
Magliocca, G.N.1
-
64
-
-
78650560022
-
-
See infra Section III.A
-
See infra Section III.A.
-
-
-
-
65
-
-
78650560354
-
-
See Caplan, supra note 7, at 83; Kyvig, supra note 47, at 439-40
-
See Caplan, supra note 7, at 83; Kyvig, supra note 47, at 439-40.
-
-
-
-
66
-
-
36048985309
-
The other way to amend the constitution: The article v constitutional convention amendment process
-
Note, 1009
-
See Caplan, supra note 7, at 76; James Kenneth Rogers, Note, The Other Way to Amend the Constitution: The Article V Constitutional Convention Amendment Process, 30 Harv. J.L. & Pub. Pol'y 1005, 1009 (2007).
-
(2007)
Harv. J.L. & Pub. Pol'y
, vol.30
, pp. 1005
-
-
Rogers, J.K.1
-
67
-
-
78650525309
-
-
For example, when thirty-three applications for a convention on apportionment were issued, some members of Congress argued that many of the applications were invalid because they derived from malapportioned state legislatures. See Magliocca, supra note 48, at 81-82
-
For example, when thirty-three applications for a convention on apportionment were issued, some members of Congress argued that many of the applications were invalid because they derived from malapportioned state legislatures. See Magliocca, supra note 48, at 81-82.
-
-
-
-
68
-
-
78650577668
-
-
U.S. Const. amend. XVII
-
U.S. Const. amend. XVII.
-
-
-
-
70
-
-
78650542553
-
-
See Magliocca, supra note 48, at 11 n.24
-
See Magliocca, supra note 48, at 11 n.24.
-
-
-
-
71
-
-
84937317261
-
Rethinking article V: Term limits and the seventeenth and nineteenth amendments
-
1979 n.36
-
See Kris W. Kobach, Rethinking Article V: Term Limits and the Seventeenth and Nineteenth Amendments, 103 Yale L.J. 1971, 1979 n.36 (1994).
-
(1994)
Yale L.J.
, vol.103
, pp. 1971
-
-
Kobach, K.W.1
-
72
-
-
78650579895
-
-
note
-
In an important article, Kris Kobach showed that the Seventeenth Amendment and the Nineteenth Amendment (guaranteeing women the right to vote) were adopted under what he described as an extraconstitutional system. See id. at 1976-80. This system involved proponents of a change causing it to be adopted at the state level, mainly either through initiative or state constitutional amendment. After members of Congress were elected under the new system, they then supported that new system.
-
-
-
-
73
-
-
78650539112
-
-
Under the Oregon system, candidates for United States Senate were nominated by voter petition and citizens voted for their choice in an election. Candidates for the state legislature could sign one of two statements, either promising to vote for the winner of the popular vote or to consider it advisory. Most state legislators agreed to vote for the popular vote winner. See id. at 1978
-
Under the Oregon system, candidates for United States Senate were nominated by voter petition and citizens voted for their choice in an election. Candidates for the state legislature could sign one of two statements, either promising to vote for the winner of the popular vote or to consider it advisory. Most state legislators agreed to vote for the popular vote winner. See id. at 1978.
-
-
-
-
74
-
-
78650526246
-
-
Fifty-eight percent of the states provided for direct nomination by the people, as in the Oregon system. Another nineteen percent of the states had some measure of popular input in the selection of senators. See id. at 1978-79
-
Fifty-eight percent of the states provided for direct nomination by the people, as in the Oregon system. Another nineteen percent of the states had some measure of popular input in the selection of senators. See id. at 1978-79.
-
-
-
-
75
-
-
78650542223
-
-
James Madison
-
Some of the delegates at Philadelphia appeared to believe that no amendment provision was necessary. See 1 The Records of the Federal Convention of 1787, at 202 (Max Farrand ed., 1911) (James Madison).
-
(1911)
The Records of the Federal Convention of 1787
, pp. 202
-
-
Farrand, M.1
-
76
-
-
78650544706
-
-
See infra Sections III.B-C
-
See infra Sections III.B-C.
-
-
-
-
77
-
-
78650531808
-
-
One possible exception to Congress's general preference for the federal government is that it will sometimes favor placing limits on its principal competitor, the President, if those limits enhance its own power. See U.S. Const, amend. XXII (placing term limits on the President)
-
One possible exception to Congress's general preference for the federal government is that it will sometimes favor placing limits on its principal competitor, the President, if those limits enhance its own power. See U.S. Const, amend. XXII (placing term limits on the President).
-
-
-
-
78
-
-
78650575125
-
-
U.S. Const. amends. XIII-XVI
-
U.S. Const. amends. XIII-XVI.
-
-
-
-
79
-
-
78650577078
-
-
U.S. Const. amend. XIV, §1
-
U.S. Const. amend. XIV, §1.
-
-
-
-
80
-
-
78650584941
-
-
U.S. Const. amend. XIII
-
U.S. Const. amend. XIII.
-
-
-
-
81
-
-
78650565246
-
-
U.S. Const, amend. XV
-
U.S. Const, amend. XV.
-
-
-
-
82
-
-
78650573459
-
-
U.S. Const, amend. XIX
-
U.S. Const, amend. XIX.
-
-
-
-
83
-
-
78650532134
-
-
note
-
U.S. Const, amend. XXVI. Actually, the Fifteenth, Nineteenth, and Twenty-Sixth Amendments did not really place limits on the federal government. While they did forbid government from restricting the right to vote, the previous power to impose these restrictions was located mainly in the states. See, e.g. U.S. Const, art. I, §2, cl. 1 ("[T]he Electors in each States [for the House of Representatives] shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.").
-
-
-
-
84
-
-
77952601656
-
-
383 U.S. 663, 665-67
-
The Twenty-Fourth Amendment could also be placed in this group of provisions, except that its prohibition against poll taxes only applies to federal, not state, elections. But like the other provisions in this group, it did not confer a right that Congress at the time opposed or that harmed its institutional interests. The exemption of state elections from this provision was largely due to opposition from southern states, but did not reflect any desire to place especially strong limits on the federal government. Interestingly, a restriction on state elections was supplied by the Supreme Court shortly after the Amendment took effect. Harper v. Va. Bd. of Elections, 383 U.S. 663, 665-67 (1966).
-
(1966)
Harper v. Va. Bd. of Elections
-
-
-
85
-
-
78650567731
-
-
U.S. Const. amend. XII
-
U.S. Const. amend. XII.
-
-
-
-
86
-
-
78650557219
-
-
U.S. Const. amend. XX
-
U.S. Const. amend. XX.
-
-
-
-
87
-
-
78650582550
-
-
U.S. Const. amend. XXV. The Twenty-Third Amendment, which provides electoral votes to the District of Columbia, also did not restrain Congress or the federal government. U.S. Const, amend. XXIII
-
U.S. Const. amend. XXV. The Twenty-Third Amendment, which provides electoral votes to the District of Columbia, also did not restrain Congress or the federal government. U.S. Const, amend. XXIII.
-
-
-
-
88
-
-
78650568434
-
-
U.S. Const. amend. XXII
-
U.S. Const. amend. XXII.
-
-
-
-
89
-
-
78650579894
-
-
note
-
Although a bit of a mixed case, the Eighteenth Amendment, which imposed prohibition, and the Twenty-First Amendment, which repealed it, also appear consistent with this analysis. The Eighteenth Amendment largely appears to have strengthened the national government, since it gave the federal government authority to enforce an important law it previously lacked. This strengthening, though, was limited because it was the Constitution, rather than the Congress, that imposed the law and therefore Congress lacked power to eliminate it. The repeal of prohibition in the Twenty-First Amendment also does not conflict with my analysis. It is true that the repeal did reduce Congress's power to a limited extent, but Congress at the time did not really desire that power, as national prohibition was unpopular. Nor was this power important to Congress's or the national government's institutional interests.
-
-
-
-
90
-
-
85050710665
-
Rewriting the constitution: An economic analysis of the constitutional amendment process
-
132-40
-
Donald Boudreaux and A.C. Pritchard offer an alternative explanation for the passage of the Bill of Rights. They argue that the fact that the federal government was in its infancy at the time of the Bill's passage prevented Congress from exercising sufficient power to block its enactment. Donald J. Boudreaux & A.C. Pritchard, Rewriting the Constitution: An Economic Analysis of the Constitutional Amendment Process, 62 Fordham L. Rev. 111, 132-40 (1993). While the federal government's undeveloped state no doubt helped passage of the Bill, it is unlikely to have made more than a minor contribution. It was the willingness of the state legislatures to call a convention that was the key factor. Even if the federal government had been strong, the state legislatures would have been very likely to have called for a convention to enact the Bill if the Congress had not done so. To prevent the convention from being called, Congress would still have had an incentive to enact the Bill, despite the existence of a strong federal government. Moreover, if the state legislatures had not desired to call a wide ranging convention, the Bill of Rights might not have been enacted, even without a strong federal government. As it was, the Congress seemed ready not to enact a Bill of Rights until James Madison took the initiative and proposed one to the House. Without the credible threat of a second convention, it seems unlikely that the Bill would have secured the requisite two-thirds support in both houses of Congress.
-
(1993)
Fordham L. Rev.
, vol.62
, pp. 111
-
-
Boudreaux, D.J.1
Pritchard, A.C.2
-
91
-
-
78650581622
-
-
note
-
Those circumstances were relatively unique and unlikely to occur again. At that time, the Federalists had succeeded in enacting a Constitution that reflected the nationalist end of the political spectrum. Any convention was unlikely to move it further towards that end. But there was a real possibility that the Anti-Federalists might pass an amendment that would move it closer towards states rights. Thus, the AntiFederalists did not fear the convention, whereas the Federalists did. Today, most amendments involve relatively narrow matters that compete with other policy proposals. Thus, proponents of any particular proposal to change the Constitution would have to worry about other policy proposals that a convention might propose. By contrast, after the Framing, the only realistic possibilities were a set of amendments that would cut back on the federal government's powers.
-
-
-
-
92
-
-
78650531515
-
-
See U.S. Const, amend. XI
-
See U.S. Const, amend. XI.
-
-
-
-
93
-
-
78650580398
-
-
2 U.S. (2 Dall.) 419 (1793)
-
2 U.S. (2 Dall.) 419 (1793).
-
-
-
-
94
-
-
78650578946
-
-
U.S. Const. amend. XVII
-
U.S. Const. amend. XVII.
-
-
-
-
95
-
-
78650544370
-
-
See supra notes 53-59 and accompanying text
-
See supra notes 53-59 and accompanying text.
-
-
-
-
96
-
-
78650554388
-
-
The mechanism can only be used where the proposed amendment would change the election method for members of Congress, and the states have the authority to change the method of election prior to the passage of the amendment
-
The mechanism can only be used where the proposed amendment would change the election method for members of Congress, and the states have the authority to change the method of election prior to the passage of the amendment.
-
-
-
-
97
-
-
78650527558
-
"They the people": A comment on U.S. term limits, Inc. v. Thornton
-
862-63
-
See Lynn A. Baker, "They the People": A Comment on U.S. Term Limits, Inc. v. Thornton, 38 Ariz. L. Rev. 859, 862-63 (1996);
-
(1996)
Ariz. L. Rev.
, vol.38
, pp. 859
-
-
Baker, L.A.1
-
98
-
-
78650566167
-
-
see also infra notes 111-13 and accompanying text
-
see also infra notes 111-13 and accompanying text.
-
-
-
-
99
-
-
67649537659
-
Still complacent after all these years: Some rumination on the continuing need for a "new political science,"
-
420
-
Compare Sanford Levinson, Still Complacent After All These Years: Some Rumination on the Continuing Need for a "New Political Science," 89 B.U.L. Rev. 409, 420 (2009),
-
(2009)
B.U.L. Rev.
, vol.89
, pp. 409
-
-
Levinson, S.1
-
100
-
-
33750868865
-
The nominee is... article v
-
and Stephen M. Griffin, The Nominee Is... Article V, 12 Const. Comment. 171 (1995),
-
(1995)
Const. Comment.
, vol.12
, pp. 171
-
-
Griffin, S.M.1
-
103
-
-
78650576766
-
-
supra note 43
-
In my work on constitutional amendments, I have not taken a firm position on the exact supermajority rules that should be employed. See, e.g., McGinnis & Rappaport, The Good Constitution, supra note 43. Instead, I believe that there is a range of reasonableness, with the Constitution's two-thirds for proposal and three-quarters for ratification being at the strict end of the range. Thus, it is possible that a three-fifths proposal and two-thirds for ratification could be optimal. In that event, the Constitution would be too strict, but not by that much.
-
The Good Constitution
-
-
McGinnis1
Rappaport2
-
106
-
-
78650560983
-
-
See generally supra note 45
-
See generally supra note 45;
-
-
-
-
109
-
-
78650552509
-
-
Another reason to limit ourselves to an amendment process that is similar in strictness and structure to the existing process is the need to frame a proposal that might be able to get passed. Staying close to the existing amendment process makes the proposal less radical, which might increase the likelihood that state legislatures would support it
-
Another reason to limit ourselves to an amendment process that is similar in strictness and structure to the existing process is the need to frame a proposal that might be able to get passed. Staying close to the existing amendment process makes the proposal less radical, which might increase the likelihood that state legislatures would support it.
-
-
-
-
110
-
-
78650576410
-
-
note
-
A strong advocate of more lenient amendment procedures might nonetheless believe that the benefits of weakening the supermajority rule outweigh the incongruity of having different voting rules for Congress and the noncongressional method. They might even believe that Congress would respond to the passage of the amendment with a new amendment reducing the strictness of the supermajority rule for the congressional enactment amendment procedure.
-
-
-
-
113
-
-
0004279652
-
-
It might be objected that interpretation based on normative considerations looks to the substantive desirability of an interpretation, whereas my argument here looks to what a desirable procedure would produce. But this distinction is no objection to my argument. What a desirable procedure would produce is a key means for determining what is substantively desirable. Cf. John Hart Ely, Democracy and Distrust 181-83 (1980) (arguing on substantive normative grounds that the Constitution should be interpreted to allow for a desirable process for passing laws).
-
(1980)
Democracy and Distrust
, pp. 181-183
-
-
Ely, J.H.1
-
114
-
-
78650581038
-
-
note
-
It is worth contrasting this process-oriented approach to John Hart Ely's representation-reinforcing approach. See Ely, supra note 91, at 181-83. Under Ely's approach, one interprets the Constitution in order to allow for an effective democracy. Once that is done, then judges presumably would enforce the statutes that are enacted as the product of democratic politics. By contrast, the approach discussed here interprets the Constitution itself to give effect to the amendments that would have passed if the constitutional amendment process were working. Thus, both approaches see a value in the results of certain processes-in Ely's case, democratic policies, in this Article's case, constitutional amendment processes - and both attempt to interpret the Constitution to further those processes.
-
-
-
-
115
-
-
78650535580
-
-
Alternatively, one might combine the two different approaches. Under this combined view, judges would both assess the applicable values and would also consider what amendments might have passed under a functioning amendment process
-
Alternatively, one might combine the two different approaches. Under this combined view, judges would both assess the applicable values and would also consider what amendments might have passed under a functioning amendment process.
-
-
-
-
116
-
-
78650553428
-
-
If someone believed that the existing constitutional amendment structure is too strict, they could modify this interpretive argument. Instead of giving effect to amendments that had enough support to pass under a strict supermajoritarian process, one would give effect to those that had enough to support under a more lenient process. This would, if anything, provide more of a role for this type of processoriented interpretation
-
If someone believed that the existing constitutional amendment structure is too strict, they could modify this interpretive argument. Instead of giving effect to amendments that had enough support to pass under a strict supermajoritarian process, one would give effect to those that had enough to support under a more lenient process. This would, if anything, provide more of a role for this type of processoriented interpretation.
-
-
-
-
117
-
-
0346003133
-
Enforcing the balanced budget amendment
-
568-69
-
Congress has voted on seven versions of the balanced budget amendment since the early 1980s. James W. Bowen, Enforcing the Balanced Budget Amendment, 4 Seton Hall Const. L.J. 565, 568-69 (1994) (discussing a 1990 version of the amendment which failed by seven votes in the House; and also stating that in 1992, a version of the amendment failed by nine votes in the House, and that in 1994, a version of the amendment failed by four votes in the Senate and by nineteen votes in the House);
-
(1994)
Seton Hall Const. L.J.
, vol.4
, pp. 565
-
-
Bowen, J.W.1
-
118
-
-
78650547772
-
Judicial independence: Rebuffing congressional attacks on the third branch
-
753 n.277
-
Stephan O. Kline, Judicial Independence: Rebuffing Congressional Attacks on the Third Branch, 87 Ky. L.J. 679, 753 n.277 (1999) (noting that a version of the amendment passed in the House in 1995 with a vote of 300-132, but failed in the Senate in 1996 with a vote of 64-35; and that in 1997, a similar version failed in the Senate by one vote);
-
(1999)
Ky. L.J.
, vol.87
, pp. 679
-
-
Kline, S.O.1
-
119
-
-
0346634269
-
Refining or resisting modern government? The balanced budget amendment to the U.S. constitution
-
99-100
-
David E. Kyvig, Refining or Resisting Modern Government? The Balanced Budget Amendment to the U.S. Constitution, 28 Akron L. Rev. 97, 99-100 (1995) (noting that in 1986, a version of the amendment fell just one vote short of a supermajority in the Senate);
-
(1995)
Akron L. Rev.
, vol.28
, pp. 97
-
-
Kyvig, D.E.1
-
120
-
-
78650566479
-
-
Rogers, supra note 51, at 1009, 1010 n.32 (noting that in 1982, a version of the amendment passed the Senate with a vote of 69-31, but failed in the House with a vote of 236-187)
-
Rogers, supra note 51, at 1009, 1010 n.32 (noting that in 1982, a version of the amendment passed the Senate with a vote of 69-31, but failed in the House with a vote of 236-187).
-
-
-
-
121
-
-
84948894969
-
-
Pub. L. No. 99-177, 99 Stat. 1038 (codified as amended at 2 U.S.C. § 900 et seq.) (requiring that the federal deficit be reduced in stages to zero by 1991)
-
Congress, however, has been willing at various times to pass legislation requiring the reduction of the federal deficit. See, e.g., Gramm-Rudman-Hollings Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, 99 Stat. 1038 (codified as amended at 2 U.S.C. § 900 et seq.) (requiring that the federal deficit be reduced in stages to zero by 1991).
-
Gramm-Rudman-Hollings Balanced Budget and Emergency Deficit Control Act of 1985
-
-
-
122
-
-
78650539485
-
Balanced budget amendment
-
ABC-CLIO
-
But see John R. Vile, Balanced Budget Amendment, in Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789-1995, at 24 (ABC-CLIO, 1996) (stating that this and similar legislation "has proved relatively unsuccessful in ending deficits").
-
(1996)
Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789-1995
, pp. 24
-
-
Vile, J.R.1
-
123
-
-
0030541090
-
Constitutional limitations on borrowing: An analysis of state bonded indebtedness
-
67
-
D. Roderick Kwiet & Kristin Szakaly, Constitutional Limitations on Borrowing: An Analysis of State Bonded Indebtedness, 12 J. L. Econ. & Org. 62, 67 (1996) (noting no limitation on state borrowing only in five states);
-
(1996)
J. L. Econ. & Org.
, vol.12
, pp. 62
-
-
Roderick Kwiet, D.1
Szakaly, K.2
-
124
-
-
78650525954
-
Structuring state constitutional review: Comparative perspectives
-
543
-
see also John L.S. Simpkins, Structuring State Constitutional Review: Comparative Perspectives, 3 Charleston L. Rev. 535, 543 (2009) (stating that, due to recessions in the 1970s and 1980s, a "number of states passed balanced budget amendments making it unconstitutional for the state government to engage in deficit spending or placed limits on state taxing or spending powers");
-
(2009)
Charleston L. Rev.
, vol.3
, pp. 535
-
-
Simpkins, J.L.S.1
-
126
-
-
78650538145
-
-
Paulsen, supra note 7, at 765-89 (listing every state application for a constitutional convention, including the applications of thirty-two states for a convention to discuss a balanced budget amendment)
-
Paulsen, supra note 7, at 765-89 (listing every state application for a constitutional convention, including the applications of thirty-two states for a convention to discuss a balanced budget amendment);
-
-
-
-
127
-
-
0346003142
-
Constitutional conventions and the deficit
-
1078 & n.2
-
see also E. Donald Elliott, Constitutional Conventions and the Deficit, 1985 Duke L.J. 1077, 1078 & n.2 (1985) (discussing the movement for a balanced budget amendment instigated by the National Taxpayers Union in 1975, and noting that this movement resulted in applications for a constitutional convention by thirty-two state legislatures by 1985).
-
(1985)
Duke L.J.
, vol.1985
, pp. 1077
-
-
Donald Elliott, E.1
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128
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33750280482
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Lessons from a line item veto law
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1667
-
Lawrence Lessig, Lessons from a Line Item Veto Law, 47 Case W. Res. L. Rev. 1659, 1667 (1997) (discussing the possibility of a congressional vote on a line-item veto amendment and implying that it has not been voted on by Congress);
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Case W. Res. L. Rev.
, vol.47
, pp. 1659
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Lessig, L.1
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129
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Is the 1996 line-item veto constitutional?
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1164-65
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Michael G. Locklar, Is the 1996 Line-Item Veto Constitutional?, 34 Hous. L. Rev. 1161, 1164-65 (1997) (noting that "in the 99th Congress alone, at least ten separate constitutional amendments were introduced to give the president line-item veto authority").
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Hous. L. Rev.
, vol.34
, pp. 1161
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Locklar, M.G.1
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130
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78650571231
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The selective nondelegation doctrine and the line item veto: A new approach to the nondelegation doctrine and its implications for Clinton v. City of New York
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274
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Michael B. Rappaport, The Selective Nondelegation Doctrine and the Line Item Veto: A New Approach to the Nondelegation Doctrine and its Implications for Clinton v. City of New York, 76 Tul. L. Rev. 265, 274 (2001).
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Tul. L. Rev.
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, pp. 265
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Rappaport, M.B.1
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131
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77954967597
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524 U.S. 417, 418
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See Clinton v. City of N.Y., 524 U.S. 417, 418 (1998) (declaring the Line-Item Veto Act, which was passed by Congress in 1996, unconstitutional).
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(1998)
Clinton v. City of N.Y.
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-
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132
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77950679062
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514 U.S. 779, 917 n.39
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U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 917 n.39 (1995) (Thomas, J., dissenting) (noting that the majority's opinion will overturn term limit provisions in twenty-two states);
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(1995)
U.S. Term Limits, Inc. v. Thornton
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Thomas, J.1
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133
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78650570756
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Individual rights and the political process: A proposed framework for democracy defining cases
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89
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Walter M. Frank, Individual Rights and the Political Process: A Proposed Framework for Democracy Defining Cases, 35 S.U. L. Rev. 47, 89 (2007) (noting that twenty-two states had enacted congressional term limits for their representatives either by pure term limits or restricted ballot access, including six states in 1994, and calling this movement "perhaps the most significant grass roots democratic reform movement since the Progressive Era");
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(2007)
S.U. L. Rev.
, vol.35
, pp. 47
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Frank, W.M.1
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134
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78650545022
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see also Kermit L. Hall, U.S. Term Limits, Inc. v. Thornton, in The Oxford Companion to the Supreme Court of the United States (2005), available at http://www.encyclopedia.com/doc/1O184USTermLimitsIncvThornton.html (stating that "between 1990 and 1993 ... twentythree states placed such restrictions on members of their congressional delegations").
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(2005)
U.S. Term Limits
-
-
Hall, K.L.1
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136
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78650539111
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524 U.S. at 417-21
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524 U.S. at 417-21.
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137
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78650560021
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Id. at 421
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Id. at 421.
-
-
-
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139
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78650576078
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Rappaport, supra note 100, at 304
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Rappaport, supra note 100, at 304.
-
-
-
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140
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78650557870
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See id. at 287
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See id. at 287.
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-
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141
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33750235699
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Deviant executive lawmaking
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16 n.100
-
See Saikrishna Bangalore Prakash, Deviant Executive Lawmaking, 67 Geo. Wash. L. Rev. 1, 16 n.100 (1998).
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(1998)
Geo. Wash. L. Rev.
, vol.67
, pp. 1
-
-
Prakash, S.B.1
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142
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78650575433
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Prakash, supra note 109, at 4 & n.17
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See Prakash, supra note 109, at 4 & n.17;
-
-
-
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143
-
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78650528375
-
-
Rappaport, supra note 100, at 272
-
Rappaport, supra note 100, at 272.
-
-
-
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144
-
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77950679062
-
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514 U.S. 779, 783-84
-
See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 783-84 (1995) (discussing Amendment 73 to the State Constitution of Arkansas and quoting from the portion of the amendment relevant to the opinion).
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(1995)
U.S. Term Limits, Inc. v. Thornton
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-
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145
-
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77950467052
-
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395 U.S. 486, 522
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Powell v. McCormack, 395 U.S. 486, 522 (1969).
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(1969)
Powell v. McCormack
-
-
-
146
-
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78650583299
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Thornton, 514 U.S. at 783
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Thornton, 514 U.S. at 783.
-
-
-
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147
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0003825178
-
-
expressing skepticism about the basis for interpretive rules that protect substantive values
-
But see Antonin Scalia, A Matter of Interpretation 27-29 (1997) (expressing skepticism about the basis for interpretive rules that protect substantive values).
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(1997)
A Matter of Interpretation
, pp. 27-29
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Scalia, A.1
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148
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0035525709
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Foreward: We the court
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The Supreme Court, 2000 Term, 122-28
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For a description and praise of the New Deal interpretive approach, see Larry D. Kramer, Foreward: We the Court, in The Supreme Court, 2000 Term, 115 Harv. L. Rev. 5, 122-28 (2001).
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(2001)
Harv. L. Rev.
, vol.5
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-
Kramer, L.D.1
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149
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78650554071
-
-
Existing constitutional assumptions, including the preference for a two-entity supermajoritarian amendment process, are likely to be attractive to state legislatures
-
Existing constitutional assumptions, including the preference for a two-entity supermajoritarian amendment process, are likely to be attractive to state legislatures.
-
-
-
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150
-
-
78650529045
-
-
U.S. Census Bureau, State Rankings - Statistical Abstract of the United States Resident Population, Dec. 12, 2008 (list of states by population
-
U.S. Census Bureau, State Rankings - Statistical Abstract of the United States Resident Population, http://www.census.gov/statab/ranks/rank01.html (Dec. 12, 2008) (list of states by population);
-
-
-
-
151
-
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78650575124
-
-
U.S. Census Bureau, Statistical Abstract of the United States: 2010, at 18-19 (2009); Federal Election Comm'n, Distribution of Electoral Votes, last updated Oct. 3, 2003
-
U.S. Census Bureau, Statistical Abstract of the United States: 2010, at 18-19 (2009); Federal Election Comm'n, Distribution of Electoral Votes, http://www.fec.gov/pages/elecvote.htm (last updated Oct. 3, 2003).
-
-
-
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152
-
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78650585264
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www.census.gov/statab/ranks/ Dec. 12, 2008
-
There is another problem with a voting rule that grants each state an equal number of votes. The voting rule will also allow a small percent of the public to block a constitutional amendment. The smallest thirteen states could prevent a proposed amendment from being ratified, yet those thirteen states only represent approximately four percent of the country. U.S. Census Bureau, State Rankings - Statistical Abstract of the United States - Resident Population, www.census.gov/statab/ranks/ http://www.census.gov/statab/ranks/rank01.html (Dec. 12, 2008);
-
-
-
-
153
-
-
20444450633
-
-
U.S. Census Bureau, This suggests that the three-quarters standard can also be too strong
-
U.S. Census Bureau, Statistical Abstract of the United States: 2010, at 18-19 (2009). This suggests that the three-quarters standard can also be too strong.
-
(2009)
Statistical Abstract of the United States: 2010
, pp. 18-19
-
-
-
154
-
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78650537803
-
-
See Federal Election Comm'n, Distribution of Electoral Votes
-
See Federal Election Comm'n, Distribution of Electoral Votes, http://www.fec.gov/pages/elecvote.htm (last updated Oct. 3, 2003 There is a strong reason for using the Electoral College measure for the threequarters ratification rule rather than the two-thirds proposal rule. Under the equal state measure for the ratification decision, the smallest twelve states representing approximately four percent of the U.S. population would be able to block an amendment. See supra note 118. By contrast, using the equal states measure for the proposal and the Electoral College measure for the ratification would increase the percentage of the population required to block an amendment.
-
-
-
-
155
-
-
78650555297
-
-
See Federal Election Comm'n, Distribution of Electoral Votes
-
See Federal Election Comm'n, Distribution of Electoral Votes, http://www.fec.gov/pages/elecvote.htm (last updated Oct. 3, 2003). An alternative mechanism has some virtues but in my opinion is inferior. This mechanism would mirror the congressional amendment method. Just as proposing an amendment under the congressional method requires securing two-thirds of the House and two-thirds of the Senate, so too proposing an amendment under the state drafting method might require two-thirds of the states as measured by population and two-thirds of the states with each state counting equally. This method would operate as a compromise between the small and large states. It would also prevent states representing a small percentage of the population from enacting an amendment. Indeed, under this method, states representing two-thirds of the population would be needed to propose an amendment. Further, this mechanism would be more comparable in strictness to that of the congressional method than the one discussed in the text. Disadvantages of this method include that it is more complex and more of a departure from the existing Constitution. But the biggest disadvantage is that the equal state voting rule for ratification means that states representing approximately four percent of the country can block a constitutional amendment.
-
-
-
-
156
-
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78650526245
-
-
See U.S. Const, amend. XXI; U.S. Const, art. VII
-
See U.S. Const, amend. XXI; U.S. Const, art. VII.
-
-
-
-
157
-
-
3142767914
-
For the many or the few: The initiative
-
discussing the ballot measure and noting that seventy-one percent of Americans live in a state or city or both that allows the popular initiative
-
See John G. Matsusaka, For the Many or the Few: The Initiative, Public Policy, and American Democracy 8 (2004) (discussing the ballot measure and noting that seventy-one percent of Americans live in a state or city or both that allows the popular initiative).
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(2004)
Public Policy, and American Democracy
, vol.8
-
-
Matsusaka, J.G.1
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158
-
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78650583298
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-
note
-
Another issue is who should decide whether the ratification decision is made by state conventions or state ballot measures. Under the existing Article V, Congress chooses the ratification method, both as to the congressional amendment process and the national convention process. For the state drafting process, the choice would seem to be between allowing Congress to make the decision or allowing the state legislatures to specify it in the amendment itself. While it might seem dangerous to allow Congress a role in the process, permitting the state legislatures to decide would deprive national institutions of any role in a constitutional enactment. Perhaps the best approach would be to authorize Congress to choose the ratification method, but to permit the state legislatures to specify a method in the amendment itself that would become binding if Congress fails to select a ratification method within a specified time after the amendment is formally proposed.
-
-
-
-
159
-
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84928841358
-
The senate and the constitution
-
1118
-
Vik D. Amar, Note, The Senate and the Constitution, 97 Yale L.J. 1111, 1118 (1987).
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(1987)
Yale L.J.
, vol.97
, pp. 1111
-
-
Amar, V.D.1
-
160
-
-
78650553739
-
-
note
-
One method for restricting the delegates to less than one hundred would involve giving them differently weighted votes. One promising rule would be to give each delegate eight votes unless a lesser number were needed. For example, California has fifty-five electoral votes, so six of its delegates would get eight votes and one would get seven. By contrast, North Dakota would have one representative, who would have three votes. This mechanism might allow the number of delegates to be reduced below one hundred, while still allocating votes based on a state's electoral votes. But it has the problem of allocating unequal votes to different delegates, which has not generally been tried and might create problems.
-
-
-
-
161
-
-
78650556251
-
-
See Amar, supra note 126, at 1117
-
See Amar, supra note 126, at 1117.
-
-
-
-
162
-
-
43849105344
-
-
For recent proposals for a radically restructuring of the Constitution through the convention method, see generally Sanford Levinson, Our Undemocratic Constitution 11 (2006);
-
(2006)
Our Undemocratic Constitution
, pp. 11
-
-
Levinson, S.1
-
164
-
-
78650543732
-
-
See infra notes 143-44 and accompanying text (discussing one scenario where support for the state drafting amendment might arise if Congress fails to
-
See infra notes 143-44 and accompanying text (discussing one scenario where support for the state drafting amendment might arise if Congress fails to enact desired amendments that cut back on its power).
-
-
-
-
165
-
-
78650526244
-
-
See Caplan, supra note 7, at 73 (meeting of state legislators and other state government officials concerning proposed amendment on state legislative reapportionment); Magliocca, supra note 48, at 80
-
See Caplan, supra note 7, at 73 (meeting of state legislators and other state government officials concerning proposed amendment on state legislative reapportionment); Magliocca, supra note 48, at 80.
-
-
-
-
166
-
-
78650568132
-
-
As discussed above, some academic commentators have argued that the Constitution does not recognize limited conventions and therefore applications for such conventions are not valid. See supra Section I.B
-
As discussed above, some academic commentators have argued that the Constitution does not recognize limited conventions and therefore applications for such conventions are not valid. See supra Section I.B.
-
-
-
-
167
-
-
78650558509
-
-
See supra notes 140-41 and accompanying text
-
See supra notes 140-41 and accompanying text.
-
-
-
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168
-
-
78650556903
-
-
note
-
Another way that this arrangement makes a runaway convention less likely is that it involves agreement on a specific amendment. If the requisite number of state legislatures agrees on a specific amendment, then it would seem that the convention is ignoring a specific decision made by the necessary number of state legislatures if it proposes something else. By contrast, if the requisite number of states do not agree on a specific amendment or even on a single subject, then it is much harder to argue that the convention has ignored a decision made by the required number of state legislatures.
-
-
-
-
169
-
-
78650576077
-
-
To discourage Congress from exercising this authority, the states might include within their application for a convention a statement that they do not believe that Congress has this authority
-
To discourage Congress from exercising this authority, the states might include within their application for a convention a statement that they do not believe that Congress has this authority.
-
-
-
-
170
-
-
78650527243
-
-
In addition, the state legislature should not select delegates who are known for favoring other causes. Such delegates might be more willing to pursue a runaway convention if it would enable them to secure their other goals
-
In addition, the state legislature should not select delegates who are known for favoring other causes. Such delegates might be more willing to pursue a runaway convention if it would enable them to secure their other goals.
-
-
-
-
171
-
-
78650525626
-
-
531 U.S. 98, 112-23 concurring (positing that state court had no power to determine how presidential electors should be chosen)
-
Cf. Bush v. Gore, 531 U.S. 98, 112-23 (2000) (Rehnquist, C.J., concurring) (positing that state court had no power to determine how presidential electors should be chosen).
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(2000)
Cf. Bush V. Gore
-
-
Rehnquist, C.J.1
-
172
-
-
78751605435
-
Of sovereignty and federalism
-
151217 discussing "converse-1983" actions, which would create a cause of action against an agent of the federal government for unconstitutional acts
-
See Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425,151217 (1987) (discussing "converse-1983" actions, which would create a cause of action against an agent of the federal government for unconstitutional acts).
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(1987)
Yale L.J.
, vol.96
, pp. 1425
-
-
Amar, A.R.1
-
173
-
-
25844454286
-
The People Made Me Do It: Can the People of the States Instruct and Coerce Their State Legislatures in the Article v Constitutional Amendment Process?
-
For a discussion of related but distinct legal controls, see Vikram David Amar, The People Made Me Do It: Can the People of the States Instruct and Coerce Their State Legislatures in the Article V Constitutional Amendment Process?, 41 Wm. & Mary L. Rev. 1037 (2000).
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(2000)
Wm. & Mary L. Rev.
, vol.41
, pp. 1037
-
-
Amar, V.D.1
-
174
-
-
44949221972
-
-
95-97
-
See Robert W. Bennett, Taming the Electoral College 44-45, 95-97 (2006) (discussing the listing of the names of presidential candidates rather than electors on ballots, the requirement of pledges by electors, and the imposition of fines or other penalties on "faithless" electors).
-
(2006)
Taming the Electoral College
, pp. 44-45
-
-
Bennett, R.W.1
-
175
-
-
78650578301
-
-
See Caplan, supra note 7, at 62-63; Kobach, supra note 56, at 1978-79 (discussing the "Oregon system," which allowed candidates for state legislature to sign a statement pledging to support the popular candidate for Senate, and noting that a majority of states had adopted this system by 1908)
-
See Caplan, supra note 7, at 62-63; Kobach, supra note 56, at 1978-79 (discussing the "Oregon system," which allowed candidates for state legislature to sign a statement pledging to support the popular candidate for Senate, and noting that a majority of states had adopted this system by 1908).
-
-
-
-
176
-
-
0013205747
-
-
4th ed. discussing the political question doctrine relating to constitutional amendments
-
See 1 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law, Substance and Procedure 440-45 (4th ed. 2007) (discussing the political question doctrine relating to constitutional amendments).
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(2007)
Treatise on Constitutional Law, Substance and Procedure
, pp. 440-445
-
-
Rotunda, R.D.1
Nowak, J.E.2
-
177
-
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78650539110
-
-
See Caplan, supra note 7, at 73-74
-
See Caplan, supra note 7, at 73-74;
-
-
-
-
178
-
-
78650561930
-
The genesis of the three statesrights amendments of 1963
-
64950
-
Paul Oberst, The Genesis of the Three StatesRights Amendments of 1963, 39 Notre Dame L. Rev. 644, 649-50 (1964);
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(1964)
Notre Dame L. Rev.
, vol.39
, pp. 644
-
-
Oberst, P.1
-
179
-
-
78650546498
-
-
Confederation vs. Union, 1-3 (1964) discussing generally the proposed amendments
-
see also George McGovern, Confederation vs. Union, 9 S.D. L. Rev. 1, 1-3 (1964) (discussing generally the proposed amendments);
-
S.D. L. Rev.
, vol.9
, pp. 1
-
-
McGovern, G.1
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180
-
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78650581037
-
The current challenge to federalism: The confederating proposals
-
4-11 discussing generally the meeting and its proposals
-
William F. Swindler, The Current Challenge to Federalism: The Confederating Proposals, 52 Geo. L.J. 1, 4-11 (1963) (discussing generally the meeting and its proposals).
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(1963)
Geo. L.J.
, vol.52
, pp. 1
-
-
Swindler, W.F.1
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181
-
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78650531513
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-
See Caplan, supra note 7, at 73; Oberst, supra note 143, at 644-45; see also McGovern, supra note 143, at 4-6 (discussing generally the proposed change to the process of state-proposed amendment); Swindler, supra note 143, at 9,12-23 (discussing the proposed change to Article V and the history of the convention process)
-
See Caplan, supra note 7, at 73; Oberst, supra note 143, at 644-45; see also McGovern, supra note 143, at 4-6 (discussing generally the proposed change to the process of state-proposed amendment); Swindler, supra note 143, at 9,12-23 (discussing the proposed change to Article V and the history of the convention process).
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-
-
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182
-
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78650584612
-
Amending the constitution to strengthen the states in the federal system
-
11-12
-
See Council of State Governments, Amending the Constitution to Strengthen the States in the Federal System, 36 St. Gov't 10,11-12 (1963) (reproducing the recommendation for the proposed amendment of Article V by means of a constitutional convention); Black, Threatened Disaster, supra note 29, at 962-64 (discussing the proposed amendment and suggesting that the state applications for a convention to propose this amendment limit the scope of the requested convention).
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(1963)
St. Gov't
, vol.36
, pp. 10
-
-
-
183
-
-
84859038019
-
The senate: An institution whose time has gone?
-
68-70 discussing two amendment procedure for eliminating the equal voting procedure
-
Lynn A. Baker & Samuel H. Dinkin, The Senate: An Institution Whose Time Has Gone?, 13 J.L. & Pol. 21, 68-70 (1997) (discussing two amendment procedure for eliminating the equal voting procedure).
-
(1997)
J.L. & Pol.
, vol.13
, pp. 21
-
-
Baker, L.A.1
Dinkin, S.H.2
|