In response to a political environment widely perceived as dysfunctional in Washington, D.C., participants in a conference at Harvard Law School evaluated the potential and pitfalls of a possible remedy: a first-ever Article V convention held to propose amendments to the Constitution.
The Sept. 24-25 event included sessions on the legal, political and strategic considerations as well as the path to organizing such a convention, which Article V of the Constitution allows with the approval of two-thirds of state legislatures. (Amendments brought forth from a convention must then be ratified by three-quarters of the states to be enacted.) Speakers addressed issues such as the substance of amendments that could be proposed in a convention, who would participate, and the dangers of a “runaway” convention in which delegates could overturn provisions of the existing Constitution.
The conference coincided with the release of a new book by HLS Professor Lawrence Lessig, a co-chair of the event, titled “Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It,” which advocates for a convention to address what he calls the corrupting influence of money and special interests in Congress. “My view is that we need a change that dislodges the current system of corruption and puts in its place one that allows members to be independent enough to think about what their constituents want,” Lessig explained prior to the conference. “I don’t think we’re going to get that change without something like a convention.”
With more than 400 registered attendees, the conference brought together an unusual combination of representatives from both the conservative Tea Party and progressive organizations. The makeup of each panel reflected those different perspectives, and the conference also featured two keynote addresses, one by Lessig billed as “from the left,” and the other by Glenn Reynolds, a professor at the University of Tennessee College of Law and founder of the blog Instapundit, “from the right.”
In opening remarks, Lessig acknowledged the disparate political views of participants but noted that the founders came together for the good of the nation despite holding fundamental differences over profound issues such as slaveholding. His co-chair, Mark Meckler, co-founder of Tea Party Patriots, added that politicians profit when people are “inflamed against each other” and expressed faith that citizens could work together in a convention. “It’s time to move into a common ground where we can fight against the politicians who want to take our rights away from us,” he said.
In addition to representing divergent political views, conference speakers differed on their support for calling an Article V convention. Expressing skepticism, HLS Professor Laurence Tribe ’66 raised several questions about a possible convention, including whether Congress could limit it to a single topic, whether states would be equally represented and what role the Supreme Court would have in resolving conflicts. “The stakes in this instance are vastly greater because you’re putting the whole Constitution up for grabs,” he said.
Touting the benefits of a convention, Nick Dranias, director of the Center for Constitutional Government at the Goldwater Institute, called it “an essential part of the balance of power between our states and the federal government.” He noted that the requirement to receive ratification from 38 states to amend the Constitution ensures that “only truly consensus-based ideas will get through the process,” contending that potential agreement exists between the left and the right on the substantive issues.
Another supporter, University of Texas Law School Professor Sanford Levinson, said that fears of a runaway convention reflect “fundamental mistrust of ordinary Americans.” He proposed a lottery system to select delegates for a convention akin to a national citizens’ jury, whose members could propose any amendment they agreed upon. This process would not only be a manifestation of “we the people” in action, he said, it “would be the ultimate reality television show.”
John Samples, director of the Center for Representative Government at the Cato Institute, cautioned against a convention that could propose any amendments, saying that restrictive regulations tend to be popular, even those that could curb free speech rights. He added his view that campaign finance reform would not solve problems in the political system. One advocate for that type of reform, David Cobb, former presidential candidate of the Green Party, supported a convention in order to remove corporate influence from politics. But Alexandra Filindra, assistant professor of political science at William Paterson University, called a convention the “wrong vehicle for attacking America’s problem of inequality,” saying that an angry majority could endanger the rights of minority groups.
Others contended that a convention may take up policy issues that would be better addressed by legislative action; past petitions for conventions have focused on abortion, prayer in schools and busing. In contrast to some participants who saw a convention as the best or perhaps only means to solving the nation’s problem, Tribe said, “I’m not ready to give up on politics.”