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Constitutional Conventions: Shall We ConCon?

Constitutional Conventions: Shall We ConCon?

By David Swanson
August 12, 2011

To Constitutionally convene or not to Constitutionally convene: that is the question. (And one taken up by an upcoming conference I'll be taking part in at Harvard: ) Or is it? The government's broken, but would a Constitutional convention be broken too? This debate among those on the left usually takes the form of:

Progressive #1: We need to fix a system that is rotten to the core and outdated by centuries.
Progressive #2: But then the right-wingers will ban abortion, criminalize homosexuality, and require public prayer by both teams before every football game just to confuse God.
Progressive #1: But any proposal must be ratified by three-quarters of the states, which will protect us from anything crazy.

From a certain perspective there is something otherworldly about this whole debate. We are clearly not protected from craziness by inaction either. We are absolutely overrun by both crazy laws of dubious constitutionality and crazy policies in blatant disregard of the law. President Obama has erased habeas corpus from the Constitution with an executive order. We imprison people in conditions that amount to torture. We have wars declared by presidents, spy agencies, and media barons -- anybody except the United States Congress. We've granted human rights to corporations while stripping them from humans. The Fourth Amendment is gone and the First Amendment is in terrible shape for flesh and blood people. Treaties that are the supreme law of the land under Article VI are obeyed selectively. The idea of complying with the Kellogg-Briand Pact, for example, would get you laughed right out of a secret energy task force meeting or a gathering of the Super Congressional Gang of 12. Insisting on the right to employment under the Humphrey Hawkins Full Employment Act, the Federal Reserve Act, or international law might get you locked up as dangerous to yourself and others.

If only the worst bits of the Constitution are enforced, including sections that don't actually exist at all, what exactly will we gain by revising that ancient document?

But look at it a different way. If we had the popular nonviolent movement that could compel adherence to the best of existing law, we would also have the ability to improve on the Constitution. And the vision of how to make such improvements might just help us in developing that movement.

The idea that the hurdle of approval by three-quarters of the states will protect us from anything crazy seems pretty dubious to me, in the absence of a mass mobilization and revitalization of healthy civic life. Thus far, that hurdle has protected us from just about everything, not specifically crazy things. We've barely tweaked the Constitution in over two centuries, and some of that tweaking has been downright crazy. Other than the original 10 amendments that were part of the bargain made in the initial ratification, and an eleventh that came through slowly, there are only 16 amendments that have been passed at all. Six of the 16 amendments extend rights to people across previously existing barriers of race, sex, age, or education level. Six others deal with the intricacies of an antiquated election system. One of these creates the popular elections of senators. Another amendment creates income taxes. And two more do something truly stupid. The first bans alcohol, a move strongly supported by Standard Oil at a time when Ford was manufacturing cars that ran on ethanol. The second legalizes alcohol again, a move made just after Ford had ceased that offensive manufacturing and the path to global warming had been firmly established.

But, again, the craziness doesn't come from amending the Constitution. The craziness comes, relentlessly, with or without taking any notice of the Constitution. It comes from poor education, evil propaganda, inequality, insecurity, violence, and corruption. A movement to rewrite/revise/reform the U.S. Constitution should be an integral part of a movement against craziness, but such a movement must include massive nonviolent resistance, the creating of new communications systems, and education and organizing that overcome political partisanship. Such a movement will not succeed until tens of millions of Americans who are now fiercely loyal to the Democratic Party, right or wrong, outgrow that phase of childhood. And it may succeed most quickly if independent activists on both the left and the right join together on those points where they agree. These points of agreement are areas on which a large majority of Americans agree, but on which the current federal government is strongly opposed and partisans too compromised.

If we rewrite the Constitution we will have to define every word. We will have to stipulate that people are people, that ALL people are equally people, and that corporations are not people. We will have to indicate that the right not to lose habeas corpus does indeed mean that we have the right to habeas corpus to begin with. But such clarifications will not do a darn bit of good without major changes happening off the written page. If the spirit and letter of the written page were followed as it exists now, many of our top officials would be in prison.

We will also need to move beyond restatement and clarification to areas not addressed by the current Constitution, even if many of them are addressed by international treaties that we all commonly ignore. Perhaps as part of the process building toward a Constitutional Convention we could catch up to the rest of the world on major treaties, a step that would not risk criminalizing homosexuality (or enthroning corporations, for that matter). The United States could ratify the International Covenant on Economic, Social, and Cultural Rights, and lift the limitations to its ratification of the International Covenant on Civil and Political Rights, as well as the International Convention on the Elimination of All Forms of Racial Discrimination. We could ratify the Convention on the Elimination of All Forms of Discrimination Against Women, and the Protocol to the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment. We might want to ratify the Convention on the Rights of the Child, or the International Convention on the Protection and Rights of All Migrant Workers and Their Families, or even the International Convention on the Protection of All Persons from Enforced Disappearance. Or what about the Convention on the Rights of Persons With Disabilities? If we could compel adherence to these treaties, we'd be a long ways toward remaking this country into our utopia. Perhaps it is our pride that makes us think we must reinvent all of these wheels in collaboration with people who believe public schools are the moral equivalent of slavery.

Yet, some reforms are needed at the national level if decent governance is to be compelled, even with international help. For example, we might want to institute these reforms through a Constitutional Convention. I suspect many of these will appeal to people on the right, while some will not:

The individual national right to vote with automatic registration, and with votes publicly and transparently counted at each polling place.

• A ban on gerrymandering.
• A limited election season.
• The right to a reasonable ability to place any qualified name on a ballot.
• Elimination of the electoral college.
• Clean public financing of electoral campaigns.
• Free media for electoral campaigns.
• A ban on media monopolies.
• A right to publicly funded media.
• Enlargement of the House and elimination of the Senate.
• Limited power and terms for Supreme Court justices, and more of them.
• Legislation by initiative.
• A ban on legislation by presidential decree or signing statement, Justice Department memo, or any process other than the open and transparent passed of laws or ratification of treaties by Congress.
• A balanced budget.
• A requirement that laws be equally enforced against the powerful and the wealthy, and a ban on the granting of retroactive immunity that disproportionately benefits the powerful and the wealthy.
• A ban on vice presidents exercising executive, as opposed to legislative, power.

Here are some more areas where we might find broad agreement even across some common political divides in updating our once innovative old Constitution:

• A ban on the stationing of US military forces outside the United States or the use of outerspace for military purposes.
• A ban on war as an instrument of national or international policy.
• A limit on military spending to no more than twice that of the next highest spending nation on earth.
• A ban on private military contactors.
• A ban on secret budgets, secret agencies, and secret operations.
• A maximum wage set to 10 times the minimum wage and capping a system of progressive taxation on all forms of income.
• A similar taxation system on estates.
• An increasing tax on carbon emissions.
• A ban on government support for coal, oil, gas, or nuclear power.
• A ban on usury.
• Establishment of the right to organize, to strike, and to strike in solidarity with others.
• The right to comprehensive top quality health coverage.
• The right to comprehensive top quality education.
• The right to a secure retirement.
• The right to a healthy and sustainable environment.

For the moment these ideals serve as a guiding star, but given the right reforms to our culture, our communications system, our activism, our pharmaceutical intake, and whatever else is holding us back from enforcing public will on powers that be, these reforms, or many of them, might indeed be put through without anything of which we're terrified sneaking through in the process. If we do not dream, we will not act. If we do not act, everything we're terrified of will be here soon enough, no convention required.

I hope to see you here:


David Swanson is the author of "War Is A Lie"

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