Volume 96

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 Future of Locke v. Davey

The Supreme Court’s decision, in Zelman v. Simmons-Harris, to uphold a voucher program allowing state funds to be diverted to sectarian schools, did not address the question whether such programs are constitutionally required to include religious institutions. Locke v. Davey had the potential to resolve this question, but a surprisingly lopsided 7-2 majority decided the case without squarely addressing it. Davey upheld Washington’s refusal to allow a student to apply a state scholarship towards a degree in “devotional theology,” and it appeared, on its face, to be limited to “the State’s interest in not funding the religious training of clergy.” Yet the Court’s asserted principle of “play in the joints” between the Establishment and Free Exercise Clauses suggested a rationale with much broader implications: A mere denial of funding does not by itself create a cognizable burden on religious practice. Davey did not make clear which line of reasoning should control, and the first two federal appellate court decisions addressing the case are in fundamental disagreement about its meaning and scope.

This Note responds to these developments, and concludes that a circumscribed version of the no-burden rationale should control Davey’s future application. The opinion’s discussion of the clergy is a red herring, because ultimately the Court found no violation of any constitutional right, meaning that the exclusion required no more than a merely “legitimate” justification. And while the Court suggested that the program created no problem for the sometimes-asserted constitutional requirement of neutrality, it did so in such a way as to highlight the fact that neutrality is an incoherent concept unsuited to a sound understanding of the religion clauses. The no-burden rationale should ultimately control because it is founded on a theory—free exercise as an autonomy right—that is of a piece with our understanding of other similar rights. Of course, the state’s power is not unlimited, and the paper concludes by offering four important restrictions. This reading of Davey harmonizes the case with other Religion Clause doctrine, and protects religious liberty while allowing local governments the freedom to adapt policy to local conditions. 
 

The Invisible Hand in Legal and Political Theory

Theorists have offered invisible-hand justifications for a range of legal and political institutions, including the separation of powers, free speech, the adversary system of litigation, criminal procedure, the common law, and property rights. These arguments are largely localized, with few comparisons across contexts and no general account of how invisible-hand justifications work. This essay has two aims. The first is to identify general conditions under which an invisible-hand justification will succeed. The second is to identify several theoretical dilemmas that arise from the structure of invisible-hand justifications and that cut across local contexts. These are the dilemma of norms, which arises because norms of truth-seeking, ethical action or altruism can both promote and undermine the workings of the invisible hand; the dilemma of second best, which arises because partial compliance with the conditions for an invisible-hand justification can produce the worst of all possible worlds; and the dilemma of verification, which arises where theorists claim that an invisible-hand process functions as a Hayekian discovery procedure — a claim that is empirical but pragmatically unverifiable.

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