Time for a second Constitutional Convention?

By Robert Field

In order to save our republic from slipping away, the need has arisen to bring about controls on how elections are funded and to alter the structure of our federal government.

Given their experiences and struggles with England, our founding fathers understandably had distaste for the parliamentary form of the British government, with its powerful monarchy and the House of Lords that shared power with the House of Parliament. They focused on checks and balances against future abuse of power.

But both the English and American governments have evolved over almost two and a half centuries, the former for the good. We should take another look.

Perhaps it takes oldsters to believe in reform. They have lived long enough to have witness much change taking place. Those who are observant of such matter understand that bringing about change requires much work, devotion, perseverance, and time… more often than not, a lot of time.

Repeal of the constitutional amendment creating alcohol prohibition only took a decade; banning smoking in public areas took twice as long and still isn’t complete; enacting female suffrage in the USA was a ninety-year struggle.

This article’s author labored with twenty other leaders for over a quarter of a century to bring about today’s reforms concerning drug policy reform and harm reduction. We understand that change is possible, even if its achievement must await future generations.

The parallel between the end of the Roman Republic and what is occurring with our American Republic has been a subject of these columns. The Roman Republic decline started about 133 BCE with the violation of Senate tradition by the Gracchi Brothers. Over decades, partisanship increased, willingness to compromise declined, the tradition of courtesies among legislators whithered; this was followed by acts of disrespect, then intimidation, violence, murder and eventually civil wars.

The Republic ended and was supplanted by the Empire with the ascension of Caesar Augustus as de facto emperor in 31 BCE.

Unless corrective actions are taken, we fear that the United States will continue down a similar path to authoritarian governance.

Sweltering in Philadelphia’s Independence Hall with windows shut to ensure secrecy during the summer days of 1787, our nation’s founding fathers gave little if any thought to the possibility of political parties. There is no reference to them in the Constitution. The emergence of a conservative / urban party led by Alexander Hamilton and a liberal / agricultural party organized by Thomas Jefferson and James Madison was anathema to President George Washington.

Over the course of U. S. history, there almost always were two major parties who cooperated fairly well on major issues. But at times they became polarized, hostile, and ultimately failed to address the needs and problems of the nation. The decade preceding the Civil War is an example.

Just as then, today we have national political dysfunction. No president, without the majority support from both houses of Congress and often permission by the Supreme Court, can effectively lead.

The Administration requires legislative authority for changes from both Houses of Congress. The Senate and House each requires the consent of the other and, in most matters, also the Administration.

To further complicate matters, the Supreme Court at times becomes highly political, delivering decisions lacking apparent solid basis in law or legal precedents.

In 2000, the Supremes astonished scholars by ignoring the Constitution and past precedents and anointed George W. Bush as president. The Supremes were so embarrassed by their own actions that they wrote that their ruling was not to be treated as a future precedent! In that case, whatever harm was done was by the party approving the ‘butterfly ballot’ in West Palm Beach County Florida which gained thousands of Jewish votes for Pat Buchannan and cost Al Gore the presidency, despite his half million vote plurality in the general election. In its ultimate effect, the decision made little difference. Under the Constitution, the House of Representative would have chosen between the candidates with each state allowed but one vote and there were more Republican states than Democrats.

However, the 2010 Citizens United ruling which opened the floodgates to virtually unlimited campaign contributions, thus further shifting control of the nation to the super rich and their special interests. Corporations were initially authorized so that investors would not be personally responsible for debt of a company. Does it make sense that a corporation should have the same civic rights to make campaign contributions as a citizen? Will they next get to vote and be drafted into the army? But there is nothing to be done to correct matters apart from amending the Constitution.

As for a highly polarized Congress, lessons learned in the past from Keynesian economics were ignored despite the urgings of President Barack Obama, and the result is the snail’s pace recovery from the Great Recession of 2008.

The failure of our economy to grow, our inability to totally reform our wasteful health care system, and costs resulting from the winding down of two dubious and tragic wars, have caused our country not only to stand still but to slide backwards as we consume capital created by past generations and fail to replace, let alone add to it.

Much of this has been encouraged and sustained by unlimited and largely secret campaign contributions and the skillful gerrymandering of congressional districts to thwart the will of the substantial majority of voters. In Pennsylvania, 13 out of 18 congressional seats are currently filled by Republicans despite the large Democrat majority in the statewide vote.

Because most Congressional seats are ‘safe’ for a party, congressional representatives mostly are determined through party primaries, making candidates unduly responsive to the extreme wings of their party. This causes wariness about compromise and contributes to government paralysis.

With leadership of the Administration and at least one House of Congress often controlled by opposing parties, little can be accomplished.

In contrast, upon the election of members to a parliament, the party or coalition with a majority determines who will be prime minister and head of government.

There is no clash between administrative and the legislature because they are one and the same. So long as the party (or coalition) has the support of the majority of parliament members, the government can move ahead with its programs within constitutional limits.

Voting is held at least once every four or five years for members of parliament. Also, an election is mandated when the party or coalition in power is not able to obtain majority approval from Parliament for a major initiative or a “vote of confidence”.

The minority party creates a “shadow cabinet” so that transition can be quick and new officials well prepared. In the USA, there is a two and a half month delay and, in most cases, months more pass before appointees are approved by Congress.

Under the parliament system, campaigning takes place over a period of a proscribed couple of months.

Theoretically, there is a potential for so many parties that an effective coalition cannot be achieved. We see this with the Israel Knesset. But history has shown this to be a rarity.

In order to curtail campaign contributions and / or to adopt a parliamentary form of government, both houses of Congress can agree on such an amendment and two third of the states must ratify. This has been the path in the past.

However, the more likely alternative for these more complex matters would be the Constitutional alternative whereby two-thirds of the state legislatures call for a convention. The resulting recommendations would then have to be ratified by a vote of three-quarters of the states.

Is such a major change anything more to our Constitution but a fantasy? We think not. If circumstances continue to worsen due to unbridled power of special interest and resulting government misdirection or paralysis, a second Constitutional Congress may be convened by the middle of our century.

Until then, it would be useful to experiment with mock conventions with a cross section of citizens taking part. How they operate and what they ‘enact’ would be instructive. It would also be useful to encourage colleges and even secondary schools to do so.

There is another alternative that could evolve rather than being enacted.

During the middle of the 20th century, there was serious debate as to whether Communism better serves what we then referred to as “underdeveloped countries.” Our attention was especially directed at China. Its dismemberment over the prior two centuries had left most of its vast population in dire poverty.

What we hardly anticipated was that communism in most places would ultimately evolve into capitalism, yet would remain under the same authoritarian, one party system. While personal liberties have been restricted, rapid economic growth has vastly improved the well being of the general population.

The common understanding among such single party governments is they must rapidly improve the economic and health condition of their people in order to remain in power. The result has been an Asian miracle of development and prosperity.

The inability of the waning Roman Republic to maintain peace and contain corruption led to an authoritarian form of government under an emperor. Few want that to be the future for the USA.

Some generation must start work towards a second Constitutional Convention.

Let it be ours.