# 1: Right to Instruct [Amar]

NOTES:

Amar, Akhil Reed. Philadelphia Revisited: Amending the Constitution outside Article V. The University of Chicago Law Review, Vol. 55, No. 4 (Autumn, 1988), pp. 1043-1104.

 Quotes:

“Finally, we should not ignore the First Amendment’s explicit reservation of “the right of the people peaceably to assemble. . . .” This clause goes well beyond protecting the ability of a cluster of self-selected individuals to confer together; it also encompasses the corporate right of the People to assemble in convention, and, by a majority vote, to peaceably exercise their sovereign right to alter or abolish their government. Recall the words of Pendleton: “the people . .. will assemble in Convention . . . .” Pendleton’s audience apparently shared this understanding of assembly, for his fellow delegates appended to the Virginia ratifying instrument a declaration of rights that included the following language (italics in original):

That the people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives.[1]

“The juxtaposition of assembly and instruction here is illuminating. The rights of assembly and instruction were paired and guaranteed by similar language in the North Carolina Constitution of 1776, the Pennsylvania Constitution of 1776, the Massachusetts Constitution of 1780, the New Hampshire Constitution of 1784, and the reports of the New York and North Carolina ratifying conventions of 1788. Instruction obviously has a majoritarian component; so too, does assembly. Indeed, both rights reflect attempts to displace representation in ordinary government with direct action of the People themselves, acting outside government.

“Yet there is a vital difference between these two asserted rights. Instruction tends to displace everyday deliberation in ordinary government entities; it threatens to swallow up Madison’s scheme of representative government even during moments of ‘normal politics.’ As Garry Wills has noted, all of Madison’s key arguments in Federalist 10 are premised on a rejection of instruction. To the same effect was his Federalist 63:

The true distinction between [ancient governments] and the American governments lies in the total exclusion of the people in their collectible capacity, from any share in the latter * . .The distinction … leave[s] a most advantageous superiority in favor of the United States. But to insure to this advantage its full effect, we must be careful not to separate it from the other advantage, of an extensive territory.

“So too, Madison initially opposed state legislative election of senators in part because he recognized that this mode of selection would make instruction easier, thereby undermining deliberation in the Senate itself. It is thus not surprising that Madison and his fellow Federalists labored mightily-and successfully-to block recognition of any right of instruction in the First Amendment (italics mine).

“The right of assembly was quite different. This was not a right to continually circumvent ordinary organs of representative government in deciding the day-to-day affairs of state. Rather, it was a right to assemble to reconsider the basic charter of government, a right to be exercised only during special ‘constitutional moments’ –just as the Federalists themselves had gone over the heads of ordinary state legislatures and appealed to the People themselves, in convention assembled, under Article VII. In effect, the Framers’ rejection of a right of instruction affirms the exclusivity of the process of ordinary lawmaking by ordinary government entities set out in Article I. In contrast, the First Amendment’s explicit guarantee of the People’s right to assemble affirms the nonexclusive character of the process of constitutional amendment by ordinary government entities set out in Article V” (1059-1060).

Popular Sovereignty in the Twentieth Century… (1060)

[1] 62 3 Elliot’s Debates at 658-59 (cited in note 43).

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