Yesterday on InForeFront, Andrew Downs, a professor at IPFW, blogged about the effort to convene a convention to amend the United States Constitution under Article V, the text of which is set forth at the bottom of this blog.
Professor Downs apparently advocates for such a convention. He “spoke briefly with a protestor who gave me two reasons why she was opposed to the idea. One reason echoed one of the protestors’ posters. ‘We don’t need law changers. We need law keepers.’ The other reason was that George Soros was in favor of it.”
I have blogged about the folly of the proposed constitutional convention. My reasons are not so trite as Professor Downs makes such opposition out to be.
A constitutional convention can act outside the bounds set for it. The original Constitutional Convention, of 1787, was intended only to make improvements to the Articles of Confederation. Patrick Henry refused to attend the Convention, saying he “smelt a rat” in Philadelphia. Henry was worried a strong central government would be created, at the expense of the States, and had concerns about the continuation of the institution of slavery. Patrick Henry claimed ownership over other human beings. The document that was produced at the end of the Convention was a product of compromises between white, wealthy, Protestant male landowners. Even so, despite the faults in its origins and within its four corners, over two hundred years of case law and occasional amendments—as well as a Civil War—have produced a Constitution that protects our rights.
Here are my concerns, and they are not those of the two people Professor Downs briefly interviewed. These are arguments I previously made.
1) Corporations and large moneyed interests will dominate the proceedings.
Delegates to the Convention would have to be chosen. By what means would that occur? If this would be by popular election, I shudder at the thought of some of the current members of Congress re-writing the words crafted by men Thomas Jefferson described as “demigods.”
There are many more very rich people than George Soros out there. Also, there are corporations with vast resources. If such corporations dump money into specific Congressional campaigns to influence votes on specific bills, a constitutional convention would be incentive to dump an entire “slush fund” budget. We could end up with a constitution that would protect/exempt corporate interests even more radically than the present system. Perhaps the First Amendment would be changed to provide freedom of “reasonable” speech, but none at all for speech against agri-business.
The corporations would not be “American” corporations. Given the decisions in Citizens United, Daimler AG v Bauman and other cases, I believe the United States Supreme Court would hold we cannot limit a corporation’s political involvement because some of its shareholders are not American. One can take “some” to whatever extent one wants. Corporations that could have been characterized as “American” did their best in the Nineteen and Twentieth Centuries to influence leadership changes and political control in other countries. “Self-determination” is a basic principle espoused by the Declaration of Independence. A constitutional convention would be run by large corporations whose national ties are secondary to the most international of loyalties: profits.
The media are loyal to interests of corporate wealth. The media are owned by those interests. Networks would sell a lot of ad time for a constitutional convention. In the end, the media—large-scale media—would convince people the new constitution is improved for the sake of all the people.
2) We would have an ill-thought matter played out in prime time or in total secrecy.
There was a rule of absolute secrecy as to the proceedings in the 1787 Constitutional Convention. “The Convention’s secrecy rules worsened the problem [of summer heat], keeping the East Room’s windows and doors firmly closed against eavesdroppers.” Stewart, The Summer of 1787, p. 82. The delegates wanted secrecy for several reasons: “One was that if it began to come out that the Convention was considering this or that course of action, there was certain to be a public uproad, which might set the country against the whole proceeding. Another was that enemies of the Convention would certainly make use of anything they heard to stir up feeling against it. A third was that the delegates wanted to be free to think out loud, to float trial balloons, to take strong positions, and to compromise. They did not want to appear to their constituencies to be flipflopping on every issue.” Collier and Collier, Decision in Philadelphia, p. 113. Enough deals are done behind closed doors today on mere legislation. If a Constitution were written behind closed doors, people would be outraged.
On the other hand, if we had an “open” Constitutional Convention, I am afraid we might have the ever-popular “media circus.” Commentators would give individual delegates nicknames. Delegates would mug for the cameras.
There would be strident voices for specific changes.
3) A “majority” of the populace would determine what constitute rights.
Rights are protected for those without power. One of the most famous instances was the decision of Brown v. Board of Education of Topeka, Kansas. That decision by a unanimous Supreme Court held racial segregation violates the equal protection guaranteed by the Constitution. Those who were victims of segregation, in many places, could not vote. If delegates meet out in the “open,” they will be subject to ridicule and the “passions” of the people.
Flawed though our Constitution may be, it is far better than what could be produced by the machinations of today.
If people want “change,” those people should work to propose specific amendments to the Constitution. They should not work to open a door only to be shoved aside by Voldemort.
The shopping bag guy in Tiananmen Square stood before a tank. The tank stopped, but the shopping bag guy, and the other protestors, were rolled under by the Chinese regime in 1989 in Beijing. If there is a Constitutional Convention convened, imagine a guy with a three-pointed hat standing before a much larger tank, one fueled by multi-national corporations that don’t care about anything but profit—and many of the shareholders of which probably will not even be American.
We should oppose a Constitutional Convention. The idea is very bad.
Article V provides:
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any manner affect the first and fourth Clauses in the Ninth Section of the First Article; and that no State, without its Consent, shall be deprived of its equal suffrage in the Senate.” .
Saturday we will stream live from J.T.’s Grille at 2210 East 54th Street from 11 am to 1 pm. Dr. Ari Dean Gleckman, a psychologist, will be our guest. Also Darel Lindquist, a Marine veteran of the Vietnam War, a songwriter and a screenwriter, als o will join us to talk about Iraq.