Could We Agree On A New Constitution? - Republished 14 January 2020

This question has recently re-surfaced in the context of Democratic candidates' for 2020's evident desire to make serious changes to the US Constitution with regard to the electoral college, the supreme court and similar matters.

The US Constitution can legally be changed in two ways:

-By amendment.  We have done that throughout our history, choosing to change the document paragraph by paragraph after a deliberately difficult process of Congressional approval and state ratification.  (2/3 of each house of Congress agreeing and 3/4 of the states ratifying) Many, many amendments proceed only part way through the process and then fail, never becoming part of the constitution.  Think of the Equal Rights Amendment (ERA).  Has it been 45 years that it has waited for state ratification?

-By Constitutional Convention, like the first time in 1789.  This will not happen.  Why?  The states would be free to ratify or not ratify the new document and those that did not would be out of the Union.  (If that is not true, tell me why.) Who will risk that?  Who will risk the possibility that the Red/Blue divide in this country is not so serious that it would produce such a result.  Already there is much talk of polarization to the point of alienation.  What would be the result if Red Staters could rid themselves of Blue Staters or vice versa without an overt penalty.

IMO, if a constitutional convention were convened it would effectively become the supreme law of the land.  That is what happened with the convention that created the USA as we know it.  The convention in Philadelphia was convened to "adjust" the Articles of Confederation.  Once convened, the delegates seized control and created a completely new system of government.  The states are the contracting parties to the constitution and so the new constitution had to be submitted to the states for ratification. Two states, Rhode Island and North Carolina voted to reject the new government before Virginia, by the slimmest of margins, voted yes to "close" the deal.  It took several years and the Federalist Papers to obtain that final ratification.  RI and NC then changed their minds rather than be left isolated with the Europeans still on their "doorsteps."

Would not the large states wish to end the "great compromise" that gives each state (however small) two seats in the senate?  To do that would require the acquiescence of the small states in a process of ratification.  Would Wyoming  or Vermont or any of the other "small" states do that for California or Florida?  If frustrated in this process would Texas or any of the other big states leave the new country by rejecting ratification?

How many other provisions of the present constitution would be challenged?  Name a few.  How about the Income Tax Amendment?  How about popular election of US Senators?

Spare me any cant about "economic viability."  All over the world we have examples of states which are anything but economically viable but which exist because people there just couldn't "stand" being bound to some other group of people within the loving embrace of a constitution.  In any event, trade is not limited to national territory.

The accepted wisdom in the USA has been that regional cultural differences are disappearing under the influence of migration and the universal prevalence of a "national" (read Northern) culture.  It is mostly Northerners who say this.  They have been saying it since the 1830s.  Places like Atlanta and northern Virginia seem to support this view, but if you ask you will find that most of the proponents of that view who live in the metropolitan areas rarely leave those areas except by air or rail.  They don't feel "comfortable" wandering around the countryside.  Why is that?

The contrarian view is that, in fact, the regions and their cultures are actually growing farther apart, and that the values of places like New York City and the Piedmont region of the Upper South are farther apart than ever before.  This time it is not just a question of the culture of the South being "different."  Look at the Red/Blue Map by counties all over the country for the last two elections.  Look at places like California and Oregon.  Look at New York State.  The rural areas are Red if the population there is not a minority or solidly "labor" like the Masabi Iron Range in the far north, while the cities are Blue just about everywhere.  These divisions are deepening, not disappearing.  It would seem that now the split is rural/urban, as well as regional.

Let's not have another constitutional convention, not ever.  We are not Canada.  The Canadian government said years ago that a Quebec decision for "sovereignty" would be accepted.  I can't imagine that happening here and I would fear the result if it were attempted.  pl 

Comments

[RAM]

I keep hearing people saying that we should be patient about the constitutional process in Iraq. After all, they say, it took from 1775 when the Revolution began until 1788 for us to develop our own constitution. In fact, I read a piece by a constitutional scholar the other day that repeated the same thing. And, of course, the President is fond of making absurd comparisons between what's happening in Iraq and our own Revolution.

The thing is, it didn't take 23 years to develop the U.S. Constitution. It was in process for 560 years from the time the Magna Carta was signed in 1215 (actually the process started before that, but 1215 is a good benchmark) until the Framers finished their work. During that time, we, as a people, learned how various forms of democratic and republican forms of government worked using a sometimes bloody process of trial and error.

There is no tradition of democracy in Iraq and this effort to somehow graft a western-style government onto an unreceptive culture is doomed to bloody failure. Even if it is adopted (which currently seems sort of unlikely) it's more than likely the new Iraq constitution will last about as long as there are sufficient U.S. troops available to ensure its viability.

What I keep trying to understand--without much luck--is why anyone seriously believes democracy can be imposed successfully on any part of the Arab world by outsiders.

[ismoot]

RAM

My recent musings on the state of our Union and the possibility of renewing it if it should be interrupted were not intended as an endorsement of the present constitutional process in Iraq. They were merely inspired by it.

In fact, Iraq had an earlier experience of constitutional government under the Hashemite kings from 1926 to 1958. The government then had parties, a parliament, cabinet ministers, a constututional monarchy, etc.

The Iraqis found it uncongenial and dumped it with much bloodshed and barbarity in 1958. pl

[RJJ]

In an age of hubris and dysfunctionalism the architects of any renewed constitution would be the current lot, the Frank Gehrys of statecraft.

[Necessary Roughness]

Perhaps we couldn't have a Convention now. If there were still a Madison and a Monroe, perhaps. But it would be a piece of cake even without them compared to what Iraq is facing now. Imagine trying to write the Constitution while the Revolutionary War was still in progress, and with the Tories hanging around to boot.

[ismoot]

UR

Actually, the Tories WERE still hanging around. The number of crown loyalists who left for Canada or wherever was only a fraction of those who stayed. In addition to them, there were a lot of people who were completely indifferent to the idea of a republic. These people formed much of the support for the political forces that favored things like the Alien and Sedition Laws in the Adams Administration and who encouraged the Anglophilia and inclination toward monarchical trappings (titles, state uniforms, etc.) that so irritated the "Republican" faction of Jefferson and Madison. There was a good reason why the "Republicans" of that day feared a possible return to monarchy if the Federalist Part had continued in power.

The delegates to the convention of 1788 were all people who favored a republic to one degree or other, but there were many outside the convention who did not want a "more perfect union" at all. It took a year or so of propaganda in the Federalist Papers to get the thing ratified and even then by the time Virginia ratified (by one vote), creating a majority, North Carolina and Rhode Island had voted not to ratify. They subsequently changed their minds, but anti-federalist sentiment remained strong.

The Kentucky and Virginia Resolutions penned respectively by Jefferson and Madison expressed strong reservations about the amount of power the federal government was grabbing under Adams, and expressed the opinion that if the states did not think the laws were justified by what they had agreed to in the constitution, they should ignore them. The Hartford Convention of 1814 was nearly the occasion of New England's secession, and there was the thing out in the west in which the commanding general of the army conspired with Spain for the purpose of splitting off part of the national territory. Things did not go smoothly and it was anything but sure that the Union would endure. A lot of people thought then that the Constitution of 1789 was but a scrap of paper, just as a lot of Iraqis are going to think the same thing of their piece of paper.

Then, of course, there was 1861.

All of this revolved around the role and power of a central government a opposed to regional interests. Sound familiar?

I wish the Iraqis luck in this attempt. They will need it to make the arrangement "stick" even if they succeed in producing a meaningful draft.

Who did you have in mind for the role of the British in your comment? pl

[patriot]

One of the interesting and rather chilling things is that if we rewrote our constitution how many would throw out the bill of rights. You have this on both sides but the attitude among "mainstream" Bush supporters is chilling.

Browse these quotes:

http://www.thepoorman.net/2005/08/19/back-down-the-road-a-while/

O'Reilly draws a very fuzzy line between dissent and treason, the need for revolution by any means necessary is there, pretty Ann finds only one thing wrong with McVeigh, he didn't chose the NYT. This is in the context of militia movements and significant right wing armies. Limbaugh says we shouldn't kill all liberals, but should leave a few for the pillory. What really chills me most is the quote from the National Review that Chelsea Clinton is "tainted" and historical wisdom suggests she be killed.

These people always say they are "joking," but one can brutally insult opponents without suggesting they are subhumans who should be hunted down by dogs. Note this is the mainstream of bush support including members of Congress.

Makes the neocons look rational.

[RJJ]

mapping the cultural divide -- here it is to a state of mind.

http://www.sltrib.com/ci_2958368

[roughness]

ismoot:

You provide a useful correction on the issue of the Tories. One crucial difference between US and Iraq, however, are the ongoing hostilities there. Then, there are the razor-sharp sectional differences and the relevance of ourside financing/manpower for the insurgency. None of these are insurmountable, just very tough.

[ismoot]

Roughness

Yup, very tough. pl

[Matthew]

Two absolute killers: the First and Second Amendments. I suspect both would be up for grabs, and our unity would collapse. I trust James Madison a lot more than Tom Cotton or Chuck Schumer.

[ISL]

patriot: Cant get the link to work, or find the poorman.net

[ISL]

Dear Colonel,

I clearly am contrarian, and find it hard to envision a constitutional convention in the short term due to the risks it would pose to many power centers in US society.

However, if the current trend towards wealth concentration continues and the remnants of the middle class fall into the working poor - say the Walton (or other) family moves from owning wealth equal to the bottom 43% to the bottom 80%, then all bets are (IMO) off. Not that I would venture the end results to be predictable, but it would only take a little hubris on the part of a few individuals/groups to start the process.

I also think if a political fragmentation process began, it would not stop at the state level (i.e., North/non-coastal California versus Southcoast California), or that (as in the middle east and now Africa), and that state boundaries would be challenged (by militia's). Presumably all with the meddling from the various great powers. In such an event, we would learn the curse of living in interesting times.

[turcopolier]

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Intra-state divisions in a post Union America would be internal extra constitutional affairs with external players. Wonder what would happen in Canada and Latin America? PL

[ISL]

Dear Colonel,

Canada is easy, I think the only thing holding it together is low population, lousy weather, pride at not being American, and business interests. Absent the last two, its hard to imagine les Quebecoise, BC, and the Inuit not heading full speed for the door.

Mexico is (as always) different - its never been a stable state and hasn't fallen apart for a century-ish, probably remains together - its politico's could always try and distract attention from internal failings by trying to regain territory from poorly populated New Mexico..... perhaps forcing New Mexico to ally with Texas.

[Swami Bhut Jolokia]

"Could We Agree On A New Constitution"?

Not. gonna. happen.

No people leadership.
No thought leadership.
No willingness to compromise.
And most importantly, no shared agreement in the country on which issues need a new or revised Constitution.

[Jose]

if the current trend towards wealth concentration continues and the remnants of the middle class fall into the working poor - ISL

Products of Liberals who favor fairness in the economy instead of growth. Growth creates opportunity. With the number of Americans that are not working plus the number of Americans who have been dropped to part-time status there are fewer opportunities.

When we add 30 million illegal immigrants, we will become a Liberal basket case like California.

[Swami Bhut Jolokia]

After reading the WaPo article, and looking at this breakout: http://en.wikipedia.org/wiki/List_of_United_States_state_legislatures I question whether it is even achievable for the constitutional convention folks to get to 34 states, least of all on the matter of a balanced budget amendment. Balanced budgets may make sense at a State level, but make no economic sense whatsoever at a Federal level.

And as for 2/3 of Congress voting on an amendment...

[Grimgrin]

I suspect Canada will go on being Canada simply for want of a better alternative. Though it really depends on how the US breakup shakes out. If it's a relatively clean affair leading to the orderly creation of some successor states, then maybe it would lead to something similar in Canada. If on the other hand, the breakup is more akin to the Soviet collapse, it'll probably have the opposite effect. It's worth remembering that until 1866 War the US and Canada had a free trade agreement and there was a strain of thought that amalgamation or annexation of Canada to the US was inevitable. The American Civil War was at least partly responsible for discrediting that notion and giving weight to the drive for Confederation.

[Lars]

Since it is so hard to find agreement on the one we have, I doubt any new efforts would make things better.

We already have the best government that money can buy.

[Harper]

Why correct our existing constitution, which has proven to be durable and just over more than 200 years? Every recent effort to change it has been initiated with, IMO, malicious intent--to codify popular opinion/majority democracy--aimed at establishing a parliamentary form of democracy, under which party domination is 1,000 times worse than the party tyranny and special interest big money tyranny is today. Read Miracle at Philadelphia, a wonderful history of the Constitutional Convention and consider: Do we have leaders of that stature today who can reach a reasoned agreement, factoring in all of the different interests of the day? Look at the Maastricht failure in Europe. They rushed into monetary union with no provisions for a federal union. It is coming apart. Take heed of that experience and stick with what we've got.

[Fred]

Col.,

I wonder just what the new commerce clause would look like. Not due to the ALEC references in the wapo article but in combination with the TPP treaty being promoted against our interests and remembering who the commerce secretary is.

[fasteddiez]

You forgot the energy rich Albertans. Furthermore, would they not like access to the sea, and join BC. They hates them some Ontarionistas.

[walrus]

Col. Lang,

I take issue with "Spare me the cant about "economic viability." All over the world we have examples of states which are anything but economically viable but which exist because people there just couldn't "stand" being bound to some other group of people within the loving embrace of a constitution. In any event, trade is not limited to national territory." This paragraph of your excellent musings is out of place.

It is not a question of "economic viability", it is a question of whether the people of the United States are prepared to shoulder the costs of Fifty State Governments, Fifty sets of Laws and regulations and the simply insane costs of the interactions between all of them.

Then of course there are the costs associated with the internal state organisations and duplications, for example in law enforcement where there are local sherifs, City police, highway patrol, State troopers, etc. etc. etc.

Then there is the economic rape caused by the mismatch in size between market players - for example Goldman Sachs vs. A city bond issuer,, etc.

It is not "cant" to observe that these costs are real and considerable. As long as Americans understand the impact of them and are prepared to shoulder them, so be it. The irony is that the IMF, World Bank and a horde of American trained economists are aware of these matters and encourage nations to modernise, but not at home. Physician heal thyself.

[kao_hsien_chih]

One problem is that the purpose of the constitution, as conceptualized today (by people on all sides) is quite different from those of the Founders.

The Founders were aware that, in order for the folks who did not agree on much amongst themselves and did not, in some cases, especially like each other, some form of compact to leave each other alone even if one side captured political power at national level was necessary. The original Constitutional debates were as much about that question as anything else. But, even within just a few years of the Constitutional adoption, the idea of leaving one another alone under the Constitutional framework came under stress and fell apart in less than a century. Too many modern Americans seem to think of Constitution more as means of imposing their views on others rather than a compact to leave each other alone. If we were to attempt reworking the Constitution, we'd see too much fight over which worldview should prevail at the top by rights, not how to best leave one another alone for the sake of getting along, I suspect.

[elkern]

Easy question ("Could We Agree On A New Constitution?").

NO.