Last Wednesday I had the pleasure of appearing at the Intelligence Squared debate series before a New York audience on the topic: “Call a Convention to Amend the Constitution.” Under the series rules, whichever side advances its audience approval ahead more from the original baseline wins. Over the course of the debate, our negative side advanced our side by 21 points, compared with 10 for the affirmative of Prof. Larry Lessig and Mark Meckler. The IQ2 hosts congratulated us on a convincing victory (my ally was Prof. David Super). Probably the only time in my life a camera has caught me doing a high five!
The debate page includes a live transcript of the event, research papers and other resources. The IQ2 series also has selected several clips of highlights of the debate including this one on whether small and large states would have the same vote at a convention. The 2012 Mike Rappaport paper for Cato that I refer to in my closing remarks is here, and I’ve covered Article V convention proposals here and here (and more generally.)
On Monday of last week Prof. Larry Lessig and I joined Brian Lehrer’s much-listened-to WNYC radio talk show to discuss the issue. Listen here:
11 Comments
People need to be very careful about this. My conservative friends think it’s a great idea. What they fail to understand is it works both ways. How about an amendment to ban all weapons, period. Or to make all abortions legal, forever? Or to ban all conservative political parties.
Be careful what you wish for.
You are wrong. It only takes 13 votes to defeat any amendment. So that process if fair. The convention’s scope is limited to the application. Any action beyond that scope is void.
Any amendments considered must be approved by a majority of the states represented.
Delegates are controlled by their state legislatures.Amendments proposed must be ratified by 38 states.
Robyn, while I agree with your second paragraph, there is nothing in Article V that limits the convention’s scope, Congress certainly can’t. There is nothing to prevent any amendment from being added once the process begins.
The motion against failed because the states have already applied in sufficient number to cause a convention call. Indeed a total of 11 convention calls are presently required. See: http://www.foavc.org. As to fear expressed by Mr. Vonbuskirk there is not one application asking to repeal any right currently enjoyed by Americans in the public record.
Asked and answered at the debate. Even most advocates of an Article V convention do not generally embrace the view that all state calls remain valid in perpetuity and are to be added together toward the threshold number regardless of whether they call for the same measure or are even on the same topic. This does not prove that the notion is wrong, of course — maybe we’re overdue for a whole flurry of conventions — but it does help explain why most of those on both sides continue to engage in debate rather than deeming the issue overtaken by events.
While “not one application asking to repeal any right..” there is nothing in Article V that would prohibit ANY amendment from being proposed. While I’m sure the political hacks running the convention would try to limit the debate to certain issue it could certainly be challenged, The founders left this vague. Madison expressed concern that there was little detail on how a convention, such as this, would actually be carried out.
Just because it is not mentioned does not mean it couldn’t be added once such a convention is initiated.
I may be cynical, but I maintain there is inherently great danger in a convention.
Given the makeup of the current state legislatures and governors — mostly Republican now — which 38 states do you think would vote for something that might pass out of a COS that would take the convention itself into your “dangerous” category?
The truth is the FOR team won. Fears about a runaway Convention are unfounded as was explained by Mark Heckler and Professor Lessig. Some more Myths debunked:
https://d3n8a8pro7vhmx.cloudfront.net/conventionofstates/pages/263/attachments/original/1448454708/Article_13-FiveMyths.pdf?1448454708
In terms of Article V “housekeeping”, I would like an Amendment enshrining current consensus as a principle, eg:
“To become law, an Amendment to this Constitution must be ratified by the requisite number of States within seven years of its submission to the States. Until it becomes law, a State may rescind its ratification by the same method it used to ratify.”
I can think of more details, but they might already be covered in Michael Rappoport’s draft. Is his text only available buried in the long article?
Dear Professors Olsen and Super, I assume you agree the Constitution is unique in all political experience, and thus so is its convention clause. To my knowledge there’s no other such clause found in a fifth article of a nation’s high law anywhere in history or presently on Earth. Some might think it a quibble or splitting hairs as to whether or not we capitalize the Article V Convention as a proper noun. Yet, as a proper noun we know we’re not talking about a constitutional convention, but a unique assembly called by the US Congress to formally propose amendment language. I’ve watched the IQ2 debate twice and it seemed that more than once the winning side was allowed to confuse a noun with a proper noun in order to bolster their argument, when in this case, the distinction between the two is essential to understanding what’s being discussed.
If we ever have a federal convention we can be certain that it will adjourn. Regardless of proposals on the table, at some point the presiding officer(s) will call the question of whether or not to adjourn. No delegate, whether selected or elected, is then going to stand before the nation and declare that they might have a new proposal the following week, and make the motion to remain convened until then. If a delegate did, even though it was clear other delegates were satisfied the convention had considered everything worth considering, the motion would fail to carry and the convention would adjourn. Of course this is an example of practical politics, and it’s as if Anti-Conventionists conceive of a world where practical politics would not apply to the Article V Convention. In fact practical politics are unavoidable whenever humans join to determine consensus of the whole—and especially more-so if the delegates represent a nation as vast and regionalized as the USA. In terms of practical politics, a large and diverse assembly of humans works in our favor.
So because of practical politics, including things like delegates tiring of being away from family and friends, we know that if a convention is called it will adjourn—and if so—we know at that point in time nothing will have changed legally, and it will be perfectly clear to everyone that the process of proposal and the process of ratification are two very different things.
Why did the Framers not set ratification at 25% approval? Because facts/logic/reason and political experience show that political change must be legitimized by popular consent or you won’t have a legitimate government for very long. Which led to the question of how popular consensus must be for things to work? Unanimous? No, we found out that doesn’t work, and the convention of 1787 in part convened to address the problem unanimous consent poses to a functioning government. 25% would be impolitic and a mess, and 50% would still leave a republic susceptible to a reactionary period and/or persuasive demagogue. What 75% approval means, is that whatever the idea and wherever it falls on the political spectrum—Left to Right—Right to Left—it must get all one side signed on, plus at least half of the other, or it fails. In other words, 75% approval makes it mathematically impossible for partisan ideas to become high law. That’s why the bar was set at 75% for amendments to be ratified, and 50% for election of policy-makers, because those percentages adequately address the political tasks needed to maintain a representational government. If electing members of Congress and the President required 75% approval we’d rarely have a Congress or a President. Anti-Conventionists must concede that 50% and 75% are two different percentages and mean two very different things when it comes to practical politics and the winds of change.
As you may or may not know, Representative Messer, 6th District of Indiana, introduced H.R. 5306 this past summer. If it had made it to the floor for a vote and passed, it would task the director of the National Archives and Records Administration (NARA) to go back through Congressional Records, find all state applications for a convention, and officially enroll them as federal documents so that they can be officially counted by the Congress. H.R. 5306 also included that all rescissions be tallied too, so that the two columns would be placed side by side to give us a correct tally as to where we are regarding the constitutional instruction to call a convention.
For the sake of clarification, let’s say that next year the resolution is reintroduced, passes, and NARA findings show we’re overdue for the convention call. Congress calls a special session and issues the call for a year from that date. If such a news item emerged, what do you think is the first thing that will happen? The first thing is that anyone still paying attention will blink. After everyone blinks, the next thing that will happen is that thousands of Americans in each of the fifty states will be on the phone to their state officials, asking how their state intends to engage in the process, and who gets to be delegate. Next, we will get news of the states declaring whether they intend to elect or select delegates (in fact Michigan and Indiana, respectively, have already done so). Regardless of whether a state elects or selects its delegates, the next thing to happen is that a formal discussion will begin in each state and nationwide: what is a good idea for the 28th Amendment? Next, the convention convenes, parliamentary procedure is implemented (practical politics will necessitate it because delegates will not want to fight to be heard, and parliamentary procedure ensures that they’ll simply have to raise their hand). From there, the long, slow, deliberative process begins over amendment language (as you probably know this was displayed in a mock-convention this past summer where 150 state legislators convened in Williamsburg).
Anti-Conventionists repeatedly claim that we don’t know what will happen, when we do: the call will be issued, those choosing to do so will engage in the formal discussion of amendment language, and consensus will be built to one degree or another. In sum, all that will happen with the calling of a convention is that the national discussion about amendments to the Constitution will transform from informal to formal. Right now I could tell you my pet amendment and you could tell me your pet amendment and we could begin an informal discussion on the merits of each. All the convention call does is make the very same discussion formal, instead of informal, and it reaches a conclusion—either your amendment will attain 75%, or mine will, or maybe they both will. Are you afraid to formally discuss amendments to the Constitution?
If a human is in a building and they smell smoke, does it matter if they are Republican or Democrat or something else? Of course not, any human, regardless of political affiliation or philosophy, will stop what they’re doing to determine where the smell of smoke is coming from. This metaphor renders the One State/One Vote concerns irrational, and arguments against it invalid, because we’re not talking about 50% approval determining a civil or structural change in governance, we’re talking about 75% approval, which again, means that partisan proposals, ipso facto, are DOA, which renders the rubric of one party winning out over another because it currently controls more houses, or controls those houses of high population, is inapplicable because 75% approval supersedes the debate of party politics. 75% approval also renders irrational any concerns that a reactionary moment in society, or a demagogue, will lead us to our demise (and if such threatened to, Americans just having been re-educated with the proposal/ratification process, any amendment ratified that proves to be more trouble than it sought to remedy, it will follow the way of the 20th Amendment (yes, we actually have historic proof that practical politics will prevail—Americans recognized that prohibition didn’t work and in due time disposed of it the way a village would dispose of anything that didn’t work).
To think that nothing will have altered in our national consciousness between the time when the convention is called and the time it adjourns, lacks sense because by the time we get to the ratification process, we’ll have already been engaged in formal discussion for months, which will have touched on how politicians have treated constituents in the past, which means by that point state legislators will be as receptive as they can be. We won’t come out of the Article V Convention only to find state legislators couldn’t care less what the people of their state think. No, by that time in the process the state legislators will be standing at attention like a private at boot camp.
As to the contention that special interests will set upon the convention and bamboozle the nation? I doubt the lobbyists of K Street will want to advocate, in public, before the nation, what they currently get away with at DC restaurant tables, just as no criminal will want to attend a public discussion about how to stop criminals from committing crime. And even if they did attend, and attempted to sabotage the discussion with ineffectual proposals, such proposals would never withstand the crucible of ratification—someone somewhere in America will correctly detail why such a proposal is of little or no use. What can any special interest group propose that roughly 8 out of 10 Americans are going to agree on, regardless of which state they live in or how populated it is? 75% of any society at large is not going to agree to shoot itself in the foot.
As to the argument that because the 27th Amendment was ratified after almost two hundred years on record, and how this shows the convention could propose a bunch of monsters that could somehow come back years later to destroy our government: First, if you believe the Constitution is a law for Americans (and it does state that’s what it is), then you know our government is already destroyed in the sense that, as Lessig has correctly identified and proven, it no longer represents the people. The reason the 27th was ratified is 1) there was no law prohibiting it from being so ratified, and 2) it was still just as good of an idea as it was when first proposed—not because it somehow snuck in the Constitution as an odd accident. When it came to light, none of the states already signed on questioned their initial consensus—none rescinded their previous application—and the remaining states required agreed that preventing politicians from increasing their salary while in session was an acceptable addition to our high law.
We know this: either there will be requisite consensus for ratification of a 28th Amendment, or there will not. If there isn’t, then in one fell swoop we’ll have carried out a formal process in civics, and one, two, three generations will become re-educated about what the Constitution says, and why it says what it does because all the process entails is formal public discussion. And because all political polls for decades indicate only electoral reform has any chance of garnering 75% approval, then boring old electoral reform is all we’re going to get. Something simple, like—All state and federal elections for public office shall be standardized and publicly funded.
Thank you for reading, sincerely,
John
Mr. Herrera is a tough act to follow so I’ll make my comment brief and to the point. First of all while Mr. Olson and his partner did win the debate by the numbers, I would like to see the outcome in a State like Texas. I watched the debate and all I took away from the opposition was they are afraid of a convention that proposes amendments. The Framers, who had the courage to write Article 5, would not have inserted it if they were afraid of a runaway. It will take courage to take the power usurped by DC and return it to the States and the people. Thank goodness Mr. Olson and Mr. Super are not part of the movement.