Sunday, January 20, 2013

Open thread: Let's have a Constitutional convention

If any topic deserves its own thread, it's this one. Should we have a constitutional convention, or not?

Of our regular commenters, @truth and Anastasios are for it due to a range of issues including the current dysfunction/gridlock in government and the many unsettled questions that have built up. I'm highly opposed because I fear the unintended consequences of changing a form of government that has evolved over time and served us well.

Here's a review of most of the comments so far, starting with the comment that raised the issue.

Truth > Spin
"I now think we need to address structural issues before we can effectively deal with policy matters in a manner befitting their seriousness. The system has too many points of leverage that are captured by fragmented interests and they have every incentive to maintain the status quo. It used to be that gridlock eventually gave way because the benefit of action outweighed inaction. Today, it is more the case that the benefit of inaction is greater.

I don't think replacing the current crop of people will do the trick. The problems are too endemic and part of how we nominate and then elect Members of Congress.*

As such, I think we need to have a serious national debate over some changes the Constitution and think it is time that a convention to do so be convened.

The other thing I'll add to what you wrote is that not only does someone willing to work with the other side risk being betrayed by the other side later, but they also risk being attacked by purists from within their own party for the heresy of such efforts. I recognize that this has more recently been true within the GOP, but the same thing occurs on both sides.

* For the most part, this criticism is aimed at the House, although the Senate could use a good tune up, too."

"Hold it right there!!! I learned something very long along--that a constitutional convention is VERY risky, and I don't want to be messing with those risks right now.

I am very risk averse, particularly downside risks. I don't know what what we have to gain with constitutional changes, but we have a lot to lose, namely checks and balances. There is no way I'd call for a convention without some blueprints available and a strong belief that it will be better. The change that I'll be convinced without seeing those blueprints--zero."

"...I agree with Truth that the Madisonian system is dysfunctional and ultimately unworkable, and we would be far better off with the much more intelligent Parliamentary systems one sees in Europe and Canada."

"I don't want to monkey with the Constitution and add in things that were never there. That would be horrible, and we know who does that..."  [a joke]

Truth > Spin
"So are you a Strict Constructionist then in interpretation? Or do you want the document to live only via the readings of Senate confirmed wise men (and Latinas)? ...Don't you think we could all benefit from deciding for once and for all (until next time) whether the Constitution protects the right for private, individual citizens to own firearms and to what degree, if any, that can be curtailed?

Or how about whether indefinite detention of suspected terrorists or evil doers is allowable?

Or whether a fetus can be terminated, and under what conditions?

Don't you think we could all use some black and white on those and other matters? ...

I understand the risks, but my view is that the risk of continuing as we are is greater. I'd accept some bad outcomes from my perspective in order to gain some certainty and the chance to gain positive outcomes. I think too that the process of a convention itself could be a boon to civic engagement and thought."


ModeratePoli said...

@truth, what do you think the risks are? I'm afraid of some of my rights vanishing. I'm afraid of some of my protections vanishing too. One reason I don't worry about my life more is because of the strong protections that have been built up, but a lot of that could be undone.

I'll list a few of these rights: my freedom of religion, my right to work without discrimination, the oversight of my bank so it can't "lose" my money, the safety of the air, water, roads, and medicines.

So, what are the guarantees that things will stay just about the same despite a Constitutional convention. How will you guarantee that 200+ years of law won't have to be re-litigated?

As I said, a rewrite of the constitution is high risk. What makes it worth it?

Anastasios said...

Well, of the things you have listed, MP, only freedom of religion is explicitly part of the Constitution. The rest either arise from court decisions or federal law, both of which can be swept aside quite easily without a convention or explicitly touching the text of the constitution at all. So, if they are in danger from strong political forces, they will be undone before a convention ever reaches the launching point.

Now, to the question of whether the constitution should be rewritten, I do not know that normative values have much to do with it. Rather the constitution will be rewritten - it is simply too sclerotic and poorly designed to survive. But the rewrite will not come from the formal processes of the constitution itself - once again, it is far to sclerotic and badly designed to allow for that. Rather, problems will continue to accumulate and the political system to deteriorate until it dies with a whimper. At that point the constitutional order will simply be swept aside and a new order, perhaps with many of the same forms but different substance, will be instituted. I would say this will likely occur in about 80 to 100 years. I would also lay about a 50 percent chance that the new order will in fact be new orders, that is devolution of the country into smaller, more homogenous units. But by that time many of the more dramatic aspects of the current national polity, particularly the national security state, may have grown much weaker for lack of funds and perhaps lack of political support. Given that, he devolution, if it occurs, will likely be accomplished more easily than one might think.

Truth > Spin said...

To start, I don't think that a convention would result in a change in form of government. Yes, it could, but I think that is so unlikely as to make it not worth time thinking about. Whatever happens, we'd still have a system that contained the Holy Trinity of Executive, Legislative and Judaical.

Keep in mind that no matter what changes they made, they would only be proposals until 3/4ths or 38 states ratified the changes. Even a proposed change to how changes get made wouldn't be in effect until 38 states agree. And since every state mimics the Holy Three, it seems impossible that so many would agree to move away from it. So parliamentary systems, monarchs or what have you, are right out.

MP asked what risks are of opening a convention. For me, they are the same as they are for everyone else. That once one is called, anything is fair game for changes, including the many things I value. But balancing out that risk is the 3/4th ratification barrier I already mentioned, so I am much less worried about it than it might seem wise to be.

The more real risks are that we try to micro manage too much. So despite what I said about wanting to settle some issues for good with some needed clarity, I think it would be a bad idea to tie down the flexibility of government too much. So caps on taxes or spending, or even prohibitions or mandates on programs (retirement, health care, etc.) would be more than is needed in any amended document.

I think we would settle some questions about free speech, especially with respect to political speech and contributions. I think we'd also address guns. And we'd probably reshuffle the deck somewhat on executive/legislative prerogative. I think War Powers might get tweaked in favor of Congress and spending maybe slightly in favor of the executive (line item being the most likely). We may end up with terms limits of some kind and I suspect there would be some attention paid to matters of prosecution (death penalty, detention, the Miranda process

Ideally we'd restate a strong state's rights position and limits to federal powers, even if neither is outlined beyond that they exist. I suppose even leaving current language in place affirms it, although I'd prefer to see them added to.

For me, it would be a also positive development if the only thing that came from it is that we considered making changes, but didn't do all that much considering the possibilities. That outcome would remove the bogeyman of doing it at all and would make it more likely we'd have another before another 226 years passed

Truth > Spin said...

I should add as I did before that I think the civic value of the process and coverage would be helpful. Because it wouldn't be a horserace of candidate X vs Y, I think the media coverage would be more helpful than normal and the exposure to the decision making that affects all of us could only be helpful in attracting the attention of a wider pool of people than normally tunes in to any helpful degree.

Truth > Spin said...

As a final point, before I await responses, let me say that some of the value of a Convention would be determined by who and how it were run.

Quickly, either Congress by a 2/3rd vote of the House and Senate or passage of a resolution by 2/3rd of the states is needed to call the Convention to order. At that point, the states decide who the delegates would be, but as a practice matter could not really bind or limit their actions while there. Same thing for the resolution passed calling for the Convention; it could not bind of limit the scope of changes or amendments made. It is unknown (at least to me) in this age of instant communication whether a state could recall a delegate once the convention started, so that is something to consider.

In my view, I'd prefer that the states not send the same cast of characters that decide everything else in each state. Or at least not only those type of people. I'd love for there to be something akin to jury selection that randomized and chose at least some of the participants.

Members of Congress and senior members of the Administration, I think, would be precluded from serving as delegates. As a sop, however, all living former presidents as well as former Speakers of the House and Senate Majority Leaders, who are no longer in office or otherwise disqualified, could serve as honorary co-presidents of the Convention. A President of the Convention must be named, but I think and would hope that person would be one of the delegates.

Madison and others kept notes on the procedures of the Convention, which could be a guide to process. As could Jefferson's Manual or Robert's Rules of Order, both of which were drafted after the Convention. Again, I think all that would be decided once the group convened and not by dictate of the states.

I'd hope, too, that some though about process in the future would be laid down so that any future Conventions would come to order within a set of rules. And, I'd like to see an automatically executed call for a Convention be included in a final draft of the Constitution, not unlike the requirement for the state of the union. Once every generation, say 20 years, would be fine. Although I'd allow that an affirmative vote by 2/3rds of the states could cancel or delay an upcoming Convention.

I have a lot of other micro details about process and outcomes, but I'll stop here for now.

ModeratePoli said...


I think very few people have much sense what the country will be like in 80-100 years. I certainly don't. However, you may have a reasonable sense.

One thing that I do think is that the convenience of staying together will outweigh the resentment of staying together. Very few people will want the equivalent of international borders springing up between Maryland and Virginia, or Washington and Idaho, or Illinois and Iowa.

And then there is the problem of who owns the dollar, who starts a new currency, or do we suffer with currency union.

No, I don't see the cultural differences trumping the economic conveniences of staying together.

ModeratePoli said...

@truth, thank God you stopped. ;-)

What I think is that the same ALEC-influenced state legislatures that are trying to rig the next Electoral College are going to be choosing the delegates to a Constitutional convention. ALEC will also be writing the proposals they consider.

Whoever is strongest at the time of the convention will try to put their thumb on the scale to make themselves even stronger in the future.

From what I can tell, we don't have enough statesmen to populate a Constitutional convention, so it would be full of political hacks.

So, since I'm not expecting a stellar cast and a rosy outcome, it's no wonder my reaction to the suggestion of a convention is: PLEASE GOD, NO!!!!! DON'T LET IT HAPPEN. Yeah, I still feel that way in every particle of my being.

You can dream on, @truth, but I just foresee a nightmare (if one side gains enough power) or a wasteland of bad political theater in the preferable case of no side dominating.

Truth > Spin said...

MP - it should be noted that as of now, the GOP controls 27 state legislatures; 11 short of the number needed to ratify any proposed changes and 7 short of the number to call for a Convention in the first place.

And that's nominal GOP control and doesn't allow any for any members of the GOP who might not side with whatever parade of horribles you envision.

So there simply won't be any ALEC or other interest group running up the wins.

Truth > Spin said...

To address the point you made to Anastasios, which I agree that the convenience of staying together outweighs the resentment of staying together, I think the border and currency issues are red herrings.

There need not be any problem with using a common currency or having open borders a la the Euro zone.

Before you mention it, I do not think he problems they are having in the EU would replicate here because we are not used to having different currency values or the abaility to devalue in order to increase competitiveness.

ModeratePoli said...


Yes, I see a "parade of horribles" and hacks. That's because I'm not seeing any parade of statesmen in our state capitols or our national capital.

Sorry to burst your reverie, but political hacks is what we have. Who are the non-hacks you think would be there?

('parade' - nice use of words again!)

Anastasios said...

But MP, the FIRST convention was filled with political hacks, many of whom loathed each other with intense passion! That the second would be the same is merely to say that it would be filled with human beings. And after all, the questions to be debated would be so fundamental that they are bound to bring out near murderous emotions. Just look at our own quiet little forum. Although Truth and I agree that a rewrite of the Constitution is necessary, I very much doubt we could agree on any particular. For instance I see the Sacred Trinity he mentions as the very root of our dysfunction, and without junking that bizarre and stupid arrangement for a much more intelligent and efficient European style arrangement there is no real benefit to a rewrite at all. Which I suppose is part of the reason some would say such a process is a bad idea. It may well be a bad idea in many ways, but unfortunately we are caught in the web of Madison's bad ideas, and as that gets worse rewriting the constitution will become a necessity of events - which is why I seriously doubt that the rewrite will take place within the confines set by the old constitution.

You are quite correct that I am only speculating about the future course of events, and my speculations are often wildly wrong. Still, it is my best guess at the moment. Oh, by the way I do not think a rewrite would go the way I would like at all. Truth might sell have the better view of the initial results. But as that will only put a band-aid on an expiring patient, further rewrites will be necessary. Actually, I rather expect that in the end we will adopt the Augustan solution of changing substance while leaving forms intact. Unfortunately this will yield a radically strengthened executive, but as Americans are deeply monarchist at heart, whatever they protest to the contrary, no one will care very much as long as they perceive that problems are once again getting solved.

ModeratePoli said...

@Anastasios, of course there were hacks at the original convention, but there were also a decent number who had thought deeply about what new forms of government might work and how to prevent the development of tyrannical rulers.

Truth > Spin said...

I don't think it is a question of hacks versus statesmen. It's clear to me that we overly ascribe positive attributes on the leaders of the past. Nor do I think that today's politics and campaigns are any more negative or harsh than those of the past.

The difference, to me, is that today's communications capacity, sophisticated PR efforts and lack of social cohesion allow factionalization in a way that Madison, Washington and Jefferson could never have imagined despite their warnings against them at the time.

So governing, has become indistinguishable from campaigning and those who are elected protect ever narrow interests and turf, which mean there is less and less overlap with their colleagues.

ModeratePoli said...

@truth, though in general "we" ascribed superiority to past leaders, I don't think I'm personally doing that. The hacks we have now seem to be less able to come together to settle issues without an imminent crisis to force them too. That is one thought that gives me solace in this discussion. Really, there is so little chance that there would be convention or that they could agree on anything.

Truth > Spin said...

MP - I agree that there is almost no chance that the status quo would open a convention. They would have the most at stake to lose and zero to gain.

I do think that at some point there may be an organized effort to do it through the states. It's easier to overcome the barriers to action and a smaller group with less money can make an impact. Then once it has worked in a state or two, you'd get the attention to possible spur action in other states.

If I were in the game still, I'd work on getting one of the whales (Adelson, Koch, Soros, Gills, etc.) to fund a project like that. I think it could be done with about as much $ as some of those guys put into some of the 527s each year.

Anastasios said...

MP - They did think deeply all right, and look at the embarrassing and non-functioning mess they came up with! Not to mention rigid and impossible to adapt, even in the face of glaringly superior examples. But more theoretically, there is nothing to preclude a hack from having deep thoughts, or a deep thinker from acting hackish. Washington, Madison, and the rest, and probably Jefferson and Franklin most of all, devoted most of their energy to pure hackery. As Truth has said, hacks are who we have. I would add that hacks are all we have ever had, and all we ever will have. The Founders managed to win the Revolution with skill, intelligence, and a huge dash of luck, then bequeathed us the Civil War through cowardice, short-sightedness, and venality.

I agree with you about modern politicians being unable to act except in the face of crisis, but wherein do you think this makes them different from the Founders? The country drifted along in anger, dissension, and mismanagement for years until desperation led to the Constitutional Convention, and the results were likely supported by a minority (most had not the least understanding) and had to be strong-armed past the outraged opposition even at that. In time there will be another constitutional crisis, and any solutions coming from that will be strong-armed through as well. In this America is no different than any other country in history. It is, unfortunately, the way humans function, at leat in their political activity.

Anastasios said...

Oh, and as to the point about whether anyone would want international borders between, for instance, Maryland and Virginia - I just do not know. On odd days I would agree. However, on even days I am not at all sure that will be the truth. For one thing I suspect that localism and internationalism will combine to undermine the economic power of national units, and other events may conspire to undermine the nation's security and law-enforcement function. If that occurs, then I could foresee a day when, for example, Washington-Baltimore sees its relationship with Mexico City as more important than its relationship with Texas/Oklahoma. However, trends may conspire in a very different direction. As the wind at present seems to shift on alternate days, I give some form of meaningful national devolution a 50 percent chance.

Anastasios said...

Oh, I guess I should say what I see as the possibility for the 50% chance without devolution. Well, I guess the short answer is that there will have to be changes, but what changes? Many very smart people disagree with me profoundly about the forces I talked about in the post above. They see massive centripetal forces of economy, security (both physical and social), and culture all headed more toward a centralized national unity, in which the nation grows stronger while the states (already, in their view, reactive backwaters) wane as real loci of power.

If they are right, what does that mean? Many of them see the 2050s as more closely resembling the
1950s than the present era. That is a combination of cultural diffusion, demographic change, generational shift, and political movement will yield a new national consensus based around concepts like a "level playing field" and "a fair chance" and "unity in diversity" (most of these people are old Clintonites, and you can tell it in their language). With the passing of the baby boomers both an enormous financial drain and a source of immense cultural tension will be gone, while the Millenials, by then in their 50s, will be firmly in control. The reigning generation will have grown up accepting many values and situations that we now find controversial. Gay marriage will not be an issue, the drug war will be relegated to a bad memory, neocon foreign policy will be a subject of historical analysis, and the fears and resentments of whites will no longer be as major a concern since whites will be a large but clear minority.

Sounds lovely, doesn't it? That's why I have my doubts. But, hey, maybe they are right. Maybe we can look forward to an age, not of Eisenhower, but Eloise Montoya, and not Lucy and Ethel, but Gordon and Xu. And many of the problems that now seem so intractable will yield smoothly to the efficiency of a new and powerful national consensus.

ModeratePoli said...


Thanks God you're coming down off that ledge. You were there a fairly long time.

I suppose commenters deserve to rant occasionally too. With that in mind, I'd like to say that non-stop bashing of the US irks me since I grew up and still live among large numbers of academics/liberals. This groupthink that America is horribly flawed is a kind of propaganda that misses the many good things that the US has done, such as help save the world from the Nazis and then save half the world from communism.

Sure, there are ugly Americans, but there are a lot of good-hearted, caring people too. Please remember that when you need some balance in a black mood.

Anastasios said...

Oh sure, ugly Americans and good Americans. Ugly and good everywhere I suppose. But an intelligent, well-designed, praisworthy system ... uhhh, no. A system that isn't an embarrassment and a shame in the modern world? Uhhh... no. A system that can be defended in the face of such obviously superior examples, including one right across our northern border? Uhhh, no.

On the other hand, it is of course true that many other systems have been worse. That is faint praise, indeed, but there you have it. Sometimes faint praise is all that is deserved.

Truth > Spin said...

So we agree: worst system ever, except for all the rest. Moving on...


Anastasios said...

Oh, no, not worst ever, and not except for the rest. Simply a very poorly conceived and extraordinarily badly functioning system, with many other systems that are clearly superior. Others that are inferior, but some that are clearly superior. Including the British, French, German, Canadian, Australian, Dutch, Norwegian, Swedish, Austrian, Belgian, Irish, and New Zealander.

Anastasios said...

Oh, and the Danish system as well, along with Luxembourg. Don't want to leave any of our superiors out (and I mean that quite literally in this context).

Truth > Spin said...

Anastasios, what specifically is it that you find superior about the European / Parliamentary system?

Certainly you can see that system's limitations and drawbacks, too.

Anastasios said...

The answer is long and rather complicated, but it boils down to the fact that these kinds of well-functioning parliamentary systems force the electorate as a whole to bear adult responsibility for democratic government and for the policies of such. If you listen to the American populace as a whole all you can hear is on vast, infantile whine from sea to shining sea. "We did not vote for this! It isn't our fault!". Worse, given the way the system is built this is actually a valid excuse. In the alternate and superior systems the will of the electorate is reliably transformed into a governing majority who will pass the program on which they campaigned. To the electorate one can say "Yes, it is your fault. You know how the system works, and you voted them in, anyway." To the majority one can say "Your baby. The minority can't stop you, so no excuses." To the minority "Yeah bad things are about to happen. This is a democracy and you lost. Now, argue and oppose all you want and do better next election is you don't want this kind of thing to happen."

Now, two points. First I am talking on the systemic level. Individual Europeans tend to moan and whine worse than individual Americans, although even there they feel much greater pressure to be informed and involved about government. Secondly nothing guarantees such a system will return good policy. Far from it, as national electorates can be frightfully stupid. But if the British electorate wants to support policies that seem about to produce a triple-dip recession, or the German electorate has very destructive ideas about monetary policy, well then it is clear who is to blame.

Now, what do I mean by a well-functioning parliamentary system? First, it is one that does reliably translate electoral results into governing majorities with clear lines of responsibility. This in practice means two party systems or systems with a few major parties that form stable and predictable coalitions. Massively multiparty systems such as in southern Europe or Israel defeat that as governing power arises from party negotiations and coalition agreements, leading to even more legitimate whining and shirking than we have in the U.S. Also, as these systems do reliably concentrate effective power there needs to be restraints to protect from abuse of that power, including persecuting minorities, punishing personal enemies, and stacking the electoral system. These restraints can be judicial, constitutional, cultural, or some combination thereof. I would not see the governments in Germany and Italy in the 20s and 30s as having such restraints - although even there I have to say that I have never had much sympathy with the idea that the German people as a whole were victims of the Nazis. One of my favorite scenes from Hogan's Heros was an unusually serious scene where Hogan cut off that kind of argument by saying in a bitter tone that "Hitler did not answer an add for the job, you know."

Two last points. What about Japan? I would say, in brief, good formal system but broken political culture. And what would I, generally an Obama supporter, say about 2010? I would say that yes, the Tea Party should have been able to form a government and pass its policies. The electorate had made its will very clear, and the electorate should have enjoyed, or suffered, the consequences of its decision.