Tennessee Law Review
That which has never been tried or tested cannot be confidently, much less boastfully, touted. In fact, something that has never occurred requires careful assessment and often receives numerous differing predictions regarding success and potential failure. In employing the scientific model, one relies on a hypothesis to calculate what is most likely to occur. But law does not use the true scientific method. Rather, law is as fluid and changing as the participants who make and interpret it. Thus, as the Article V issue of a State-Convention process to amend the United States Constitution is considered, all commentators on the topic must confess that the dialogue being proffered is, at best, mere forecasting. In truth, as none of the twenty-seven constitutional amendments have even been proffered through the State-Convention method, even the most sage constitutional scholars are at a loss to know, with any real precision, what will occur or which bodies--executive, legislative or judicial--will actually be involved in the process.
Much like Benjamin Franklin's admonishment, we must recognize that going into an Article V State-Convention scenario without any guiding principles could lead to a very unstable and unpredictable outcome. While this is not, in itself, problematic, legislatures and judges should heed the warning: "necessity never made a good bargain."
In this short Essay, I will respond to the honorable Michael Stern's article--Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention--that assures us there is nothing to fear from the State-Convention process. While this is surely one approach, I believe it to be too trusting, if not naive, in light of our constitutional history. With literally nothing serving as our compass, we risk the creation of rules that will undoubtedly be borne out of necessity. If nothing changes to guide the process, we can only hope that those in power during such an unprecedented and momentous undertaking will make wise and limited decisions. But, as this Essay demonstrates, there is nothing mandating such behavior. The State-Convention model has never been tested or used. Therefore, no one can be certain that upon its invocation either the procedures utilized or the outcomes reached will be moderate or even moderated.
Mary M. Penrose,
Conventional Wisdom: Acknowledging Uncertainty in the Unknown,
Tenn. L. Rev.
Available at: https://scholarship.law.tamu.edu/facscholar/250