In response to a widely perceived dysfunctional political environment in Washington, D.C., attendees at a conference at Harvard Law School evaluated the potential and pitfalls of a possible remedy—a first-ever Article V convention to propose amendments to the Constitution.
The September 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. (To be enacted, amendments brought forth from a convention must then be ratified by three-quarters of the states.) 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. (View the Sep. 24 legal panel.)
The conference coincided with the release of a new book by HLS Professor Lawrence Lessig, the 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 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” with the other by Glenn Reynolds, a professor at the University of Tennessee School of Law and founder of the Instapundit blog, “from the right.”
In opening remarks, Lessig (pictured left) acknowledged the disparate political views of participants but noted the Founders came together for the good of the nation despite holding fundamentally different views on profound issues such as slave holding. His co-chair, Mark Meckler, co-founder of the 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 divergent political views, conference speakers differed in 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, the 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.” The potential for agreement between the left and right on substantive issues exists, he contended.
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, as supporters believe. 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.”
In a closing panel, HLS Professor Richard Parker ’70 championed the ideal of participatory democracy, approving any means such as a constitutional convention that would return power to the people. Currently, he said, power is concentrated in the “governmental academic media complex,” an ideological force devoted to keeping democracy out of constitutional law. “Our job, whatever we label ourselves, is to defeat them,” he said.
Parker cited his work on behalf of the Citizens Flag Alliance, which seeks a constitutional amendment to protect the American flag against desecration. Though that group’s effort is backed by 70 percent of Americans, he said, those in government don’t respect the popular support because of “fears based on loathing of ordinary people.”
“The mass of Americans has come to loathe the governing class as much as the governing class loathes them,” Parker added. “And that gives us power. We have to turn that power on in efforts to take democratic politics to and into constitutional law in any way possible.”
Other speakers in the closing panel echoed some differences of opinions expressed throughout the conference while celebrating the fact that participants respected each other, indicating potential for future collaborations. Meckler noted that “we’re all Americans first and we don’t hate each other.” At the same time, he cautioned that people from the left and right have very different views of society. For him, money in government is at the root of the problem, in contrast to Lessig’s views. Yet Lessig said that the fact that politicians are focused on raising money in order to return to Congress prevents opportunities to achieve any reform, either from the right or left. “I want a world where you have a fair shot at your argument for smaller government,” he told Meckler.
Lessig urged people to view the website CallAConvention.org, which seeks to sponsor mock conventions to begin the convention process. Such events, said Derek Cressman of Common Cause, “might help allay some of the concerns, that are legitimate concerns that people have, about this uncharted territory.” Cressman noted that he has been calling for a convention for many years to address the issue of money in politics. Art Wittich, a Republican state senator from Montana, proposed a constitutional convention to enact a balanced budget amendment. Article V, he said, “shakes things up, it allows us to have a discussion, it’s the one chance that may drive Congress to act in a responsible way.”
Eric Byler, cofounder of the Coffee Party, an alternative to the Tea Party, praised Meckler and other conservatives who attended the conference. He noted that those in power were more interested in having people fight rather than work together. “There is a real danger in disengagement by design, which I think the country as a whole is now facing,” he said. It is important, he added, to bring alienated people back into the democratic process, and “the leadership that Professor Lessig has shown is crucial to us making progress.”
To view all videos from the conference, visit the conference archive at conconcon.org.