Why I believe the Amendment process is a superior choice to a Constitutional Convention.
Article Five of the US Constitution lays out the requirements for amendments to the US Constitution. Article five also states that the Applications of the Legislatures of two thirds of the several States shall call a Constitutional Convention for proposing amendments.
Fellow IC author Ralph Benko wrote a piece entitled “Time for a Constitutional Convention?” that was published in the IC on October 3rd. In this piece he pointed out that figures on both ideological sides of the discussion; namely Lawrence Lessig and Mark Meckler, believe the time is ripe for just such a convention.
First my thoughts regarding Article Five: While by no means a constitutional scholar, my interpretation is that proposed amendments flow from Congress to the States while calls for a convention flow from the States to Congress. Getting two-thirds of each House to vote to send an amendment to the states is, in my mind, an outstanding idea. The amendment process has worked well since the republic was first established. On average there’s been a constitutional amendment fielded once every eight years or so. I believe that all citizens of this nation are comfortable with this process. My concern is with an open-ended Constitutional Convention.
Let’s reference one of American History’s most stalwart progressives FDR. On January 11th 1944 Franklin Delano Roosevelt gave his State of the Union Address. In it he touted a Second Bill of Rights. This Second Bill of Rights may be seen in entirety here, but I will summarize;
· The ‘right’ to a useful and remunerative job
· The ‘right’ to earn enough
· The ‘right’ of every farmer to raise and sell his products
· The ‘right’ of every businessman, large and small, to trade in an atmosphere of freedom
· The ‘right’ of every family to a decent home
· The ‘right’ to adequate medical care
· The ‘right’ to adequate protection from the economic fears of old age, sickness, accident, and unemployment
· The ‘right’ to a good education
Heady stuff to be certain: All of this is currently being debated in this country every day. The nation is on a journey to discover the proper role of government in all these areas and more. Does anyone advocate wholesale change? Especially change based upon fleeting challenges such as current unemployment rates, mortgage foreclosures, or federal budget constraints?
To quote another fellow author, Steve Laib from his recent essay “Dick Morris is Barking Up the Wrong Tree” it is; “…obvious that he [President Obama] does not agree with the rules and will break them whenever he can get away with it. His statement contesting the Constitution as a document of “negative liberties” that restricts government instead of stating what government “must do” provides us with the blueprint for his personal view of government.”
Our current Commander-in-Chief is not alone. There is a faction in this Republic that holds to the belief that the current US Constitution is an old, out-of-step, document that unduly restricts federal government and needs to be completely discarded and replaced with an ephemeral, updated, modern version more in keeping with ‘current’ popular thought. But exactly who’s thought I would ask? Who decides what is adequate housing, pay, and medical care; the federal government? The US Constitution does restrict federal power. That’s what it was designed to do; Barack Obama’s personal feelings and the whole ‘social justice’ crowd notwithstanding.
Now, what would the actual makeup of a Constitutional Convention look like? There is no written description of exactly what form this body would take. My best guess is that, given current ideological conditions, there would be outcry from the unswayable 10% on either side of the debate that tend to drive all current political discussion. It would make reasonable dialogue over what form a convention would take all but impossible. And here’s the real trap; the unavoidable clarion call of “Diversity!” from the left would be nigh impossible to withstand. Any attempt to do so would be labeled as racist, misogynist, Christian, divisive, homophobic, and/or extremist; all textbook pejorative definitions that progressives reserve for all things conservative.
Once diversity is acknowledged by the time you parse the entirety of the American demographic to include a “representative” sampling of all the currently favored groups the only portion of diversity that will be sacrificed is diversity of opinion. “Can’t have those (insert your favorite conservative principle here) included! Gosh! Those extremists will hold us all “hostage” to their severe views. Who wants that when there are important things we expect government to do for us?” Who, exactly, is the “us,” who decides, and more importantly who will they “decide” to do it to? Democracy has been described as three wolves and a sheep voting on what’s for dinner. This is why we have a Representative Republic. It is also why progressives dislike the term Republic, favoring instead to use the misnomer Democracy when referring to the nation-at-large.
We’re already experiencing the consequences of three generations of progressive government. The combination of deficit entitlement spending, fiscal meltdown and rigid ideological thinking regarding how we deal with the resulting social and fiscal challenges in the face of clear contrary evidence is part and parcel of this 60 year slog toward a progressive utopia.
This would be an opportunity that progressives couldn’t afford to pass up. Own the process, own the product. No matter how you tried to oversee its creation, there would be no stopping the plethora of special interest groups and progressive NGO’s from contaminating both the process and the results.
Who wants to hold a referendum on a total re-write of the US Constitution, reject same at the ballot box, then have a judge overturn the voted result of the people a la California Proposition 8? No Habeas Corpus, no gun ownership, severe restrictions on all energy consumption, dietary control, restrictions on housing, abrogation of private property, caps on earnings, you name it. Such an open ended procedure could end up anywhere. No, no thank you. Focused amendments are one thing but we should dispense with this idea of wholesale change that any talk of a Con-Con would permit.
I couldn't agree more with you, Bill. A Constitutional Convention would be a license for chaos. The ideological divide in this country is very nearly absolute; that's why I refer to "ideological combat" so often. We are engaged in a war by other means daily. Pure ideological politics make consensus politics impossible–and both Left and Right have brought this about.
The last thing we should have is a Constitutional Convention. What makes you think progressives would dominate it? Your side has the raw numbers–and you guys will not, absolutely not, pass up the opportunity for a democratic majoritarian regime if the majority is your majority.
The Article 5 amendment process was designed to make as sure as possible that any proposed amendment have national support. One region or one sector of the society isn't enough–and that's a very good thing.
While my own preferences are for good old-fashioned wheel-and-deal politics–the sort of politics that would be recognizable to any old-school Republican or Democrat–I believe that such a time is no longer possible. Bargaining of a very high order, by consummate practitioners of the art of the deal, created this nation. Men like Madison and Hamilton could cut deals; men like Obama and Paul Ryan cannot.
Me three. I've always felt that we ignore the ammendment process as a way of fixing problemswe have.
May I suggest Term Limits as the first choice.
It's not so much that the Amendment process is ignored; many amendments have been proposed throughout our history. The 'problem' (if we want to call it such) is that the process was designed, as I said, to require national majority support (in the form of support by 3/4 of the states–38 of 50). This mechanism works only when there is widespread geographic support–just carrying the South, or the Northeast, etc. won't do–nor will getting just the support of currently red states or blue states. The Founders did not want an 'easy' amendment process; they regarded amending the constitution as serious business and created a process calling for significant efforts to gain a consensus for important change. As I see it, this process is neither 'liberal' nor 'conservative.' It is, I think, a very well-designed process.
As a voter, why would I want term limits for the House or Senate (we already have them for the President)? My state and the interests I support benefit (as does your state and the interests you support) by having veteran members of Congress in place. Of course there are exceptions, and deadwood some of the time, but a revolving door of pure amateurs would ultimately prove to be less acceptable to you (who knows when your state needs that federal disaster relief, defense contract, etc?) that you too would want a pro in office.
Professor,
You need to re-read paragraphs nine through twelve. From “Once diversity is acknowledged…” onward.
You cannot deny that diversity on progressive speak means all possible permutations of humanity with the exception of opinion.. You also cannot deny that there are examples galore of progressives hijacking the referendum process.
This is (I’m almost certain) what’s going on with Mr. Lessig & Mr. Meckler. Leggig is the Con Man (or in this case the Con-Con man) and Meckler’s the pigeon.
For the reasons outlined in the essay; I believe that progressives would not only manage to dominate the actual Con-Con process, but ‘rig’ the validation procedure as well.
As Clint Eastwood replied in "Unforgiven," when someone said that a man he shot was unarmed, "He shoulda armed himself." The best protection against any progressive evil-doing is organization, dedication, and a willingness to do battle. If the progressives don't control Congress, then they can't dominate a Con-Con, since Congress would be running the show. Your side is going to get the White House; why not assume the likelihood of getting the Senate as well? Then call your Con-Con; progressives will be a presence there, but they won't be able to highjack the proceedings. When assessing the strength of an opponent, don't ascribe any more capability to him than he really has.
Professor,
We’ve underestimated the appeal of free (enter your favorite program, department, or federal monetary give-away here) for the last three generations. That’s’ why we’re in the predicament we’re in right now. I’ll never be in favor of a Con-Con for all the reasons described in my essay.
I'm not in favor of a Con-Con either; it's not needed when the amendment process exists. As I've said, that process is deliberately difficult. If the goal is worth the effort, then Left or Right should be willing to try it.
Democrats have already destroyed the constitution by judicial interpretation (read this as saying I interpret the constitution the way I wish it was written instead of the way it was written. This living document interpretation process is exactly what the amendment process was set up to avoid. Is the constitution a living document? Only if the way things change is through amendment otherwise we are back in the situation we have today with liberal judges making law by inventing rights and other creative interpretations. Time to bring the Supreme Court back to their role in determining whether laws or other actions violate the constitution NOT interpreting the constitution by changing meanings.