116 See eg Sam J Ervin Proposed Legislation to Implement the Convention Method

116 see eg sam j ervin proposed legislation to

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116. See, e.g. , Sam J. Ervin, Proposed Legislation to Implement the Convention Method of Amending the Constitution , 66 M ICH . L. R EV . 875, 879 (1968); Paul G. Kauper, The Alternative Amendment Process: Some Observations , 66 M ICH . L. R EV . 903, 907 (1968); Michael Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention , 78 T ENN . L. R EV . 765 (Spring 2011); Interview by Shane Lehman with Sen. Tom Coburn (Jun. 28, 2017), /2017/06/28/6-20-17-runaway-convention/ (“The other safety valve on this, is let’s say they pass something like that, the Congress would never send it to the states because it violates the constitution because they’re making amendments outside of the application that they’ve made. So first of all, if they pass something like that it will never get to the states.”). 117. Paulsen, supra note 115, at 842 (“[W]here Article V contemplates “checks” on the work of an amendment-proposing convention, it says so explicitly: Congress, not the convention, is given the power to prescribe the mode of ratification (state legislatures or state ratifying conventions) and three-fourths of the states must ratify for an amendment to become valid as part of the Constitution.”).
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2018] A MENDING THE A MENDMENT P ROCEDURES 143 issues, it is not obvious that a court would intervene to resolve a dispute between Congress and a convention held upon application by the states. In the past courts have ducked challenges to amendments as political questions (or on other grounds), 118 and are probably very unlikely to get involved in future such challenges. A further comparison between amending state constitutions and amending the federal constitution bears flagging: a state amendment process can never be fully runaway because the U.S. Constitution serves as a backstop to state-level change. This is true in two senses. First, amending a state constitution to reduce or eliminate protected rights would have no effect upon rights that are part of the federal Constitution. Second, there are federal constitutional limits to changes that can be made at the state level. For instance, states could not amend their constitutions to protect life at conception, or criminalize interracial marriage, or prohibit criticism of the government because all of these things would violate the federal Constitution. There is, however, no comparable backstop to the federal Constitution unless one accepts that some portions of it cannot be altered through the amendment process or that there are otherwise built-in-limits on the kinds of changes amendment procedures allow. 119 The proposed amendment contains provisions that guard against a runaway process and the political disputes such a process might generate. First, under section 1, a convention cannot meet unless approved by a majority of voters in a majority of states. Second, under section 4, proposed amendments must be approved by two-thirds of the delegates before they can be submitted to the states for ratification. Third, under section 6, a majority of the state conventions
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