Issue 7

The National Convention Constitutional Amendment Method: Defects, Federalism Implications, and Reform

The amendment provisions of the United States Constitution have a serious defect. Although some commentators claim that the supermajority rules in these provisions are too strict, that is by no means clear. Rather, the clear defect in the amendment provisions is that the only effective way they provide of amending the Constitution requires Congress’s approval and therefore Congress enjoys a veto over all amendments. While the Constitution does formally allow the state legislatures to seek to amend the Constitution through a national convention, that amendment method is broken. Not only has the national convention method never been used to pass an amendment or even to call a convention, the state legislatures are unlikely to ever use this method, because of the state legislatures’ fear of a runaway convention that might seek to enact constitutional amendments that they strongly dislike.

This congressional veto over amendments has significant normative implications. It suggests that the Constitution cannot be amended in a way that will constrain congressional power. It also makes it unlikely that the Constitution can be amended to limit the federal government or to expand state authority, because Congress is unlikely to support these changes. While it has often been assumed that the increased nationalism of the Constitution and government over the course of American history reflects changes in technology and values, a significant portion of this nationalist movement may instead be the result of a biased amendment procedure.

In addition to exploring the normative implications of the broken amendment procedure, the article also proposes a new amendment method. Under this state drafting procedure, an amendment would be enacted when it was approved by two thirds of the state legislatures and was ratified by three quarters of the states through either state conventions or ballot measures. Finally, the article argues that this reform of the amendment procedure could actually be passed under the national convention method and proposes a strategy for enacting it.

The Free Exercise Rights of Religious Institutions: Church Property and the Constitutionality of Virginia Code § 57-9

This paper argues that § 57-9 of the Code of Virginia interferes with the free exercise of religion in violation of the Federal Constitution. Section 57-9 is at the forefront of a national dispute over church property resulting from the departure of conservative congregations from the Episcopal Church of the United States. The statute purports to determine property rights in the event of a church division, but in doing so challenges the constitutional boundaries of a religious institution’s free exercise rights. Although Virginia’s statute is unique, its implications with respect to the ability of the government to regulate religious polity and the role of courts in resolving church property disputes are broadly applicable and recent litigation involving the statute is being watched closely across the county.

Section 57-9 highlights historic uncertainty regarding the scope of free exercise rights for religious institutions, particularly in the context of church property. In the face of this uncertainty, three possible applications of the statute are addressed. One considers the statute most narrowly within the context of the “neutral principles of law” approach for resolving church property disputes. A second discusses § 57-9 as a neutral and generally applicable law. Finally, a third considers the statute broadly, as a special statute that regulates property holdings of religious institutions. Despite the various ways to characterize the statute, under each view § 57-9 violates the free exercise rights of the religious institutions it regulates.

Counterinsurgency, The War on Terror, and The Laws of War

Since the wars in Afghanistan and Iraq, military strategists, historians, soldiers, and policymakers have made counterinsurgency’s principles and paradoxes second nature, and they now expect that counterinsurgency operations will be the likely wars of the future. Yet despite counterinsurgency’s ubiquity in military and policy circles, legal scholars have almost completely ignored it. This Article is the first to evaluate the laws of war in light of modern counterinsurgency strategy. It shows that the laws of war are premised on a kill-capture strategic foundation that does not apply in counterinsurgency, which follows a win-the-population strategy. The result is that the laws of war are disconnected from military realities in multiple areas – from the use of non-lethal weapons to occupation law. It also argues that the war on terror legal debate has been myopic and misplaced. The shift from a kill-capture to win-the-population strategy not only expands the set of topics legal scholars interested in contemporary conflict must address but also requires incorporating the strategic foundations of counterinsurgency when considering familiar topics in the war on terror legal debates. 

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