In their letters regarding the Nov. 4 referendum on whether to convene a constitutional convention, Steve Brown and George Nee raise a laundry list of objections to a constitutional convention. The list reads like a clever lawyer’s legal brief, with the hope that if enough plausible sounding charges are brought, at least one will stick. Another term for this laundry list objection style is fear-mongering.
Rather than responding to all their charges – impossible to do in the space available to us (but check RhodeIslandConCon.info for all the arguments that have been presented pro and con for convening a convention) – we’d like to focus on the most important point their laundry list ignores: why the periodic constitutional convention clause was inserted into Rhode Island’s Constitution.
The unique democratic function of the periodic constitutional convention is to propose democratic reforms for popular ratification when the General Assembly has an inherent conflict of interest in doing so. It is to implement Article 1, Section 1 of Rhode Island’s Constitution, granting the sovereign (the people) the right to alter their constitution, which cannot be fully realized if the General Assembly retains a veto power over proposed democratic reforms.
Examples of the type of democratic reform issues the legislature is ill-suited to address include legislative redistricting, ethics, transparency, and term limits, as well as enhancing the powers of the competing executive and judicial branches of governments via measures such as the line item veto.
Ignoring the democratic function of the periodic constitutional convention allows Brown and Nee to present arguments that would otherwise appear absurd. For example, they fear an unlimited convention. But the whole point of a periodic constitutional convention is to avoid legislative control over its agenda. If the legislature can limit a convention’s agenda, then the convention cannot fulfill its unique constitutional mandate. The unlimited (read “independent”) constitutional convention is a feature, not a bug. Moreover, it’s not just any feature; it is the feature.
Among the achievements of constitutional conventions in Rhode Island history include a comprehensive bill of rights, removal of the real-estate (property) requirement for native-born citizens to vote, voting rights for Catholic (notably Irish) immigrants, voting rights for the urban working class, voting rights for servicemen on active duty, elimination of anti-democratic constitutional amendment rules designed to entrench the power of past majorities (the rural, white, propertied classes who controlled the legislature), campaign finance disclosure rules, ethics rules to reduce political corruption, environmental protections, a relatively concise, logical, and readable constitution with embarrassing sexist and other archaisms deleted, and a procedure for calling a constitutional convention independent of the legislature. Arguably as important has been the mere threat of convening a constitutional convention to get the legislature to pass rules it had long opposed, including reducing the legislature’s ability to remove Supreme Court judges for political reasons (1994), enhancing separation of powers (2004), and eliminating the master lever (2014), all done in years when the constitutional convention referendum was also on the ballot.
Opposition to constitutional conventions in Rhode Island have largely been driven by two powerful political forces: 1) dead (past) majorities seeking to protect their privileges against living (current) majorities, and 2) special interests who have huge investments in legislators and recognize that the legislative process has been better designed for them to exert their influence. This helps explain Rhode Island’s Dorr Rebellion in the mid-19th century. It also helps explain why the most powerful special interests fund the campaigns against constitutional conventions and why their expenditures dwarf the expenditures of corresponding yes campaigns. A third factor, the logic of modern coalition politics, is also vitally important but cannot be covered in the space available here.
Sure, democracy can be abused. But the same can be said about legislatures. Both constitutional conventions and legislatures have unlimited subject matter power to propose constitutional amendments (but not pass them into law). In both cases, the “unlimited” ability to propose reforms, like the freedom of political speech, is a feature, not a bug. Americans don’t like “kings” restricting what ideas their elected representatives can propose. The ultimate check in both cases is not agenda restriction but popular ratification.
A final point: taken as a whole, Brown’s and Nee’s arguments come across as an attack on the institution of democracy, especially its core value of political equality, rather than on constitutional conventions per se. Sure, democracy is pretty awful. As Winston Churchill said, “Democracy is the worst form of government except all those other forms that have been tried from time to time.” But just because the legislature is influenced by unsavory politics doesn’t mean we should abolish it. Similarly, a constitutional convention is not a perfect institution – but it’s the best institution we have available to solve a particular type of democratic problem.
Source: Snider, J.H. and Beverly Clay, Constitutional Convention purpose? Democratic reform , Valley Breeze, October 21, 2014.