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Saturday, December 22, 2012

Constitutional Conventions

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

 - Declaration of Independence

A friend on FB was musing about what shape a new Constitution would take if we were to design one from scratch today.  Naturally, I found this incredibly interesting.

First, how might we go about starting the process of framing a new government? I suppose we could go about the formal amendment process as provided for in Article V of the existing Constitution.  

But recall that the Confederation Congress fundamentally had nothing to do with establishing and ordaining the Constitution (to some degree of controversy).  It was ostensibly we, the People, who did so through our State legislatures which appointed delegates to the Philadelphia Convention (and Annapolis before that) and then through State ratifying conventions which approved the document.

The folks in Philly were supposed to come up with improvements to the Articles, but in the end decided it was impossible without full replacement.  Amendment would've been difficult anyway given the requirement for unanimous consent of the States, so going this revolutionary route lowered the bar.

Today we could still call for Convention per Article V, perhaps avoiding any sense that states are trying to leave the Union or something.  Then pass an amendment that says, "replace this crap with something more modern, to wit..." and have 38 states ratify.

But perhaps we might follow Akhil Reed Amar's approach:

My proposition is that We the People of the United States-more specifically, a majority of voters-retain an unenumerated, constitutional right to alter our Government and revise our Constitution in a way not explicitly set out in Article V. Specifically, I believe that Congress would be obliged to call a convention to propose revisions if a majority of American voters so petition; and that an amendment or new Constitution could be lawfully ratified by a simple majority of the American electorate.

Ratification by a majority would be an interesting exercise since we have never had a national election in our history, and it would undercut the states.  But before that, what would the Convention look like?

In contrast to the state ratification conventions, wherein delegates were elected by the People, the legislatures chose folks to send to Philadelphia.  If that were the case this time around, presumably there would be more GOP representation since they control most state legislatures.  Were we to have state-based elections, the question would be whether to do some at-large approach as House Reps were originally chosen (in which case there likely would be more Democrats in the current climate), or a Congressional District System (which as we've seen in the House makeup, would lend itself to greater Republican dominance).

Then, would we use our existing Constitution as a model--out of emotional, national pride--or dump it completely because it's such an anachronism, as Justice Ginsburg has suggested (in the context of Egypt's revolution)?  South Africa's is an interesting starting point.  Could we get away from winner-take-all elections and representation and include proportional systems, public financing, and other things to foster more diversity in government, or would that be squashed by the duopoly?  Presumably we'd retain a republican form, including separation of powers, states as important political entities, bicameralism, etc, but would we eliminate the Senate's equal suffrage, or might delegations from small states like Vermont still be able to obstruct that?

Hmm...seems like a lot of work.  Nevermind.


December 22, 2012 in Constitution, Schmonstitution | Permalink


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Posted by: Supporting Organization | Jan 1, 2013 4:01:59 AM

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