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Patrick is a mid-40 year old geek with an undergraduate degree in mathematics and a master's degree in Information Systems. Nothing he says here has anything to do with the official position of his employer or any other institution.

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50 Responses

  1. Avatar Burt Likko says:

    Speaker Cahalan, Assemblyman Burt Likko votes “nay” and disappoints Con Law geeks and would-be Second Framers everywhere.

    The basic superstructure of the institutions of government is fundamentally sound, and the risk of damage from attempting an overhaul far exceeds the possibility of incremental improvements.

    The system is not broken. Maybe our politics are, as suggested by the fact that we’ve been picking a bunch of weenies to hold high office within the Federal government, and ought to choose grownups next time around instead. But that’s not the Constitution’s fault.Report

    • Avatar Patrick Cahalan says:

      Hey, Burt, you’ve taken ConLaw, I’d imagine.

      What’s the actual process for calling a Constitutional Convention, should the state legislators come down with a Yea?Report

      • Avatar Michael Drew says:

        There isn’t any set out in the existing Constitution. There’s just a process for amending the Constitution in part. A convention is essentially a starting over – it would derive any legitimacy directly from the people, not the preceding documents, and be accordingly unruly and without pre-established legitimacy. If it attempted to repeal the forgoing Constitution, for example, whether that action took force would be entirely a matter of perceptions of the legitimacy of the new body among law-enforcers.

        This is, fundamentally, why democracy matters, and why I marvel at the limited terms in which some people – amazingly, exactly the people who rely so heavily on a constitution to place the formal limits on government power that they so want – choose to embrace it so tepidly and on purely least-worst efficacy terms, not for any inherent value. The constitution is only our supreme law because it enjoys deep, wide, democratic political legitimacy. The democratic legitimacy of the Constitution may be the very best tactical argument that limited-government advocates have for the precise limits the Constitution places on the power of the government to attempt to act against individual liberty to achieve public ends.

        The democratic legitimacy of our Constitution is a contingent fact of our political culture that could in fact have been different, and could still change.Report

        • Avatar Michael Drew says:

          …at least, that’s how I read “…a Convention for proposing Amendments…” — as something different from a full Constitutional Convention.Report

      • Avatar Burt Likko says:

        To call for it, the state legislature would simply pass a resolution of some kind stating in clear and unambiguous language that it wanted a convention for purpose “X.” There is, as you have read, no specific form that it needs to take, and probably no magic words that need to be in it, although if I were drafting such a thing I would be sure to use a phrase such as “…convention to amend the Constitution of the United States pursuant to Article V of that Constitution.”

        I haven’t a clue how such a convention would actually be conducted or what would be the lawful restraint on its powers once convened. I’m not sure anyone else does, either, as while it’s been attempted quite a lot, it’s never been done.Report

  2. Avatar Tod Kelly says:

    Are you kidding? I’m voting no. You want the same groups of people that can’t figure out how to pass an annual budget to develop a whole new system of governance? Nope. No friggin’ way. I might actually vote to have the convention just so that we can make a whole new system of government that allows me to vote “No” twice on such an awful idea.

    Plus Burt is right, the system’s not broken.Report

    • Avatar Patrick Cahalan says:

      Oh, it’s a serious question. Spoiler alert: I didn’t give my own answer for a reason.

      I just want to see how the League responds.Report

    • Avatar Dan Miller says:

      That last sentence almost makes me reconsider my no vote. In terms of governmental structures of democracies go, I’d say we’re pretty much at the bottom of the barrel, so assuming the convention doesn’t end up with a strongman we’d be sure to come out ahead. My inherent pessimism keeps me on the no side, but it’s a close call.Report

  3. Avatar Kolohe says:

    I respectfully dissent from the honorable Gentlepersons that have commented before me. I would vote aye without hesitation or reservation. For if there is something that has caused so many legislatures to act in concordance to push for such a convention, then I will take that a prima facie evidence that something is indeed Wrong, and which the Congress is not giving its assent to, against the wishes of the People of the sovereign States.

    Sure, theoretically, a convention to draft amendments could wind up rewriting the whole thing, but perhaps not. And in any case, for the results of that convention to have effect, the conventions action must be approved by *38* states – a higher threshold that can be addressed at that time. (and unlikely to be achieved if it literally has come down to 1 state on the 2/3 bubble)Report

    • Avatar Jaybird says:

      I agree with Kolohe.

      I would run, not walk, to set that Constitutional Convention up.Report

    • Avatar Plinko says:

      I hereby submit to this logic. I’m in for a yea.Report

    • Avatar James Hanley says:


      in any case, for the results of that convention to have effect, the conventions action must be approved by *38* states – a higher threshold that can be addressed at that time

      You are aware that the Articles of Confederation required unanimous agreement to be amended?

      And yet we managed to get around that pesky little hurdle.Report

      • Avatar Tod Kelly says:

        Actually, I think that one should go to Kolohe.Report

          • Avatar Kolohe says:

            That is a fair point, but there was nothing, other than sheer impractically, that determined that a state couldn’t have held out and gone its own way, never ratifying the new compact. Rhode Island held out for a good bit as it was. (and the bubble players in the late 1780’s were only finally brought into the fold with the compromise that as many as 12 new amendments would be ratified forthwith)

            So I would respond that a plan that would for one, completely scrap the existing Constitution, and for two, require a lower threshold for approval, would, by historical precedent be the result of *more* overall consensus. Else, would result in a real political split a la 1776 or 1860.Report

  4. Avatar Murali says:

    From where I’m standing the system looks really broken. Too bad I can’t vote. Quick someone vote yes to make me the benevolent dictator!Report

    • Avatar Patrick Cahalan says:

      You can vote. You’ve emigrated. You’re here. You got elected on the basis of your compelling international story. Don’t mess with the premise of the hypothetical!Report

  5. Avatar Dan Miller says:

    It would depend entirely on who was behind calling the convention. If the Tea Party feels that this is their best chance to make English the official language, then no; if the impetus is Occupy Wall Street, then maybe.Report

    • Avatar Patrick Cahalan says:

      It’s a Constitutional Convention. Once it’s called, all sorts of stuff is probably going to get nominated as amendments, by all sorts of folk.

      The ratification process is still what it is, though. Remember, ERA didn’t get through. So you have to balance the likelihood that something you like will get nominated as an amendment and win ratification vs. something that you won’t like will get nominated as an amendment and win.Report

      • Avatar Dan Miller says:

        Well, sure. But somebody put time, effort and money into convincing 33 state legislatures into calling for this, presumably because they think they can come out ahead; somebody else opposed them because they think they’ll come out behind. The identity of those two groups is a nontrivial consideration that tells me a lot about the most likely outcome of the convention.Report

        • Avatar Dan Miller says:

          If you’re forcing me to choose blind, by the way, I’d go with no. Most of the changes I actually want are either not related to the constitution at all (e.g. we could legalize marijuana by statue alone) or else extremely unlikely to pass a convention (e.g. repeal of the Second Amendment).Report

      • However, I wonder what the representatives would look like. I presume that they’d be appointed by legislators, and if they’re tea-party dominated legislatures in 33/34 states, then their delegates would likely dominate the convention.Report

      • Avatar David Cheatham says:

        Are we _sure_ about the ‘they can do anything’? It actually seems like a constitutional convention would be limited by topic.

        If ‘general convention’ calls could result in one, we’d already have one. More than enough states have, throughout the history of the US, called for such a thing with no time limit, and yet it has not happened. Which is probably a good thing. Just because some state wanted such a convention 100 years ago does not mean we should think they still want one.

        I tend to think of it as a ‘called meeting’ at a non-profit, where x% of the members can petition for a meeting on a specific topic. Although that’s a really high petition requirement…it’s usually like 20% to call a meeting, which then might have a higher quorum requirement.

        And, just like it seems like constitutional conventions require, the meetings have to stay on topic. Granted, meetings are operated by the people at the meeting, so if the majority of the people wish to stray off topic, no one can stop them. The question is, via what process is their result declared _on_ topic? I guess the Supreme Court declares it so. (Which raises the interesting idea of just having the Supreme Court act as Parliamentarian in the first place.)

        The whole process of calling for a convention is very vague and baffling, especially as Congress has never bothered to actually create any sort of real process for it. (Which they arguable should do.) They do count specific requests that have gotten close, like the balanced budget demand, but that’s it, and no one knows what happens if the threshold is actually tripped.

        And that’s not getting into the actual convention, which we have no idea how it should work. While most of it can be worked out internally by Robert’s Rules of Order, there’s a a major hangup at the very start: Do larger states get more votes?Report

        • Avatar James Hanley says:


          Those are good questions, and I think the answer is that because of the lack of clarity we would just make it up as we go along, just like last time. That may sound flippant, but it’s not meant that way. The lack of established procedure that you point to means that making it up as we go along is the only possible method. (That and the fact that we have an established precedent, via the original constitutional convention, of ignoring any procedures that are established.)

          That may be another reason to vote no.Report

  6. If it’s 2017, there’s got to be a reason for this convention, like a major policy that starts or ends there. Health care? The other amendment ideas that get thrown around: bans on gay marriage, etc. seem to be dying causes.

    Unfortunately, I’d have to vote yea or nay for partisan reasons, so it depends of what kinds of amendments might be up. My dream amendment would be a sunset provision attached to every single federal law. I’d also vote if there were a decent chance of the unbalanced budget amendment we’ve been batting around of late getting passed.Report

    • Avatar Michael Drew says:

      I have to put in a Huh? on that last sentence.Report

        • Avatar Michael Drew says:

          That sounds hugely difficult to codify in Constitutional language. Perhaps this is a purely aesthetic objection, but in my view, part of the what has recommended most of the amendments we’ve had so far, as well as the Constitution overall is that it hasn’t begun n anyway started to look like the statute book. This is appropriate, one might think, since statutory law has its function and Constitution law has its function. Not without reason, I think the language of such an amendment would begin to blur that clear distinction that we want to have in these types of law. The budget is precisely the kind of issue that the legislature was tasked with dealing with on a political basis using the tool of statutory law. They should get their house in order and do so. Constitutional amendments will only further muddy the waters in which they have to do this.

          Besides which: there won’t be any way for us to run surpluses in good times or bad if we don’t get our long-term divergences (i.e. health care) in order; but if we do do that, then good times will naturally lead to surpluses as they did in the 90s.Report

          • Avatar Christopher Carr says:

            I think the legislature has largely proven its inability to keep its house in order, so such an amendment would do it automatically.

            In terms of the difficulty of codifying it, the action of such an amendment would basically be triggered automatically according to various economic indicators. For instance, delta GDP-growth from one year to the next drops fifty percent, the budget limit is raised by some factor. There are plenty of macro models we can use to set more-precise triggers. I don’t see the same logistical problems you do.Report

  7. Avatar James K says:

    TO be honest I’m not sure it matters. Your government barely pays any attention to the Constitution it has, how is a new one going to change anything?Report

  8. Avatar Ryan Bonneville says:

    I’m an aye. Revolution for the sake of revolution is really underappreciated. This isn’t exactly refreshing the Tree of Liberty, but it’s about as close as we’re ever going to get.

    The American government isn’t a complete disaster because we picked the wrong institutions; it’s a complete disaster because we picked a set of institutions and then made them absolutely rigid. That kind of thing is worth tearing down every now and then.Report

  9. I would vote yes. For a long time I was hesitant to say yes because I feared a whole new form of government that may come from such a convention. But since the state legislatures have the power to limit the issues to be addressed in such a convention and 34 states still have to approve all amendments that come out of the convention I’ve changed my mind to a vote for yes.Report

  10. Avatar Burt Likko says:

    So, Patrick, have you taken a broad enough sample of various opinions yet? I’m curious as to your opinion too.Report

  11. Avatar greginak says:

    I’d guess the over/under on the amount of money spent on lobbying a new CC would start at 200 billion dollars. I’d still bet the over on that.Report

  12. Avatar b-psycho says:

    Nay, out of rational pessimism. We pretty much ignore and twist the one we currently have every which way possible, but nothing I’ve seen suggests that a Constitutional Convention would be anything but a clusterfuck doomed to either explicitly codify as much nitpickery into law as possible or collapse into another civil war.Report

  13. Avatar Jesse Ewiak says:

    Nay. I hate certain aspects of the current Constitution, but I have no doubt I’d hate whatever the new Constitution would be.Report

  14. Avatar James Hanley says:

    Honored gentlemembers of the Ordinary League,

    Our system is broken. Checks and balances have eroded so severely that the presidency has become dangerously autonomous and subject to no effective legal controls. Our legislative structure protects specialized interests, rather than anything that can plausibly be called the general or national interest. Our regional structure of government means that passing a budget requires giving a payoff to every locality. To counter these problems I propose we shift to an assymetical bicameral parliament selected on a national, not statewide basis. But to protect the interests of states and regions whose problems, issues, and interests differ I would strengthen and reinvigorate federalism, dramatically limiting the scope of issues addressable by the national legislature. And to prevent special-interest meddling with the economy I would put serious checks on the ability of legislatures at any level of government to pass protective regulations for specific economic interests.

    And that’s why I vote a resounding no on a constitutional convention. In the current tenor of our country I have little doubt we would move further from what I see as a sound governing structure, not nearer to it.

    Further, given the current rabidly partisan nature of our policy, the odds of coming to agreement on a common framework would be low, and the odds of one side reacting to the proposal with real rebellion unacceptably high.

    Gentlemen, if we have a constitutional convention, I will be happy to consult with the delegates from my hideout in JamesK’s rec room in New Zealand. When–if–all is safe, I will return.Report

  15. Avatar Jeff says:

    After reading arguments for and against, I think I vote nay.

    To refute Kolohe, Prohibition passed all needed votes (for quite a variety of reasons, per the Ken Burns documentary). Can we be sure that the tyranny of the majority will not pervail? Given the popularity of the Tea Party (weven among otherwise intelligent people), I’m pessismistic.

    So NO! say I.Report

  16. Avatar Tod Kelly says:

    Hey, PC – When do we get the pong-form post on this?Report