Monday, September 5, 2011

The Next Great Convention

Let's play pretend for a minute.

Pretend that there is a document, an incredibly old document, written by hand in archaic language by a legendary council of wise men, and proclaimed as a timeless guide to the proper ordering of society.  All of the people throughout the land worship the principles enshrined in the ancient charter, so much so that they venerate everything related to it, even the paper it's written on.  The words of this document are not only synonymous with law, but with the ideals and values the law is meant to protect.

But you already know I'm talking about the U.S. Constitution, don't you?

Although it may seem eternal, having always existed for as long as liberty has struggled with tyrants, the Constitution has in fact been in operation for no more than two hundred and twenty three years (though its birthday is coming up soon!).  This is ancient by international standards, and carries an air of long-standing authority.  But compared to the entire political history of the world, the Constitution is only one among many articulated visions of how to run a state, and not necessarily the best possible.

Because it is the Supreme Law of the Land, and not uncommonly capitalized as such, the Constitution's aura is sometimes disconcertingly religious.  When a branch or agency of the government does something outside its legal authority, it is properly called "unconstitutional."  However, when pronounced in moments of high passion by breathless people, unconstitutional has other, unmistakeable connotations: tyrannical, unconscionable, even evil.  When one word deriving its authority from a single document can commonly describe both the random arrest and prosecution of citizens, and the placement of a cemetery cross on Federal land, I think we need to to be extra careful about what the authority of that document actually means.

The Constitution is not an eternal authority.  It was written to replace a different constitution that did not work, and was explicitly designed to be amended whenever the nation required it.  In theory, it could be replaced by a new constitution (we might even call it the New Constitution) for exactly the same reason.

Our political system is now in dire circumstances.  The Constitution has been through worse times and survived, and that is a testament to its fundamental soundness and flexibility.  However, its effectiveness as an actual guarantor of liberty is being eroded, bit by bit, as empty words, lip service, and twisted "originalism" have created a political culture that cares more about red, white, and blue than it does about equity and good governance.

Most, if not all, of our problems could be solved by simply amending the Constitution, or even by ordinary statutes.  But nothing on that level could push back against the bitter partisanship that stains our system, or diminish the constitutional cults that produce such "timeless values" as States' Rights and Nullification.  A new constitution would be controversial and iconoclastic, but it could prove, for the time being, that the life and values of the Republic are determined by the people, and not bound in place across centuries.

Where, Who and How

Article V of the Constitution describes how the document can be amended, either by Congress, or by a convention held at the request of two thirds of the states.  The 1787 convention was itself originally intended to merely amend the first constitution, the Articles of Confederation.  Therefore, it should be possible to replace the entire current Constitution with a new one at a new convention, provided the requirements of Article V were met.  It bears insisting at this point that this scenario is utterly improbable, but as a historian I can't help being fascinated by the possibilities.

Both of the first two constitutions of the United States were written in Philadelphia, Pennsylvania.  In the 1770s, Philadelphia was the largest city in the country, as well as its first capital; today, it ranks fifth, and is the capital of nothing.  The Founders chose Philadelphia because of its relative importance at the time, and while a city of one and a half million people is nothing to sneeze at, in the present day the capital and the most populous city are Washington and New York, respectively. Should the convention be held in either of these places?

I'd argue against it.  Washington is so thoroughly politicized that anything placed there would almost certainly be poisoned.  New York isn't much better: between the two of them, you get a half a dozen anger-inspiring buzzwords like Wall Street, the United Nations, and East Coast Elites.  Philadelphia has history and the Liberty Bell going for it, so it remains the most appropriate setting.

And who should be trusted to sit in the now air conditioned seats of Independence Hall?  This is undoubtedly the most critical question of the entire process.  Contrary to the mythologizing of later eras, the authors of the present Constitution were just as regional, partisan, and ill-tempered as the politicians of the present day.  The critical difference, of course, was the small handful of men present who commanded enough respect to force the others to behave civilly and make compromises.  But even with luminaries like George Washington and Benjamin Franklin at the head of the table, their work was still derided as treasonous by uncompromising people like Patrick Henry.

It sounds ridiculous to even contemplate it: there is no living person in American politics with even half the reputation that George Washington had in his own time.  No politician has anything close to that kind of gravitas and bipartisan support.  In fact, the whole enterprise might be more successful if we entrusted it to some relative unknowns; moderate state senators, respected legal scholars, and other qualified people who don't get enough time on TV to be rejected out of hand by one side or another.

Finally, such a convention would have to be left to work under extremely strict conditions.  The delegates would have to be kept strictly separate from the public, particularly lobbyists and members of the news media.  There is a good reason that the 1787 convention was conducted with closed windows in stifling heat.  Leaks of controversial ideas to the press, in the age of the Internet, would have immediate and catastrophic effects on the ability of the delegates to work earnestly.  It would encourage the kind of showboating and dramatic obstructionism that thrives in today's media, distorting and probably ruining the entire process.  Forbidding the intrusion of cameras might even keep the most irrational and extremist voices out of the delegations; people like that are usually more interested in pandering to their supporters than in winning over other committee members.

The New Constitution

I don't intend to do this imaginary convention's work for them, but I wouldn't be suggesting this idea if I didn't have a few thoughts of my own about what should go in the New Constitution.  My ideas aren't necessarily a radical departure from the current charter; I genuinely believe the U.S. Constitution is in theory one of the best governing documents ever written.  The institutions it creates are in many respects worth preserving, and the three branch structure is inherent to our political tradition.  All of them, however, could use some work.

As a liberal, my ideas of how things should be are of course informed by my ideology.  If you are a liberal, my suggestions may (or may not) seem very sensible.  If you are a conservative, and you haven't already stopped reading in disgust at my blasphemies, you may see my ideas as a Trojan horse designed to create an enduring liberal stranglehold on the government.  Cut me a little slack on that, and I promise not to be too savage about your constituency's support of constitutional bans on flag burning and gay marriage.  Anyway, I have a few modest proposals that I think would have a dramatically positive effect on the way this country does business:

1) The term of a member of the House of Representatives should be extended to four years, coterminous with the term of the President.  Elections to the Senate should continue to be held every two years.

2) The statutory limit of 435 members for the House should be abolished, with the population (at each ten-year census) of the least populous state taken as the average size for all Congressional districts.

3) Congressional rules (such as the Senate's filibuster) which impose super-majority requirements on the passage of legislation or the confirmation of judges and other officials should not be permitted. 

4) The District of Columbia should be abolished, with the land that it now occupies being ceded back to Maryland, and all its residents becoming residents of Maryland.

5) The war-making powers of the Congress should be more explicitly defined to include formal authorization for all offensive actions outside of the borders of the United States.

6) The annual budget of the combined branches of the military should not exceed twenty per cent of the total tax revenue for any given year.  No other part of the budget should be similarly restricted.

7) The "personhood" status of corporations and other entities consisting of multiple individuals should be renamed and redefined as legally distinct from natural personhood, and exclude certain rights such as freedom of speech which naturally belong to individuals, while including certain rights such as freedom of the press which naturally belong to organizations as well.

8) The right of workers to formally organize and bargain collectively should be recognized, and job discrimination based on union membership prohibited.

9) The language of the proposed Equal Rights Amendment, banning legal discrimination against people of one sex or another, should be adopted.

10) The organization of political parties above the state level should be abolished.

11) The drawing of Congressional districts should be assigned to nonpartisan (not "bi-partisan") committees, rather than state legislatures.

12) The Electoral College should be abolished, and the President and Vice President should be elected by nationwide popular vote.

13) The President should be required to personally address and respond to each house of Congress at least four times in a year.

14) The Supreme court should be constitutionally defined as composed of nine members.  The terms of federal judges, as well as Justices of the Supreme Court, should be reduced from life to eighteen years.  They should be divided into three classes and reappointed or replaced at six year intervals, with reappointment set as a default.

15) The principle of judicial review should be officially codified.

16) The death penalty should be abolished at the federal level.

17) The individual's personal right to privacy should be officially acknowledged and protected.

Most of the amendments to the current U.S. Constitution should be copied or essentially paraphrased into the main text of the New Constitution: specifically, all except the 12th, 18th, 21st, and 23rd, which are either superfluous or already addressed by changes I mentioned above.  The rights and protections provided by the New Constitution should be explicitly guaranteed by the states as well as the federal government.  As for the 2nd Amendment, it should be rewritten so as to allow states to regulate the sale and use of weapons to convicted criminals, minors, and the psychologically unbalanced, and the federal government to regulate the formation and activities of mercenary armies and militias.

Finally, many important pieces of Supreme Court precedent should be explicitly codified in the New Constitution.  While many such doctrines may be valuable, the most important should be the recognition that secession is not legally possible, and that no state legislature (or majority of state legislatures) may invalidate or "nullify" a federal law.  All current state and federal laws and regulations not in conflict with any sections of the New Constitution would remain in effect.

I do not really have the space or time to provide a detailed rationale for each of these suggestions: doing any one of them justice would require a lengthy article.  However, I'd be more than willing to discuss any of these with anyone, along with any good ideas I might have missed.



I don't have any illusions about the feasibility of most of my proposed changes, or even the calling of a new convention at all.  Likewise, I don't regard all of my suggestions as being of equal gravity, nor do I regard them collectively as a cure for all the country's ills.  Our protracted natural sickness is a consequence of our history and culture, and most of all our tendency to take our positive attributes for granted as they erode beneath us.  Wrapping so many controversial changes in an omnibus overhaul, in an atmosphere of such intense partisan deadlock, is a bleak proposition.

All of my proposed changes pertain to a small number of goals: to increase and protect the rights of individual citizens, to make the three branches of government more representative and accountable, and to reduce the influence of corporations and entrenched national political parties on the governing process.  These are my priorities, and any concrete changes that went toward achieving them would please me greatly, even if a few of my specific ideas were rejected.

The U.S. Constitution is the heart of a system that is outlasting its usefulness as a living structure.  If we transplanted that heart, in the spirit of 1787, we would do more than rectify a few systemic errors: we would force the evolution of a new system.  No one could predict what would spring forth, and it may well be that in two hundred years we'll only have another dragon to slay.  But it would be a different dragon, and we'd have a handy precedent with which to attack it.

I understand that my specific suggestions, and even the broad basis of my argument to replace the Constitution, stab into an ancient and sensitive cultural divide.  Many Americans believe fervently in principles which I have denounced and wished to abolish in this article.  My drawing a line in the sand is not going to earn either their agreement or their respect.  But I can't argue for anything other than what I believe is right.  It's the function of compromise to make the best in ideas come to life, and it is the spirit of compromise that I wish above all to restore.

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