How the debates at the Constitutional Convention concerning impeachment clarify "high crimes and misdemeanors."
Readers of this blog may remember that I have argued that the Constitution allows for the states to call for a limited Article V convention and that this convention can even be limited to deciding whether to propose a specific amendment. See also here and here. Under this legal regime, a runaway convention would be unconstitutional.
Two interesting posts on this subject have been recently written. First, Michael Stern, a former House of Representatives Senior Counsel, agrees that the states can apply for an Article V convention limited to deciding whether to propose a specific amendment. Relying on scholarship from yours truly, from Robert Natelson and from himself, Stern argues that text, structure, purpose, and history support this conclusion. Stern’s post is an excellent summary of the scholarship and itself is a form of blogging scholarship.
Second, Robert Natelson describes three different waves of constitutional scholarship on the subject of limited conventions. The first wave:
consisted of publications from the 1960s and 1970s, typically by liberal academics who opposed conservative efforts to trigger a convention. Examples include articles by Yale’s Charles Black, William and Mary’s William Swindler . . . and Harvard’s Lawrence Tribe.
Typically, these authors concluded that an Article V “constitutional convention” (as they called it) could not be limited to a single subject. The mistakes these authors made can be attributed partly to the agenda-driven nature of their writings, and their failure to examine many historical sources. They seldom ventured beyond The Federalist Papers and a few pages from the transcript of the 1787 Constitutional Convention.
I would add that these authors did not engage in a careful effort to read the constitutional text.
The second wave:
began in 1979 with the publication of an [opinion] issued by President Carter’s U.S. Office of Legal Counsel and written by attorney John Harmon. For its time, it was a particularly thorough piece of work. Among the other authors in this wave were Grover Rees III, and the University of Minnesota’s Michael Stokes Paulsen. The most elaborate publication of this era was by Russell Caplan, whose book, Constitutional Brinksmanship, was released by Oxford University Press in 1988.
Second Wave authors accessed far more material than their predecessors. They paid more attention to the 1787-90 ratification debates. Caplan even made some reference to earlier interstate conventions. Most of them (Paulsen was an exception) correctly concluded that an Article V gathering could be limited.
The third wave:
began in the 21st century. Its contributing authors include the University of San Diego’s Michael Rappaport, former House of Representatives Senior Counsel Mike Stern, the Goldwater Institute’s Nick Dranias, and myself. We have been able to place the Article V convention into its larger legal and historical context.
Like most of the Second Wave writers, we understand that an Article V convention can be limited. But we also have learned a lot of other things: the gathering is not a constitutional convention, it was modeled after a long tradition of limited-purpose gatherings, and it is governed by a rich history of practice and case law.
I generally agree with Natelson on the original meaning matters with two main exceptions. First, I believe, along with Stern, that a convention can be limited to a single amendment, whereas Natelson seems not to. On this, see Stern’s post. Second, Natelson’s methodology relies primarily on historical sources, whereas I believe the principal source is text. Some of the historical evidence he relies on, again see Stern, I would regard as ambiguous. Perhaps he believes some of the textual evidence that I rely upon is ambiguous (although I don’t know for sure).
But these are small issues. I agree with both Natelson and Stern on virtually all of the important matters, and recommend both their posts and their scholarship.