It’s time for a constitutional convention

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Source: Democracy SOS

The crisis of US democracy shows no end in sight. The recent congressional hearings regarding the January 6 insurrection shone a bright light on a dark underbelly to this troubled American republic. The Supreme Court supermajority, which believes in a literal interpretation of an ancient 18th century document as the foundation for the nation’s constitutional jurisprudence, has kidnapped the country and hurled us backward in time.

The fact that an authoritarian figure like Donald Trump, who has little use for democratic precedent or tradition, could get so close to the “nuclear button” of blowing up a presidential election has shaken our 233 year old democracy to its creaking timbers. The rest of the world has taken note.

But probing deeper, it’s clear that the true measure of the crisis is not any particular rotten leader, or any specific turbulent event. The crisis is rooted in the failure of major political institutions that have their roots in an 18th-century world and are now, without a doubt, hopelessly obsolete to the point of being dangerous. Specifically, the root of the crisis is the ways that we elect the US president, U.S. Senate, and the US House of Representatives, and then further the way we select US Supreme Court justices for life. In their antiquated former glory, all four branches of the federal government are each contributing their unique rot to the most pernicious and backward form of “minority rule.” All four are in dire need of a major overhaul.

If representative government means anything, it is that the “will of the majority” should prevail, even as various minority perspectives have a right to participate, be heard and try to become the new majority. This is an ancient bedrock principle of representative democracy, which prompted James Madison, considered the father of the Constitution, to write “the vital principle of republican government is the lex majoris parties, the will of the majority.”

Yet today the US political system regularly breaches this sacred proviso. Over the last several decades, American democracy has transmogrified from a shining republic that was the envy of aspiring democracies around the world to its current flawed and antiquated contraption that continually obstructs that Madisonian standard. When you see the stunning videos of the marauding mob smashing into the US Capitol, assaulting police officers and screaming to hang the vice president, what you should really see is how our 18th-century political institutions have devolved into a dangerous experiment with anti-majoritarianism, making it impossible for the US government to do the business of “We the People.”

We have nothing to fear except…the status quo

At this point, the chief obstacle to our nation’s political modernization is the antiquated political framework established by the Constitution itself. Its overhaul is now a national necessity. Only a new constitution, version 2.0, will effectively deal with this deepening political crisis.

Yet a number of US leaders, both today and in the past, warn against going down that road. From former Chief Justice Warren Burger to Harvard Law professor Laurence Tribe to the reform organization Common Cause, critics believe that launching a constitutional convention could have disastrous consequences as a result of a runaway circus that would act to remove basic political rights. Wrote Burger, “[T]here is no way to effectively limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda.”

Part of this fear stems from the vagueness of the convention procedure outlined in Article V of the Constitution. It’s brief, a mere 143 words, and says that Congress can only call a constitutional convention if two-thirds of the states – 34, to be exact — request it. Any constitutional revisions then must be ratified by legislatures or state conventions in three-fourths (38) of the states.

Other details are missing, such as guidance about how broad the mandate of the convention can be. Should it be limited to just a handful of issues, such as an exclusive focus on the political framework of government? Should it stay away from social and cultural issues? Also there are no rules regarding how delegates will be selected. This vagueness is extremely worrisome to various leaders and organizations, with Common Cause writing, “With no rules and complete uncertainty about the constitutional process, an Article V convention…is a dangerous path that puts all of our cherished rights, civil liberties, and freedoms at risk.”

While their trepidation is understandable, I think it is overblown. The constitutional tradition has always been that, where the Constitution is silent, those powers are retained for the people and their representatives to fill in. In fact, the 10th amendment stipulates that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

For these reasons, most constitutional law experts generally agree that Congress would step up to fill in these details for a Con-Con. Today, the callers of a convention could design this in a way that alleviates fears of a runaway convention. With two- thirds of states needing to be willing to call a convention, and support from three-fourths of state legislatures or state conventions required to ratify a new constitution, that would act as an automatic veto against anything too excessive.

A narrow mandate – the structure and selection of government

The real question is, what narrow mandate could inspire a supermajority of states to support it? I would argue that the likeliest program would be one that was laser focused on fixing the deep structural deficits of American democracy. Indeed, it was structural rectification that originally drove the delegates at the 1787 constitutional convention to scrap the Articles of Confederation and adopt a new constitution. So there is strong precedent for a new, but limited, masterwork.

Within this limited mandate, here’s what is increasingly clear: this American nation can no longer afford to have a presidential selection process in which the popular vote winner ends up losing and candidates only campaign in a handful of battleground states; it can no longer afford a powerful second legislative chamber, the filibuster-armed Senate, in which California with nearly 40 million people has two senators like Wyoming, with barely a half a million people, and sixteen conservative states with a smaller combined population than California’s have a total of 32 Senate seats.

In a nation that is 60 percent white and 40 percent racial/ethnic minority, and majority female, we also can no longer afford a House of Representatives and Senate that remains stubbornly 74% white and 89% white respectively, and 73% male in the House and 76% in the Senate. Instead, legislatures should be elected by a more modern method, such as proportional representation so that a broad swathe of voters can win representation based on what they think and how they identify, rather than exclusively on where they live.

Also, we can no longer afford a US Supreme Court (nominated by a minority-supported president and confirmed by the American House of Lords, i.e. the Senate) acting like an unelected legislature of nine seats dominated by a supermajority of six far-right Republican justices, in a nation in which only 28% of Americans identify as Republican and 42% identify as independents.

John Adams, second president of a young American nation, said in his Thoughts on Government in 1776, that a representative assembly “should be in miniature an exact portrait of the people at large. It should think, feel, reason and act like them.” We have to ask ourselves: how can it not matter that the president, both houses of Congress and the Supreme Court suffer from such a vast representation gap compared to that “exact portrait” of America?

The GOP may be benefiting from the current deficit structure, but that will not always be the case. Politics has a funny way of overturning the present as it races toward the future. Heck, it used to be that the Republican Party was the party of civil rights and freeing the slaves, while the Democrats were the party of segregation, Jim Crow and the Ku Klux Klan. Today’s majority can become tomorrow’s minority. Over the longer haul, everyone has a vested interest in a fair and just political system.

So the Con Con mandate should focus only on those crucial fulcrum institutions and practices that, in their aggregate, form the structural framework for representative government. This constitutional convention would not take up issues like reproductive rights, gay marriage, separation of church and other potential issues and controversies, but instead would focus on improving the political process itself.

A convention that looks like “We the People” and invites popular participation

Beyond the narrow constitutional mandate, an equally important question to be decided is how the delegates would be selected. Let’s be clear: this 21st century Con Con cannot have only white propertied males as delegates. It would have to be diverse in its makeup and representative of the vast demographies of the nation. Also, a Con Con today would have at its disposal some exciting digital communications technologies and “citizens assembly” procedures capable of maximizing the public’s participation and oversight.

To ensure broad representation and popular participation, the new US constitutional convention could learn something from Chile’s recent constitutional convention. Of Chile’s 155 constitutional delegates, 138 were elected in 28 multi-seat districts of between three and eight seats by an “open list” proportional method. In addition, the convention designers required that 50% of the delegates had to be women, with additional seats set aside for indigenous representation and candidates with disabilities. Beyond the political parties, lists of independent activists were allowed to run in the elections, and other independents ran as individuals. Remarkably, two-thirds of the 155 convention delegates had no political party affiliation.

The Chileans called this “plurinacionalismo” — plurinationalism — and their efforts produced clear results: their Con Con was the most representative body in Chile’s history. Not only were half of the delegates women, but many of its members were first-time office holders, including schoolteachers, shop owners, veterinarians, dentists, social workers, community activists, a car mechanic, a deep-water diver, a rural surgeon, a professional chess player and a homemaker. The average age of the elected members was 44.5 years (in contrast to the average age of a U.S. senator, 64.3 years), while the oldest member was 81 and the youngest 21 years old. The “usual suspects” did not dominate.

Chile’s constitutional convention also fostered an impressively inclusive and grassroots process by harnessing the internet to connect diverse peoples spread across vast geographic areas. Everyday people were empowered to propose amendments to the delegates by collecting 15,000 signatures on a proposal, called a “popular initiative.” A million Chileans supported over two thousand initiatives introduced by citizens, with about 100 of those proposals reaching the qualifying signature threshold to be submitted to the delegates (then it took a two-thirds vote by delegates for any proposal to be included in the final constitutional package). Nationwide and regional hearings were organized, with all sessions of the plenary and committees broadcast over the internet, and a lot of information broadcast and amplified through social media and the Web.

If Chile can do this, why can’t the world’s oldest and wealthiest democracy?

An American Con Con for all

A truly representative constitutional convention, populated by elected delegates from all walks of life and not overrun by political incumbents and partisan extremists, would allow the pragmatism and problem-solving genius of everyday Americans to dominate the stage. It would facilitate a nationwide discussion about what we want American democracy to look like for the next century. Besides modernizing the framework of traditional elected offices, it could investigate how to add elements of randomly-selected citizens assemblies to the democratic toolbox, creating interesting hybrids between old and new structures of decision-making.

Why approach this with so much fear when it could be an exciting and reinvigorating undertaking? Since the proposed amendments would have to be ratified by a three-fourths vote of the state legislatures, that would act as a sufficient brake against a runaway convention. A Con Con could be the greatest reality TV show ever, with audiences riveted on what would amount to the World Series of political events. The American people are ready for this.

A number of eminent scholars have called for a constitutional reboot of one kind or another, including the revered political scientist Robert Dahl, Sanford Levinson, Larry Sabato, Lawrence Lessig, Daniel Lazare, author of The Frozen Republic, Clay Jenkinson, editor of Governing, political reform attorney Roy Ulrich and more. A conservate group supported by Senators Marco Rubio and Rand Paul has launched a call for a limited Article V convention focused on enacting term limits for Congress and restraints on government deficits. So far they claim 19 of the needed 34 states have signed on. Perhaps these conveners would be willing to add deep political reform to their agenda, if that would help them build support for their effort. On a separate track, five Democratic-led states — Vermont, California, Illinois, New Jersey and Rhode Island — have approved calls for a Con Con focused on campaign finance reform.

Thomas Jefferson himself espoused that we tear up any existing Constitution and redraft it every 19 years. Wrote Jefferson: “I am certainly not an advocate for frequent and untried changes in laws and constitutions… But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”

So by Jefferson’s count, we are 214 years overdue for a constitutional convention. The reality is that the current constitution is not up to the task of 21st-century governance. The institutions of the presidency, both chambers of the Congress and the Supreme Court are subject to the worst possible selection methods. Increasingly, as the ongoing breakdowns and failures become more evident, we will realize that we are scraping against the bottom of the constitutional barrel. We have nowhere to go but up. We have learned a great deal since 1787, so we should proceed with confidence – tempered with an appropriate amount of wide-eyed uncertainty – like the original founders did over two centuries ago.

It’s time for Americans to put their white wigs on and make some new history, deliberating via a constitutional convention imbued with a new spirit of invention and innovation.

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