A Constitutional Convention is closer than you think (2019)
coloradofiscal.org
coloradofiscal.org
There is no way _at all_ to constrain the agenda _or_ the outcome per the current constitution. In particular you can’t say (afaik) “we are calling an article V convention solely on issue X.” The linked article describes this as the “runaway convention problem.”
If you are on the left, imagine the new constitution specifically forbidding abortion.
If you are on the right, imagine it specifically forbidding private gun ownership.
There is no way to prevent those outcomes because an Article V convention is effectively saying “start over again from scratch.”
Separately I think term limits for congressmen are a dumb idea too. It will make party organizations much stronger. For evidence on this, see Mexico where nearly every public office is term limited to a single term. Second, very few people actually want their own congressman term limited (unless you voted for the other guy). They want everyone else’s congressmen (or the junior senator from Texas) term limited.
That was for the Constitution, not the Bill of Rights which came later and were ratified by Congress + the State legislatures.
https://constitutioncenter.org/interactive-constitution/blog...
That's because the ratification of the Constitution wasn't governed by the rules for amendments, whether introduced by Congress or Convention, under the Constitution.
That illustrates how ridiculous ideas get traction. Term limits are inherently anti-democratic. They don't end entrenched power but move it to unelected bureaucrats and lobbyists.
I don't think we were ever supposed to have career congresspeople.
The framers of the Constitution imagined wealthy gentleman farmers like themselves alternating positions in power. But term limits wouldn't bring that back, they just make sure that membership in congress would be even more held by the type of person who jump from CEO to congress to Federal bureaucracy and so-forth, reinforcing the "permanent government" situation that already quite strong here.
* https://www.brookings.edu/blog/fixgov/2018/01/18/five-reason...
Also:
> The democratic peace – the regularity that democracies do not go to war with each other – is one of the most robust findings in political science. This column presents recent research showing that democratic leaders unable to seek another term in office behave like autocrats. Accountability to voters in the next election lies at the heart of the democratic peace.
* https://voxeu.org/article/democracy-and-accountability-perve...
~20 year term limits aren’t going to see most members of congress in their last term. However, it would still have real impacts as people aren’t going to end up nearly as complacent. We have 3 members that are currently in office for 40+ years and many on track to reach that point very soon.
Term limits are simply there to empower primaries. People who have already been elected have vast advantages in primaries which means they rarely face any real competition. Put another way winning 20 competitive elections in a row is never going to happen. Which means none of the local members of the party has had any say in who represents them in the election and the opposition party has also had no say for decades. That’s no more democratic than China’s “elections.”
No more than age limits to be allowed to vote or hold office. Limits don't halt democracy.
> membership in congress would be even more held by the type of person who jump from CEO to congress to Federal bureaucracy and so-forth
Term limits don't change that. The problems to address are:
1) they are underpaid while in office,
2) they are allowed to act in the interests of their previous industry ties while in office, and
3) when they are out of office they are allowed to profit from having held office.
Serving in congress is always going to be biased towards the rich, but there are plenty of positions besides CEO that would be acceptable to have a 2-15 gap especially for a prestige position. If anything term limits make this better because currently politician is a career that can last for 30+ years, but that would require extreme skill to string together a 30+ year career of 5-15 year limited positions.
> If you are on the right, imagine it specifically forbidding private gun ownership.
What if it became a 3/5s compromise sort of deal? No more fights over guns (we get to keep ‘em) and no more fights over abortion (women decide). We have that sort of today, but what if it were specifically enshrined as a formal recognition that each side got something it wanted, rather than the current state where both sides are doing something the other side wants to compel them to stop.
Or even weirder thought experiment, what if both sides did a compromise that flipped both. “We’ll turn in all our guns if you have the babies”.
I’m not advocating either position. I just find the thought experiment of a Great Compromise around two issues like this interesting to ponder through.
Do something that gives the south too much power and slavery will soon be too deeply enshrined in federal law to be rid of. Count slaves as 0/5ths like the north wanted and the south won't ratify the constitution and you'll get two nations, one of which definitely won't be outlawing slavery.
The past is full of situations where people needed to chart the least bad course through a sea of bad options and they wound up doing an ok job at that. It's easy to sit in an air conditioned ivory tower and cook up internet comments that shit on those people for not having modern morals but other than the internet points I don't know of any useful end that behavior serves.
In another, it justified and enshrined in foundational law the abhorrent practice of chattel slavery, and allowed the United States to form a strong centralized government capable of colonizing and subjugating the native people who were living there for thousands of years.
These can both be true at the same time.
At _very best_ it was a necessary evil, with a large emphasis on the "evil".
There's a direct line from there to more slavery, the Civil War, a couple of centuries of mistreatment of a large portion of the American citizenry, internal strife, and the current clusterfuck of race relations and politics in America.
Put against that there's the other option of "maybe there might have been one extra country".
That 'extra country' would have all the things you describe, possibly without the check of the Free States on them to eventually apply pressure to get rid of slavery.
There was even a possibility of improvement: was it Andrew Johnson that cut a deal to allow the slavers back into power?
Not sure unioning up with slavers for ~a century, extending their influence, undermining the morality of your founding document, etc. can be judged to be worth it if you're just going to have to shoot them until they stop slaving anyway.
Did I put forth any praise of the actual 3/5’s compromise?
The use of the 3/5s example (rather than some other less ludicrous compromise) if anything calls out the inanity of the thought experiment.
Just so it's clear why I read it as intending to be positive:
The rest of that paragraph is fairly grounded and with emphasis on the benefits. "No more fighting", "each side got something it wanted", etc. That's typically the kind of thing you emphasize when you're pro-compromise.
I read the "not advocating either position" part as referring to gun rights and abortion.
And yet: what if the course of history as it unfolded was roughly optimal?
Sure, but what if it wasn't?
It seems like there's a bias to viewing history where we judge _our_ outcome as the best one even if it had huge downsides.
I don't see why we should assume the outcome we have is any better than average or why those decisions generally judged to be "necessary evil"s actually were necessary. They were only necessary to get exactly our outcome, there's nothing saying that it was actually good.
Those tearing down the Founders (looking at you, 1619 Project) need to have done more than point fingers and cast stones before being regarded seriously.
At that moment, people will get a lot more involved in local politics because national politics won’t matter all that much beyond national defense.
I think the only thing linking them together are the “leave me alone” argument. That’s why I’m not concerned about women’s choice on abortion in a convention of states.
I can only think of a few federal things they all want: secure border, gun rights, freedom of speech, states rights, etc.
Idk if you can even all get them to “end the fed” lol
Example: Was it "conservatives" or "libertarians" or "moderates" who prevented California from enforcing its own standards for auto emissions and fuel efficiency within its own borders?
Source: https://www.nytimes.com/2019/09/17/climate/trump-california-...
I wouldn’t confuse peoples ideals with corrupt politicians.
>only thing linking them together are the “leave me alone” argument. That’s why I’m not concerned about women’s choice
I think you're confusing ideologies with practice. Ideologues in the coalition you reference find a home in the Republican party in our binary system, because of the traditional Republican brand. But, the real ethos and practice of the party itself are decidedly not one of "leave me alone".
Women's choice is actually one of the more prominent indicators of this, and recent action in Republican-led Texas on that issue is a harbinger.
The party also routinely lobbies against equal rights for "outgroups", proposes book bans, and answers dissenting voices with vitriol, hostility and (recently) violence.
I've also never seen the modern party rally for free speech with which it did not agree. 1A arguments are instead most-often wielded when defending itself against those who find its positions to be repressive towards other groups (ironically).
Aside: I've earnestly never understood how libertarians reconcile the party's staunch opposition to gay marriage, women's reproductive rights, etc. with a "leave-me-alone" worldview.
In any case, it seems the true underlying theme of the party is the imposition of its will and enforcement of its regime, resulting in a "very particular brand of freedom". So, I'm not convinced that a convention of states (where that party is influential) would reflect anything but that.
If the amendment passes, then each state can decide for itself at what point (from conception to birth) human life begins, and decide for itself what constitutes a well-regulated militia.
In effect, this means that some states could choose to have no (legal) abortions, and others could choose to have no (legal) private gun ownership, but they wouldn't be allowed to punish people for travelling to a different state for an abortion or to fire a gun.
Even with such a change in the laws, the number of abortions and gun crimes probably wouldn't change very much, but the real benefit would be reducing the level of political tribalism when it comes to the presidency, and hopefully allowing some nuance into the primaries and election campaigns.
second, the only thing the 3/5ths compromise really settled was the balance of power between slave states and free states, and only temporarily. that balance was continually perturbed during western expansion and we eventually fought a war over it. AFAIK, it was probably necessary for the US to exist at all, but it doesn't seem that "great" in retrospect.
All that said, to call a convention, you’ll need a super majority of states. Theoretically, that super majority would also be the ones deciding what goes into the changes.
For one, you’d probably get that much needed clarification on the second amendment. Although, I suspect it’ll be weaker than initially intended (ie the original 2nd amendment was owning any kind of weapon for any purpose, including equivalent of battle ships today).
At the end of the day, it’s not perfect. Even what you brought up about abortion I don’t think would be considered. The “right” believes most of the regulations should be reserved to the states. I suspect instead you’d see an increased strengthening of states rights and a greater restriction on federal authority — which “helps” anti-abortion advocates but at also “helps” with California’s policies around Marxist policies.
I’d much rather see a convention of states than a civil war. I personally think we’re at the “bleeding Kansas” timeframe of the coming conflict. I see no reason we won’t have a civil war at this point, unless we have something like a convention of states.
Yes, some idiots tried to storm congress and extremism is a real problem, that isn’t an oddity of absolute occurrence. If the UK can avoid civil war even with persistent IRA bombings I think we will too
That wasn’t exactly the same, that was people from an occupied territory using terrorism. That occupied territory was effectively converted to a “free trade zone” and other agreements were made for a treaty.
I’d argue something such as a convention of states may be a treaty or a negotiated settlement with the government that’s necessary.
In terms of a civil war this is a pretty common opinion
https://www.brookings.edu/blog/fixgov/2021/09/16/is-the-us-h...
We have half the country with different values. To the point where people in Florida today can’t travel to NYC and eat food at a restaurant inside (unless private medical records are disclosed).
https://www1.nyc.gov/site/doh/covid/covid-19-vaccines-keyton...
California has as a banned state employees from going to Texas.
https://www.nbcnews.com/nbc-out/out-news/california-bans-sta...
BLM/ANTIFA burned down towns and killed people
https://www.axios.com/riots-cost-property-damage-276c9bcc-a4...
The mentioned capital riot you mentioned.
The left “fortified the election 2020 election”
https://time.com/5936036/secret-2020-election-campaign/
Historical figures defiled and removed
https://www.washingtonpost.com/history/2021/11/23/thomas-jef...
People fired for vaccines, voting for Trump, donating to rittenhouse defense fund, taken off the air and “cancelled”, so on and so on.
https://www.nbcnews.com/news/us-news/virginia-police-officer...
Take a step back to history. Nazis in Germany or marxists in Russia took power in a similar way. They had burnings of businesses, removal of statues, firing people for not being part of the party, concentrating them based on the fact they spread disease (Germanys excuse for concentrating undesirables in camps in the 30s).
Yes, we are already in the throes of a civil war, it just hasn’t been (too) kinetic yet. I personally don’t know if it will be a civil war or authoritarian take over, but what ever happens I think there’s a struggle happening right now.
Note too, that things like the statues being removed tend to be because we are finally acknowledging our historical issues, like having prominent statues celebrating slave owners may not be a trend we want to continue, its not being done in way to silence political opposition. Is there any reason we need to hold slave owners in such high esteem we keep statues around of them? Even our founders don't deserve to be forever enshrined in the American conscious in that way, no?
The thing people forget about the Nazi rise to power is it wasn't just predicated out of nowhere, it was a ripe time where the beliefs espoused by the Nazi party where a lot more popular and acceptable in that era, unfortunately.
[0]: https://www.marketwatch.com/story/the-number-of-americans-id...
They believe in state's rights in theory, but I'm not sure they do in practice. The right in the US has repeatedly sought national mechanisms to address issues that they would theoretically consider states rights (abortion, gay marriage, etc).
I'd also love to hear your definition of "Marxist" and how you believe California's state policies are Marxist.
I don’t think the Republican Party itself acts in a way that is consistent at all with this idea
Citation? As it originally reads, the purpose as written is for the people to keep and bear arms for use within a well-regulated militia. The supreme court has ruled (almost 100 years later) that it does mean people can own guns, generally for the purpose of state defense [1]. This is the first I've heard of a regular citizen having the right to parade around in their own battleships.
[1] - https://tile.loc.gov/storage-services/service/ll/usrep/usrep...
That's not really a fair reading of Presser. That case merely upheld Cruikshank and by extension Barron. Since the Second Amendment was only a limitation on Congress (pre-incorporation) the State could effectively do anything. Presser just added on that States couldn't go so far as to deprive the Federal government the resource of the militia.
> This is the first I've heard of a regular citizen having the right to parade around in their own battleships.
People definitely had their own canons and ships back in the day and it wasn't solely a United States thing [1].
How it worked was that during the (rare) intervals of peace, you'd keep a stockpile of guns on shore, and run your ship as a more or less ordinary merchant vessel (virtually all of which were armed at the time, though not as heavily armed as a naval vessel or a kitted-out privateer).
When war broke out, as it always did eventually, you'd cram your ship to the gills with guns and crew and get a license from some government (not necessarily your own!) to cruise against that government's enemy. This was called a "letter of marque". It was entirely possible for a (say) Dutch privateer to get a letter of marque from the (say) British government to attack (say) French vessels.
Normally privateers would limit themselves to attacking enemy merchant ships, or occasionally looting enemy ports, as their primary motivation was profit. They typically did not want to tangle with full-blown naval vessels.
Privateers were outlawed in the 19th Century by an international treaty signed by most countries. Interestingly, the United States has never signed that treaty.
The relevant constitutional authority in the United States is Article I Section 8, which explicitly grants Congress the authority to "grant Letters of Marque and Reprisal".
The advantage to the government was that it effectively had a secondary navy it could hot-swap in without having to pay to support it during peacetime.
The advantage to the privateers was that they got to keep the lion's share of the value of any ship, and any ship's cargo, they captured (the government did take a rakeoff, of course, because that is what governments do). It was essentially legalized piracy.
Figure out how much an entire container ship would be worth if you were allowed to just go out and grab one, and you'll be in the right ballpark, except back then it was expensive spices, precious metals, silk, etc. rather than electronic trinkets.
Though it was obviously a high-risk business, some privateer owners (and even crews) became incredibly wealthy from this practice.
If that’s what they want, that is the only honest way to do so. Good luck.
Yes, there is, and it is specifically per the current Constitution; that is, the Constitution itself limits the agenda and outcome by excluding certain matters from amendment (a lot more earlier on, now most notably the equal representation of states in the Senate.)
> If you are on the left, imagine the new constitution specifically forbidding abortion.
I can imagine a convention proposing such an Amendment. I can't imagine it getting the support of 3/4 of the states needed for ratification, which is the main constraint on the impact of a convention—that it's outcome only matters to the extent a sufficient supermajority of states signs on to Amendments it proposes.
The original constitution is really kind of amazing at how well it’s functioned. It has flaws, obviously, but seems really effective.
Now, one has a lot of open supporters (gun rights exceeding the US second amendment, in that the regulated militia component gets left out).
2) Considering the EXTREMELY violent, turbulent history of the last 100-150 years of governance (democratic and otherwise) in Europe and Asia, I don't think this is the strong argument you think it is.
The original constitution did not address slavery until the passing of the thirteenth amendment in 1865 which made it illegal except as punishment for a convicted crime.
it's true that the word slavery is not used, but if you talk about free people and then note that there are not free people and make political rules for how those non free people should be counted, then in a slave holding society it becomes somewhat obvious who you're talking about.
It is time to revise this in my opinion. Just because I am in prison does not mean you can require me to work. If you can't afford to feed, clothe, house, and provide necessary medical services, release me. The fact that the state of Texas can deny air conditioning to inmates (when the temperature is ought to be enough for the US to require Texas to release all inmates in those conditions. How can states that are arguably in direct violation of basic human rights still have representation in the union is beyond me.
» Refusing to install air conditioning is a matter not just of short-term cost savings, but of appearing tough on crime. State and local governments go to astonishing lengths to avoid installing air conditioning in prisons. In 2016, Louisiana spent over $1 million in legal bills in an attempt to avoid installing air conditioning on death row, an amount four times higher than the actual cost of installing air conditioning, according to an expert witness. Similarly, in 2014, the people of Jefferson Parish, LA only voted to build a new jail after local leaders promised there would be no air conditioning.
https://www.prisonpolicy.org/blog/2019/06/18/air-conditionin...
It isn't just Texas. Prisoners throughout the country are malnourished and starving. It costs way too much to make a phone call so much so that public libraries offer assistance with phone calls.
Democracy should not mean tyranny of the majority. I don't understand how this is controversial. If states and local governments are in violation of the constitution, they should automatically lose representation in the union.
Guns, I am not so sure. There are numerous benefits to be able to own guns besides protection.
But I think, at the time, slavery was still legal in most of the world so while it would have been right to outlaw it, it’s understandable how it was allowed. And the amendments outlawing it actually show how the constitution works as ideas change over time.
If Americans change their opinion on guns then that could change as well. But I don’t think that will happen in 34 states.
The amendment to end slavery happened on the backbone of killing several hundred thousand Americans. The compromise between two sides was to shoot people until one side agreed.
This didn't happen, and the constitution still explicitly allows slavery.
You were just talking about how the 14th Amendment reflects how the Constitution adapts to the changing values of a nation. Yes, after one side shoots the other side into agreement, and after 750,000 lives ended. Then the victor decided the outcome of history.
One can only imagine how the course of the Constitution would have been "independent" to the course of the Civil War if the northern states had lost.
When I say independent of the constitution, I mean that no matter what legal foundational framework, I think we would have had the civil war to end slavery. Even if we had the magma carta or whatever.
They didn't, and you quote the part that makes that clear:
“except as a punishment for crime whereof the party shall have been duly convicted”
A whole lot of current social issues can be traced back to things rooted in the way penal slavery, and targeted over-criminalization and policing to supply bodies for penal slavery, immediately replaced chattel slavery with the 13th Amendment.
I don’t think imprisonment is slavery. There are many problems with the US prison system and it needs a lot of work to reform and correct. But at least it’s not chattel slavery.
Equating the two is not very helpful to the discussion because it distracts from a conversation about slavery by equating two different, but slightly similar topics.
Imprisonment is not slavery.
Penal slavery was very much a thing in much of the US for quite a while after the civil war (the federal government has since taken statutory and administrative steps to eliminate it, and may or may not have generally succeeded depending on exactly how you bound the term, but previously penal slavery in the US differed from chattel slavery only in that it had (often extremely corrupt) criminal conviction as an entry gate. And while penal slavery itself has been mitigated and arguably eliminated as a deliberate state practice (rather than an aberrant corruption of individual officials) subsequently (though still Constitutionally permitted) a whole lot of the over-criminalization and police and correctional culture built originally around the institution remains.
Anyone convicted of a crime in the US can be turned into a slave as punishment, and that happens every day. US prisons are filled with slaves right this minute.
https://www.aljazeera.com/opinions/2017/9/9/slavery-in-the-u...
For example, the children of prisoners aren’t owned property to be sold and traded.
No, it didn't. It averaged more than one per decade, which isn't the same thing.
In that period you had the post-Civil War Amendments (3, between 1865 and 1870), more than 40 years with nothing, another burst from 1913-1920 (3 amendments), a burst in 1933 (2 amendments), one by itself in 1951, and then a flurry overlapping the end of the period from 1961-1971 (4 amendments, 2 each before and after your 1965 cutoff).
And, just to be complete, after that you’ve got one solitary amendment in 1992 (the last of the 11 that have passed of the 12 proposed together as the Bill of Rights) and nothing since.
> Not the longest dry spell either, the early 1800s also had a 50ish year void.
61 from the 12th Amendment, the last of the fairly immediate post-Constitution ones, in 1804 to the 13th, the first of the post-Civil War ones, in 1865.
1865 to 1965 was just to show a 100 year period were activity stayed hot to not say there weren't amendments before or after. In regards to the 2 after '65 cutoff they are still older than the 50 year claim (the 26th as of this year) so I didn't feel the need to mention them, only noting the 27th which as you mentioned passed in '92.
If one is interested in an exact list of amendment ratification dates rather than a summary that it has been slow for the last 50 but quite busy since it was made https://en.wikipedia.org/wiki/List_of_amendments_to_the_Unit... is probably a more apt resource.
But it wasn't a 100 year period where activity stayed hot. It was a 106 year period (stretching to 1971) starting with a 5 year period where activity was hot, followed by a 43 year period of complete inactivity, and them some brief periods of sporadic activity, ending with a the single most active decade since the 1790s.
A 100 year period where activity stayed hot is a complete misrepresentation.
I was myself unaware of Article V. The speed at which the internet went from STOP SOPA to DEPLATFORM AND CENSOR EVERYTHING startles me, and if that is any model, a Constitutional Convention would likely repeal every last semblance of freedom, and the ability to defend it, that we have.
Thanks for sharing this post.
Certainly don't want people who have the above attitude messing around with the Constitution. It's already bad enough many of them have made it into elected office or appointed to the bench.
The ship of state is not on a good course.
While the idea of Article V is indeed fraught, anyone who thinks a lesser remedy obtains places excessive face in leaky vessels, IMO.
For this audience, consider the problem as a badly needed refactor. Whereas there were originally local, state, and federal government levels in addition to the legislative, executive, and judicial branches, the last century has seen collapse.
We're close to a unitary executive atop a Deep State, with a hollow congress/judiciary rubber-stamping the fiats.
A proper Article V plan would redistribute power, not wealth, and be fully sorted and in the can ahead of any convention. Such a meeting should be called to rubber-stamp said plan and preclude these runaway convention fears.
The more technically-minded audience of this site should be instrumental in delivering a plan that can't be commandeered (as easily) by the usual pencil necks.
For example: putting all of the legislation in a public git repo that anyone can read, hit with AI, and track what these congresscritters are getting up to, especially who is making the commits (!), which would obviously be people who stand for election.
Most Americans are less religious[0][1] now then they ever were. Barring an unforeseen event, I don’t see how this idea holds water
[0]: https://www.pewforum.org/2019/10/17/in-u-s-decline-of-christ...
[1]: that’s Pew as in the research foundation not the church variety
A poll of “all Americans” is useless when the Senate exists.
With a new codebase, we can do a total rewrite, getting rid of bad lines, and not having to have that explicit patch for slavery to be included during every recompile. We can also clean up some dumb redundant code like the 18th and 21st Amendments. Should have been done years ago.
And given we're a democracy, we should all vote yes/no for the new Constitution. I know where the majority of the people in this country stand on the issues (81 million to 74 million during the last presidential election) so I'm fine with this.
In other words, it’s highly unlikely anything would pass a convention of states. That said, we are getting close given the dramatic over reach by the federal government