Letting 'We the People' Speak
KAY, RICHARD S.
RUNAWAY CONVENTION? Letting 'We the People' Speak By Richard S. Kay Two hundred years after the framing of the Constitution, the United States is on the verge of holding a second...
...It was as if a convention called in 1987 to consider a balanced budget amendment proposed abolishing the Senate, making the Supreme Court elective, and reducing the number of states from 50 to 10—while at the same time dictating a national plebiscite to render those revisions effective...
...The framers, though, did not justify their flouting of the law by reference to beneficial consequences...
...Until it is determined how similar in form the petitions must be to count toward the same convention, it is not even clear that Congress will or must call one if and when two more states apply...
...Every previous attempt to amend the Constitution, whether ultimately successful or not, has been advanced by a two-thirds vote in each house of Congress, as specified by Article V. But the framers of the Article did not want to confine the prerogative to change the scope of national power to the very holders of that power, so they provided the petition-convention alternative...
...These issues are nowhere near being settled, notwithstanding the many Constitutional experts who have offered their opinions...
...And many of the judicial edicts—those relating to abortion are a clear example—have only a very tenuous relationship to either the text of the Constitution or to any intentions that may reasonably be attributed to its drafters...
...Opponents of a convention are, to begin with, dubious about the merits of adding a balanced budget limitation to the Constitution...
...The delegates would actually have some chance to take account of the public reaction to their work...
...For the rules that have stirred the most controversy, and would be most threatened by a new convention, are not in the text of the Constitution or its amendments...
...Far from being vilified as fomenters of treason, the framers of the Constitution have been revered almost beyond criticism...
...Can Congress dictate the scope of the convention...
...If they do, is the convention thereby constrained in the subjects it may consider...
...Richard S. Kay, a new contributor to the NL, is a professor at the University of Connecticut Law School...
...From its point of view, "the people" haven't been doing too well lately...
...it would be enough if nine states approved, at least to establish the new government among those states...
...Opponents of a second Constitutional Convention—who thus may fairly be viewed as counterrevolutionaries— stress the merits of our Constitution in its present form and ask us to think twice before we modify or abandon it...
...The scheme at risk, having been formulated largely by unelected judges, can claim no such democratic warrant...
...A delegate to the New York ratifying convention reminded his colleagues that the Articles of Confederation were still binding law: "However lightly some of you may think of paper and parchment constitutions," he said, "they are recorded, sir, in that high Court of Appeals, the Judge of which will do right, and I am confident that no such violation of public faith ever did, or ever will, go unpunished...
...The choice of ratification procedure is left to Congress...
...Liberals fear that, in the present ideological climate, such a reconsideration could issue in a set of proposed amendments less hospitable to their values than existing constitutional arrangements...
...Some conservatives, on the other hand, worry about a Democratic-controlled Congress setting up procedural machinery that would enable the Left to dominate the convention's agenda...
...Unlike the gathering now being mooted, the Philadelphia Convention had no justification whatever in existing law...
...But he was wrong...
...Among the white males eligible to vote the turnout was remarkably low, even by today's standards...
...THE TRIUMPH OF THE PfflLADELphia delegates stands as one of the most remarkable feats in political history...
...In addition, the modern media would make news of the convention's doings quickly available to all who care to be informed...
...Opponents of the Constitution railed against the illegal process that had brought it before the people...
...And they had no intention of entrusting the future of their plan for restructuring the government to such an awkward procedure...
...Had the document drafted been ratified in compliance with the amending process set down in the Articles, it would have had some legal sanction in spite of its origin...
...It is sometimes forgotten that the present Constitution was not created in a legal vacuum: The United States had been independent for more than 10 years (by our own reckoning) when it was written, and a legally defined national government had been functioning for over six years...
...The government they presented to the country is to this day generally regarded the way Gladstone saw it in 1878, as "the most wonderful work ever struck off at a given time by the brain and purpose of man...
...The orders given by several state legislatures to their delegations contained similar limitations...
...Yet for all its defects, the balanced budget amendment is not what most frightens opponents of a Constitutional Convention...
...To be adopted it must be ratified, either by three-quarters of the state legislatures or by popular conventions in three-quarters of the states...
...Property qualifications in some states diminished the electorate further...
...There arc great seasons," he declared, "when persons with limited powers are justified in exceeding them, and a person would be contemptible not to risk it...
...By calling specially elected state conventions to ratify the Constitution, the framers were simply using a widely accepted device for determining public sentiment...
...Further, in a remarkable codification of the people's right to revolutionize their system of government, they inserted the convention procedure into the Constitution's amendment provisions...
...One of the first acts of the 1787 Convention was to establish a strict rule of secrecy...
...Granted, constitutional rules exist partly to put limits on democratic decision-making...
...It not only jettisoned its mandate but invented a ratification apparatus that violated the solemn pledges the new nation had been founded on...
...But the question is where those limits should come from...
...Any new constitutional arrangements resulting from a second convention would be the product of elected delegates and (in the ratification process) state legislators...
...But when something resembling the real people is on the verge of assembling to express its will, many of us become quite nervous...
...In our popular mythology, they proceeded from the will of the people themselves in a most solemn and deliberative historical moment, and so have democratic legitimacy...
...Congress' call for the meeting was appropriately cautious: The convention would come together for "the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the states, render the Federal Constitution adequate to the exigencies of government and the preservation of the union...
...In short, it might turn into a "runaway convention"—like the first one in 1787...
...When it was pointed out that the delegates might be wrong to brazenly disregard the specific purpose they were summoned for, Randolph was not moved...
...Our current electoral system is at best an imperfect mirror of the popular will...
...The rejoinder that a convention called to consider a balanced budget amendment is unlikely to move beyond that issue—or that Congress has the authority to restrict the convention's scope—does not allay such fears...
...A few days after this carefully circumscribed convention opened in May 1787, Edmund J. Randolph of Virginia suggested to his fellow delegates that they scrap the Articles entirely and design a new national government from scratch...
...doubters need only read the Declaration of Independence...
...Who will establish the governing procedures...
...Do the state legislatures have to mention the nature of the amendments) they wish to see proposed...
...They have made a botch of ordinary electoral politics, and there is no telling what they might do to the Constitution with a convention on the loose...
...In the hands of the people, declared James Wilson of Pennsylvania, any constitution is " clay in the hands of the potter...
...Where judges have shown less restraint, the outcome has not been reassuring...
...Letting 'We the People' Speak By Richard S. Kay Two hundred years after the framing of the Constitution, the United States is on the verge of holding a second Constitutional Convention...
...In other words, it is not the genius of the Founding Fathers that the counterrevolutionaries wish to protect, it is the complex of rules and standards that has been created by the courts...
...Once the conventions gathered, there were numerous charges of manipulation and fraud...
...Apparently it is all very well to glorify "the people" in the abstract—especially those who are long dead and can speak only through the medium of Federal judges...
...The Articles government did not work very well, and its problems were attributed in large measure to the weakness of the Federal authority in the areas of trade and finance...
...The Constitution stipulates that when two-thirds of them request it, Congress "shall call" a national convention for the purpose of proposing new amendments...
...Nonetheless, the prospect of a second Constitutional Convention has caused shudders among various groups, predominantly of a liberal cast (though not exclusively—on the other end of the political spectrum Phyllis Schlafly's Eagle Forum is actively opposing the drive...
...Economically, this would fly in the face of the Keynesian wisdom that government deficits are quite proper in times of recession...
...When a movement for change arose in 1786, it might have been expected to take the form of an attempt to modify the Articles by its own procedure, which required that amendments be ratified by Congress and every state legislature...
...The convention's decision to abandon its prescribed agenda would have been less radical if it had adhered to the other part of its charge—to present its proposals to Congress and the state legislatures for approval...
...Its constitution, the Articles of Confederation, bound the states in a "perpetual" union according to rules that each state had pledged would be "inviolably observed...
...What is to prevent a convention called to revise the Constitution from reconsidering existing law on all these issues and more...
...As a result, there has been a lastminute bustle to head off the crucial petitions...
...That, at any rate, was the reasoning of the Founders themselves, according to the Constitution's Preamble...
...Having failed so far to persuade Congress to offer an amendment mandating a balanced Federal budget, advocates of the idea have been urging state legislatures to go the petition route...
...their concern is really focused on all the other things a convention might do...
...But the delegates knew that the document they drafted had little chance of winning the unanimous state approval required by the Articles...
...Politically, constitutional injunctions hardly seem the way to achieve fiscal prudence: They are ultimately up to the Judiciary to enforce, and the courts have long shown an understandable reluctance to get mixed up in matters calling for essentially political judgments—as is likely with any actual case claiming violation of a balanced budget amendment...
...Instead, on the initiative of the states and with the grudging approval of Congress, the Federal Constitutional Convention was assembled in Philadelphia to overhaul the Articles...
...Neither blacks nor women played a role in the selection of delegates to the state ratifying conventions of 1787-89...
...There is, therefore, an anti-democratic tinge to the counterrevolutionary position...
...As for the remaining four states—which might feel aggrieved at being deserted by their neighbors in a breach of "inviolable" commitments—well, they could sign on or get along on their own...
...Only once has it opted for popular state conventions: to ratify the 21st Amendment, repealing Prohibition...
...But their attachment to the 1787 document does not quite ring true...
...Historian Charles Beard observed that if changes similar to the ones wrought by the Philadelphia Convention were engineered by a military leader, we would not hesitate to call his actions a coup d'état...
...The meaning of "the people," it should be pointed out, was somewhat different 200 years ago from what it is today...
...they have been formulated by the courts —principally the Supreme Court—in the name of the Constitution...
...The decision on whether to adopt the new Constitution would be made not by stubborn state legislatures, but by special conventions in each state called for this end...
...Because a national convention has never been called to propose an amendment, and because Article V is phrased in the skimpiest of language, a legion of legal questions attends the current effort...
...Moreover, the rule of unanimous consent was thrown out...
...This is not to suggest that a second convention's claim to represent "the people" would be beyond question...
...Nothing succeeds like success...
...So they simply drew up their own method of ratification and incorporated it into what was to be ratified, as Article VII...
...The list of national issues that have become, in the last analysis, questions of constitutional law includes abortion, busing, affirmative action, defendant's rights in criminal proceedings, pornography, and school prayer...
...Both methods, it needs to be stressed, are merely for proposing an amendment...
...They invoked an authority they understood as superior to mere law—"the will of the people...
...Given our experiences with judicial management of school systems and legislative redistricting, it is not pleasant to contemplate court supervision of the national economy...
...Thereafter theconvention proceeded on this basis...
...A change of government was always proper when it had popular sanction...
...And since the mid-1970s 32 states —just two short of the necessary number—have so petitioned, while several legislatures are actively considering the matter...
...Yet it is precisely the enhanced democratic character of a second Constitutional Convention that arouses fear in the counterrevolutionary camp...
...This was a runaway convention in every sense...
...Still, given the greater breadth of the electorate, any convention called today would be far more likely to reflect popular preferences than the original one...
...Even if the law were clear on these points, there remains the suspicion that a national convention, believing itself to hold the proxy of the sovereign people and intoxicated by the historical moment, might ignore the limits placed upon it, legal or otherwise, and simply rewrite the Constitution...
...At the time Jefferson called them "an assembly of demi-gods," and few since have found reason to disagree...
Vol. 70 • July 1987 • No. 10
