Saturday, July 2, 2005

Why the United States need a constitutional convention

Here's another article (originally published at Freethought Forum) that provides some more of the background thinking in my perspective.


Based on what I know of how the U.S. government has behaved so far, I think we need a revolution to replace its government, as soon as possible, for its own sake and for that of the rest of the world. I don't think the rest of the world could (or should) impose a reorganization; I don't think a successful military rebellion from within is a real scenario, either. That leaves, however unlikely, a political or legal revolution.

I think there are too many powerful, interconnected ruling groups of people--political incumbents, the party machineries, lawyers, lobbyists, revolving-door CEOs/senior bureaucrats, top managers of capital--for anything but a knockout blow to succeed. Maybe a very strong, cunning and intelligent president could Executive Order and legislate us partway there, but I doubt it. He (who knows, maybe she) would probably be blocked by Congress, if not then by the courts. Such a person might also be very unlikely to accomplish the necessary curb of the power of the presidency itself.

Consequently, I think that however improbable-seeming, the only viable solution is to organize from the grassroots to bring about a constitutional convention to reorganize the federal government. Article V says that one must be held if called for by two-thirds of the states. (Quite a few already have active resolutions calling for a convention floating around.) The convention would then have a chance to redraft the government completely; they might not think up a completely new brilliant system, but at least they could place limits on the executive, stiffen the powers of the representative assembly, break the duopoly of the major parties, establish a truly independent judiciary, guarantee universal health care, etc. etc. etc....

If that new constitution survived its transition to embodying its first government without being largely co-opted by the reactive ruling elites, then we'd have managed to take another huge step forward in our political evolution, with long-lasting widespread beneficial consequences.

I recognize that a convention might not necessarily produce something better than what we have now, but I think the chances are high of improvement. I don't think the convention would be destroyed by thousands of special interests pursuing their individual supremacy. The two-step process of agreeing on proposed fundamental law and then having to approve it by a supermajority of three-quarters of the states by their legislatures or in convention makes a very strong force towards ignoring particularist concerns in favor of broad, basic unanimity. The 1787 convention settled their particularist concerns by means of general compromises, not insertion of innumerable small agendas. Congress has seen an incredibly heavy stream of proposed amendments ever since it first met; of those many thousands, only twenty-seven have eventually passed.

I also think any convention would treat the standing constitution with something approaching ginger reverence; I can easily imagine one of the first things they might do is resolve to re-include the Bill of Rights unchanged. I think their conservatism would run much deeper than that; the Preamble might stay just the same, too, as well as Article V, the means of amendment, and other portions of the text.

As I see it, the government is gradually but effectively disposing of the Bill of Rights, occasionally slowed down by the Supreme Court but not often. In order to make things work the way the current constitution intends them, I think you need to have the power to restate what it said more forcefully and clearly. In addition to strengthening the intention of the original document, I think it could use some additions. We haven't been keeping up with all the advances over the last two hundred years in fundamental rights and law.

The constitution has been shredding almost as long as we've had it. Some of the abuses cited on this page are conspiracy theories, but they're labeled as "suspected"; just consider the documented ones above them. Along with constant minor and major cuts, the constitution has suffered two catastrophes: amendment by bayonet after the Civil War, the effects of which the country has only recently recovered from, and the political assassination of the principle of strict construction after Roosevelt's court-packing assault in the 1930s, from which we have not recovered. Moreover, reading the plain text of the constitution only tells you a fraction of its effect: it has been thoroughly encrusted by Supreme Court decisions that have the force of amendment as long as they are not reviewed and superceded by actual amendments.

The only way to reverse the holding that a corporation is a person entitled to the inclusive protection of the Fourteenth Amendment, or to re-establish the plain meaning of publishing a "regular Statement and Account of the Receipts and Expenditures of all public Money" and do away with secret military and intelligence budgets, is to pass an amendment. There are so many similarly significant examples that it just doesn't make sense to try to pass them one at a time. (Please, for the love of humanity, could D.C. finally get representation, instead of a token three-fifths of the presidential electoral power they're entitled to?)

There are also three compelling cultural reasons for a convention. The first is that our constitution has been fetishized, turned into a relic and worshiped as an object rather than studied and reasoned about by the broad population. It needs renewal to be the "living document" it is so often called. The second is that it would force a huge elevation in the political discourse and public involvement in it. No one could any longer suppose that politics and the composition of laws was too remote from them; every part of the conversation would bear upon the life of every citizen and national. The delegates to the convention, on the other hand, would be in the uncomfortable position of being daily evaluated in comparison to Washington, Madison, Franklin, and Hamilton. The third is that there is a real culture war tearing us apart on the inside, and it needs to be settled, or at least pacified by means of some compromise less dishonorable than the one that silently acquiesced to slavery in 1787.

There are many specific but large-scale problems besides our dysfunctional government, such as media concentration. However, many of them, including this one, can be directly connected to government power and regulation, which would still require very high-level coordinated government action to fix. Here too, I think the chances of a convention are better than a president taking the right lead, being supported by Congress, and not being undermined by the judiciary. In this case, the disposition of all communication frequencies as a fundamental public asset could be affected by constitutional language.

In the end, when one is talking about reining in corporations or how to best avoid prolonging the U.S. government's terrible policies, one's talking about taking a huge chunk of power out of the hands of the ruling class. That's going to need something on the scale of a long-term, nonviolent mass revolution. A new constitution could be both part of the means to the goal and the means for consolidation of the new situation against the inevitable enormous backlash that would follow.


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