A New, and Old, Approach to Constitutional Conventions

David Pozen

One of the most significant disagreements on Balkinization seems to have reached an impasse. For almost two decades now, Sandy Levinson has been advocating a constitutional convention as a means to reconsider and revamp the Constitution’s most pernicious structural features. More recently, David Super has emerged as the academy’s leading critic of the “Convention of States” campaign and of Article V convention drives in general. Levinson warns that without the capacity for a convention, American democracy “is doomed.” Super warns that “a constitutional convention could be the death knell to progressive politics—and to our democracy as we know it.”

Perhaps, however, this disagreement is less intractable than it appears. Levinson’s conventionphilia is pitched at a high level of abstraction. He desperately desires a federal constitutional convention, but he has not offered details on how such an institution would work. Super’s conventionphobia is animated by specific proposals put forward by the Convention of States, which envisions a twenty-first-century convention being run in the same manner as interstate and intercolonial assemblies were run in the preconstitutional period.

Might there be a method of organizing a federal convention that is at once (1) compatible with Article V, (2) deeply rooted in American history and tradition, and (3) capable of satisfying Levinson’s hunger for a collective reckoning with democratic dysfunction while (4) addressing Super’s fears of procedural chaos and minoritarian power grabs?

I believe that there may well be such a method and that it has been hiding in plain sight—at the state level. As is well known among state constitutional scholars, the states have held more than 230 constitutional conventions since the Declaration of Independence. Less well known is that the organizers of these conventions converged, over time, on a set of governing principles and procedures that together amount to what might be termed the common law of constitutional conventions. These principles and procedures are not only time-tested but also attractive in their own right. Adapting them to the federal context (and potentially codifying them in a federal statute) would give us our best shot at designing a convention that is legally, sociologically, and morally legitimate today.

Or so I argue in a new essay, titled “The Common Law of Constitutional Conventions.” The essay was written in response to Jill Lepore’s riveting Jorde lecture on the Founding generation’s philosophy of amendment. The final version will appear, together with Lepore’s lecture and Levinson’s own response, in a forthcoming symposium issue of the California Law Review.