Balkinization: Contemplating a convention

Comments:

To me it seems that our current distempers aren't constitutional at all, but the products of a post-industrial culture none of the framers could have foreseen -- an under-funded and under-appreciated educational system, and the passivity-inducing blandishments of consumerism and the mass media.

Given that the latter are about to lead us all off the edge of a cliff, though, I'm in no way averse to pursuing any remedy which the brightest among us can conjure, including a constitutional convention.

I'm in my sixties, and not a lawyer, so I've nothing much to lose if we have a bash at it, even if we fail. What my daughter would think, I have no idea.

Needless to say, I haven't read your book, but you can bet that I will now.

# posted by

William Timberman : 3:31 PM

One of the things that has been impressive about a number of right-wing organizations over the past 30 years is their faith in democracy and old-fashioned organization.

I agree about the Right's organization. I couldn't disagree more when it comes to "democracy". Let me just list a few of the Right's exceedingly undemocratic techniques:

1. They lie. Not just in the same sense that politicians routinely abuse the truth. Over the last 10-15 years, the Right has elevated lying to levels not seen since the collapse of the Soviet Union.

2. They oppose voting rights and do all in their power to restrict the franchise. I can't see how a Convention could be selected without major reforms in the way voters are regulated.

3. They refuse to abide by settled electoral norms. They try to impeach duly elected Presidents for non-impeachable offenses; they steal the 2000 election; they undemocratically recall a duly elected governer of CA; they violate an unspoken tradition by redistricting Texas; they try to sneak amendments through in CO.

The first Convention accomplished some tremendous things, but it also saddled the nation with slavery. Is that the sort of compromise we'd really want to settle for? If not, then perhaps we're better off using the other available outlets for reform. Why not start with an amendment guaranteeing the sovereignty of the people and the concomitant right to vote:

Sec. 1. The United States of America is a republic. The citizens of the United States of America are sovereign.

Sec. 2. Citizens of the United States of America, over the age of 18 years, shall have and be entitled to exercise all political rights, including (i) the right to vote and (ii) the right to hold any civil office under the United States of America, subject to the provisions of Articles I and II for the offices of President, Vice-President, Senator, and Representative; provided, however, that Congress may abridge the political rights of citizens convicted of a felony.

Sec. 3. The President and Vice-President shall be elected by citizens eligible to vote. The person having the majority of the votes cast for these respective offices shall be elected. If no person has such majority, then the person receiving the greatest number of votes cast shall be elected; provided, however, that the method of determining the person elected in cases where no person has a majority of the votes cast may be modified by Congress, such statute to take effect no earlier than 5 years after the date of its enactment.

Sec. 4. The times, places, and manner of holding elections for President and Vice-President, including registration of voters and the method of counting votes, shall be prescribed by Congress.

Sec. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

How about an amendment requiring Congression to abide by the principles of democracy:

"Notwithstanding the language of Article I, Section 5, clause 2, each House shall conduct all proceedings by majority rule except as otherwise specified in Articles I, II, or V. For purposes of the House of Representatives, “majority rule” means a majority of a quorum must concur. For purposes of the Senate, “majority rule” means Senators representing a majority of the population of the United States must concur. Each Senator shall be deemed to represent half of his or her State’s population."

How about an amendment changing the process of amendment to a nationwide election with a specified vote requirement?

Or how about changes to the system implemented via the states? The recent suggestion to bypass the Electoral College might work. So might a system of Uniform Statutes, e.g., a uniform reapportionment act (to take effect upon passage by X number of states)?

Shouldn't we at least try these before we have recourse to a Convention?

# posted by

Mark Field : 3:34 PM

Part of the problem is that individuals have a difficult time thinking in logical paradigms, and our leaders do an extremely poor job at helping individuals understands how certain frameworks work. The best example is secularism -- which would be the first target at such a convention -- and how it is often conflated with Atheism.

And I'm not sure whether it's do to the fact that people have a difficult time imagining themselves as a minority -- individuals don't seem to want to wear "the veil of ignorance" -- or whether we have just done such a poor job articulating how such universal frameworks work. I'm inclined to believe that educating individuals in the importance of rule of law, secularism, etc., is possible. But we have to take the chance that we could lose -- and we could lose a lot at such a convention.

# posted by

James Dylan Goldstein : 4:22 PM

Professor Levinson:

I look forward to reading your book, so pardon my ignorance of what you argue there.

Are you arguing for an across the board change in our system of governance or just tweaks in specifics?

A constitutional convention would likely open up the entire document to change unless Congress limited its mandate. I would argue that this is a singularly bad idea if all you want to do is change a few specifics.

More importantly, what proposed changes in the Constitution do you believe would muster the support of 2/3 of the states?

I personally believe the Constitution should require a super majority to change. The states are running into problems with systems which allow majority direct votes to freight their constitutions with everything from fishing net bans to requirements for wind power which have nothing to do with the operation of government.

# posted by

Bart DePalma : 5:35 PM

It's my expectation that, in the event the necessary number of states call for a constitutional convention, Congress will find some way to defeat the call, either by simply refusing to respond to it, or by short circuiting the process by declaring themselves to be the appropriate delegates for such a convention. Then the courts will declare the issue to be "non-judiciable", and Article V will in effect be written out of the Constitution, never to be used again.

I'd be delighted to be proven wrong, but that's my prediction.

Congress is the chief obstacle to constitutional amendment today, because with "living" constitutionalism, they have no need of amendments, and going the amendment route allows the states to actually reject changes, something they have no way of doing for judicial "reinterpretations". This ability to unilaterally control the "meaning" of the Constitution, without any check by state governments, is something they will never voluntarilly relinquish.

Here's my suggestion: The Constitution itself was adopted in defiance of the existing amendment procedure for the Articles of Confederation, but in compliance with it's own rules. Retroactively legitimated by itself...

The states should draft a formal amendment to Article V, providing that any amendment ratified with identical language by the requisit number of states shall become effective without any action by Congress. And then proceed to ratify it by it's own terms, and dare the courts to declare an amendment adopted in exactly the same way as the Constitution itself is "unconstitutional".

Frankly, I'm concerned about the nature of any changes a convention would produce. But I think it's a risk worth taking, in order to "reset" the written and judicially enforced constitutions to be the same again. The judiciary's "constitution" has taken it's drunkard's walk so far away from the text that it's losing any claim it might have to legitimacy on the basis that the text was once ratified.

To some extent, restoring the rule of law, (Instead of the rule of lawyers, which is what we have now.) is actually more important than the details of the law.

# posted by

Brett : 6:05 PM

I think we are getting ahead of ourselves by addressing the means rather than starting with the end results you desire to be achieved.

What changes in the Constitution are being proposed?

# posted by

Bart DePalma : 6:22 PM

Re Bart Depalma's last posting, perhaps I should pull a President Musharaff and simply say "read my book" :) More seriously, I refrain from setting out my "model Constitution" because it is obvious that whatever I (or anyone else) proposed would be drastically modified at a convention, as was, for that matter, Madison's "Virginia Plan." It is obvious enough what are some of the things I'd get rid of--the electoral college, life tenure for Supreme Court judges, the present allocation of power in the Senate--but all of these are, of course, inevitably connected with other concerns. What I most want at this point is a serious national conversation about whether we're well served by the Constitution. If such a conversation takes place and the consensus is "yes," then I'll be relatively satisfied. What sends me up the wall is the mindless adulation of our present Constitution and lack of serious discussion.

Incidentally, as to the "long life" of the present Constitution, one must integrate into any analysis the extent to which, as Mark Graber demonstrates in his marvelous book, the Constitution directly contributed to the conflagration that tore the Union apart and killed 2% of the total American population. As Joyce Appleby so memorably put it in 1987, when responding to a bicentennial button saying "still working after 200 years," "Yes, but it was in the shop for [at least] six of those years.

# posted by

Sandy Levinson : 7:42 PM

i find myself in agreement, at least in part with several of the contributors.

bart depalma has hit the nail squarely on the head. it's not enough simply to say you want to have a constitutional convention. the real question that needs to be answered is why you would want the constitutional convention, which comes down to the question of what you would change. once you have convened a constitutional convention, all issues are in play. a (very) liberal commentator i was listening to on the radio recently cautioned a (very) conservative caller to his show who was calling for a constitutional convention with his opinion that such a constitutional convention would more than likely do away with the second amendment, at least in its current form. when he heard this, the caller suddenly backed away from his call for such a convention. i'm not saying i necessarily agree with this analysis; however, the point is made. many of the rights that both conservatives and/or liberals respectively take for granted under the present constitution cannot be expected to survive a constitutional convention.

i also find myself agreeing in part(and this must be a first for me) with brett. i find myself in fear of a constitutional convention in the present political climate in which the same tired political hacks who have brought us to this state will declare themselves the delegates to the convention. i cannot foresee a way that "we the people" will be represented, as the argument will go forth from congress that "we the people" are being represented because "we" elected "them" to do so. i for one would just as soon sit out the prospect of a constitutional convention dominated by current members of the present congress, senate, etc., who have thus far shown no hint that they are up to the seriousness of the job, but are instead more interested in promoting the welfare of a chosen few over "we the people", and getting face time on weekend cable and news talk shows.

as i have previously urged in other posts at this site, instead of rewriting an otherwise imperfect, yet glorious document, why not pay attention to it in its entirety, such as allowing the ninth amendment, which reserves the rights not otherwise enumerated in the text to the people, to actually mean what it says. but perhaps that is an argument for another time, another place and another post.

# posted by

phg : 7:56 PM

It occurs to me also that there's likely a procedural problem with a Convention. Brett's post implicitly raises the issue, but let me make it explicit.

Prof. Levinson wants more democracy at the federal level; his changes -- end of life tenure for judges, a representative Senate, etc. -- demonstrate that. However, the original Convention voted in a very UNdemocratic way: by states. How would a new Convention vote? Brett's post assumes by states also, but Conventions pretty much set their own rules. If they did vote by states, that would make Brett happy (I assume), but it would pretty much eliminate the chance that some of Prof. Levinson's proposals would be adopted.

Now consider how the members of the Convention would be chosen. I'd want it to be proportional, since I live in CA, but I doubt the citizens in WY would. For that matter, why should the Convention represent states at all? Could it just be made up of 100 "demigods" (to use Jefferson's description of the original) selected without regard for state? Who would select them? And if WY is willing to agree to some system other than voting by states or state selection, why do we need the Convention -- if that were true, surely WY would be willing to agree to some reasonable changes without the need for a Convention at all.

# posted by

Mark Field : 8:13 PM

Hal, it's true that no constitutional amendment that reduces a state's representation in the Senate is valid without the consent of all states that lose representation. But... The 17th amendment stripped the Senate of most of it's rationale for existing, and making it equally represent people would finish the job. So it has no point for existing, and might as well simply be abolished, or reduced in power to a ceremonial role, and THAT you could do without running afoul of that clause.

It's a fair question of anybody advocating a con-con, what changes they want.

As I see it, there are two critical structural problems with the Constitution as it currently stands, and a few minor items which can't be addressed by statute:

1. The Constitution is locked in it's current form by a dilemma: No amendment unfavorable to Congress will emerge from that body, and with a compliant federal judiciary, no amendment favorable to Congress is seen as necessary. To end the embargo on amendments, we need a genuine way to do an end run around Congress. (The Con-con is of doubtful utility for the reason I pointed out.)

To that end, I'd amend Article V to provide that ANY amendment ratified by the required number of states becomes effective without Congressional action, without respect to how it originated.

2. The 17th amendment has defeated one of the key and unappreciated structural limits on the growth of federal power. It's no accident that the 20th century's cancerous growth of the federal government began shortly after that amendment's ratification.

So, I'd either repeal the 17th amendment, or provide some other means for state governments to once again act as a check against the federal government. Perhaps the idea way to do this would be to transfer the Senate's power to confirm judges to a body made up of all 50 state Governors.

3: Congressional leaders have accumulated a couple of centuries of experience in how to game the system, rendering Congressional representation less effective. To fix the system, we need some amendments:

3a: All votes to be recorded roll call votes which must be cast in person by the representative themself.

3b: Unless over-ridden by a supermajority vote, no bill may become law unless it's full and accurate text is released a minimum of 5 days prior to the vote to pass it.

3c: Since the judiciary is not entitled to render parts of the Constitution moot, ALL provisions of the Constitution are to be considered "judiciable", without exception.

........

# posted by

Brett : 7:10 AM

Without having read your book yet, Sandy (I will hit Barnes & Noble on the way to the parking garage this evening), I am thrilled with much of what I've learned of it so far and I'm glad to see advocacy for major change in our constitution.

I'm curious about the rationale for calling an entire constitutional convention as opposed to pursuing a package of amendments. Wouldn't the latter be able to accomplish the same changes without the at least perceived threat of placing too much at risk of change? Other than the argument that the Constitution requires too high a bar for passing amendments - but couldn't that part be amended as well, rather than demanding a convention?

I think it's eminently reasonable to expect that America would pass amendments abolishing the electoral college and reapportioning Senate seats to proportional representation. These are both compellingly needed.

Some of the ideas Brett discussed above should also be no-brainers immediately amended into the Constitution, namely:

"3a: All votes to be recorded roll call votes which must be cast in person by the representative themself.

"3b: Unless over-ridden by a supermajority vote, no bill may become law unless it's full and accurate text is released a minimum of 5 days prior to the vote to pass it."

Some dramatic changes could be made without any amendment, rather just by implementing some of the original intent of the Framers a little more seriously, such as vastly increasing the number of House seats, and using a far lower standard in deciding when and how to hold accountable and/or to impeach a President.

Raising the number of House seats would bring each one closer and more responsive to its people, cut the amount of money per race and make it depend more on substance as opposed to commercials, and reduce the capability for gerrymandering.

And lowering the bar for accountability, including in the form of impeachment, should be a necessary part of Congress acting like the premier branch that some of the Framers envisioned. The idea that Congress has to pass a law to bring policies of the President for review before the judiciary, as their best option to hold the executive accountable, is ludicrously emasculated.

Compare with the ideal expressed by Roger Sherman at the Constitutional Convention, on June 1, 1787: "MR. [Roger] SHERMAN said he considered the executive magistracy as nothing more than an institution for carrying the will of the Legislature into effect, that the person or persons ought to be appointed by and accountable to the Legislature only, which was the depository of the supreme will of the Society."

# posted by

Anonymous : 3:27 PM

"I'm curious about the rationale for calling an entire constitutional convention as opposed to pursuing a package of amendments."

No need to be curious: The rationale is, quite clearly, that Congress, not ratification, is the chief obstacle to amending the Constitution. They simply won't originate needed amendments, even if they'd be ratified easily, because many of the needed changes are contrary to the interests of members of Congress.

You're never, for instance, going to get the Senate to vote out an amendment to abolish the Senate. Or get legislative leaders to permit an amendment to end the very abuses which grant them extraordinary control over the legislature.

The Con-con is an end-run around Congress.

# posted by

Brett : 7:07 AM

I must say that my first reaction to the title of Prof. Levinson's book was that America is too democratic as it is.

So that answers, I guess, his question about what fear of a constitutional convention says about our faith in robust democracy.Thanks for sharing this Article
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