Another Constitutional Convention? Perish the Thought…

In mid-2014, I wrote a column for the IBJ in which I strongly disagreed with an effort by Indiana State Senator Long to have Indiana “sign on” to an effort to call a new Constitutional convention. (Unfortunately, Senator Long was successful in his effort to have Indiana do so.)

After I wrote my column, the issue receded from prominence–at least, it disappeared from news coverage. More recently, it has reappeared; we are, apparently, only 5 states short of convening such a convention, and a particularly ominous bit of news has emerged: the money behind this effort comes from ALEC and the Koch brothers, whose motives–to be kind about it– are unlikely to be supportive of the common good.

Here was my original argument:

Periodically, lawmakers impatient to change government policies of which they disapprove will call for a Constitutional Convention.

Fortunately, these efforts have yet to succeed.

Why “fortunately”? Because—like poison gas—system change is only a great weapon until the wind shifts.

Activists clamoring for shortcuts to major change—revolution, a new constitution—always assume that the changes that ultimately emerge will reflect their own preferences and worldviews.

History suggests that’s a naive assumption.

Indiana Senator David Long wants the states to convene a new Constitutional Convention, at which delegates would devise “a framework for reigning in overspending, overtaxing and over-regulating by the federal government and moving toward a less centralized federal government.”

He claims the convention could be limited to consideration of those goals, but even if he is correct (and many constitutional scholars disagree) his “limited” goals are Pandora-box wide.

For example, Wall Street bankers argue that post-recession financial laws are “overregulation;” if polls are to be believed, most taxpayers view the new rules as barely adequate. Who wins?

My definition of “overspending” might be the massive subsidies enjoyed by (very profitable) U.S. oil companies; yours might be Medicare or farm subsidies. Many Americans think we spend too much on the military; others target foreign aid.

“Less centralization” could justify virtually any limitation of federal government authority, from FDA regulation of food and drug quality to laws against discrimination.

But the risk isn’t simply that a Convention could rather easily be hijacked by people who disagree with the conveners about the nature and extent of needed changes. It isn’t even the likely influence of well-heeled special interests. The real danger is in calling together a representative group of Americans and asking them to amend a document that few of them understand.

At the Center for Civic Literacy at IUPUI, we focus on the causes and consequences of what we’ve come to call America’s civic deficit. The data is depressing. Only 36 percent of Americans can name the three branches of government. Only 21% of high school seniors can list two privileges that United States citizens have that noncitizens don’t. Fewer than a quarter of the nation’s 12th graders are proficient in civics. I could go on—and on.

Even bright graduate students come into my classes with little or no knowledge of American history, episodic or intellectual. Most have never heard of the Enlightenment or John Locke. They certainly haven’t read Adam Smith.

A truly depressing percentage of undergraduates can’t explain what a government is, and they have no idea how ours operates. Separation of powers? Checks and balances? The counter-majoritarian purpose of the Bill of Rights? Blank stares.

To his credit, Senator Long is one of the few Indiana legislators who recognize the importance of civics education and who support efforts to remedy the deficit. His efforts in this area have been truly praiseworthy, which is why I find his willingness to turn over the task of rewriting our Constitution to people who don’t understand the one we have so puzzling.

Think about this: Last weekend, at the Indiana Republican convention, Richard Mourdock compared today’s America to Nazi Germany–and got enthusiastic applause.

Do we really want people like Richard Mourdock—or those who cheered his ahistorical and deeply offensive analogy—deciding how the American Constitution should be changed?

Furthermore, the Constitution already provides We the People with a handy remedy for unsatisfactory governance: it’s called elections.

We’re apparently too apathetic to use the tools we have.

I have no reason to revisit my original concerns about such a convention, but events since then have added several items to my list of “oh shit, what if’s.” I can only imagine what sorts of changes the extremely libertarian Koch brothers are hoping to make; add to that the delusions of the anti-journalism “Trumpers” who would undoubtedly participate, the proponents of Pence-style “religious freedom” (a/k/a the privileging of fundamentalist Christian bigotry), and a variety of other ideologues and know-nothings, and the prospects are genuinely terrifying.

Of course, we should remind those who see such a convention as their chance to get rid of all those pesky constitutional provisions that keep them from installing a government more to their liking that there are no guarantees– such a convention might end up with participants who think it’s time to get rid of the Second Amendment and the Electoral College.

If 2018 is a “wave” election–if Democrats, rational Republicans and Independents come out in force to reject Donald Trump and those who have enabled him–such a convention might prove to be an unpleasant surprise to its current enthusiasts.

Either way, holding a Constitutional convention when the U.S. is embroiled in extremely toxic, uninformed and polarized politics is a really, really bad idea.

As I recall, the headline of my IBJ column was “An Idea Whose Time Has Definitely NOT Come.”


Allow Me To Repeat Myself

File this one under “here we go again.”

Common Cause, the Brennan Center and other nonpartisan organizations are warning about the dangers of an effort to call a Constitutional Convention, purportedly to consider a “balanced budget amendment” to the U.S. Constitution.

A balanced budget amendment is a truly bad idea but a Constitutional Convention is an even worse idea, as constitutional interpreters as different as Harvard’s Lawrence Tribe Supreme Court Justice Antonin Scalia, and former Chief Justice Warren Burger  have  explained.

So what is all the fuss about?

As I wrote in 2014, lawmakers frustrated by their inability to change government policies of which they disapprove, and unable to amend the Constitution through the process that has given us all of the amendments we have, will periodically propose convening a Constitutional Convention.

Thus far, none of these efforts have yet succeeded—for which we should be very grateful.

Why do I say we should be grateful?

When activists clamor for wholesale changes or major revolutions in the status quo, they always assume that the changes that ultimately emerge will reflect their own preferences and worldviews. History suggests that’s a dangerous assumption.

As an alert from Common Cause and the Brennan Center recently warned,

The effort to call a constitutional convention to pass a balanced budget constitutional amendment is being led in part by the American Legislative Exchange Council (ALEC), an organization consisting of corporations and conservative state legislators. Advocates of such a balanced budget amendment claim that 27 states already have passed such calls. A major effort is underway in 2016 to obtain the seven more states they believe they need to reach two-thirds of the states, the number required by the constitution to call a constitutional convention.

It isn’t just ALEC. A variety of proponents of systemic change—liberal and conservative—want the states to convene a Constitutional Convention under provisions of Article V of the Constitution. They usually insist that the convention could be limited in scope to just their pet change.

Constitutional scholars disagree. The great weight of authority makes it clear that once a Convention is called, anything and everything would be on the table.

But the risk isn’t simply that a Convention could rather easily be hijacked by people who disagree with the conveners about the nature and extent of needed changes. There is also a real danger in calling together a group of people and asking them to amend a document that few of them understand.

Anyone who thinks that the public officials who take an oath to uphold the Constitution have actually studied it and understand it–are in denial. What they might do inadvertently to the Constitution is anyone’s guess.

As a recent USA Today editorial put it,

This year’s presidential election has seen more than its share of bad ideas, including deporting 11 million people, bombing Syria and Iraq until the sand glows, and enacting massive tax cuts or equally massive spending hikes.

To these we can add another: Sen. Marco Rubio’s call for a constitutional convention to draft amendments to balance the federal budget and impose term limits on judges and members of Congress.

Rubio’s convention is an invitation to constitutional mayhem and, even if it went as planned, his proposals could further poison our politics and hobble American leaders at moments of crisis.

And that’s the best-case scenario.