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The Legality of Constitutional Conventions

[sent to conlaw prof. We are discussing whether the states who ratified the US constitution violated their own state constitutions when doing so]  

... yes, but no such convention could have been authorized except by a statute. And no statute is authorized except by a constitution. And no statute can violate the constitution. And that constitution presumably has a provision for amending it. This is the same argument that is used against the Articles of Confederation, only it is more wisely directed at the government possessing sovereignty (the states). Think about it. You have a state government that is duly constituted and given the power to govern citizens. It does not share that power with any other state. Now, one day, James Madison comes along and that state government is passing a law to set up a ratifying convention to, in effect, share sovereignty. Shouldn't they have amended their own constitution to allow this first (or do it concurrently)?  Look at it this way: could they have set up a convention to take away the right to speech, juries or property? It seems to me if they were going
to do something that took away from or altered the state constitution, the only legal procedure would be something in the nature of an amendment.

Now, I realize that constitutions were new and that many in the legal culture thought that both provisions for amendments as well as Bills of Rights were not needed. If you are using a natural law model, then anytime you call a big enough pow wow, well, you know, it's like getting a new Pope. But in a positivistic world -- in a world where the law is only what is written -- it seems that one would have to amend the state constitution in order to join the union. The amending provision would incorporate through reference the new constitution.

Historically, the only way out of this conundrum is to: (a) be a natural law theorist; or (b) simply acquiesce in the fact that the ritual used to ratify the constitution was (i assume) the same or better than the one used to amend state constitutions, and that the legal system simply wasn't yet pedantic (overly positivistic).  

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website:
SSRN papers:

From: "Scarberry, Mark"
To: Sean Wilson ;
Sent: Friday, November 21, 2008 7:00:52 PM
Subject: RE: Sovereignty as Consideration

I don't think state legislatures conveyed sovereignty. Rather, they organized the process by which conventions in each state -- made up of delegates chosen by the people for that purpose -- decided whether to ratify the Constitution (and thereby give up a portion of the state's sovereignty). Akhil Amar has argued that the state legislatures in many states permitted broader participation in the elections for convention delegates than was allowed in state legislative elections. Thus in a sense it was the people of each state (or at least a broader than usual slice of the people), rather than the legislatures, that made the decision.

Mark S. Scarberry
Pepperdine University School of Law

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