an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The consequences of a second constitutional convention
I just finished an interview with Maggie Clark of Congressional Quarterly about the possibilities for a constitutional convention called by the states to propose new amendments to the Constitution.
A second convention called by the states poses obvious logistical issues. One is organization. Proponents must not only get states to send in similar petitions to Congress, but they must also then get the individual states to set up methods for choosing delegates to the convention. They must then figure out what the agenda of the convention will be. (The existing precedent is not promising: The Philadelphia convention quickly trashed its agenda and went on a frolic and detour, writing an entirely new constitution). Organizers must also find a way to keep to their agenda and not let the convention be distracted. Finally, Congress and the President may not support the proposals and may interfere. Organizers must find a way either to co-opt political leaders in Congress into supporting the convention or find ways to keep them from undermining the convention through restrictive legislation or other ingenious methods. (Organizers should also be prepared to get together a war chest to pay for attorneys fees, because every step of the convention will likely be challenged in court, and even if the Supreme Court eventually declares the entire thing a political question, challenges both in federal and state courts will continue for some time.) When Congress proposes amendments, much of this administrative framework is already in place, because Congress uses much of the same machinery to consider proposals for amendments that it uses for ordinary legislation. Proponents of a state called constitution, by contrast, have to make up all of the machinery while they are creating their proposals.
Although the Philadelphia convention was held in secret, a new constitutional convention could not be. It would very likely have to be televised, and media coverage of the convention--and of discussions about the convention--would be continuous: 24 hours a day and 7 days a week. It is hard to imagine a bigger political story than a second constitutional convention.
Which brings me to the point which I tried to emphasize in the interview. The easy criticism of a second constitutional convention is that it would be a runaway convention, a media circus or an occasion for grandstanding. But there is a more subtle and important effect that a new convention would have on American politics. A second constitutional convention would dominate virtually all other political issues. It would suck all of the air out of the room. That is one reason why many people in Congress (although obviously not all) would do whatever they could to oppose it.
Almost all other political business in the nation would be put in the background. The work of Congress would slow to a standstill, in part because everyone-- including key politicians--would understand that what happened at the convention could potentially be far more important. At stake would be not just politics, but the the rules of the game of politics. Much of the country would be focused on a single conversation directed to the issues considered at the convention.
Whether this is a good thing or a bad thing depends on whether you think the issues considered by the convention would be useful ones or a waste of time; important reforms or a distraction from the real issues facing the country. If they are the most important issues, then focusing the public's attention on them is a worthy endeavor. If you think that these issues are a sideshow, then the country is throwing away one to two years of political time on a futile endeavor. For even if the convention ultimately produces nothing, or its proposals are all voted down, its concerns will dominate American politics and set the agenda of public discussion for years.
The best analogy, although admittedly imperfect, is the Clinton impeachment between 1998 and 1999. If you thought that the most important issue facing the nation was whether Bill Clinton should be removed from office, then it was worth spending the time debating his impeachment and removal, even if he was not ultimately removed. But if you think that the Clinton impeachment was a useless endeavor, or a partisan political stunt, or both, then the practical effect was to put the government of the United States in a holding pattern for many months. The country sacrificed a year of deliberation over its problems that it will never get back. A constitutional convention might consume even more time.
The focusing-- or depending on your viewpoint, the diversion-- of the national agenda, and the sacrifice of political time, are some of the most important and under-appreciated consequences of a second constitutional convention. Whether you this focus and this sacrifice is a good thing or a bad thing has much to do with whether you think that the convention will address and help resolve serious issues that the country needs to face down. Posted
by JB [link]