Thursday, September 13, 2018

Of "Magic Bullets" and a Constitutional Convention

Mark Tushnet

I feel compelled to weigh in on the Super-Levinson discussion, in part because in the next few weeks I expect to be writing a short chapter about the possibility of holding a constitutional convention.

I think that how one frames the discussion is really important. So, for example, Super writes about an "Article V" convention, and contrasts "magic bullet" thinking with "the hard work of organizing, persuading, and compromising," which he limits to "the electoral process." Why, though, limit it that way? Why not think about advocacy of a constitutional convention (note that I've eliminated the "article V") as a component of a long-term strategy of organizing, persuading, and compromising? If one sees it that way -- which I believe to be the correct way -- the real question is about the relative merits of doing the hard work in support of substantive policies to be adopted through legislation ("the electoral process") and doing the hard work in support of a constitutional convention. Now, there may be reasons to prefer the former to the latter, but that those advocating for a constitutional convention are relying on a magic bullet isn't one of them.

The "magic bullet" criticism, and the associated parade of horribles that always takes place, imagine what would happen were a constitutional convention to be convened tomorrow -- that is, under the political circumstances now prevailing. But no one who advocates for such a convention imagines that that's going to happen. One thought associated with such advocacy is that it -- that is, the advocacy -- can change the relevant politics.

Arguing about the possibility of malign foreign influence might, for example, generate proposals to constrain such influence -- and not merely for the (as yet not convened) convention but for contemporary legislation. And discussing the risks that a convention might pose to treasured constitutional rights might promote a real conversation about whether we --progressives -- have fetishized the First Amendment to the point where we don't have real resources to combat its weaponization, to use Justice Kagan's valuable term. Now, maybe we haven't fetishized it, and maybe we do have the resources to combat weaponization. But, in my view, it would be quite helpful to have such a conversation -- I haven't seen one provoked by my former colleague David Cole's truly inane defense of fetishization --, and maybe advocating for a constitutional convention would do so. (But maybe not.)

Further, advocating for a constitutional convention can put on the table policy proposals that are quite utopian given existing constitutional arrangements -- most obviously, the equal representation of the states in the Senate, but probably also revision of our entire constitutional approach to campaign finance (not merely Citizens United, itself not an important decision and in my view well-supported by existing constitutional doctrine -- which is the real problem, not the result in Citizens United). It's simply not responsive to an argument for apportioning the Senate on a population basis through a constitutional convention that the existing Constitution says we can't do that. Again, maybe equal apportionment is a good idea, or population-based apportionment a bad one (but something other than equal representation might be better than either), but we can't have a conversation about that ifthe idea is ruled out of bounds from the beginning.

The Senate example leads me to my final and in my view most important point. Maybe Super's objections to an Article V convention are well-taken. But -- in thinking about the hard work of generating political support for a constitutional convention -- why do we have to confine ourselves to an Article V convention? Why not a "Citizens' -- or Peoples' -- Convention," "convened" outside the bounds of Article V? Some creative NGO could support a number of "Peoples' Assemblies" in states around the country, a handful every year, in which ordinary people would get together  and talk about constitutional fundamentals and translate them into proposals for constitutional design.

Do that -- or/and use other innovative methods of provoking discussions of fundamentals -- often enough, and widely enough, and, again, the political context might change. Some politicians might see gain to be had by figuring out how to translate one or more proposals into ordinary legislation (the 18-year-Supreme Court term example -- though for the record, as a supporter of proposals to take back the stolen Garland seat I don't want to fixate on a multiple of the number nine). Enough politicians might come on board for some specific constitutional amendment that garners lots of support in these Assemblies. And so on.

But, in the end, I actually want to hold open the possibility of a completely or largely extra-legal process of constitutional amendment (something like Philadelphia in 1787), as to which the only criterion is success: Could a Peoples' Convention get a new government up and running -- and obeyed -- without going through Article V? That's an empirical not conceptual question. My only point is that saying that the process would be extra-legal is both accurate and irrelevant.

And, finally, nothing about the arguments I've sketched here relies on a magic bullet. Indeed, they are predicated upon the proposition that advocates for a constitutional convention know that the hard work of politics -- "organizing, persuading, and compromising" -- lies ahead. And, again, that implies that the real argument against the political project of convening a constitutional convention is that we're likely to get more out of the hard work done with respect to ordinary legislation and perhaps ordinary constitutional amendment than out of the hard work done with respect to a constitutional convention. I'll conclude with the modest observation that it's not obvious to me that that argument -- were it to be made openly and in detail -- is correct.

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