P-G article about a Constitutional Convention - local thoughts? (Lincoln: military, legality)

[villageidiot1]

Originally Posted by squarian

It seems obvious to me, and I think most of the people who have seriously considered this issue, that an American Third Republic would have to be achieved in the same way as the 2nd - namely by a sort of bloodless coup d'etat or velvet revolution which ignored the prescribed amending provisions of the existing instrument, the first constitution.

And do you think there is a remote possiblity of that happening in the next 50 years? You're suggesting that two-thirds of the state legislatures could force Congress to call a constitutional convention, and the results of that enterprise can then be ratified by three-quarters of the states? This is the idea that reform efforts could start at the grassroots and merge at the state level until two-thirds of them decide to march on Washington. Why do you think the state legislatures are any different from Congress?

[BrianTH]

squarian is (rightly) pointing out that the current constitution was not adopted through the amendment procedures in the prior constitution (the Articles of Confederation). That's a general truism about constitutions, in fact--they only need to be ratified on their own terms, and not pursuant to the terms of any other document, provided the public is willing to accept them as legitimate.

So if (and I agree this is a very distant if) some sort of constitutional convention with enough public legitimacy got started, it may well be able to write its own ratification rules for whatever constitution it produced (personally, I would say the ideal ratification procedure would have nothing in particular to do with the states).

As for predictions, I'll just note again I have serious doubts about whether the current status quo is sustainable. There is more than one way to resolve those issues, but if the others aren't pursued then we may well get a new federal constitution by default.

[squarian]

Originally Posted by villageidiot1

do you think there is a remote possiblity of that happening in the next 50 years?

On the contrary, I don't think the possibility is remote; I'd give it better odds.

As almost everyone agrees, the present constitution, like the liberum veto of old Poland, only functions by consensus or near-consensus. A series of near-consensuses since the last great catastrophic constitutional failure, 1861-65, made effective government more or less possible until the 1980s. And as almost everyone agrees, the present constitution is incapable of functioning when the political context is ideologically riven. If that is true, then the next half-century will either see a return somehow to consensus politics, or ongoing and probably escalating constitutional crises.

Since, as Niall Ferguson has recently pointed out, the pace of imperial decline is usually much faster than anyone expects, and since American decline in relative if not absolute terms is nearly certain in the next half-century, we can expect this decline to either impose strains on a re-emergent consensus politics, making it much more difficult to maintain than it was in the heyday of American power, 1945-1980, or exacerbate the constitutional crises which we know will follow from the structure of our present constitution in the absence of consensus politics.

If we perform a mental experiment following the logic of the second alternative (imperial decline and escalating gridlock) it's not at all difficult to imagine a serious movement for constitutional revision in the next half-century. The exigencies of the moment will require it.

You're suggesting that two-thirds of the state legislatures could force Congress to call a constitutional convention, and the results of that enterprise can then be ratified by three-quarters of the states?

I am suggesting that in such a dire and prolonged crisis (which, let me repeat, is not hypothetical but has already begun), the legality of a revision under the terms of its predecessor would be irrelevant. Since the amendment provision of the present constitution makes an timely revision nearly impossible, the revision movement is no more likely to abide by those provisions than the men of 1787 abided by the Articles' rules of amendment.

In other words, the rules for amending the current constitution, like all such ephemera, only apply under the current constitution and are a dead letter once a movement to adopt a successor is under way.

[BrianTH]

By the way, a somewhat random observation, but Europe is engaged in a similar process as we speak. To sum up, EU treaty changes require unanimous approval. The problem is that they can't get unanimous approval for what they perceive to be necessary changes to their fiscal rules (the most notable objector being Britain). So, they are basically making up new rules on the fly for how this pact will be ratified and enforced which don't require unanimity:

http://www.nytimes.com/2011/12/17/bu...ro-treaty.html

Of course they are more accustomed in Europe to these notions, but I think the general point remains that the rules of amendment of an existing constitution are always subject to circumvention if the desire for change is strong enough.

[BrianTH]

Incidentally, our state government is not proving particularly adept at dealing with the new political dynamics either:

Pa. House members hurry to wrap up loose ends

Even though the same political party controls everything, they still can't get on the same page and get things done.

[villageidiot1]

Originally Posted by BrianTH

squarian is (rightly) pointing out that the current constitution was not adopted through the amendment procedures in the prior constitution (the Articles of Confederation). That's a general truism about constitutions, in fact--they only need to be ratified on their own terms, and not pursuant to the terms of any other document, provided the public is willing to accept them as legitimate.

The official purpose of the Constitutional Convention of 1787 was to propose amendments to the Articles of Confederation but when the convention convened, the delegates realized that they had two general goals in common: to create a republican form as well as a new constitutional form of government.

So if (and I agree this is a very distant if) some sort of constitutional convention with enough public legitimacy got started, it may well be able to write its own ratification rules for whatever constitution it produced (personally, I would say the ideal ratification procedure would have nothing in particular to do with the states).

I think there is a huge difference between a confederation that had existed for eight years under the Article of Confederation and a nation that has existed for over 222 years under the Constitution. I would also disagree tgat the, "the ideal ratification procedure would have nothing in particular to do with the states." I think the idea would be for the states to take back power from the federal government that has been gradually lost since the ratification of the Constitution.

As for predictions, I'll just note again I have serious doubts about whether the current status quo is sustainable. There is more than one way to resolve those issues, but if the others aren't pursued then we may well get a new federal constitution by default.

I think it all depends on the economy. The potential is there for the economy to continue to nosedive. If that happens we could see major call for government change, but what kind of change? What direction did the country take in the 1930s?

[villageidiot1]

Originally Posted by squarian

On the contrary, I don't think the possibility is remote; I'd give it better odds.

As almost everyone agrees, the present constitution, like the liberum veto of old Poland, only functions by consensus or near-consensus. A series of near-consensuses since the last great catastrophic constitutional failure, 1861-65, made effective government more or less possible until the 1980s. And as almost everyone agrees, the present constitution is incapable of functioning when the political context is ideologically riven. If that is true, then the next half-century will either see a return somehow to consensus politics, or ongoing and probably escalating constitutional crises.

Doesn't the fact that the nation survived the Civil War disprove your statement, "As almost everyone agrees, the present constitution, like the liberum veto of old Poland, only functions by consensus or near-consensus." There was no where close to near consensus for decades before 1861.

[BrianTH]

I think there is a huge difference between a confederation that had existed for eight years under the Article of Confederation and a nation that has existed for over 222 years under the Constitution.

But that cuts both ways. From a neutral perspective, it may seem implausible that a governing blueprint can remain viable for such a long period of time.

Of course a reasonable response to that point is that our current constitution actually hasn't remained unchanged, since through the amendment process certain very important changes have been enacted (e.g., it is rather hard for me to imagine it would have lasted this long without the 19th Amendment). But in turn that means it really isn't the case we have had an unbroken 222 year run under the same constitution.

So this becomes a more specific question of whether or not the current amendment process in the Constitution can still be used to make the changes that are necessary for the Constitution to remain viable. And to the extent people are arguing such a process is difficult to imagine, it is only supporting the argument that we may have reached the point that a new constitution with its own ratification rules will be the only viable way forward.

[squarian]

Originally Posted by villageidiot1

Doesn't the fact that the nation survived the Civil War disprove your statement, "As almost everyone agrees, the present constitution, like the liberum veto of old Poland, only functions by consensus or near-consensus." There was no where close to near consensus for decades before 1861.

Disproving this statement would mean that the government can function other than by consensus. I agree there was nothing like consensus in the antebellum decades. But where the outcome is a civil war, I can't take that to mean that the system functioned.

Simply surviving a calamity isn't much of an argument for the viability of a system of government which brought you to the calamity in the first place, and since civil war is the ultimate breakdown of a system of government I can't accept an argument for the functioning of the system prior to 1861. (And moreover, even "survival" is debatable, since for forty years after Appomattox the US was little more than a banana republic.)

Great Britain faced very serious problems in the middle decades of the 19th century, certainly as serious as those confronting the United States at the same time. While civil war was never likely, outright revolution was a distinct possibility. In either country, the worst-case scenario was total collapse of the constitutional order. While the United States actually experienced that worst case, the United Kingdom did not; it's political system was able to cope and respond to the challenge, while the American was not.

Part of the reason for this difference is that Great Britain was able to rapidly and successfully modify its constitution in a series of "Reform Acts" simply by majority vote in the two chambers of Parliament. The American structure makes reform nearly impossible - the result in the 1850s was a gradual slide to catastrophe. Neither the inability to avert civil war nor the mere fact that the nation ultimately survived it can be taken as proof of the virtue of the American constitution.

[BrianTH]

To make a somewhat obvious supporting point, the Constitution was also amended at the end of the Civil War in ways designed to address the shortcomings that led to the Civil War. And while I am not questioning the validity of the resulting "Reconstruction Amendments", the ratification process was slightly . . . irregular (e.g., the Reconstruction Acts made ratification of the 14th Amendment a condition of the Southern states escaping military governance).