Makes a case for a constitutional convention

...The easier the process, the lower the index number...

...the Senate selects the viceWINTER • 1996 • 29 American Questions president by picking from the two highest receipients of electoral votes...

...A new convention might well clarify whether we wish to stick with the Framers' Senate-only super-majoritarianism or frankly adopt, without subterfuge, the more modern scheme defended by Ackerman...

...To be sure, she rejects "[c]onstitutional idolatry" as "an attractive organizing principle...

...So now we come to the crux of the matter...

...Part of what drives this embrace of statusquo constituonalism, no doubt, is undoubtedly sheer terror of the political turmoil that might be engendered by a new convention...

...Speaker of the House Gingrich and many of his cohorts proudly proclaim themselves to be "revolutionaries...

...Perhaps it should be applied to organizing skills and other expressions of confidence in one's fellow citizens...

...That generation, after all, was educated by Charles Beard, Louis Boudin, and others to believe that the Constitution was an ill-disguised method of maintaining the prerogatives of the wealthy against the needs of the many...

...It obviously follows that the opponents win the game by capturing control only of one third plus one of either house of Congress or of only one house in a total of thirteen states, as exemplified by the failure of ratification of the Equal Rights Amendment in the late 1970s (an addition to the text that I assume was supported by most readers of Dissent...

...If national political institutions continue to be gridlocked after the 1996 elections I would be quite surprised if the more radical Republicans do not embrace the possibility of an Article V convention and encourage the states to "take on" the status quo...

...Use it or lose it, goes a common maxim...

...Even if one opposes term limits as a matter of public policy, ought one take pleasure in the fact that the popular majority that apparently favors them will, like most proponents of amending the text, be unable to get their way...

...Perhaps there are good reasons to place such power in the hands of the president, though I for one would like to hear them spelled out...

...That convention, of course, radically transformed American government...

...But the point is that for Ackerman this is all basically a shell game, allowing presidents to do whatever is politically expedient in the given case...

...It is as if the visiting team in a baseball game got only one out per inning while the home team continued to bat until the traditional three outs...

...Should that occur, the left should think of yet another popular maxim: if you have a lemon, make some lemonade...

...Article V of the Constitution includes the possibility of a "Convention for proposing Amendments," triggered by "the Application of the Legislatures of two thirds of the several States...

...In practice, there is an important alternative to such formality...

...For better or worse, the United States Constitution is well above either of these averages...

...The question is whether it is open wide enough...

...It may be an example of what Yale law professor Jack Balkin calls "ideological drift" that the contemporary left seems so willing to wrap the Constitution in its embrace, while the right seems ever more willing to engage in radical critique of the status quo...

...Congressional defeats this past spring of the Balanced Budget and Term Limits amendments highlight the difficulty of winning (or even really beginning) "the constitutional amendment game," especially when, as with term limits, the direct interests of legislators themselves are challenged...

...Today it is those identified with the radical right who express such faith, whether or not they are hypocritical in doing so...

...The word "formally" is crucial in the previous sentence...

...Even more important than these debates about rights, I suspect, would be the discussion of the structure of government itself...

...Some of this terror may be well founded: Article V is spectacularly uninformative as to the most basic mechanics of a convention...

...But even if one could trust the members of the House and Senate to assess their own powers dispassionately, there are just too many competing responsibilities that preclude weeks- (probably months-) long discussions of fundamental issues...

...WINTER • 1996 • 33...

...The lowest number was Austria's 0.80, though Sweden trailed quite closely behind at 1.00...

...Do proposals have to be ratified by the public in a referendum...

...Anyone reading the daily newspapers since World War II can be equally forgiven for believing that it is the president who in fact makes such decisions...

...for the fifty American states, the average index is 2.92...

...It seems hard to argue that there are no social costs when amendmentby-interpretation takes over from the formal procedures set out in the constitutional text and taught to innocent students as "the way we amend the Constitution...

...One could also relish the debates attending the meaning of private property—and the protection it is due—at the close of the twentieth century, not to mention the degrees of protection that should be granted "speech" that ranges from advocacy of violence to pornography to cigarette advertising...

...As George Washington put it, "The warmest friends and the best supporters the Constitution has do not contend that it is free from imperfections...

...What would the voting rules of the convention be...

...It is only fair to suggest that Reagan and Bush might well have been encouraged in their practices by seeing how Justices Brennan and Marshall persisted in staying on the Court long after the peak of their intellectual powers (and the political appeal of the coalition that placed them in power...

...Even at the formal level, though, there is more than one way to play "the amendment game...

...I trust it is clear by now that few serious persons could really believe that the present distri30 • DISSENT American Questions bution of power among our political institutions, as well as allocations of political rights against government, are so nearly perfect that we could not benefit from intense scrutiny and open debate about their adequacy for the United States in the next century...

...How, for example, would delegates be selected...

...It remains to be seen if his polemic can avoid rapid shipment to the remainder shelf...

...This scheme is a constitutional crisis waiting to happen, as we may discover in January 1997 when no candidate obtains a majority of the Electoral College and the House of Representatives is asked to choose among, say, Dole, Clinton, and Powell, while the Senate chooses between Gore and Bradley (or Christine Whitman...

...There can be little doubt that the Framers themselves believed that such conventions would occur, though, of course, they have so far been proved wrong...

...Judges (or other officials) simply adjust accepted understandings of a constitution to accord with what are thought to be contemporary necessities and offer opinions purporting to explain why these adjustments do not require navigating the system of formal amendment...

...This may be just fine, so long as there is a general public consensus behind the new constitutional norms and it is additionally understood that "constitutional interpretation" may have little to do with what the naive might view as interpreting that text called the Constitution of the United States (or other highindex constitutions...

...Moreover, as we saw with Reagan's and Bush's appointments especially, there is a perverse incentive to "appoint young" in order to assure the maximum term and, therefore, the possibility of maintaining a repudiated agenda in a new political era...

...Or is it possible that this would be simply one more example of the almost literally thoughtless commitment by the purported left to a political status quo that in fact well deserves serious critique...

...Relatively few features of the United States Constitution, including its obstacles to change, are reflected in foreign constitutions...

...To ask the question, I think, is to answer it...

...And I trust that it is clear as well that Congress can hardly add this task to its already overburdened plate of responsibilities...

...So the two-thirds and three-quarters requirements in fact understate the actualities, especially at the state level...

...For those interested in term limits, perhaps the most compelling example at the national level of their desirability is the federal judiciary...

...It is obvious that any such consensus has long evaporated and that many citizens are less accepting of the cynical evocation of the sacred symbol of the Constitution to mask political decisions made by relatively unaccountable judicial elites...

...Keeping amendment relatively infrequent," says Sullivan, "preserves public confidence in the stability of the basic constitutional structure...

...William Gladstone might have thought the United States Constitution to be "the most wonderful work ever struck off at a given time bythe WINTER • 1996 • 27 American Questions brain and purpose of man," but even were that true, that would not guarantee perfection...

...Justice Stevens concluded his opinion for the majority by emphasizing that term limits "must come not by legislation adopted either by Congress or by an individual State, but, rather . . . through the Amendment procedures set forth in Article V." What one immediately thinks of when reading such a sentence, I suspect, is the "traditional" procedure of two-thirds of each house of Congress agreeing to "propose" an amendment coupled with ratification by three-quarters of the state legislatures...

...Daniel Lazare argues in a forthcoming book, The Frozen Republic: WINTER • 1996 • 31 American questions America and its Immovable Constitution, that we would be well rid of a structure of governance that he, following Harvard's Samuel P. Huntington, traces back to Tudor England—a structure that the British themselves were wise enough to reject in favor of strong parliamentary governance...

...It may be an understatement to say that we are now living in unusually interesting times...

...One reason for this development, says Ackerman, is the simple illegitimacy, for many contemporary Americans, of placing such decisions exclusively in a grotesquely malapportioned Senate...

...An earlier generation of leftists and Progressives hardly had such views...

...In a recent Constitutional Commentary symposium on "Constitutional Stupidities," University of Texas professor Lucas Powe and Washington and Lee professor Lewis H. LaRue agreed that lifetime tenure for federal judges was the least defensible aspect of our current Constitution...

...Given recent events, one presumes that the Yugoslav Constitution is no more and that the U.S...

...The average index of the national constitutions examined by Lutz is 3.26...

...Imagine, for example, the debates likely to ensue if the Second Amendment—and its "right to bear arms"—or the self-incrimination clause of the Fifth Amendment is brought forth for discussion...

...Whatever the sour taste generated by the particular rightists behind a convention movement, the left still has the opportunity to make lemonade if it recognizes the deep merit of such a convention and begins a genuine process of engagement with the citizenry about what sort of government We the People should ordain for the next millennium...

...indeed, its index number of 5.10 won it a second-place ranking, behind only the former Yugoslavia's 5.60...

...It seems altogether predictable that the American Prospect, a leading journal of the establishment left, would publish in its Fall 1995 issue an article, "Constitutional Amendmentitis," by Stanford Professor of Law Kathleen M. Sullivan...

...The best solution to this problem would be to limit Supreme Court justices (and perhaps federal judges generally) to single 18-year terms...

...Term Limits v. Thornton, where five justices, over the bitter dissent of their four colleagues, struck downArkansas's attempt to impose term limits on candidates for the House and Senate...

...As LaRue argues, no one today believes in the defense of judicial review offered by Alexander Hamilton, who argued that judges are "bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them...

...More fundamental is the rejection, even (or especially) by the left, of what Michael Kazin, in his recent book The Populist Persuasion: An American History, has described as the belief—the joint product of the "pietistic impulse issuing from the Protestant Reformation" and "the secular faith of the Enlightenment"— that "ordinary people could think and act rationally, more rationally, in fact, than their ancestral overlords...

...So it would be a mistake to treat the Convention Clause ofArticle V as a dead letter...

...Whatever the problems posed by a convention, it seems implausible to explain the caution exhibited by most "responsible" people, including most leaders of the contemporary left, simply by reference to them...

...too much of the left, whatever its claims of speaking for the people, seems afraid of them...

...Harvard law professor Laurence Tribe has argued eloquently in the Harvard Law Review that such bicameral majoritarian approval is a clear violation of the Constitution's Treaty Clause, which stands for the propositions first that only the Senate is empowered to ratify treaties and then that ratification requires a two-thirds vote...

...If my political analysis is right, we may find ourselves facing a mass movement for a new constitutional convention in the relatively near future...

...Assuming that bicameralism itself is a good idea, does it make any sense at all to allow the voters of Wyoming to offset the voters of California, the voters of Idaho to cancel out the voting population of New York...

...One has the feeling that almost anything is possible...

...How many delegates would each state receive...

...One can learn much by looking at the decisions made by those who have designed state and national constitutions since 1787...

...Most of what passes for the contemporary left seems willing to treat the Constitution as sacred, lamenting only the demise of the epic days of the Warren Court...

...Still, "applications" to Congress for an Article V convention have been a recurrent feature of American political life...

...More likely is that the right has been willing to engage in the hard work of democratic politics, including a willingness to discuss basic constitutional issues and even to suggest basic constitutional changes...

...Too often during this period, liberalleftists wrote op-ed pieces in behalf of "the rule of law" while the populist right listened to Joe Hill's injunction not to mourn but to organize...

...And, finally, I presume there is agreement that the only constitutionally proper alternative to congressional scrutiny is an Article V convention...

...The would provide more than enough protection for judicial independence...

...University of Houston political scientist Donald Lutz has analyzed all of these state constitutions and thirty national constitutions and developed what he calls an "index of difficulty" in regard to the procedures by which amendments are proposed and adopted...

...If so, at least a certain measure of political controversy could be stilled by specifying that the president, as commanderinchief, can order American troops into action at his or her absolute discretion...

...Or recall the sometimes savage critiques of the Constitution from Herbert Croly, who viewed it as a hindrance to achieving the full "promise of American life...

...Although trained lawyers are often apoplectic at these "interpretations," the public often is not, depending entirely on the perceived consequences of the policies under discussion...

...Another crucial structural issue was raised by the recent approval, by majorities of both houses of Congress, of first the North American Free Trade Agreement and then the General Agreement on Trade and Tariffs...

...Is the fact that the proponents of such a gathering would, at present, be drawn disproportionately from the Republican right enough to condemn it without more thought...

...Fortunately, though, "there is a Constitutional door open" that allows us to respond to such imperfections...

...Or is it possible that these failures are simply the latest demonstration that the "amendment game" is indefensibly stacked in favor of the "defense," that is, those who oppose any given amendment...

...How many different institutions must acquiesce to constitutional change...

...Why is it that almost all "responsible" analysts, including law professors, editorial writers for elite newspapers like the New York Times and the Washington Post, and, no doubt, most readers of Dissent, are appalled at the possibility of a new convention...

...Indeed, Lutz suggests that just such a process characterizes high-index countries...

...As she concedes, she rejects Jefferson's call for "a little rebellion now and then" in favor of Madison's desire to avoid any such rebellions...

...That being said, she nonetheless denounces the increasing frequency with which Congress is considering constitutional amendment...

...To expect Congress to add contemplation of our basic structures to its examination of medical care, environmental issues, defense—let alone the vagaries ofArkansas real estate in the early 1980s—is simply fanciful...

...The possibility of partisandriven gridlock only underscores the futility of looking to Congress as a forum for serious reflection on the adequacy of our current constitutional scheme...

...To err, after all, is the essence of being human...

...Such a convention could consider the merits of term limits and, perhaps, much else as well, for it is a much discussed question among constitutional lawyers whether anArticle V convention could be any more limited in its reach than was the Philadelphia convention itself...

...And what if the convention proposed ratification by a national referendum rather than by the cumbersome—and almost undoubtedly fatal, should the changes in fact be significant— process of state approval set out by Article V? Any lawyer who draftedArticle V as part of an ordinary business contract would be justifiably deemed incompetent, given the number of important questions it leaves open...

...Anyone reading the text of the Constitution can be forgiven for believing that it was Congress that was given the exclusive power "to declare War...

...this is even more true of the fifty American states, none of which has chosen to emulate the national constitution in regard to the difficulty of constitutional amendment...

...Some scholars dispute the validity of the Twenty-seventh Amendment, proposed in 1791 and declared ratified only in 1992...

...should that occur, Congress will be under a duty to call one...

...For example, are processes majoritarian or super-majoritarian...

...Would approval of a given proposal require a majority [or super-majority] vote of the delegates as individuals, as in the current House of Representatives, or voting on a state-by-state basis, as at Philadelphia...

...Any discussion of foreign affairs inevitably brings up the most awesome of all governmental powers, the power to go to war...

...Does the method by which we select a president should no one win a majority of the electoral vote—a distinct possibility in 1996—make any sense at all...

...More recently, Lloyd Cutler and others suggested in the early 1980s that some basic constitutional changes were highly desirable, but their calls fell on deaf ears, so eager were most Americans to celebrate the Bicentennial of the 1787 Constitution...

...Why would anyone think such a game, whether in the stadium or in our polity, makes sense...

...Constitution is now the most-difficult-to-amend document of any national constitution, well ahead of the Swiss and Venezuelan Constitutions, which tie at 4.75...

...Some right-wing victories can be explained as the result of big money, but this scarcely seems a plausible account, say, of the success of the antiabortion movement or the passionate desire to place 32 • DISSENT term limits on political officials...

...Yale's Bruce Ackerman does not dispute Tribe's analysis of the "original" 1787 Constitution...

...Surely one of these possibilities is that thirty-four of our states, increasingly disgusted by the vagaries of national political structures, will exercise their right to petition for a convention...

...the political system can simply engage in a process that some political scientists call "amendment by interpretation...

...Instead, almost everyone agrees that judges are appointed by the ruling political coalition as a means of furthering its broad agenda...

...Not surprisingly, both the Austrian and Swedish Constitutions have been frequently amended, whereas high index countries, which also include Australia (4.60), Germany (4.60), and Spain (4.60), formally amend their documents more infrequently...

...First principles" of our scheme of government are being discussed in ways that have not been true for literally decades...

...That is a formidably difficult process, successful (at most) only twenty-seven times in our 208-year history...

...If we fear confronting them with our own ideas about constitutional government—and prefer to take refuge instead in the occasional appointments by Democratic presidents of judges like Ruth Ginsburg or Stephen Breyer—then further victories for the right become inevitable...

...To be sure, liberals and conservatives would almost certainly have different ideas about the strengths and weaknesses of the present Constitution...

...To be sure, their claim to power was professional rather than ancestral, but judges were as vulnerable as earlier aristocrats once they were exposed, as was inevitable, as latter-day Wizards of Oz, making claims in behalf of "the Constitution" that simply did not persuade...

...A battle royal could take place between those social democrats willing to advocate the adoption of European-style economic and social entitlements—to education, jobs, or child care—and enthusiasts of a minimal state eager to have it specified that any rights guaranteed by the Constitution are strictly "negative"— rights against governmental interference with protected liberties...

...For the non-cognoscenti, the method is that the House of Representatives, voting on a one-state–one-vote basis, selects the president by picking from the three highest winners of electoral votes...

...The most recent example, from the early 1980s, involved the Balanced Budget Amendment...

...One need not be Gingrichian to believe that a structure designed in 1787 is more than a little imperfect for the next millennium...

...One way their revolution might well proceed is by calling a new convention and engaging in extended deliberation— no doubt covered by C-Span—on the adequacy of our historically generated institutional structures (including Article V itself) to our present circumstances...

...One of the few moments of iron will demonstrated by President Clinton was his assertion that Congress in effect need not be consulted before the United States invaded Haiti, just as George Bush treated the decision to go to war in Iraq as basically his personal prerogative...

...For proponents of amendment could in fact get the endorsement of eighty-seven state legislative houses, but still lose because of the loss of the remaining thirteen...

...As the owl of Minerva flies all too far away from the Great Society (or even from what now appear the progressive days of the Nixon administration), it seems increasingly clear that one of the great mistakes of many "progressives" was to place far too much faith in courts and judges as our new "overlords...

...probably the 28 • DISSENT American Questions most important example, though, occurred early in this century when a reluctant Congress proposed the Seventeenth Amendment, requiring popular election of senators, because of its fear of the success of an "Application" movement among the states...

...Is justified opposition to the balanced budget amendment enough to justify also its failure even to be sent on to the states for their consideration because thirty-four senators were able to cancel the support of more than two-thirds of the House of Representatives and of almost two-thirds of the Senate, which presumably mirrored a strong level of support by the general public...

...instead, he argues, the Constitution has been tacitly amended, in a distinctly non-Article V process, to allow majoritarian bicameral ratification of "agreements" that are functionally identical to "treaties," although presidents can, if they wish, adhere to the original scheme by calling something a treaty and submitting it to the Senate for ratification...

...A system that professes to be committed to one person-one vote can scarcely be comfortable defending the current United States Senate as anything other than an historical artifact...

...The practical meaning of theAmerican rules is that proponents of formal textual changes must capture political control of at least seventy-seven legislative assemblies—two houses of Congress plus the bicameral legislatures of thirty-seven states and the unicameral legislature of Nebraska...