Why the U.S. needs a constitutional convention

[Blake]

(This thread spins off from discussion on the bottom of page two and the top of page three of this thread about America, in which I said I thought we needed a constitutional convention.)

Originally Posted by godfry n. glad

I think you are exceedingly optimistic on the possible results.

godfry, I definitely agree that I'm optimistic about the possible results; one has to be to suppose that a movement towards a constitutional convention might even enjoy partial success. I don't think I'm being exceedingly optimistic, though.

I don't think that a convention would necessarily produce something better than what we have now, but I do think the chances are high. It's not just a question of what interest groups could pursue their own agendas. The process of agreeing on proposed fundamental law and then having to approve it by a supermajority of three-quarters of the states by their legislatures or in convention makes a very strong force towards ignoring particularist concerns in favor of broad, basic unanimity. The 1787 convention settled their particularist concerns by means of general compromises, not insertion of innumerable small agendas. Congress has seen an incredibly heavy stream of proposed amendments ever since it first met; of those many thousands, twenty-seven have eventually passed.

I also think any convention would treat the standing constitution with something approaching ginger reverence; I can easily imagine one of the first things they might do would be to resolve to re-include the Bill of Rights unchanged. I think their conservatism would run much deeper than that; the Preamble might stay just the same, too, as well as Article V, the means of amendment.

As I see it, the government is gradually but effectively disposing of the Bill of Rights, occasionally slowed down by the Supreme Court but not often. I'm also in favor of making the current constitution work correctly, but I think you need to have the power to restate what it said more forcefully and clearly in order to do that.

The constitution has been shredding almost as long as we've had it. Some of the abuses cited on this page are conspiracy theories, but they're labeled as "suspected"; just consider the documented ones above them. Along with constant minor and major cuts, the constitution has suffered two catastrophes: amendment by bayonet after the Civil War, the effects of which the country has only recently recovered from, and the political assassination of the principle of strict construction after Roosevelt's court-packing assault in the 1930s, from which we have not recovered. Moreover, reading the plain text of the constitution only tells you a fraction of its effect: it has been thoroughly encrusted by Supreme Court decisions that have the force of amendment as long as they are not reviewed and superceded by actual amendments.

The only way to reverse the holding that a corporation is a person entitled to the inclusive protection of the Fourteenth Amendment, or to re-establish the plain meaning of publishing a "regular Statement and Account of the Receipts and Expenditures of all public Money" and do away with secret military and intelligence budgets, is to pass an amendment. There are so many similarly significant examples that it just doesn't make sense to try to pass them one at a time; we need a convention. (Please, for the love of all that's human, can D.C. finally get representation, instead of a token three-fifths of their presidential electoral power?)

Finally, there are three compelling cultural reasons to work for it. The first is that our constitution has been fetishized, turned into a relic and worshiped as an object rather than studied and reasoned about by the broad population. It needs renewal to be the "living document" it is so often called. The second is that it would force a huge elevation in the political discourse and public involvement in it. No one could any longer suppose that politics and the composition of laws was too remote from them; every part of the conversation would bear upon the life of every citizen and national. The delegates to the convention, on the other hand, would be in the uncomfortable position of being daily evaluated in comparison to Washington, Madison, Franklin, and Hamilton. The third is that there is a real culture war tearing us apart on the inside, and it needs to be settled, or at least pacified by means of some compromise less dishonorable than the one that silently acquiesced to slavery in 1787.

*******

lisa, I agree that media concentration is one of our critical problems. However, even if reining in corporations were all it took to reverse the trend, I think we'd still need very high-level coordinated government action to succeed; again, I think the chances of a convention are better than a president taking the right lead, being supported by Congress, and not being undermined by the judiciary. There are also matters that need constitutional amendment to be addressed: for instance, the question of corporate personhood I mentioned above to godfry, and possibly also the question of the disposition of all communication frequencies, since they are a fundamental public asset.

I also simply think that when you talk about reining in corporations, you're talking about taking a huge chunk of power out of the hands of the ruling class. That's going to need something on the scale of a revolution.

[viscousmemories]

Originally Posted by Blake

[...]The first is that our constitution has been fetishized, turned into a relic and worshiped as an object rather than studied and reasoned about by the broad population. It needs renewal to be the "living document" it is so often called.[...]

I'm sorry I don't have anything informed or intelligent to contribute to this discussion, but it's a fascinating topic. This part quoted above is particularly compelling. I'd love to see a thread or series of threads here for a thorough examination of the consitution and the bill of rights. I couldn't agree more that many Americans (myself included) embrace it without really knowing much about it. And fewer still are going to take the idea of a convention seriously without realizing that you're not promoting anarchy. (At least openly. )

Heck, as I'm sure you know liv and I spent a lot of time thinking and talking about the 1st Amendment as we drafted our policies for this place and it amazed me how many people who throw around opinions of free speech appear to know little about it. People who don't really understand - and therefore fully appreciate - the relevant points obviously aren't going to make very useful champions, much less allies in any attempt at a convention.

[Blake]

Very true, which is why, although I think it's almost possible to achieve it by stealth--there are enough state calls for a convention outstanding that only a few more would be necessary to at least trigger an ostensibly limited convention--I think it's very important to achieve it through broad, systematic, long-term education and organizing, to produce champions and allies.

[Clutch Munny]

Blake, aren't you worried that a convention would become a jingoistic affair, in which still more power to the elite and damage to the public trust would be committed under the guise of indisputable principles like Mom and Apple-Pie? I think the media problem precedes the convention problem: I expect that reasonable and thoughtful movements in such a convention would be ignored or Gored under the current media arrangement, while malicious or poison pill revisions would get content-free hard-sells under names like "Clear Skies", "Patriot" or "No Child Left Behind". People would not understand, but would be led to support, the very revisions that would harm them most.

Call me pessimistic, but this seems to me so likely as to be a virtual certainty.

[lisarea]

Originally Posted by Blake

The only way to reverse the holding that a corporation is a person entitled to the inclusive protection of the Fourteenth Amendment, or to re-establish the plain meaning of publishing a "regular Statement and Account of the Receipts and Expenditures of all public Money" and do away with secret military and intelligence budgets, is to pass an amendment.

True.

I guess the main disagreement I have with you is that I figure it's far more likely that we'd manage to pass an amendment stating that the rights outlined in the US constitution are reserved for natural persons, than it would be to have a whole new constitutional convention.

Corporate personhood never came in through the front door in the first place, and had it tried, it would never have gotten in. I don't think for a moment it would be simple or easy or a cure for all that ails us to introduce and pass such an amendment, but I do expect that, once the subject were broached, an overwhelming majority of Americans would support such an amendment.

There are so many similarly significant examples that it just doesn't make sense to try to pass them one at a time; we need a convention. (Please, for the love of all that's human, can D.C. finally get representation, instead of a token three-fifths of their presidential electoral power?)

Yeah. You know their have vanity license plates that read "Taxation without Representation" now?

Finally, there are three compelling cultural reasons to work for it. The first is that our constitution has been fetishized, turned into a relic and worshiped as an object rather than studied and reasoned about by the broad population. It needs renewal to be the "living document" it is so often called.

Well, I'd have to disagree. There are plenty of people who take issue with the BofR these days. The real fetishization is in blind nationalism among the types of people who don't even know what's in the constitution. You know, those people who think it starts out with something about a spectre haunting Europe. And there's been almost too much discourse about even the most obvious and basic elements of the constitution these days.

I don't think we could just assume that the BofR would be automatically codified. There are too many people who would be absolutely thrilled to start out with a blank slate.

The second is that it would force a huge elevation in the political discourse and public involvement in it. No one could any longer suppose that politics and the composition of laws was too remote from them; every part of the conversation would bear upon the life of every citizen and national. The delegates to the convention, on the other hand, would be in the uncomfortable position of being daily evaluated in comparison to Washington, Madison, Franklin, and Hamilton.

I can't imagine how a constitutional convention would create such an enlightened atmosphere all of a sudden. I'd imagine, in fact, that it would look much like most lawmaking looks already--a bunch of jingoistic, grossly oversimplified justifications used to push various and sundry nefarious agendas.

But this time, without the basic protections afforded by the constitution.

That's just scary to me.

lisa, I agree that media concentration is one of our critical problems. However, even if reining in corporations were all it took to reverse the trend, I think we'd still need very high-level coordinated government action to succeed; again, I think the chances of a convention are better than a president taking the right lead, being supported by Congress, and not being undermined by the judiciary. There are also matters that need constitutional amendment to be addressed: for instance, the question of corporate personhood I mentioned above to godfry, and possibly also the question of the disposition of all communication frequencies, since they are a fundamental public asset.

I also simply think that when you talk about reining in corporations, you're talking about taking a huge chunk of power out of the hands of the ruling class. That's going to need something on the scale of a revolution.

Of course that's not the only problem. And the world will never be just or fair or ideal. We will always have to contend with stupidity, ignorance, and greed.

However, the people still wield a great deal of power over the US. We just have to address the small issues, one by one, IMO, in order to affect change in the system. Eliminating corporate personhood, rolling back media ownership and equal access laws, etc., won't solve all our problems by any stretch. And of course such battles would be hard fought.

But I still fail to see how such changes are less realistic than the idea of a constitutional convention.

For the most part, over the past 200+ years, we have made progress in the pursuit of human rights, at least in terms of our codified recognition of such. We've made some steps back, too, but I'd rankle at the idea of just reinventing the wheel and starting from there. Really, if you look at it, most of the most egregious problems we have in terms of human rights in this country are in the form of things like unfunded mandates, hobbled regulations, and politically motivated court decisions.

If we were to decide to rewrite our constitution, the interests that put these things in place would be just as influential in the political process as they always have been, but to provide them with a blank slate, IMO, would just give more leeway to codify their interests, while taking the chance of eliminating the powerful protections still afforded us by the constitution.

[godfry n. glad]

I'm inclined to think that incrementalism is a much safer approach to changing problems with the constitution.

Throw open the whole ball of wax and the plutocrats will pay for plenty of stooges and gull many more and I'd suspect that the result would have greater potentials for abuse than the current one. Plus, given what I've seen with state constitutions where additions and delitions are allowed through initiative, the constitution becomes littered with specific language that was better never having been placed there...I'd bet you'd see a convention steeped in big money and a laundry list of "rights", entitlements and no responsibilities.

And sure, you can start the convention on the premise that the BoR stands, but the very nature of the convention allows that they can throw out their own premises and start all over, once convened. That's what they did last time, so there is a very clear historical precedent.

What the U.S. government needs is a purging of both houses of Congress. One election could do that...there's your "revolution". I think multiple party politics are in our future, because many folks are sick of the two we have. I don't, however, think multiple party politics is any improvement (look at Italy and Israel). The current Congress has abdicated its constitutional responsibility. They sat on their hands while the Supreme Court did the job allotted to the House of Representatives when they selected the President in a close and clouded election. And did so in clear violation of the majority's judicial principles. In short, the U.S. is currently in a constitutional crisis because the House of Representatives has not impeached five Supreme Court justices and the Senate has not tried them. This is because the candidate selected was of the same political party of the majority of the House. We've had a judicial coup and no response from "the people".

Given how easily my fellow Americans are manipulated, I'm even less convinced I want to throw our governance open to complete revision (though I'll admit the 38 state supermajority is a nice brake, of sorts). I'm not optimistic and, in my opinion, those who think so are excessively optimistic.

I'd rather see the discussions take place separately and the decisions be made separately, rather than create an opportunity for gross abuse, all at one sitting, as it were.

godfry

[Blake]

Sorry I left everybody who responded to me hanging for over a week. I really appreciate your replies. I just fell apart a bit and am pulling myself back together.

Clutch--I think the trap of jingoism is a real worry. I think the strategy to succeed, should this unlikely event ever be precipitated, should include careful and thorough preparation to try to seize the initiative and control the tone of the convention. Since the people working for it should be the first to foresee if and when it would happen, they ought to be in a position to prepare.

I think the media would be somewhat thrown off balance by this sort of unique event. I also think they would be one more adversary to work against in order to get it done; if it can be done at all, one more phalanx of enemies won't make a difference. I'm not sure if I'm optimistic, but I do have a lot of hope.

************

Hey lisa--thanks for the extended response!

I agree that it's much more likely for any given sensible single amendment to be passed rather than calling a convention to consider any and all sensible amendments. Having agreed, I'm simply back to pointing out that there are just too many such important, essential legal details, particularly relative to the glacial pace at which constitutional amendment has taken place to date.

You know they [the District of Columbia] have vanity license plates that read "Taxation without Representation" now?

Yes!--and they're actually standard issue.

Well, I'd have to disagree. There are plenty of people who take issue with the BofR these days. The real fetishization is in blind nationalism among the types of people who don't even know what's in the constitution. You know, those people who think it starts out with something about a spectre haunting Europe. And there's been almost too much discourse about even the most obvious and basic elements of the constitution these days.

Who do you mean and what sorts of issues are you thinking of regarding the Bill of Rights? I agree that there are more grievous offenders than others among the "fetishizers" , but I think that it's a factor with a majority of the public since I think most don't know what's in the constitution. What discourse about "obvious and basic elements" are you referring to?

I don't think we could just assume that the BofR would be automatically codified. There are too many people who would be absolutely thrilled to start out with a blank slate.

True; it's a mistake to make assumptions regarding any supposed likely outcomes. I still think that there would be a very strong impetus joining conservatism and liberty here, though.

I can't imagine how a constitutional convention would create such an enlightened atmosphere all of a sudden. I'd imagine, in fact, that it would look much like most lawmaking looks already--a bunch of jingoistic, grossly oversimplified justifications used to push various and sundry nefarious agendas.

I don't mean to oversimplify that much; no, a convention of itself wouldn't create a dominant enlightened atmosphere. I think it would be one of the strong factors toward it. Again, I think it should be part of the strategy for the people working toward it to work on widespread education to lay the grassroots groundwork for more intelligent participation and oversight.

But this time, without the basic protections afforded by the constitution.

Practically speaking, I think any convention would find it very hard to operate outside of the presumption that the current constitution continues to hold force until a new one might be passed. I believe that's actually how it transpired in the transition from the Articles of Confederation to the 1787 Constitution, except regarding the new provision that ratification by nine states rather than a unanimous thirteen would give legal birth to the new government.

However, the people still wield a great deal of power over the US. We just have to address the small issues, one by one, IMO, in order to affect change in the system. Eliminating corporate personhood, rolling back media ownership and equal access laws, etc., won't solve all our problems by any stretch. And of course such battles would be hard fought.

I disagree both that the people now wield a great deal of power or ever have wielded a great deal of power over the US. It seems to me that the technology of mass control of opinion has kept pace with the process of enfranchisement from adult male property owners to the present ninety-some percent of the population. I don't mean to say that mass groups of people haven't effected significant change, just that relatively speaking, I think their control of their affairs has been limited. To me, the issues aren't small, but large, and intricately connected, so that a chance to unravel many of them simultaneously looks very attractive.

But I still fail to see how such changes are less realistic than the idea of a constitutional convention.

I think they're more realistic. I think a convention is less likely, but needed, because (like I said) I don't think the pace is fast enough to meet our needs.

For the most part, over the past 200+ years, we have made progress in the pursuit of human rights, at least in terms of our codified recognition of such. We've made some steps back, too, but I'd rankle at the idea of just reinventing the wheel and starting from there. Really, if you look at it, most of the most egregious problems we have in terms of human rights in this country are in the form of things like unfunded mandates, hobbled regulations, and politically motivated court decisions.

We have made progress, but a lot of the new codes are still shaky; there's a lot of progress that could be made just by consolidating advances explicitly in constitutional language. The current document seems to me actually not to have very much in the way of rights compared, again, to our needs. I don't think it would be reinventing the wheel, but renovating what we have to bring it up to date.

If we were to decide to rewrite our constitution, the interests that put these things in place would be just as influential in the political process as they always have been, but to provide them with a blank slate, IMO, would just give more leeway to codify their interests, while taking the chance of eliminating the powerful protections still afforded us by the constitution.

It's a risk. Like I said, I think being strategically prepared to seize the process and keep overall control of it out of the hands of reactionaries is a crucial element; I don't think that is any less likely a possibility than the convention itself. And, like I've more or less said, I make a different value judgment; I think most of our powerful protections have already been eliminated, and that we need radical action to retake and extend those protections.

************

Hallo, godfry--I guess my difference in value judgment I just mentioned addresses why I don't think incrementalism will do, as well as my point about the pace to date of amendment. I think my comments about planning strategy address the question of dominance by special interests, although I guess my response to that issue from the first post still applies as well. I don't think the comparison to state constitutions is quite appropriate; many issues are dealt with at the state constitutional level that have never met the level of importance of the federal constitution. I guess I've also already replied regarding the issue of the Bill of Rights and historical precedent to lisa.

What the U.S. government needs is a purging of both houses of Congress. One election could do that...there's your "revolution".

I think this is impossible without radical dismantling of the barriers to more candidates. Every two years, about twenty House seats see competitive races; in the Senate, about ten in a good year. Clearly, even an unpredictable sweep of all thirty races in a single election would be insufficient to purge anyone. We don't have two parties--more like one and a half. I think over half the races aren't even nominally contested: there's only one person to vote for. I know for a fact it's worse at the state level: in recent Georgia races, fully three-quarters of the seats of the legislature have seen only one candidate stand for them.

I don't, however, think multiple party politics is any improvement (look at Italy and Israel).

I agree with that. I think something different entirely is called for; what, I'm not entirely sure, but that's why I'm talking about it.

The current Congress has abdicated its constitutional responsibility. They sat on their hands while the Supreme Court did the job allotted to the House of Representatives when they selected the President in a close and clouded election. And did so in clear violation of the majority's judicial principles. In short, the U.S. is currently in a constitutional crisis because the House of Representatives has not impeached five Supreme Court justices and the Senate has not tried them. This is because the candidate selected was of the same political party of the majority of the House. We've had a judicial coup and no response from "the people".

I think this is very true, nor do I think it is the first time we've entered a state of constitutional crisis that has remained unresolved. Hence I think there being so many that we really ought to address them the only way possible, through amendment ....

Given how easily my fellow Americans are manipulated, I'm even less convinced I want to throw our governance open to complete revision (though I'll admit the 38 state supermajority is a nice brake, of sorts). I'm not optimistic and, in my opinion, those who think so are excessively optimistic.

Again, it seems to me to come down to my making different value judgments than you and lisa. I think the 38 state requirement is a sufficient brake, I think the freedom of complete revision is necessary to the goal, but that basic impulses of conservation and passion for liberty will prevent wholesale revision. And I think that enough of our protections are already gone, and that we're teetering close enough to making a transition to an actual authoritarian or fascist system, that the risks are worth it.

************

There are other angles I haven't gone into, either. For instance, past campaigns to amend have sometimes succeeded as a practical tool, rather than fulfilling their full program, instead by pressuring Congress to pass its own version of the amendment or appropriate legislation; a movement to call a convention would be the most potent version of this weapon, and could for example pressure Congress to take steps to reform itself to make possible the kind of electoral purge godfry referred to.

I'm also really interested in pursuing this by seeing what protections we really still have under the Constitution. I'm under the impression that a lot of them have been eviscerated, enough to make it worth taking a shot at restoring them.

[dave_a]

I think it would be easier to elect a libertarian or some other individual who actually believes that the constitution, whatever it says, must be abided by or changed, not changed via manipulation and legislative fiat with judicial complicity.

The Bush admin told the Supreme Court it viewed teh 2nd amendment to confer an individual right to keep and bear arms and since that time there have been no significant challenges to the 2nd.

I don't like Bush, but it is an example of how the office of the presidency can influence perception of the constitution. For whatever reason the Supremes seem to go along with whomever is president to a large extent.

Even FDR and his court packing scheme.

[Blake]

Do you mean that you think electing a president with a radically different philosophy is all that's needed? If so, I think that it would be helpful, but only temporary.

I'm actually in favor of creating a new branch of government that would meet every few years or so to review the conduct of the other branches relative to its constitutionality, particularly the Supreme Court decisions that affect constitutional law. I agree that for a constitution to be a really meaningful restraint on power, it has to be strictly construed and narrowly interpreted.

The Court is definitely sensitive to public opinion, and the President certainly has a disproportionate effect on public opinion. I don't know about his directly influencing them, though with the currently repulsive partisan justices I suppose that's possible.

[Strict Separationist]

Originally Posted by dantonac

The Bush admin told the Supreme Court it viewed teh 2nd amendment to confer an individual right to keep and bear arms and since that time there have been no significant challenges to the 2nd.

I'll probably respond to the main discussion here later, but I'll just note that the Second Amendment is not, and never really has been, a big-ticket item on the Supreme Court's docket. The gun-control debate has raged mostly in the legislative arena, which is where the NRA prefers to have it. If you're talking about something that happened during Bush II's term, I'd have to say I'm not surprised that there haven't been any significant Second Amendment cases in the interim, as the subject receives about as much attention from federal courts currently as did free speech prior to World War I.

Also, could you cite specifically the case you're referring to? I'd like to take a look at it.

[dave_a]

Originally Posted by Strict Separationist

Also, could you cite specifically the case you're referring to? I'd like to take a look at it.

I am not referring to any case, there haven't been any which is my point. Clinton passed a few gun control legislative numbers and in the past the SC has made decisions which have called into question whether the 2nd confers an individual right.

No new gun control legislation or SC cases have occurred under Bush.

This is just an example of the power a president has to control the agenda.

We could also look at the patriot act which contains elements which are not only unconstitutional, but have been ruled as such in federal courts previously, yet the federal courts with one exception I can think of haven't touched it.

The drug war is legally based upon an incredibly loose interpretation of the interstate commerce clause, yet the federal courts rubber stamp the drug war. The most significant cases currently going before the court are arguing that in some instances no interstate commerce is taking place therefore it isn't a federal issue. It's odd indeed that such a tactic would be necessary. Of course since Reagan we haven't had a non drug warrior president. In the prosecution of the drug war we have had intervention in the affairs of other nations from columbia to Afghanistan where we alternately punish governments for tolerating the production of drugs or look the other way. We have had the 4th shredded in ways that were shocking before the patriot act. Lots of room for the courts to just say 'no', but they have rubber stamped it.

Going back in history we see FDR imposing social/welfare measures that were getting struck down by the court, but eventually were rubber stamped. Lots of credit goes to the FDR court packing plan, but cases show the court was changing on this topic before the threat. Part of FDR's socialistic legislation is based upon an incredibly loose and anti historical interpretation of the general welfare clause (the parallel to the drug war) and part is legislation previously ruled unconstitutional (the patriot act parallel).

Bottom line is that for reasons I really don't understand coming from life appointees SC decisions have frequently catered to the president's wishes particularly when the politicians have been effective at convincing the masses some calamity was at hand and the legislation was needed to avert it.

A federal court has even ruled that state operations to provide marijuana to medical patients are impermissible under federal law (the Ed Rosenthal kangaroo court case) when it's clear no interstate commerce is taking place.

Is it a coincidence that Bush is radically against med pot?

Too many correlations to be explained by coincidence. My belief is changing the president is an easier task than changing the constitution via amendment or constitutional convention and changing the president alone, if the president is dynamic enough, can affect a significant pro liberty change as well as persuading the masses as to what the constitution means.

[xavierOnassis]

At the very least the such a convention would open pandora's box of amendments "amending" the bill of rights...

I like it... if we could end up with a special nationwide referendum rather than depending on Congress for approval

[godfry n. glad]

Y'know... Since my posting on this thread, I've had a change of heart. I think a constitutional convention is necessary and needed. For whatever reason, I think we should get started now.

I invoke my own statement:

"And sure, you can start the convention on the premise that the BoR stands, but the very nature of the convention allows that they can throw out their own premises and start all over, once convened. That's what they did last time, so there is a very clear historical precedent."

Once convened, I think we should press for the disunion of the states and the formation of smaller nations. That way most could disassociate with those of vastly variant interests. This would make the current united states a disjointed set of squabbling nations, that cannot come to agreement upon much of anything. Currency exchange will become a major North American bottomfeeder niche occupation, displacing fast-food service.

Yeah... The thing is, we'll have to squabble about how to split up all the warheads, or should we just acknowledge right offhand that Saskatitobadakota is the largest nuclear power in the world and lobby to get them to destroy their weapons of mass destruction? Could we apply to North Korea for protection from Saskatitobadakota?

I nominate Crumb to represent Cascadia.

[Crumb]

Representative Crumb here! Thanks for the nomination. I will serve you to the best of my ability.