Amending the Constitution

[John C. Eastman]

I received a global error message, so am re-sending this.  My apologies if it is duplicative:

In response to the proposal by Sandy Levinson, seconded(?) by Leslie
Goldstein, re calling a new convention to replace the existing equal Senate
representation requirement:

There is, of course, a difference between the replacement of the Articles
with the present Constitution and the Levinson/Goldstein proposal to replace the current constitution with a new one absent the equal representation in the Senate provision:  The Articles of Confederation was a compact among state sovereignties; the unanimity requirement of the compact was not violated by the creation of the present Constitution because that Constitution had as its source a higher authority than the states, namely, the people of those states.  This is evident both in the preamble and in the last phrase of the first clause of Art. VII limiting the Constitution's
effectiveness only to the ratifying states.  (And yes, I
teach that transition to my Con. Law students, as a legitimate foundation for the new Constitution).   The Levinson/Goldstein proposal, on the other hand, would require an appeal to the same source of authority as the current Constitution.  It would thus a
revolution against the existing order in a way that the first Constitution did not.  That, too, is legitimate, however, but to so state you have to accept the inalienable right of a people to alter or abolish their form of government whenever they deem it necessary for their safety and happiness, see Declaration of Independence.

John C. Eastman
Chapman University School of Law and
Director, The Claremont Institute Center for Constitutional Jurisprudence




Sandy Levinson wrote:

> I note, following Bruce Ackerman's lead, that the Constitution was ratified in a manner that clearly contravened the Articles of Confederation and that no one took seriously the complaints of Rhode Island that this was illegitimate.  Moreover, as Judah Benjamin pointed out in his own speech supporting secession, the Constitution did indeed represent the "secession" of nine states (the Article VII magic number, though eleven states had ratified at the time that Washington was inaugurated--North Carolina being the other holdout) from the "perpetual union" announced in the Articles.
>
> Apropos one of my other (of many) hobbyhorses:  How many constitutional law courses begin with the "first" Constitution, i.e., the Articles, and point out the rather extraordinary process by which it was discarded in favor of the second one?  Or are students kept in the dark about such matters?
>
> Sandy