A Qualified Yes to a Constitutional Convention
Some thoughts on reform.
I am way late to the hundred-plus comment party that Doug Mataconis started with his post Just Say No To A Constitutional Convention, so here is a qualified bit of support for reform.
As a general proposition, I have very much come to the position that we need institutional reform in the United States. I base this on the fact that I do think it is empirically demonstrable that the institutional arrangements of the federal government are impeding basic governance. Part of this is from the basic constitutional design of the system and part of it is because of choices that have been made and traditions that have emerged over two-plus centuries. I would note that the issues with governance are often driven by partisan misbehavior, but that those actions are as much a symptom of a problem as they are a problem in and of themselves. There is an important linkage between institutional design and human behavior and the way that the former molds the latter. Madison understood this when he noted, in Federalist 51, “The interest of the man must be connected with the constitutional rights of the place.” As such, if politicians are behaving badly, part of the reason is because the institutional structures in which they are operating allow them to so behave. This is not to suggest that institutional design explains all behavior or that all problems can be changed by reform. Still, when it comes to sports we well understand the principle that if we need to address a problem such as knee or head injuries that we can change the rules of the game so as to change the behavior of the players. The same basic principle holds in the political world as well, especially in a polity constrained by a constitutional order.
My basic evolution over the years in regards to the US Constitution and the question reform has been as follows (at least in simple terms):
1. As a youth I subscribed to the basic mythos of the Framers as political demigods (or, at least, legendary figures) who crafted a near-perfect document.
2. When I started having to teach the constitution in graduate school, first as a TA and then as an instructor, I came to see the fallacy of the demigod approach and took the view that the constitution was an impressive, even perhaps still transcendent in its own way, document that had flaws, but largely worked well. For example, even after the debacle of 2000, I was still in the camp that the electoral college had more positive benefits than negative.
3. Over time, however, two things happened: one was blogging daily for a decade plus (although that rate has clearly slowed) and the turning of my attention to a more systematic look at the US Constitution in a theoretical and comparative context.
Blogging (or, more specifically, writing in public in an audience that provides immediate feedback) has been a transformative process in the sense that it has forced me to be an even more active thinker about even mundane, daily politics in a way that even being a political science professor did not. By this I mean that while I certainly spent a lot of time thinking about what I was teaching, and certainly about my ongoing research projects, it was easy to leave various personal political view less examined than one might like to think was the case. However, if one is going to opine in public, which results in others responding to said opinions, one is forced to do one of two things: double (or even triple) down on those opinions and views (i.e., become even more ideological) or to be forced into the uncomfortable position of reexamination (which can lead to changed opinions). Further, reexamination, unlike ideologicalization (if that is even a word), requires looking at evidence and counterarguments that often have the effect of either diminishing one’s confidence in allegedly obvious truths or in the changing of views altogether. Further, there is also the effect of seeing what one’s co-partisans are saying and leading one sometimes to some very uncomfortable considerations about the intellectual company one may be inadvertently keeping.*
Blogging, and then a book project (along with teaching), have required systematic consideration of the Constitution and the institutions that it creates to other democratic states around the world. One cannot, for example, read the Federalist Paper or Madison’s notes on the convention and come away with the notion that the US Constitution should be considered a near-perfect document. Specifically, one find that the Framers often a) did not foresee key factors (e.g,. political parties, b) made numerous key decisions based on political negotiating, rather than via sage consideration—and therefore really did not have an idea of the ramifications of those choices (e.g., the Great Compromise, or the design of the presidency), and c) created institutions that never worked as intended (e.g., the electoral college—see my essay on that here).
Beyond even a connection between the Framers and the document, the fact of the matter is: there have been any number of institutional discoveries since 1789. The US was first in designing a constitutional government of the modern variety. In simple terms, it is constitution 1.0 (or maybe 2.0 if the Articles of Confederation were 1.0—although really that was more of beta than a full blown constitution). It is nothing but sheer arrogance to assume that there is nothing to learn from the experiences of dozens of democracies and hundreds of institutional variations over the last two centuries (and yet, that is basic argument that is made, whether it is realized or not).
Further, when we look at governance and public policy performance across other democratic cases we find that the US is not, in fact, #1 (despite the way we Americans tend to see ourselves). In our book** we looked at eighteen different policy variables/indices and the US ranked #1 out of 31 democracies only on the following: guns per 100 people, death sentences issued and carried out, imprisonment rates, percentage of the population that is obese, and per capita spending on health care. Areas in which we were not #1 include: life expectancy at birth, infant mortality, maternal mortality, employee protection, environmental protection, effective governance, and quality of democracy.
These are all policy outcomes and policies are made by institutions. It is hard to look at the functioning (or lack thereof) of the US Congress of late and not see a great deal of dysfunction. We certainly see no incentive towards serious governance. Our institutions are failing us, and so I do support, in a general sense, constitutional and other institutional reform (not all such reform requires changing the constitution).
Of course, I am not expecting this to happen any time soon. I do think that the task at hand is educating citizens on the deficiencies of the current system, and what option might exist to deal with these deficiencies, so that a dialog can start on what to do about them. As the cliché goes, admitting that there is a problem is the first step on the road to recovery. And, to go cliché again, Houston: we have a problem (and it isn’t that we aren’t better adhering to the Framers’ intent).
To go back to the Constitution 1.0 metaphor: it is rather odd that so many think that institutions designed before industrialization have to be treated as timeless.
However, to get back to he proximate cause of my post, there are two key qualifiers to my position:
First, I do not support the notion of a convention for the same reason that Senator Coburn of Oklahoma does (or, at least, for reasons alluded to in the piece that prompted Doug’s post). Coburn seems to be in favor of constitutional change to a) deal with federal spending, and b) to give a substantial amount of power to the states (a la the proposals in Mark Levin’s book). It is nothing short of fantastical to think that making our system more confederal (i.e., giving the states powers over the central government) would improve governance or public policy outcomes.
Second, I am not sure that the constitutionally provided method for calling a convention would result in the kind of convention that would be productive, regardless of what kinds of outcomes one might like to see. In short, if we are going to reform the constitution, the provisions in the current constitution are simply not inclusive enough. In even more blunt terms, if we are going to significantly reform the constitution, the citizens of Wyoming, Alaska, the Dakotas, etc. should not have a co-equal say in the process as the citizens of California, Florida, New York, and Texas. There is no democratic (or republican, for that matter***) justification for that kind of power disparity in the context of such a decision.
Of course, in practical terms, the current constitutional order does not allow for any other route to engage in wholesale reform of the document apart from an amending convention that would treat the states as co-equal and, therefore, there is never going to be that type of convention because there will always be a coalition of states who would block it (and, further, there is no movement in that direction anyway, making this a wholly hypothetical conversation to start with). The only way we will ever have a constitutional convention to actually engage in large scale reform is if support for such a change was so overwhelming that there was support to amend the constitution to allow for a process to create reform. That is: if there was a national movement to reform the constitution, the constitution could be amended by the current process to create a new process. This would only happen if there was widespread support for reform. Such support is highly unlikely (to put it mildly).
Still, at a minimum, I would encourage us all to at least examine and consider the degree to which our problems are linked to institutions. And in the spirit of looking to the wisdom of the Framers, or at least of Madison, recognize that there is a connection between institutions and political behavior and therefore to policy outcomes. Simply wishing for better politicians is not the answer. To continue the quote from Madison that I noted above:
It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
In short: Madison understood that the hope for good governance should not be vested in hoping for good politicians. They are not, after all, angels, but rather are all quite human. As such, if the humans aren’t producing the outcomes we need for governance, it is time to reform to the rules.
Having said all of that, we could engage in many reforms without changing the constitution. Doing away with filibuster would be a start (that’s just a rules change in one body of the legislature), as would electoral reform (which could be done via the legislative process). Changing the tenure of judges from life to a set term would help ratchet down some of the drama over appointments (but that would require amendment).
At a minimum: there is a lot of room for thought here, and the road to a useful conversation requires at least recognizing that perhaps not all of the rules under which we currently operate are necessarily functioning as well as we think that they are.
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*Or, even, reexamination of whether the words you are using mean the same thing to you as they do to others who are using those words. Terms such as “democracy,” “liberty,” “rights,” and the like are far more contested than we often admit. Further, they often get used in ways that are nigh Orwellian. To suggest, for example, that making it harder for citizens to vote is a pro-rights, pro-democracy move is more than a stretch, in my opinion, just to cite one simple example.
**Draft chapter linked above, if anyone is interested. The book is under contract with Yale University press and should be out (fingers crossed) for the Fall 2014 catalog.
***Note the small letters. I use both terms because some people (mistakenly) make a major distinction between the two (see here). The basic point is that democracy/republicanism is based in the notion of popular sovereignty (power deriving from the people) and the significance of individuals summing to a larger mass. To give citizens in one geographical unit substantially more power over the design of government over other citizens is anti-democratic/anti-republican. No arbitrary set of lines sub-dividing the country, even in a federal system, can justify the kinds of gross power-disparities that would occur if Wyoming had the same power as California in deciding the contents of a new constitution.
I agree with your assessment of the need for a constitutional convention. My main objection is practical. Those sent as representatives to any imaginable constitutional convention would in all likelihood consist of the same idiots we’re now sending to Washington. I don’t see that as a great leap forward.
Yes, my objections to a convention are largely the same as Dave’s. I agree that there may be some need for Constitutional reform. However, given our current political culture, and the influence that both traditional and social media have on that culture, I really have no faith that a convention in the modern era would be anything other than an unqualified mess that would end up being little more than fodder for the nightly cable news shows and the Twitterverse.
Now, if we could do what they did in Philadelphia and close the convention off from the outside world and media coverage, then perhaps that would help. However, that simply isn’t practical in today’s world.
@Dave Schuler: @Doug Mataconis: As I note in the post, I agree that there are large practical issues here. However, I do think that rather than just saying “it can’t be done” that we have to talk and more and about the problems and potential solutions. Too many accept the demigod narrative and therefore never even think about reform (because, after all, how can we build on perfection?).
I would also return to the comparative note struck in the post: other countries have reformed their constitutions for the better, is it really impossible to think that we can’t?
@Dave Schuler:
While I’m sympathetic to this point, it also seems to me that this tends to support the “founders and demigods” myth.
Yes, there were some tremendous statesmen and thinkers in the group. But there were also region issues put ahead of the transcendent “good” (see the great compromise on Slavery) and I’m sure probably more than a few hucksters present.
@Steven L. Taylor: other countries have reformed their constitutions for the better, is it really impossible to think that we can’t?
Sadly, no. We can’t govern now or agree on relatively minor things. Witness the poisonous political atmosphere we live in. With compromise being the dirty word in DC these days, how on earth could a Convention even come close to accomplishing anything of value?
At best, a waste of deadlocked time. At worst…. I shudder to contemplate it. It could be the end of us all. A great idea in theory – unfortunately its time is not now.
@KM:
Again: I agree that the time is not now. But if things are as problematic about our politics as is being suggested, surely that means that talking about solutions is a place to start.
@Matt Bernius:
Not really. I see it more as that the same institutional issues that need correcting militate against a successful constitutional convention.
@Dave Schuler:
Are they institutional issues or cultural ones? There was a time not too long ago when Washington was actually able to get things done and when politics wasn’t dominated by firebrand ideologues on both sides of the aisle. Moreover, if you look further down at the state and local level you often find that things are functioning just fine institutionally (obviously, there are exceptions, and it seems your home state is one of them at the moment).
This suggests that it isn’t the institutions themselves that are the problem, an that institutional reform isn’t necessarily going to solve the problems we’re experiencing.
@Dave Schuler:
Ah, that’s an interesting point — that to fix the institutional issues without our government (which were enabled by the current Constitution), we cannot reproduce those norms within the Convention itself.
So for the Convention to work, it couldn’t be structured along the lines of the way our Congress is run.
@Doug Mataconis:
If by “at the moment” you mean “over the period of the last forty years”, that’s right.
@Steven L. Taylor & @KM:
It also begs the question of when is ever “the time.” Without a doubt there are more advantageous times, but the fact is that when things are running smoothly people are not interested in fixing the system.
As I understand it, the crumbling of the Confederation of States forced the Constitutional Convention. That would have hardly qualified as the “best” time to do it, but it sure was the “right” time to do it.
That said, I am not holding my breath on any modern Constitutional Convention.
Which means the system works as the founders hoped and expected. The landed, white, 1%ers of the day controlled that convention, just as they would control a new one. I have no reason to expect a different outcome, unless of course those delegates were simply wrong about how to attain greater disparity than they have already gained.
@Matt Bernius:
Not just that. If the same people put on buttons that read “Consttutional Convention Representative” as opposed to “Congressional Representative”, what will have changed? Either way they’ll be pushing the same interests and ideas.
We elect the same people to Congress over and over again for institutional reasons. Things like the cost of getting elected, the amount of money necessary to mount a successful campaign, and so on. A “winner take all” system rather than a proportional representation system. Barriers to entry for third parties. Their name is “Legion”.
@Steven L. Taylor:
This is really the biggest obstacle to reform, as revealed in Doug’s near worshipful tones in referring to certain of The Founders. An antidote to that attitude is to look at how contemporaries of Jefferson, Adams, and Madison thought of them. They certainly didn’t think of them as demigods: rather they saw them as men-admirable men, but men who could be wrong, who could be run against, and who could be voted out of power, even.As to the Constitution, even Jefferson thought that it should be rewritten every 40 years or so . He certainly didn’t view it as Holy Writ.
Maybe a better way to fix the Constitution is not the Convention route, but to propose a package of amendments. That’s been done, and successfully too:see 1865-66. Frankly I don’t see that working now either, but is a better and more controllable process than a constitutional Convention.
Now, what constitutional amendments would you propose?
My amendments, in rough draft form :
1. The Electoral College shall be abolished, and the POTUS shall be elected by popular vote.
2. The right to vote in Federal and State Elections shall not be abridged , either by Congress or any of the states.
3. All Senatorial votes for non-lifetime appointments to the Federal government shall be by simple majority.
I would start there, but I could probably think of more.
Actually, it’s precisely because our politics are so problematic why we need to to be talking about solutions. Back in the nineteenth century Congress thought we could avoid or postpone dealing with the question of slavery either by not talking about or by deferring solution to a later and supposedly better time. How did that work out for us?
@Doug Mataconis:
I think you are right here. Contrary to Obama, there really is a red America and a blue America, with fundamentally different visions of the role of the federal government, race relations and attitudes toward women and homosexuals. The reason why state and local governments work smoothly is that people in those localities agree on those things. The majority of people in Texas agree that gays are moral reprobates and thus should have no rights, so the problem of gay rights isn’t even up for debate.
Note that I use the word “smoothly” and not “well”. If you are gay in Texas, you sure as hell do not think the government of Texas is functioning “well”.
@Dave Schuler:
So therefore we should change the institutions, n’est-ce pas ?
This chicken and egg dilemma is always there. I’m sure in the nineteenth century they felt :
“We shouldn’t possibly debate the momentous issue of slavery until we get a better class of legislators than this current rabble, headed by hucksters like Lincoln and Douglas”.
One other point worth considering.
In order to engage in the kind of institutional reform being discussed here, there would have to already be a general consensus that (1) reform is necessary and (2) what form that reform should take. I think it’s fair to say that we surely aren’t at the point where there is even simple majority agreement on either of those points and, until that happens, we’re going to be a long, long way from anything happening. Then, we get to the point that actual constitutional reform requires supermajority support, and the tasks becomes more difficult.
My point is, that until we have that kind of agreement, something like a Constitutional Convention is likely to end up being nothing more than the gridlocked shouting contest that those of us who oppose the idea fear.
And that, friends, is why there will never be a constitutional convention. The very institutional infirmities that are massively contributing to our current difficulties are also those that would prevent any constitutional convention called to to correct the infirmities. The self-correcting mechanism (thought to be) contained in the constitution is effectively neutered by the polity spawned by the constitution itself.
Another point is that the institutional problems that exist can be temporarily fixed through the simple operation of electoral politics. Let’s say the Republicans miscalculate and close down the government this year. This pisses off the public so much that there is a wave election sweeping out the Tea Party candidates and returning the House to to the Democrats, who also retain the majority in the Senate. Harry Reid then moves to abolish or severely restrict the filibuster. The likely result?:
1. Gridlock problem largely solved.
2. Likely VRA and NSA reform
3. Obamacare instituted, with legislative fixes. No more ridiculous anti-Obamcare posturing.
4. Budget passed, along with more fiscal stimulus for the economy .
5.Congressional repeal of DOMA.
Le’s face it : the reason why there is all this talk of “institutional reform” is that the public stupidly elected a bunch of a$$holes in 2010, who gerrymandered themselves into relative safety. But a wave election can still turn them out.
If the American people make up their minds, they can still return the federal government to a modicum of efficiency without major institutional reforms.
Have you read Levin’s book? It would make sense to do so.
Nothing authorizes a “Constitutional Convention”. It is a convention for proposing amendments to the Constitution.
Levin provides copious detail into how the process could work and many of your critiques are addressed.
@stonetools:
Except one of our most basic institutional infirmities is that elections are not actually direct reflections of popular sentiment. The very nature of single member districts based on geography are part of the problem and then it is exacerbated by gerrymandering.
@James Wilkerson:
Indeed. I do note that in the post.
@Steven L. Taylor:
I agree that a wave election returning the House to the Democrats would not be a permanent fix. But the federal government would actually work again, and for most people that would be enough.
@stonetools: Yes, but my point is that the nature of the institutional parameters means that it would take one heckuva wave to produce that type of election result.
Does this mean that the only Amendment prohibited to Our Great Charter would be one that conferred supremecy on one of the three branches of government? And if this is so and Amendments “…shall be valid to all Intents and Purposes, as part of this Constitution,..” that the rest of the document would be “up for grabs” at “a convention for proposing amendments to the Constitution.” Enabling such a gathering to rewrite the entire document?
@ernieyeball: The bolded clause reinforces the inferiority of state constitutions and laws notwithstanding conflicts with the federal constitution.
@rudderpedals: I have read this again for the umpteenth time.
Maybe I should stop with the bold, italics and such.
I guess it means State Judges are bound by the USCon and that cannot be changed by Amendment to the USCon or State law.
I am still thinking that the Supremecy of the document is the only other thing that cannot be changed by Amendment.
Where does it say that?
@ernieyeball:
Article V also effectively makes the Senate as it exists structurally impossible to alter:
My head hurts…
…supremacy..
Steven,
Interesting post but it doesn’t really provide much in terms of justification or details about the problems you think need solving or how to solve them through changing the Constitution. You mention poor governance but don’t really address problems except for the vague suggestion that low-population states have too much power. And you mention policy, which, to me, is irrelevant to the discussion. Constitutions are about apportionment of political power, not achieving some policy end.
While I’m not and never have been one to viewed the framers as Demigods, I’m also not one who is willing to open to open a potential Pandora’s box and make unknown changes to a system which has “worked” for a very long time. And by “worked” I mean internal cohesion through the apportionment of political power. Few, if any, countries can match our record for the orderly transfer of political power through time thanks to our Constitutional structures. So, if one wants to change things up, I think one needs a really good reason to do so and needs to demonstrate how an alternative would be better.
Finally, I think it’s important to point out that the keystone in our system is federalism and the sovereignty of the states. So far no changes to our Constitution (via amendment) have sought to significantly alter that basic arrangement. You don’t really come out and say it, but it seems pretty clear that you would like to fundamentally alter the role and power of the “state” in our system. I don’t think that’s really possible without a wholesale rewrite of the Constitution.
@Andy: I have written about various issues in the past, and certainly will write more in the future.
I think I can sum it up in the following (which, of course, would require much more complex elaboration):
1. There is a serious disconnect between popular sentiment and electoral/policy outcomes. This gets to the heart of representative democracy. There is inadequate representation.
2. There is a rather obvious dysfunction in regards to basic policy-making that is likely to persist. See, for example: the debt ceiling, appointments, the budget, etc. Much of these failures are directly linkable to institutional parameters.
And the states are not fully sovereign.
@ernieyeball: I wouldn’t look for much in the document limiting the subject matter of amendments or the outcome of a constitutional convention: The only ones you’ll find refer to the procedure. I’m not aware of any content restrictions. Content limits would defeat the point of having an amendable document.
@rudderpedals: My State of Confusion was prompted by this comment by Citizen Wilkerson:
“Nothing authorizes a “Constitutional Convention”. It is a convention for proposing amendments to the Constitution.”
Somehow I had the idea that a convention for proposing amendments would basically be an invitation to rewrite the document since, as you say, there is not much to limit subject matter or outcome.
But what do I know? (Damn little.)
All I can do is read what the Charter says. I leave it to others far more schooled on these matters than I am to provide a candle in the dark.
@Steven L. Taylor:
So the implication in your first point (assuming the statement is true, which is quite debatable), is that it’s acceptable to alter the long-standing constitutional system in order to achieve specific policy outcomes. I believe this is very dangerous.
On your second point, what is “inadequate representation?”
Here again,you focus on policy which suggests that modification of the constitution is required to obtain specific policy outcomes. That you believe there is policy dysfunction and that it is likely to persist is a weak argument for fundamentally altering the constitutional balance of power, particularly when other solutions exist.
Who suggested otherwise? The fact remains that the state is at the core of the constitutional system. Altering the role of the state in that system will have many secondary and tertiary effects. I see no reason to run that experiment due to concerns about policymaking.
@Andy: I am not suggesting that reform be put into place, I am suggesting that the inability to make policy (which is what those examples are meant to demonstrate) is rather problematic.
The representation thing will have to keep for another day.
The states are important, yes. However, we disagree over their role/place in the overall mechanism. More on that at some point, I suspect.
A Constitutional Convention these days would be like the WWE. It would be akin to basking the OJ Jury to dispassionately consider the evidence and act sensibly. One look at the current House of Representatives practically begs the question: Why would anyone trust those people (and the people who elected them) to be intelligently engaged in a convention to discuss changing the Constitution?
“Wisdom of the people”? No such thing. Sometimes The People collective have wisdom, sometimes they don’t. The People do not inherently have wisdom – certainly not these days.
@Doug Mataconis: “Now, if we could do what they did in Philadelphia and close the convention off from the outside world and media coverage, then perhaps that would help. However, that simply isn’t practical in today’s world. ”
So Goldman Sachs, Exxon Mobil, ALEC and the Koch Bros get to rewrite the constitution, without us even having a say-so? Because that’s what it’d be.
@Steven L. Taylor:
In my view political disagreement is primary reason there is an “inability to make policy.” I’m not sure how a constitutional convention solves that problem.
@Andy: I will see what I can do to explain at some point in the future.
If we look at something like the budget, or entitlement reform, or any number of other issues, we don’t just see political disagreement, we see the inability to do anything. Slow and deliberate is one thing. Paralysis is yet another.
I’m late to the party because I’m coming off a deadline. (62 pages in two days. Hell yes.) Scrolling through comments, this is the one that stands out to me.
I’ve been ranting about the problem of states for a long, long time to universal indifference. But this is a key problem in this country. We have concentrated disproportionate power in the state of Wyoming et al, compounded by the asinine filibuster rules in the Senate. A handful of Senators, representing in total fewer people than live in California, can effectively bring the United States Government to a dead stop.
But states like Wyoming can also stymie political reform. So there you go.
The Founders fwcked up. They weren’t gods. They were not able to magically foresee the future. (Huge surprise.) And now we are stuck with a system that does not deliver effective government and that we cannot effectively reform. That’s the reality of it.
What we can do is end the Republican party. Because the fact is that the GOP is almost entirely responsible for the present dysfunction. We finally ejected the last of our Republicans here in California, and surprise surprise, the budget is in balance, unemployment has dropped, our bond rating is up and our housing market is recovering.
I realize that seems like a purely partisan take. Too bad. It happens to be the truth. We have an aged, ramshackle system that could be made to stagger along for another 100 years, but is not working right now, today, because a nihilist party of decrepit imbeciles is keeping it from working.
As a practical matter, replacing that party with a different one is an easier and more achievable goal than rewriting the constitution. And that’s what we should be working on.
Is it at all possible to convene a constitutional convention with a specific and limited agenda, and have only that agenda followed? I think not. The convention would inevitably sink into the mire of a total rewrite, or at least rewrites of what the participants think should be changed, which, if the representation is relatively fair, would lead to infinite and circular debates, netting nothing acceptable. Diddling around with the current system of checks and balances would be an interesting game of chicken!
For instance, Lets have term limits for Senators, Representatives, the Supreme Court, etc. Lets ban lobbyests. Lets have an ironclad rule that all legislation must be read fully by not only the legislators concerned, but also by the public (if put into a readable form, which is not the case currently), before voting. Who would enforce that rule? Would you test legislators?
Much of what is written comes from staff or interested parties and outside contributors, and the game seems to be to pass the bill before anyone can identify the ringers included. Can that system be cleaned up? (I suspect Pelosi would disagree!)
There is more, much more, but our leviathan has a lot of sheer inertia preventing even timid first steps. How would changes affect the 1700-1800 registered departments, agencies, bureaus, commissions, committees, and such, and the congressional committees themselves? Some rather large organizations have little or no basis in the Constitution itself.
Wha is to be done with our history of legislation and our history of Supreme Court decisions? Do we retain precedents, or toss them?
Somehow, I have the impression that the 20 or 30 or more supermen needed for this job would be hard to find, and even harder to organize and direct, even if the (then) current government, much less the people, could possibly place its trust in such a group and effort.
What would be the proper division of political influences? Progressive? Conservative? Libertarian, Liberal, Republican–What? What about the Churches? Find us a few honest men!
There are words in the bill of rights that could use updating to stop the weird “penumbra” kinds of interpretations from the Supremes, or some trying to invalidate current understanding of the 2nd amendment based on the opening phrase, or using the commerce clause to justify dubious outcomes, or using “the general welfare” clause to do what ever is desired, and on and on… This leads to the idea that such an opportunity to redo the Constitution would make many progressives salavate: all of their precious diddles might get in, budget or no budget, and the conservatives would be doing their thing to block progressive transgressions of sanity. Chaos, as we now have.
Same thing, Mannning. Everyone would want their “diddles” in. That’s always true.
And all that salivation would indeed, IMHO, lead to a chaotic mess. Or as Michael points out, little states would block reform, fearful of losing their extra power in the senate (my state included).
It’s one of those things that sounds ok in theory: hey, we should update the Constitution to adjust to modern realities, reduce vagueness (and hence the opportunity for creative interpretation), and make some decisions about what we really care about.
I just don’t see it working out well. At all.
Late as usual! And in practical terms, what Mr Reynolds said:@michael reynolds:
And the depth & width of the changes that would be needed to the Constitution to produce policy outcomes that seriously affect such ‘problems’ as Prof Taylor has named (number of firearms in private hands, child & maternal health, etc) make such a carefully planned Constitutional Convention (or ‘set of amendments) virtually impossible.
The kinds of changes that would make the Gov’t “work” to produce better policy would include (IMHO): 1) Separating the Head of Gov’t from the Head of State as the heirs of the British system have done. 2) Making the Senate ‘democratic’ in that it reflects population proportions – which as noted above is specifically forbidden in the 1789 document. 3) Federal control of voting in all elections that affect the US Gov’t (ie-for House of Representative).
That’s just a few. No doubt various commenters (and Original Posters) could come up with more suggestions. In otherwords – FORGEDDABOUTIT!
The history of democratic gov’ts that have made such substantial changes to their basic governance (the New Deal, the 2nd – 3rd – 4th and now 5th French Republics) suggests that things have to get very very bad before politics-as-we-know-it can be shaken out of ‘normal’. I guess that’s the bad news. The good news is that when thing DO get very very bad that it has been done so perhaps can be again.
@mannning: The convention can last as long as it wants to, and produce as many weird amendments as it feels like, but each one has to get the approval of 38 states, in their legislatures or state conventions. That’s a big limitation on a “runaway” convention.
@Steven L. Taylor:
And, at least on the side of the Senate, the institutional rules are such that any member can easily induce total paralysis on just about any issue. This means that, lacking an actual super-majority, the current rules are nearly exclusively weighted in favor of the minority.
Further, as we saw in 2007/8, there are political tools that can be used on the State level to delay a super-majority from being seated (see Coleman/Frankin).
@mannning:
Really? I happen to think that Conservatives are drooling out of the sides of their faces at the prospect of rewriting the Constitution to limit or get rid of the income tax, excise “well-regulated” from the Second Amendment, reign in the 14th and Fifth Amendments, include language to permit religion in schools, explicitly ban abortion, and so forth.
@al-Ameda:No one’s going to get 100% of what they want. This reminds me of a comment someone made on the other thread after I mentioned the repeal of the 17th Amendment. Whoever it was said that I’d bought into the most extreme right-wing positions. But these issues aren’t about scoring points for your side, supporting or rejecting a party’s plank. They’re about reasoning out what’s best for the country in open debate. Of course there will be some partisanship, and some agenda-pushing. But I suspect there would be a lot of adult decision-making as well.
@Pinky:
Obviously, such a convention could last as long as it takes, and that’s another of its problems. I see it lasting into the 22nd century, and in the end, producing a real dud. Unless, of course, someone mercifully shuts it down earlier. Who, I have no idea.
@Rob in CT:
Quite true, Rob. But, I seem to get the impression that far, far more diddles are arising from the left than from the right, it is certainly so under Obama, and they are indeed substantial sorts of changes that a self-respecting conservative would never consider seriously, it being a tenet of the faith that institutions must not be changed willy-nilly, and without significant proof that it is really necessary and very beneficial for the nation.
Every provision in the Constitution has its good and not so good points and a strong constituency ready to defend each side, and the go-slow side has many years of practical use to draw upon, whereas the go-fast side has virtually no practical measures of the effects of their bald suggestions. I think huge arguments would be forthcoming against many of the sorts of changes mentioned earlier in this thread.
It is more like ObamaCare, where a pile of unread paper is passed as a bill with hardly an eyeprint on it, and we will find out just how horrible it is downstream. No thank you!
@Steven L. Taylor: While the budget impasse may be annoying, it hardly prevents the government from functioning since Congress still passes appropriations measures. This is an important distinction because appropriations bills are actually what fund government activities, not the budget itself. The lack of a budget is, therefore, a pretty weak case for changing the Constitution.
@mannning:
Again, this is not a constitutional convention we’re talking about. It could last a long time and produce only a couple of things of value. “A” dud implies that you see a new Constitution coming out of it. OK – as a thought experiment, I guess a constitutional amendment could say “this document expires in five years”. If that got passed by 38 legislatures, there could be a new Constitution. Absent that, I don’t see how we’d get one as a result of a convention, and we wouldn’t get it directly from the convention.
The convention could last a long time, and produce only a couple of amendments that ever get acted on. It’s possible. That’s not a strong argument against one, though.
Art. 1 Sec. 3 is one example of an Article of USCon being changed by Amendment.
Amendment 21 was repealed by Amendment 13.
Where in the current Charter is there anything written to prevent a “…Convention for proposing Amendments…” (Art. 5) from proposing Amendments that would repeal every Article and every Amendment now in force and replacing it with something else?
@al-Ameda:
Indeed. Unfortunately, conservatives I have had discussions with believe as I do that a constitutional convention is simply not worthwhile, because of the many obstacles to consensus, the danger of it running amuck, the sheer magnitude of the job, and the lack of qualified, trustworthy, and objective bipartisan members. Then, too, they come back to the idea that most things needing to be fixed can be done using relatively uncomplicated amendments or new simple and clear legislation, if they ever will be fixed. They believe that the “bones” of the Constitution are in place and have worked for over 250 years, so that just might not be the problem. We need basically an “edit,” not a total rewrite, but to give the power of recommending changes to a group, they will go for the total rewrite.
@mannning:
I’m content to let the ‘edits’ occur by way of ongoing periodic Supreme Court decisions, as imperfect as some of those decisions may be. Yes, interpretations change over time, often in conjunction with political and social currents, but I am more willing to live with those vagaries, than I am with having the American People and our body politic practice medieval medicine on our Constitution.
@al-Ameda: You hit on something here, as really the only way to get any kind of reform is via SCOTUS rulings–something that the Framers did not foresee, yet by making it so hard to amend the document they more or less created by default.
It is one of the reasons that fights over SCOTUS nominees (and court nominations in general) are so contested. Since there is no way to engage in much meaningful reform, or to even have serious legislative debates in some cases, we cede these things to the courts.
@Steven L. Taylor:
So we will be ruled by nine black-robed priests of the Court! Not the way it was intended to be.
Judicial activism undermines our entire system, and to give it support is to push us in the direction of tyranny. For shame!
@mannning: You miss my point insofar as you have the verb tense wrong (although we shouldn’t get too carried away with “ruled”).
Indeed, much of your response is rather hyperbolic.
Think of it this way: why did we end up with Roe? Part of the reason was the inability of the legislature to effectively deal with the issue.
What chance did opponents of Obamacare have to overturn it? They had to go to the courts because it is legislatively impossible to overturn.
These kinds of issues are what the system has created.
@Steven L. Taylor:
Just what would allowing the SCOTUS to legislate “as needed” result in over time? Your point carries for a few legislations, but opening the door for court intervention and solution for all or most legislation is in fact tyranny of the Nine.
@mannning: You are utterly missing my point. I am not talking about a proposed reform. I am talking about what has happened (past tense).
There have been any number of what can arguably be called constitutional changes over the years not because of amendment, but because of SCOTUS rulings. Indeed, one could argue that our default mode of constitutional change is precisely SCOTUS rulings because the real amendment process (and even the legislative process) is just too difficult.
@ernieyeball: I did say in that comment that it was theoretically possible.
Charles Pierce at Esquire put it well:
“The reason this is The Second Worst Idea is that the last time we did it, we threw out the entire system of government, and that was with James Madison, Alexander Hamilton, and George Washington running the show. I’m no raging Founder-phile, but that seems to me to be a better lineup than handing the job over to Tom Coburn, Mark Levin, and the inhabitants of monkeyhouses like the current Wisconsin and North Carolina state legislatures.”
@Barry: On the one hand, point taken on the comparison. On the other, as I noted above in an early comment, many, many countries over the years have successfully reformed their constitutions. The notion that this is an impossible task for the US problematic, if not just simply wrong, in the face of the comparative-historic evidence.
Yes. I guess you did.
@Steven L. Taylor:
I most certainly did get your point. You utterly refuse to take mine, which is that such activist maneuvers must stop, before the SCOTUS becomes the only real legislator in town. You did convey the impression to me that you were agreeing with the idea of judicial activism by your use of words, hence my “hyperbolic” response. Perhaps you do agree with it in the cases that have recently been decided by the court, I don’t know. I do not agree with such judicial activism.
.
Other than Federal and State Legislatures resolving these issues how is this dreaded Judical “activism” to be stopped?
@stonetools: “Back in the nineteenth century Congress thought we could avoid or postpone dealing with the question of slavery either by not talking about or by deferring solution to a later and supposedly better time. How did that work out for us?”
And how could it have been solved better? Slave Power was dominant, and caused a war as soon as there was a credible threat to that long-term domination.
@mannning: Actually, I don’t thin k you are getting my point, which is that regardless of what you want to call it, a major reason very important issues end up being decided by the courts that really ought to be decided legislatively is because of the design of the system. It is an inevitable evolution and it is exacerbated by congressional dysfunction.
As such, I am not trying to make a normative claim (i.e., whether I think this is good, bad, or indifferent). I am trying to make an empirical claim about how things work and why.
And hence when you claim the following, you are actually calling for reform:
Although I do think that it is hyperbolic to speak of the court ever becoming the only real legislators in town.
Good article, Dr. Taylor. I think many people don’t really grasp the extent to which our current system, and the problems in it, stem directly from its design and structure. It’s one level past the fact that crazies have taken over. It’s the fact that the system allows crazies to take over and doesn’t discourage their extremist actions.
The only reason the system worked as comparably well as it did through, let’s say, a lot of the 20th century was because of institutional norms and traditions which have been largely blown up in recent years. But government by hoping everyone is really nice to each other is no kind of government at all, as is pointed out by the Madison quote cited by Dr. Taylor. Nor is it preferable in any case, since we should expect and desire that politics be adversarial. But that should be a feature accommodated by the system, not one that has the potential to make it cease functioning entirely.
As far as those who have noted that the Constitution explicitly forbids amendments changing the equal representation of states in the Senate, I have a very easy two-step solution:
1) Change the part that says you can’t change equal representation of states in the Senate.
2) Change equal representation of states in the Senate.
I was with you until I read those two words…
@ernieyeball: Ha, very easy to conceive, not very easy to accomplish. My mistake.
@Steven L. Taylor:
Of course I am calling for reform! It is very unfortunate that the system “allows” the SCOTUS and their subsidiary courts to use activism in solving conflicts, just as it’s unfortunate that the Congress seems so incapable of legislating without workarounds, such tricks as voting without reading, limiting any debate, or inability to reach bipartisan consensus on important legislation, and polarization of the two parties around widely differing philosophies of government, as well as often ignoring the will of the people to satisfy partisan, ideological and presidential goals. All of which indicates very poor representation of the people and the nation.
The question is, how to achieve the reforms? Going at it incrementally has a serious flaw in that the process might stall out halfway leaving us in a mess, and, it would take possibly decades to achieve. Attacking the whole Constitutional reform at one fell swoop depends upon the quality of the men creating the new version, their objectivity and their willingness to adhere to the current constitutional framework (the bones), and the ease of understanding the new constitution and agreeing to it on the part of the necessary number of States. A radical shift, such as to a more centralized government, or a more liberal slant, would, in my opinion, be doomed from the start today, since I believe that a majority of the states are currently under the control of one party–Republicans–which could shift, of course, in following elections.
@ernieyeball:
By a Constitutional law? Violation of which is an impeachable offense.
@mannning:
We (The American People) are not now (today) collectively, a group that is up to that task. We, the American People taken as a whole are less than the sum of the parts. Generally, I have very little confidence in the American People (and by extension) in the persons we elect to represent us in state capitals and in Washington DC.
As I said above – I believe that convening a Constitutional Convention would be somewhat analogous to having the American People practice medieval medicine on our Constitution.
@mannning:
So much political analysis is based on the assumption that everything will always stay the way it is. (Like the whole “red” / “blue” divide – nonsense. But that’s a harangue for a different day.) A lot of people are assuming that the state legislatures always lean Republican, and basing their assessment of a convention on that. But it’s not that one-sided, and of course if state legislatures became the battleground for an amendment convention, you’d see money and influence shift drastically. Then again, some people assume that the Congress will always be establishment and obstructionist, and that probably doesn’t even match reality today, much less over the next multiple cycles.
@Pinky:
Well, right now, the obstructionist wing of Congress is anti-establishment.
“…the SCOTUS and their subsidiary (sic) courts…”
Whose courts?
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“By a Constitutional law? Violation of which is an impeachable offense.”
My understanding of a Constitutional law is legislation enacted by Congress and administrated by the Executive. I guess it is assumed Constitutional unless it is deemed by the Judiciary to be unconstitutional.
What it sounds like you want is the Legislature to enact and the Executive to administrate, a law that would define Judicial activism (good luck with that) with an indictment brought against any Jurist whose decisions fit this definition.
Nothing political about any of this so far. Derp. (It’s in the dictionary. I’m using it.)
Also I expect
ifwhen this Consttutional law of yours is challanged in court there will be damn few, if any, Judges who could not be seen as having a conflict of interest in the outcome of said challenge.I sure would like to see a draft of this legislation. Maybe you can post one up.
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When you are done you can enlighten us all on just exactly the “bare bones” of the USCon are.
@ernieyeball:
Perhaps you can tell ME what you consider to be the bones or framework of the Constitution is, since I am not a lawyer, nor a Constitutional scholar. I would think it quite possible for someone trained in the subject to enumerate some 28 or more principles that comprise the essence of our Constitution and form the framework or bones of it, but I will leave that up to you if you so desire to do it. If you do write it down, please indicate those you have a problem with.
You might find W. Cleon Skousen’s book “The 5000 Year Leap” to be helpful. It does list and discuss 28 major principles (bones) of the Constitution in considerable detail, with extensive quotes from the framers, a book that I will not repeat or paraphrase here. Look it up. You will find one ordering principle in there that has had a fight to be maintained, and that is the concept of Natural Law that many scholars indicate formed the basis of our Constitutional Law.
The concept of judicial activism is as hard to define as pornography or even justice, especially for one that has little training in the art of definition- making. There are some concrete examples of such activism, not the least of which is one from the mid-west, where a judge forced a school system to build and maintain an elaborate building and campus for one district, as I remember it, to the tune of several million dollars. Other examples can be drawn from Judge Andy Nepolitano’s book “Constitutional Chaos”.
If there have been quite a few concrete examples of activism as I believe there have been, then deriving key elements they contain that characterize them as activism could possibly be isolated, generalized and provide the basis for determination of decisions crossing the line into activism. I would leave that task to lawyers, and would not be surprised if they had little success. My sense of it is the simple phrase “……having the characteristics, content and force of law that new legislation duly passed and signed contains”, but it is probably far too simple!.
@al-Ameda:
Agreed
Uh…no. Can’t do it. I can however refer you to Madison’s Notes for today in 1787 and one of the “bones” they were chewing on that Tuesday. Something about Habeas Corpus.
I’m sure you will find far more enlightenment on the matter here than anything I might contribute.
I would probably go with Mr. Rutlidge on this subject if I were pondering the issue 226 years ago.
(The first part of Mr. Govr. Morris’ motion, to the word “unless” was agreed to nem: con: -on the remaining part;) talk about parsing a sentence.
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Still waiting for the draft of your proposed legislation for the Constitutional law to end “judicial activism.”
@ernieyeball:
Why that was a perfect derp!
I have given it all I intend to, EE, so bug off. My working definition is ALL YOU ARE GOING TO GET. Or, just hold your breath till I come up with something more. Being such a legal eagle, you should be able to put something respectable together for a definition, even a derpy one.
I never made that claim for myself. Thanks for the praise (I think).
As for me coming up with a definition of this “judicial activism” you claim exists I would equate it to the luminiferous aether of 19th century physics. You can work with that.
Bug off? I am seriously considering a Bay Bridge or Bust Run from the Midwest to The City to drive across the new East Span of the Oakland-San Francisco Bay Bridge when it opens Tuesday AM.
http://baybridgeinfo.org
B there or B square!
@ernieyeball:
Sometimes I cannot let things lie. There is a substantial literture on Judicial Activisn, contrasting it with Judicial Restraint. A clear article covering the topic is in the reference below.
Oxford Guide to the US Government:
judicial activism and judicial restraint
Additional material is in here:
Read more: http://www.answers.com/topic/judicial-activism-and-judicial-restraint#ixzz2dTUFRCzz
The point being that far from being a chimera as you would have it, restraint has been the foil for activism for a very long time in our history. So it appears that judges and other law scholars know quite well when they are addressing a case of activism, or potential activism.
If they know it, then it must be real enough to identify it and correct it.
This is the main reference, which I left out in the above.
http://www.answers.com/topic/judicial-activism-and-judicial-restraint#ixzz1rBApCODu
@mannning:
Just to put forward explicit cases of judicial activism as identified by the Heritage Foundation please see the reference:
http://www.heritage.org/initiatives/rule-of-law/judicial-activism
The JA animal not merely exists, it is a frequent occurrance, and it should be hunted to exctinction.
I was being fa-ce-tious.
The illustrative example provided by my New Oxford American Dictionary reads: unfortunately, they took my facetious remarks seriously.
Yes.
Promises, promises…
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Will the Real Citizen manning please stand up…
@ernieyeball:
That is a problem. Who is the real mannning? He is what he is, when he is, I suppose.
When fastening onto a subject such as judicial activism, there is a point to be discovered where stopping makes sense. After the Heritage people identified nine different types of judicial activism in one of the references I gave, the first answer was clear: don’t do those nine types of things you Judges. Sounds simple.
So I am to “bug off” and you get to ramble on…
Somehow I am not surprised.