Constitutional Change and Coercion

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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4 Responses

  1. Brett Bellmore says:

    Government is, of course, always about coercion. An institution that didn’t coerce wouldn’t be a government, coercion is THE defining attribute of government.

    I think even moderately attentive students of history will be aware of the instances of constitutional coercion you relate, they were covered in my high school history classes. (Perhaps I simply had a particularly good teacher, though.)

    Anyway, as I’ve related before, I find the scenario you suggest implausible, because Congress has already found it’s way to circumvent state refusal to ratify amendments: Don’t actually amend the constitution, ‘amend’ the Supreme court instead. As you yourself note, Roosevelt didn’t amend the Constitution, he suborned the judiciary, instead, giving the states no chance to refuse ratification of any of the changes he wanted.

    The more interesting question is what happens when the action runs in the OTHER direction, when the states finally decide to assert their prerogative under Article V to amend the Constitution without Congress being given any say in the matter. How will Congress respond to being cut out of the loop? Will they even permit the Convention to take place, will they attempt to assert some sort of control over it?

    I think we’ll see the answer to that quite soon.

  2. Gerard Magliocca says:

    If by soon you mean 100 years from now, then I agree.

  3. Brett Bellmore says:

    Sooner than you’ll see the federal government again bother trying to amend the Constitution by formal amendment, I’m guessing.

  4. Shag from Brookline says:

    Brett’s (#1):

    “I think even moderately attentive students of history will be aware of the instances of constitutional coercion you relate, they were covered in my high school history classes. (Perhaps I simply had a particularly good teacher, though.)”

    is not well evidenced by his comments at this and other blog posts on matters of history. His role as a self-proclaimed anarcho-libertarian is Chicken Little in disguise challenging just about anything government does that doesn’t square with his good old days pre-Civil War views.

    And consider Brett’s prediction:

    “The more interesting question is what happens when the action runs in the OTHER direction, when the states finally decide to assert their prerogative under Article V to amend the Constitution without Congress being given any say in the matter. How will Congress respond to being cut out of the loop? Will they even permit the Convention to take place, will they attempt to assert some sort of control over it?

    “I think we’ll see the answer to that quite soon.”

    is merely wishful thinking. Brett might have had a particularly good history teacher, but he must have fallen asleep when the teacher got to the Civil War.