Constitutional Brinksmanship: Amending the Constitution by National Convention

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Oxford University Press, Dec 8, 1988 - Law - 264 pages
In this first systematic study of the legal problems relating to the convention clause, Russell Caplan shows that repeated constitutional crises have given rise to state drives for a national convention nearly every twenty years since the Constitution was enacted. He deftly examines the politics of constitutional brinksmanship between Congress and the states to reveal the ongoing tension between state and federal rights and constitutional tradition and reform.

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Although this is not the "first systematic study" of the subject---that honor belongs to the late William Russell Pullen, writing in 1951---it certainly was the best study up to its time.
It also
is highly relevant today: The Framers designed the Constitution's "convention for proposing amendments" to enable the state legislatures to amend the Constitution over the objections of an abusive or recalcitrant Congress, so the convention route is again receiving a great deal of attention. Also, "Constitutional Brinksmanship" is well written, and it pulls together a great deal of historical and legal evidence on the subject usually overlooked, both by lay and scholarly writers. So Mr. Caplan's book deserves much more attention than it has received.
That having been said, the book (obviously) does not include material arising after its 1988 publication date. That leaves a lot missing. For example, since 1988, there have been important judicial decisions that clarify the workings of the amendment process.
Also, some later scholarly findings have contradicted or clarified Caplan's treatment. For example, we now now know more about the many Founding-Era interstate conventions that served as models for the Constitution's "convention for proposing amendments." (Caplan mentions them, but discusses them very little.) In particular, the Founders would have strenuously objected to Caplan's characterization of the convention for proposing amendments as a "national" convention, and they certainly would not have called it a "constitutional convention," as he sometimes does. As the new evidence shows, the "convention for proposing amendments" was designed merely as a limited-purpose drafting committee, consisting of delegations representing separate sovereignties---modeled (as Caplan does tell us) on diplomatic practice.
That having been said, "Constitutional Brinksmanship" remains the best of the limited number of books on the subject.
Robert G. Natelson
Professor of Law (ret.)
The University of Montana


Part II Operating Principles
Conclusion The Politics of Uncertainty
Appendix Convention Applications of Virginia and New York 17881789
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