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Archive for the ‘Constitutional Convention’ Category

The recent “Conference on the Constitutional Convention” (www.conconcon.org) at Harvard Law School began a civil and, I hope, fruitful dialogue among liberals, conservatives, and libertarians on the need and potential for an Article V convention to amend the Constitution.

The most striking aspect of the conference was the desire by both the left and right to invoke Article V, especially the fact that this desire arises out of a mutual concern over the influence that special interests now exert over national policies.  In a sense, this mutual concern parallels a similar congruity between Tea Party groups and the Occupy Wall Street (OWS) protesters.  Here is a Venn diagram illustrating what I mean:

(Hat tip: Jim Harper at the Cato@Liberty blog here).

A similar consensus could be found at ConConCon 2011, where liberals were targeting the Supreme Court’s Citizens United decision because they believe that it further corrupts our political system by greatly increasing the power of large corporations to influence federal elections and law-making.  For their part, conservatives and libertarians at ConConCon 2011 were focused on the excess of power that government already exerts, which facilitates rent-seeking by all special interests, not just large corporations.  As the Venn diagram illustrates, the area of common interest between Tea Partiers and OWSers is opposition to rent-seeking, at least by large corporations.

Another way to understand this point is to deconstruct the left’s growing attacks on the so-called “rich.”  Leave aside how any monetary threshold for defining the “rich” is purely subjective; the distinction I wish to draw is between the “economic rich” and the “political rich.”  By “economic rich” I mean anyone who becomes wealthy by creating wealth for others.  We just saw the passing of Steve Jobs – someone who epitomized what I mean by “economic rich” – and I do not recall a single commentator on the left or right decrying Jobs’ well-earned riches. Is this really the type of rich person whom OWS protesters want to castigate?

The ‘political rich,” on the other hand, are those persons who become wealthy by taking or diminishing the wealth of others through political connections and clout.  There is a world of difference between these two categories of “rich.”  It is easy to deplore the unsavory collapse of Solyndra because it resulted in the loss of a $535 million taxpayer subsidy, but libertarians would have deplored the result even if Solyndra had succeeded.  Such success would have meant the creation of another member of the “political rich” ready to fund favored politicians in return for yet more political favors.

If the OWS protesters are upset at Wall Street simply because of how much wealth has been acquired there, then they won’t get much support from the right, or I believe, from most of the middle class.  If, however, they focus their anger on how Wall Street wealth has often been acquired through influence peddling and a rigged political system, then they may well earn our sympathy.

These themes were played out at ConConCon 2011 in Professor Larry Lessig’s keynote address “from the left,” which was an updated version of what can only be described as the stump speech in his campaign to overturn Citizens United.  As entertaining as it was informative, the speech brought a standing ovation even by skeptics like me who nonetheless believe that the Lessig solution (public financing of federal elections) is seriously misguided.

The problem that so disturbs Professor Lessig is special interest legislation and the problem of rent-seeking at the federal level, for which he offered three egregious examples: (1) the Sonny Bono Copyright Term Extension Act of 1998 (also known as the “Mickey Mouse Protection Act”), which perverted the notion of copyright as an incentive to creative artists and authors by adding decades of copyright protection to their heirs and successors; (2) the prevalence of high fructose corn syrup in our diets as a result of sugar tariffs and corn subsidies, resulting in wide-spread obesity for the benefit of sugar and corn producers; and (3) the failure of then Vice President Gore to deregulate the telecommunications industry in 1994 because the legislators in Congress needed regulations for leverage in raising campaign funds.  The scourge in all three cases, according to Professor Lessig, is both the constant pressure for Members of Congress to raise money and the fact that they have become so dependent on lobbyists for their fundraising.  For Lessig, this illegitimate dependency of elected officials on the funders of elections has displaced the legitimate accountability of elected officials to the voters in elections, corrupting the political system to an unprecedented and dangerous degree.

In response, Lessig’s fellow ConConCon co-chair, Mark Meckler of Tea Party Patriots, suggested that problem was not one of dependent government, but overweening government, with the root cause being “money in government,” not money in campaigns.  As David Boaz of the Cato Institute has often remarked, “when you lay out a picnic, you get ants.”  Similarly, when you spend $3.7 trillion in a single fiscal year (2011), you draw lobbyists to Members of Congress like ants on steroids.

Ironically, Meckler’s point was demonstrated by Lessig’s story about Vice President Gore’s failed attempt at telecommunications de-regulation.  Rent-seeking suggests that it is always the special interest who comes to Capitol Hill (and The White House) in search of political favors.  The telecommunications example reveals just the opposite: rather than showing how an industry pressures Congress for preferences or protection, it confirms how Congress purposefully creates a benefit (or threatens a burden) that they can then withhold (or impose) as leverage to assure campaign contributions from the industry being “favored.”  We need to coin an idiom other than “rent-seeking” to describe this phenomenon – “rent-trolling” perhaps?

Also impressive was the second ConConCon 2011 keynote address, this one “from the right” by Professor Glenn Harlan Reynolds of the University of Tennessee College of Law (and Instapundit fame).  The Reynolds keynote picked up on a metaphor that he used in his Foreword to the Tennessee Law Review symposium discussed in the previous post.  Professor Reynolds compared the Constitution to a computer operating system, as opposed to all the “application software that is layered on top” in the form of statutes, regulations, and Supreme Court case law.

The point of the metaphor was cautionary in suggesting that even modest changes in the Constitution/operating system can crash the “machinery of government” in potentially catastrophic ways.  This led Professor Reynolds to conclude that a “constitutional convention is analogous to the ‘hyperspace’ button in the old Asteroid videogame – worth pressing only in extremis, since it was almost as likely to kill you as to save
you.”

Maybe so, but there are many who believe, like me, that today’s constitutional operating system has not been modestly changed, but drastically changed to the point where it is nothing like the operating system actually written into the Constitution.  For this we can thank not only (1) the numerous “judicial amendments” that have resulted from the Supreme Court’s failure to constrain the legislative power of Congress, especially on interstate commerce and “general welfare” spending; but also (2) the less numerous “presidential amendments” that have resulted from Congress’s failure to constrain the executive power of the President, particularly with respect to war powers.

Finally, I should note who was not at ConConCon 2011, but should have been:  Professor Rob Natelson  of the Independence Institute in Golden, Colorado (who not coincidentally has the most substantive and research-based article of the Tennessee Law Review symposium) and Professor Michael Stokes Paulsen of the University of St. Thomas School of Law in Minneapolis.  These two scholars are perhaps the leading advocates
of opposing viewpoints on what is the central obstacle (in both theory and practice) to calling an Article V convention:  whether states can submit valid applications that are limited in subject matter.  Professor Natelson argues that they can, and Professor Paulsen asserts that they cannot.  Since I side with Professor Natelson on this issue, I will critique Professor Paulsen’s article, How To Count To 34: The Constitutional Case for a Constitutional Convention, in the next post.

Copyright © 2011.  Anthony W. Hawks. All rights reserved.

ARTICLE V NEWS

October 8th, 2011 by ahawks

When I began this blog in June I wondered whether there would be enough Article V-related topics to sustain it.  Fortunately, the summer gave us the debt ceiling debate, which provided a steady flow of commentary because of its many similarities to the flawed Balanced Budget Amendment (BBA).  Now, almost simultaneously, we have three significant events relating to an Article V convention that will provide blog topics for many weeks to come.

The first event is the recent release of the Spring 2011 symposium volume of the Tennessee Law Review on “Article V Constitutional Conventions.”   This is an understandable but misleading title since an Article V convention was/is intended to focus on proposals for discrete amendments, rather than a general “constitutional convention” where everything is up for grabs.  A hard-copy volume can be ordered for $13.00 by contacting Micki Fox, Business Manager, Tennessee Law Review, UT College of Law, 1505 W. Cumberland Avenue, Knoxville, TN 37996-1810 (email mfox2@utk.edu).

The first group of articles discusses the purpose, history, mechanics, and potential dangers of an Article V convention.  Most of the authors have now posted their symposium articles on the Internet, including Glenn Harlan Reynolds (who first suggested the symposium and wrote the Foreword); Rob Natelson (who is the only writer to have offered a detailed originalist “how-to” guide to calling an Article Convention); Elizabeth Price Foley (who discusses the range of federalism-restoration amendments that an Article V convention might consider); and two writers who debate the “runaway convention” problem, Michael Stern (here and here), who believes that safeguards can keep a convention in check, and Mary Margaret Penrose, who argues that “runaway” concerns are real and substantial).

A second group of articles each promotes a specific type of constitutional amendment that the various authors would want Congress or an Article V convention to propose, including Randy E. Barnett’s proposal for a Repeal Amendment; renewed calls for an Equal Rights Amendment by Ann Bartow
and for Term Limits by Richard A. Epstein; reform of Article V itself by Timothy Lynch; a Truth-in-Legislation or Single-Subject Amendment by Brannon P. Denning & Brooks R. Smith; and, lastly, a rather surprising amendment requiring that executions be made public by David Lat &
Zachary Shemtob
.  Sanford Levinson closes out the symposium with an afterword, but like the Barnett and Epstein articles, they do not appear to be posted yet on the Internet.

The second event was the recent “Conference on the Constitutional Convention” (www.conconcon.org) at Harvard Law School over a delightful New England autumn weekend (September 23-25, 2011) in Cambridge.  Like the TLR symposium volume above, ConConCon, as it was called, had the phrase “Constitutional Convention” in its title, which was both ironic and unfortunate.  It was ironic because there seemed to be a consensus at the conference that an Article V convention is not actually a “constitutional convention;” and unfortunate since the biggest obstacle to an Article V convention is the exaggerated fear of a “runaway” convention, which is only likely if a true constitutional convention were held.

I will only hazard a guess as to the number of participants – several hundred perhaps – but attendance aside, it more than met my expectations in a number of ways.  First, and foremost, both the presentations and follow-up discussions were serious and, for the most part, well-informed.  Second, the conference was ideologically balanced in the both the topics and speakers, which is appropriate since an Article V convention will only move  forward on a bipartisan basis.  For this, you have to credit the two Co-Chairs Larry Lessig (a passionate and nationally prominent liberal Harvard law professor) and Mark Meckler (co-founder of Tea Party Patriots), who together also set the tone for reasoned debate.  Finally, it was reassuring that the speakers and participants came from such a wide variety of backgrounds.  This was not an academic conference dominated by legal scholars with an esoteric interest in a long-neglected provision of the Constitution.  Rather the participants included scholars, think tank writers and activists, state legislators, community organizers, and even a cable TV host.  I will discuss the substance of ConConCon in the next post.

Finally, the third event is new law review article, How To Count To 34: The Constitutional Case for a Constitutional Convention by Professor Michael Stokes Paulsen of the University of St. Thomas School of Law in Minneapolis.  This article is important for three reasons:  (1) he is one of the few legal scholars to have actually waded through the hundreds of state applications to determine whether there are actually 34 states who have already called an Article V convention; (2) his current article is an update of a seminal article from 1993 (not readily available on the Internet) called   A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L.J. 677 (1993); and (3) both articles are founded on the erroneous premise that state legislatures cannot limit their convention applications to a single issue or topic.  Indeed, Professor Paulsen concluded in 1993 that there were 45 valid state applications requiring Congress to call a general Article V convention, and today he believes that there remain 33 valid state applications for a general (but only a general) convention.  The problem here of course is that a general convention is exactly the type of convention that most states oppose, so if Professor Paulsen’s position prevails, and this the only type of convention that Article V authorizes, then Article V is effectively a dead letter. Fortunately, Professor Paulsen is wrong on this point, as I will discuss in later post.

Copyright © 2011
Anthony W. Hawks. All rights reserved.

MAKING AMENDS

June 1st, 2011 by ahawks

The premise of this blog is that the Constitution has been amended far more often than the 27 times officially recognized under Article V.  These unofficial amendments are typically ratified by the Supreme Court, sometimes in a single case, but also in incremental steps over time. The process usually begins, however, with an unprecedented assertion of power by Congress or the President or one of the 50 states, which is then affirmatively upheld by the Supreme Court (or implicitly but no less effectively authorized when the Supreme Court refuses to intervene).   

What is most striking about this unofficial amendment process (aside from its highly questionable legitimacy) is the absence of any role for state legislatures.  This is utterly ironic because of all the institutions created or recognized in the Constitution, it is the state legislatures (as opposed to the states) who have the pre-eminent responsibility for amending the document under Article V.  Congress can propose amendments, but only the state legislatures have an official role at both the proposing and ratification stages.

Explaining how and why these “unofficial amendments” have occurred is a long story that this blog will return to time and again.  The point I wish to make at the start of this blog is that Article V is now prisoner to a paradox.  The paradox is that because it is so difficult to amend the Constitution, it has become much too easy to amend the Constitution.  This “paradox” is easily explained, however, once it is made clear who is doing the amending: because it has become so difficult to amend the Constitution under Article V, it has become much too easy to amend the Constitution by judicial decision.

Of course it has always been difficult to gain passage of a constitutional amendment through the “normal” channels of Congress.  What the Framers failed to foresee is that the amendment process would become the exclusive domain of Congress (officially) and the Supreme Court (unofficially).  Having drafted Article V during a general (but not unlimited or “runaway”) constitutional convention at Philadelphia in 1787, it does not appear to have occurred to the Framers that their posterity would fear far more limited conventions on specific types of amendments to the point that they would never be convened.

There will always be problems of a constitutional nature that Congress will refuse to address because the solutions will require Congress or the President to relinquish power.  Indeed it was precisely this concern that caused George Mason at the 1787 Philadelphia Convention to insist that Congress not have the exclusive power to propose amendments; otherwise “no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.”

What has now become apparent is that the Convention Clause of Article V must be resurrected for another reason, namely, to provide both a disincentive to future judicial amendments and a check on the judicial amendments that have already occurred and will doubtless occur in the future.  The argument that it should be difficult to amend the Constitution has a natural and widespread appeal, but creating too high a bar to formal amendments has created a facile acceptance of informal judicial amendments.

If the process of amendment by constitutional convention were no longer calcified, the Supreme Court would have less justification for stretching the Constitution beyond its original meaning in order to address contemporary problems.  Similarly, when the Supreme Court does rewrite the Constitution by judicial amendment, particularly when the result is greater federal power at the expense of the states, a vibrant Article V convention process will provide the state-based check on federal power that we know was always intended by the Framers.

At the same time, we should not lose sight of the fact that the rest of Article V is hardly devoid of criticism.  Although the process of proposing constitutional amendments through the Congress is not entirely moribund, the inability of Congress to address such important but non-partisan matters as the need to preserve the continuity of the national government following a catastrophic event would suggest that reform is needed here as well.  Invoking the convention clause then would likely rejuvenate the Congressional method of proposing amendments.

It is to the resurrection of Article V then that this blog is dedicated.

Copyright © 2011 Anthony W. Hawks. All rights reserved.

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