Strengthening Constitutional Self-Government

No Left Turns

Convention Momentum?

Thanks to Peter Schramm for forwarding this WSJ opinion piece from Virginia Republican James LeMunyon.  I include it here as a follow-up to an earlier post in which I argued that the states should move to amend the Constitution by calling for a new convention under Article V.  

Whereas I suggested that Republicans should target the constitutionality of the health-care bill's individual mandate, LeMunyon points more broadly to the problem of a broken Congress, citing the need for solutions long championed by federalists, such as a line-item veto and congressional term limits.  LeMunyon's approach strikes me as a winning one, for it would allow constitutional reformers to avoid sounding like one-trick ponies on health care and instead zero in on the real source of popular discontent: a "runaway" national government driven by modern progressives and their zeal for elitist authoritarianism.  

Discussions - 17 Comments

Analysis of the new health law for the rest of us may be found on John Cassidy's New Yorker website, Rational Irrationality for March 24 and 26. Stress is on the cost and incentives side.

http://www.newyorker.com/online/blogs/johncassidy/

I cannot say I am in favor of such an approach at this time. This is in part because the spirit of democratic Constitutional Republicanism is still too dormant in the people, and must be built up more, else such an exercise will become hijacked by the academics and normal politicians, and we will find ourselves having lost one chance in a hundred years.

On what kind of basis do you come to that opinion?

His one practical suggestion (a line item veto) is inane. If you want to rein in federal power, try the following:

1. Replace the specific delegations in Article I and excise the implied powers clause. Instead, have a very spare set of delegations (military, diplomatic corps, currency) to be supplemented with an organic law composed and amended by bienniel conferences of state legislators. The federal legislature will have only those powers the state legislators are willing to extend at any given time.

2. Require all federal subventions to state and local government to be unrestricted and distributed by a specified formula.

3. Require all elected officials and all federal judges to be at least 40 years of age upon their accession to office, with mandatory retirement at age 76.

4. Devolve the power of advice and consent to the appointment of federal trial judges and u.s. attorneys to state legislatures.

5. Subject all federal judges and u.s. attorneys to periodic referenda on whether they should be retained in office. Allow for recall by petition as well.

6. Require mandatory rotation in office for federal legislators: they can serve no more than four years in any bloc of eight years.

To the Owl of Minerva:

A level one. What is yours?

More to the matter, it is because of Art Deco's response. There are a lot of liberal-leaning academics who have been preparing castles in the air for many, many years now--think Larry Sabato. Our side is still getting organized. A few more years is needed.

We first need to have a more common foundation on what makes a successful and long lived Republic for large, wealthy, scientific age nations before we start engaging in this battle. Else it will be a meeting engagement, with the outcome up in the air. Or as Machiavelli said--you may start a conflict any time you choose, but you cannot rule when it ends, or how.

If you've mistaken me for a 'liberal-leaning academic', your vision is not level.

Art Deco...

I understand your issue. What I am saying is that I believe the other side is probably a little more uniform in what they would like to do, vis a vis the Constitution; that they have been developing their arguments for quite some time; that they still own the levers of academia and most major media outlets; and that while our--and I do mean *our*--side is undergoing a renaissance re: Constitutional thought we are still only in the early stages of it. Thus, you have your solutions and I have mine, and a third guy has his, and we are going to have to have a little more robust debate on *our* side, as well as develop counter-arguments to the likely proposals on the other side, as well as diffuse our vision of liberty through the people--as well as come to a deeper understanding of it ourselves. Thus my comment. We are not ready for this battle. We must read, and think, and argue, much much more, before we act. And thus not only is my vision level, it is clear.

We simply must be able to explain not just the right solutions, but why they are the right solutions, why Republics work, why Republics fail, and why other solutions may *seem* proper but actually aren't. That takes time, and the ground must be tilled else the seed that we wish to spread fail to germinate because it fell on stone.

And allow me to say one thing that I think is driving why many people may want to act now--the cause of the Republican Party is not always the cause of liberty. Just because this is a propitious moment for that party does not mean the same for restoring a Jacksonian Republic that has proper safeguards against tyrannies of the majority. I think, with the temporizing on the repeal issue, that should be plain.

After all--what did the Contract with America actually get you, long term?

Thus, I am concerned that we will become more focused on helping one party get power for a period of time, power that may--or may not--be effectively used, than in securing for generations to come proper arrangements that provide for both effective governance and effective liberty. And I can see a case where the party, because of desire for short term gains, torpedoes desired and needed measures because they themselves do not benefit from them, or in fact may be harmed.

GOP and Liberty are not synonyms. They are not mutually antagonistic, either. But it will be a while longer before that organization is able to effectively act out long term plans.Therefore, place all your hopes in that party--and arrange all your timetables for its benefit--at your own peril.

I guess I am out of the loop, Horatio. The only idea for structural change in political institutions I can recall Larry Sabato endorsing was an odd idea for replacing competitive elections for a president's second term with a referendum on whether or not he would be retained for an appendix of two years.

I am a lapsed student of political science. I saw enough of it to wonder if the territory covered by the discipline ought to be subject to a radical surgery, with large swatches conceded to faculties of philosophy, sociology, and history. It is not a serious discipline in the way economics is. I cannot say I am at all well-read in the discipline, but if the cursory familiarity with the academic literature I did get is true, academic political scientists tend to be dismissive of any and all efforts toward institutional reform - term limits in particular - and to act as apologists for political establishments. I do not think, as a body, they have many ideas.

Also, I cannot think of any structural alterations which have been pursued by the left since the destruction of dual federalism seventy years ago. Their efforts have been directed at persuading courts to arbitrarily remove their pet issues from the ordinary give-and-take of electoral politics. I do not think the legislative caucuses or the public interest bar have many ideas either, bar perhaps imposing something like the Canadian Charter of Rights on the United States, which would include ramping up official harassment of political and social dissidents.

Art Decius:

First, Sabato has a book out with whatever his Constitutional theories are--I seem to recall he is not a big fan of the Electoral College, though I could be wrong.

As for the rest of your comments, that is one of the concerns--a Constitutional convention will become just another method used to enact policy prescriptions, instead of nailing down what is the best structure for enabling effective governance with a combination of maximum liberty and maximum diffused power amongst the people.

Finally--and I include myself in this as well--your admission "well, my knowledge goes this far and no further" is the exact problem I was talking about. You can intuitively think you *know* what the right answer is and then find you cannot argue it to any greater extent. We are simply going to have to train for the fight and be as familiar with various arguments. The best analogy I can give is Sunday School. We are going to have to pour over the great texts and know the principles backwards and forwards, and then create new ones for new times--as well as figure out to explain the relevancy of the old principles--while also explaining the deviations from freedom and liberty that are seen in American history (without being apologists). It is a tall order, and to rush off into a Convention next year strikes me as folly.

I must disagree. Familiarity with political theory is not a bad thing, but understanding the implications of institutional adjustments requires historical and sociological knowledge. Not 'great texts' but studying the actual experience of state governments and foreign governments having done x, y, or z.

As for making use of a constitutional convention to enact 'policy prescriptions', popular ratification of much of what the public interest bar might like ('constitutional rights to welfare payments, that type of thing' in the words of Lloyd Cutler) is quite unlikely. The best they could do would be to get vague language that their allies in the judiciary would exploit. They already do that with the @#$ 14th Amendment.

I had forgotten that Dr. Sabato had a much more extensive set of prescriptions. I have run through his list of 23 proposal and I do not see how they serve the substantive policy agenda of the Democratic Party in any systematic way. Recall that the Democratic Caucus abolished some of the democratical elements that the Republicans had incorporated into the parliamentary rules of Congress (e.g. term limits for committee chairs) and re-installed their war horses. They like practices which enhance the durability of the permanent government. A good deal of what Dr. Sabato advocates seems not worth any effort (e.g. giving former presidents seats in the Senate or diddling with the Electoral College or voter registration rules). Other items are likely to be uniformly rejected by elites and public, left and right (e.g. mandatory 'national service'). Among his proposals are:


3. Mandate non-partisan redistricting for House elections to enhance electoral competition.

6. Establish term limits in the House and Senate to restore the Founders’ principle of frequent rotation in office.

7. Add a Balanced Budget Amendment to encourage fiscal fairness to future generations.

13. Eliminate lifetime tenure for federal judges in favor of non-renewable 15-year terms for all federal judges.

14. Grant Congress the power to set a mandatory retirement age for all federal judges.

I think you misunderstood me. I wasn't trying to be a prick, but I really just wanted to know. I don't see how "the spirit of democratic Constitutional Republicanism is still too dormant in the people."

More than fair enough, and hopefully no offense taken either way.

When I mean that "the spirit of democratic Constitutional Republicanism is still too dormant in the people", I meant I feel that the ability of the people to independently judge complex Constitutional changes without being stampeded by either the politicians, the media, or academia is still too immature. It is growing, yes, but at this moment I think the people are more at a point where they know what they don't like more than they know what they like. This opens up the possibility of a majority being captured by some facile idea because it sounds "fair."

I'll give you a real world example. We are in this current dilemma in part because the one decisive check the states had on the Federal government--via control of the election of Senators--was removed a long time ago. Why? Because unless you have a counterargument ready--and the people are ready to receive it--it is very hard to argue against allowing the people to directly vote for *all* their Congressmen, Senators as well as Representatives. But the problem was, there was actually a very good reason to have the states able to decisively check the actions of the Federal government--but to explain *that* I now have to go into a lot of other examples and arguments and ideas, and it takes time, and by now the 30-second commercial (or whatever the early-20th century equivalent was) long ago ended and "direct democratic elections of Senators by the people" wins and a subtle and sophisticated method of divided elections that prevented Federal encroachment lies twitching in the dust, not to be recovered.

So, I think, for a variety of reasons, that if you push for a convention in the next two years don't be surprised if what you end up with is amendments for a right to privacy and election of the President by direct popular vote--and not much else.

Never forget that you are a distinct minority--the mere act of looking at a dedicated political blog--much less commenting on it--puts you at the very top percent of involved Americans. We can talk about the dangers of "liquidation" all we want: right now, a majority of the people will not instinctively follow the arguments. Many will, but not a majority. Soon perhaps, but not today. So they have to be educated, and that takes time. And that then leaves the next question--who is to do the educating? The media? Academia? The parties? Okay, fine--but if you let them do it don't be surprised or if what comes out is, shall we say, slightly biased towards their own interests or desires. And if you attempt that education today via a convention you basically leave it in the hand of the media, influenced by academia. I simply can't predict how that would go, vis a vis getting what I think we here want.

As for the media and academia, say we take the view of the commenter above, and that they will not be deliberately working for the greater glory of the Democratic party. I can believe that--in fact, my view was and is basically is what he expressed more fully: that we would get some soft gauzy change that the courts will then allow legislatures to ram a host of very liberal policies through. Thus, your new Amendment: "Congress shall make no law abridging the right to privacy". Hey--might even be a good one. Except we haven't examined the unintended consequences, and based upon today's MO for political discourse, I doubt we get a full look at the issue. Instead--a shallow discussion, with many ready for a deeper one, but still unable to get it.

There are many other reasons I want to wait. I want to divorce the issue of Constitutional reform from the current system of politics. That simply cannot happen right now. Riddle me this: if the convention happens in the next 18 months, who are the delegates going to be? You have only a few sources of people who would immediately be able to convince their fellow citizens to send them: those already active in local or state parties, political science-type academics, with the odd business leader thrown in. How you are going to get anything that seriously challenges the current status quo or soft liberal orthodoxy without some advance prep is beyond me. And that is what I meant by the stampede: it would quickly devolve into a Republican vs Democrat thing, or some academic theory would come into vogue and its "whoa Nellie", off to the races, because the people sent never had really thought about the issue before, or had--but perhaps not in the way you wanted. And don't assume that just because you send a Republican that you are going to get what you desire.

No. We can do it right. Give it time. What is really needed are "Constitution Clubs" where, in the true Tocquevillian spirit, local citizens, can gather and discuss the matter, reading great books (contra the man above--not that I disagree with looking at historical examples--in fact I *emphatically* agree, but merely think that the great book on how power is abused and how liberty falls hasn't been written yet (or it has, and I'm just not aware of it)) and hash out ideas for quite some time before we take the plunge into a convention. And by having such discussion groups, you will have another source of possible delegates besides those active in local parties, professional politicians, and academics.

There is more to it, but these are some of the reasons why I think caution is best advised. These things take time, and the more you get intelligent and independent-minded citizens discussing the issue, instead of immediately enlisting for the Democratic or Republican parties, the stronger I think the entire Republic will become. Parties have a place, but they should not be the alpha and the omega of all things political.

You are not understanding me, Horatius. Neither the political science professoriate nor the Democratic Party nor the public interest bar has (contrary to what you stated) an elaborated set of proposals for institutional adjustment. By and large, the current set-up is satisfactory for their purposes and what they do not have can be achieved through changes in parliamentary rules (abolition of the filibuster) and further exercises in judicial misfeasance. You made specific mention of Dr. Sabato, but little of what he advocates would be to the advantage of the permanent government and some things would be serious impediments (required balanced budgets and term limits).

As for returning the election of Senators to the state legislatures, I cannot see why any effort should be invested in that. The advent of incumbistani politics - common re-election rates that would have been extraordinary during the 19th century - occurred about 15 years prior to the institution of direct election of Senators. The expansion of the economic consequence and reach of the federal government occurred not in 1913 but during 1933-39 and 1948-55 and in response to economic and political cataclysms. The destruction of dual federalism was largely accomplished during the Roosevelt Administration, though elaborated upon during the Johnson Administration.

Art,

Though I may be wrong, I think I may be starting to understand a part of you all too well.

At least you decided to spell the name right this time. Third time's a charm.

As far as whether or not the "usual suspects" have or have not already a pre-planned list of proposals ready for a convention is, in the larger sense, irrelevant, and I have no intention of arguing the point further--in fact, I will concede the point entirely to you, in interest of making the salient one: which is that if you call a convention you can not honestly tell me they are not going to take advantage of the same opportunity as you are--to propose tinkers with the Constitution in a way *they* most desire? Please, sir. Of course they will, and it is folly to think they will not--nor that any of them will not or have not thought of ways to do so. If to torpedo you own desired reform efforts, if nothing else. That is my point, and I leave it to others to ascertain its validity, as I think we have now flogged the issue a few stripes, and that is enough for the nonce.

As far as your second point: I have not proposed any such return to golden days of yore, though it might be of interest to do so. I merely throw this question to the crowd--and will not bother overly much with the discussion again--as a historical counterfactual, would the Roosevelt and Johnson measures you speak of have occurred in the form they did if the Senate had been in its original form? I don't know--but one cannot say for certain nothing would have been different, and if one does one needs to stop posting and needs to start making money with the marvelous time machine one has, for that is the only way to be certain.

Surely the unfunded mandate problems that exploded by the 90s would never have occurred with a pre-17th Amendment Senate. As for the rest, I can only say that you might have the answer in part of your post--the inability to get incumbents out of office due to entrenched state legislatures might have caused the Progressives to decide to nuke the system entirely instead of doing the hard slog of convincing legislature after legislature. This would tend to fit a pattern of theirs. However, this is an era of history I freely admit a large amount of ignorance in--I understand some guy named Goldberg has a book I need to look into, but until then I will have to wallow in my ignorance.

But then, Art, as Will Rogers once said, we are all ignorant, we are just ignorant about different things. I wish you the best of luck getting an immediate convention, and look forward to your last word. This is mine.

Whether a convention is immediate or delayed by several decades, you are not likely to get 38 state legislatures or 38 state conventions to ratify an amendment that generates a constitutional right to welfare payments or that criminalizes political dissent or the practices of cultural minorities a-la Canada or Sweden. Any kind of popular mobilization is a threat to folk promoting these things. They work through the courts, through the civil service, and (especially) through professional guilds and associated faculties.

Unfunded mandates are an issue in relations between state and county governments and between state and municipal governments. The federal authorities manipulate state and local governments by placing conditions on funding; the ability of Congress to directly coerce particular governments is limited (the judiciary's more the problem there). I assume that if U.S. Senators had been agents of state legislatures that the quantum of federal swag would be larger and the conditions less detailed.

I was referring to the re-election rates of the U.S. Congress, not the state legislatures.

I think the Republic can be restored with a single idea: term limits. These people need to be put on a short leash -- we have built an aristocratic Congress, and now we are reaping the "benefits."

Such could be accomplished well short of a constitutional convention. A sweeping set of victories for constitution-minded politicians, and then the insistence on the people to institute term limit amendments to the constitution.

As for a constitutional convention itself, bad idea. The cock roaches would come out of the woodwork, and the nasty compromise document that would be produced would be far worse than what we've got. For instance, who doubts that "social justice" and "affirmative rights" would be on the table?

Nope -- bad idea.

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