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

[scott s.]

There is a great deal of debate/discussion on the concept of the "runaway convention". I don't doubt that a convention, if called, has no limit on how it can act. You still have the requirement that either 3/4ths of the state legislatures or state conventions ratify (method to be determined by Congress - interesting question as to how Congress would select one mode or the other). With respect to state conventions, it appears that during the secession crisis of 1860 states used conventions as a means of providing legitimacy to their proceedings.

An interesting (well, to me anyway) analysis of the operation of the Constitution in particular of state power vs general gov't power was given by Martin van Buren during the nullification controversy. Van Buren (who was VP at the time) was sent by Pres Jackson to New York to ghostwrite (though his authorship was never in question) a position paper (which largely followed Jackson's views) that would be passed as a resolution by the State of NY. That resolution can be found online in a compilation "State Papers on Nullification". What I find of interest is that Van Buren argues that there is no referee to resolve differences of opinion between state vs general gov't powers and the state-called convention is necessary as the only check the states have on mis-appropriation of powers by the general gov't. (In so-doing he denies any power of secession or nullification) The problem for today is getting 3/4ths of the states to agree on any thing.

[turcopolier]

Typepad HTML Email

Will states not ratifying be forced into the new Union? PL

[turcopolier]

Typepad HTML Email

Paraphrasing - Rationality in politics is the last refuge of the trusting. PL

[Odin's Raven]

Could Ukraine be showing the future to America?

[GulfCoastPirate]

PL wrote:

'Will states not ratifying be forced into the new Union?'

Not a chance. The 'blue' states that are mostly along the coasts and in the Midwest (industrialized) are never going to allow themselves to be dictated to by the 'red'states in the interior of the country. The blue states aren't going to give up their ports and their connections with the outside world which is why they tend to be more liberal in the first place. You probably couldn't even get the Gulf Coast of Texas to go along. Economically, the red states could never make it on their own. There is a reason the red states tend to be poorer than the blue states and it's because they are tied to their guns and religion instead of knowledge - the kind of knowledge through science linked to the Enlightenment and carried on to this day in universities all over the planet. The red states wouldn't last five years on their own although I doubt they have the guts to even try. In the end they'll capitulate to whatever the blue states want.

Personally, I'd like to see a convention but I know I won't. I think it would be interesting to watch the red staters capitulate or allow those of us who consider ourselves 'blue' to go off on our own. At least we wouldn't have to support them any longer.

[turcopolier]

GCP

It is remarkable how filled with contempt and condescension you are for those not like you. pl

[A Pols]

I've wondered about a constitutional convention being convened for one purpose and morphing into something else. As an example, the issue of proportional representation. Chances of getting an amendment through for that would be slim. But more plausible is the idea that a convention could more easily pass, and have ratified, and amendment to bust up the union, leaving all the various states free to follow their individual destinies. And with that, they could form a new union with new rules, or they could form new countries expressing regional differences. Could this be a good thing? Maybe so, and some find the idea appealing. Fiscal and political collapse followed by loss of legitimacy of central govt. could be the catalyst for such a change.

[Tony]

Jose,

Paul Krugman's "awkward facts":
http://krugman.blogs.nytimes.com/2015/03/24

[ex-PFC Chuck]

A lot of California's problems date back to Proposition 13 of 1978, an amendment to the state Constitution that had the effect of preventing property taxes from keeping pace with inflation. It also established the requirement that legislative action to raise taxes would have to be approved by a 2/3 vote in both houses. Ever since the ability to raise revenue at both the state and local levels have been strangled.

[The Twisted Genius]

Odin's Raven,

"Could Ukraine be showing the future to America?"

I've often thought about that. It thinks it more like a possible future for the US. The Ukrainian oligarchs have harnessed the power of the ultra-nationalists by convincing them they are fighting for the same thing. In reality they'd just as soon kill each other. They have also silenced the majority through an unrelenting propaganda campaign. They were aided and abetted by our very own neocon cabal. That cabal is untouchable by any party in Ukraine.

Perhaps a lot of this could happen in the US, but it would have to be much more subtle. The rule of law is much stronger here than in Ukraine. The majorities here, both left and right, could strike back with that rule of law if the oligarchs and neocons pushed too hard. Ukraine should be viewed as a cautionary tale.

[Jack]

KSH

Very well said. The ethos of leaving people alone which was an essential part of our founding no longer exists. Both Blue and Red teams want to interfere in everyone's lives and use state power to impose their morality and worldview. There's not an iota of difference between the two when it comes to growing the power of the state and its nonstop interventions. The republican ideals are just used for rhetorical purposes. In today's society those that would be considered classically constituionalists are a fringe minority. We can't be too far from a type of totalitarianism where one can be labeled a threat to the state if one stands for the principles enshrined in the Constitution.

[Grimgrin]

BC itself though is not too enamoured of Alberta and their drang nach westen in search of an oil port.

[confusedponderer]

I think, that whatever the future holds for the US, a Ukraine style conflict between oligarchy and the rest of the country is unlikely. Indeed, the rule of law, however coopted by the elites and selectively applied to the elites, is still there.

If, as of now, an oligarch in the US really overdid it like a Ukrainian oligarch, he would be made an example of under federal charges, much like Chodorchovski was made an example of by Putin.

IMO, absent a really large scale disaster along the lines of Katrina, a chaotic collapse as in the Soviet Union also is not in the books. The US, by and large, even with essentially de-developed or underdeveloped rural areas, is still a remarkably wealthy country, with a strong sense of national identity if not nationalism, however brittle it may be in other regards.

If things in terms of corporate excess and political meddling get very much worse, there might be a tipping point at down the road, and, with luck, there may be another Theodore Roosevelt to take on corporations and corruption.

IMO, there would be three things that he needed to address:

First, a constitutional amendment to the effect that money is not free speech and that corporations are not people (because short of that, there probably is no way to undo this madness). Secondly, one probably should regulate coporations federally, and thirdly, regulate campaign contributions and add credible enforcement of these rules.

All these ideas are political poison and would encounter fierce to feral opposition.

In case of the amendment, the crux there would be ratification by the states. In case of a federal charter and campaign finance the problem would be the two houses.

When Theodore Roosevelt tried to introduce federal charters (what i.e. what are the requirements for incorporation - the idea being transparency), with the help of James R. Garfield (who then headed the Bureau of Corporations). Between 1901 and 1914 more than two dozen pieces of such legislation failed to get through both houses of congress. Corporate influence is probably more pronounced today.

To paraphrase: “Well, Doctor, what have we got — a Republic or a Oligarchy?” "A republic, if you can keep it!".

That is to say, America will have to fight to keep or regain it, depending on how one judges the situation. America's oligarchs have never given up their privileges and political power voluntarily. They didn't under the Roosevelts and they sure won't now.

[alba etie]

ISL
At one point in Texas Republic history our borders included Santa Fe - heck even part of Wyoming .

[MRW]

"This has recently re-surfaced in the context of right wing pressures for a balanced budget amendment to the US Constitution."

If you want to inflict permanent depression on the American people, by all means, pass A Balanced Budget Act.

Tale a look at this: the Historical Tables of the economy since 1789;

Everytime there was a surplus on the government level, it was followed by the depression. The Clinton surplus was delayed by the dotcom and housing bubbles.
Choose Table 1.1 here: https://www.whitehouse.gov/omb/budget/Historicals/

Bloomberg, in 1999, crowed that the last time there was a government surplus was in the 1920s leading up to1929.

Gee. What followed that?

EVERY FEDERAL GOVERNMENT SURPLUS IN OUR 238-YEAR HISTORY HAS BEEN FOLLOWED BY DEPRESSION OR A SIGNIFICANT RECESSION.

Do your homework. Ignorance is not an excuse for this stupidity.

[alba etie]

TTG
I would feel more confident in the Rule of Law before SCOTUS ruled corporations are people too in Citizen's United and as such can contribute unlimited campaign funds to whichever candidate they choose. We have our own Oligarches - Soros , Koch brothers, Adelsen - Ukraine is a cautionary tale indeed ...

[alba etie]

GCP
I think if "push came to shove" my home state Texas would join the Red States- and Galveston is a huge port -,and for that matter so is NOLA which also is in a Red RED state Louisiana - being the Gulf Coast Pirate that you are perhaps you heard of NOLA ? But let me also say I wish that we had more Science based comity in our Political Science discourse - seems both former Texas Governor Perry & current Louisiana Gov Jindall want to scuttle the Iranian nuke deal .Politics are not black and white , and like you I long for a more perfect Union , perhaps a 21st Century Constitutional Convention would be helpful to These United States. But please lay off the Red States or we just might get frustrated enough to say to you Come and Take It ...

[confusedponderer]

As an afterthought on my reference to oligarchy - this excerpt from last year's "oligarchy study":

"Q: Let's talk about the study. If you had 30 seconds to sum up the main conclusion of your study for the average person, how would you do so?

A: I'd say that contrary to what decades of political science research might lead you to believe, ordinary citizens have virtually no influence over what their government does in the United States. And economic elites and interest groups, especially those representing business, have a substantial degree of influence. Government policy-making over the last few decades reflects the preferences of those groups -- of economic elites and of organized interests.

Q: You say the United States is more like a system of "Economic Elite Domination" and "Biased Pluralism" as opposed to a majoritarian democracy. What do those terms mean? Is that not just a scholarly way of saying it's closer to oligarchy than democracy if not literally an oligarchy?

A: People mean different things by the term oligarchy. One reason why I shy away from it is it brings to mind this image of a very small number of very wealthy people who are pulling strings behind the scenes to determine what government does. And I think it's more complicated than that. It's not only Sheldon Adelson or the Koch brothers or Bill Gates or George Soros who are shaping government policy-making. So that's my concern with what at least many people would understand oligarchy to mean. What "Economic Elite Domination" and "Biased Pluralism" mean is that rather than average citizens of moderate means having an important role in determining policy, ability to shape outcomes is restricted to people at the top of the income distribution and to organized groups that represent primarily -- although not exclusively -- business."

http://talkingpointsmemo.com/dc/princeton-scholar-demise-of-democracy-america-tpm-interview

[RetiredPatriot]

@ A Pols, this very theme was recently captured in a novel... Twilight's Last Gleaming

RP

[BabelFish]

"Fiscal and political collapse followed by loss of legitimacy of central govt. could be the catalyst for such a change."

I believe you are correct on this and it would be the only set of circumstances that would bring one on. With the dog eat dog environment of our politics, I can not imagine enough good faith to be generated to allow an intelligent and generous convention to be held unless things were beyond chaotic.

I started to compile things in my head that I would want to see written in to a new constitution and they would all be things many others would bitterly oppose. 1) Ban gerrymandering at all levels (have to put something else in place). 2) Representative government based on population. 3) Distribution of federal funds based on population. 4) Clear delineation of state's prerogatives on trade/immigration, etc. 5) Banning all unfunded mandates by the central government. 6) A human rights code that speaks to minorities, disabled, developmentally handicapped. 7) Severely limit the authority and power of the Supreme Court.

I can only wish.

[LeaNder]

reminds me of the fact that republican in US history versus the GOP always caused knots in my head.

Since I like looking at times gone by via the individual/person shaped by, and shaping events, why not put a biography of Jefferson and Madison onto my reading list.

Suggestions?

[ex-PFC Chuck]

Harper,
It may have endured but for at least 95% of Americans it's no longer working.
http://www.commondreams.org/news/2015/04/07/people-vs-shell-high-seas-protest-greenpeace-boards-arctic-bound-ship

[turcopolier]

LeAnder

Jefferon's Republican Party became the Democratic Party of today and had nothing to do with the present Republican Party who were an amalgam of Northern Whigs, Free-Soilers, Nativists (American Party) and Abolitionists that arose in the 1850s and who won the WBS. "Malone, Dumas. Jefferson and His Time, 6 vols. (1948–82), Little Brown and Company, Boston; Six-volume biography of Thomas Jefferson by leading expert; the major scholarly study; Pulitzer Prize; A short version is online" nothing can beat this on Jefferson. pl

[Fred]

walrus,

We Americans have been paying those 'costs' for 200+ years.

[Fred]

GCP,

Will the "Blue States" be purging the non-conforming citizens within their borders like the happened during the partition of India and Pakistan? Just which "Blue State" armed force is going to make that happen?