POLITICS DECEMBER 1, 2008
Americans this year were confronted by a near-record 174 ballot propositions, many hitting the usual hot buttons: same-sex marriage, illegal immigration, abortion, etc. Nearly lost in this deluge were three unusual--and very intriguing--referenda on whether state constitutional conventions should be called. Voters in Connecticut, Hawaii, and Illinois had to decide--as they’re required to by their state constitutions every ten or 20 years--whether they were satisfied with their states’ foundational documents or wanted to revamp them. All three states declined to hold conventions this time, and in fact most votes of this sort fail. But that’s no reason to be dissuaded: Periodic convention referenda help unclog our political process and are worth adopting more broadly.
The idea of amending constitutions at regular intervals dates back to Thomas Jefferson. In a famous letter, he wrote that we should “provide in our constitution for its revision at stated periods.” “[E]ach generation” should have the “solemn opportunity” to update the constitution “every nineteen or twenty years,” thus allowing it to “be handed on, with periodical repairs, from generation to generation, to the end of time.”
The Founding Fathers did not, of course, follow Jefferson’s advice. Not only does the U.S. Constitution not allow for revision by each generation, but it can be amended only by votes of two-thirds of the House and Senate and three-fourths of state legislatures. A number of states, however, proved more receptive to Jefferson’s recommendation. Kentucky, Massachusetts, and New Hampshire embraced periodic convention referenda in the late 18th century, and today 14 state constitutions provide for them. About 100 such votes have been held over the course of American history, succeeding a total of 25 times in eight different states.
The first argument for periodic convention referenda is the Jeffersonian one: People alive today should have the opportunity to think seriously about how their state governments are structured and their rights allocated. It may be that everything is going swimmingly and that no changes need to be made. But it is also possible that the existing state constitution, drafted in a bygone era, has started to show its age, and that amendments are thus necessary.
This was precisely the argument made by Illinois Lieutenant Governor Pat Quinn, a supporter of Illinois’s 2008 referendum. “[T]he 1970 Constitution is pretty good, but after 38 years, there are several defects. And that’s why a convention … is needed to remedy those defects rather than let more decades go by without addressing those issues.” Concerns about outdated constitutions were also largely responsible for the successful referenda in New York in 1936 and Missouri in 1942. Voters in both states felt that difficult economic times required bold new constitutional measures.
Second, and more importantly, convention referenda allow voters to bypass their often obstructionist state legislatures. Legislators are notorious for blocking proposals that threaten the comfortable status quo--term limits, fair redistricting, stricter ethics rules, balanced budget requirements, etc. Constitutional conventions convened directly by the people are a way to enact needed reforms when the usual channels for change are blocked. And unlike voter initiatives, which can address only one issue at a time, conventions can overhaul dysfunctional state governments in one fell swoop.
Supporters of the 2008 convention referenda frequently made arguments of this sort. Hawaii Republican Party Chairman Willes Lee, for instance, wrote that a convention was necessary because “[t]ax relief, local school boards, tort reform and many other critical issues get put aside for special interests that reign supreme in the Democrat-controlled Legislature.” Illinois’s main pro-referendum group similarly pointed out that a convention could “call for major changes to our dysfunctional government” and “bypass the gridlock in Springfield and address decades-old structural problems.” Historically too, referenda succeeded in Ohio in 1912 and Rhode Island in 1984 because of legislative ethics scandals, and in Hawaii in 1976 because the legislature had persistently failed to address issues of concern to native Hawaiians.
Lastly, convention referenda are useful even if they fail. When the public votes against holding a constitutional convention, it sends a powerful message that it is satisfied with how things are or, at least, opposes the proposals of the convention’s supporters. Those supporters can then no longer claim a mandate for their ideas. This year in Connecticut, for example, the referendum’s backers wanted to use a convention to ban same-sex marriage and restrict the power of eminent domain. The referendum’s overwhelming rejection at the polls was immediately construed as a rebuke of these goals. As one gay rights lawyer declared, “Today Connecticut sends a message of hope and promise to lesbian and gay people. ... It’s living proof that marriage equality is moving forward.”
But Connecticut’s 2008 experience also highlights the potential dark side of convention referenda: the danger that they might be used not to reform state governments, but to take away people’s rights. This danger should not be overstated, though, given that no referendum has ever passed when its supporters’ principal aim was to abridge politically unpopular rights. That referenda merely cause a constitutional convention to be convened, as opposed to directly amending a state’s constitution, provides an additional safeguard against rights-restricting mischief. For same-sex marriage to have been jeopardized in Connecticut, first the referendum needed to pass, then the convention would have had to vote to ban same-sex marriage, and then the people would have had to ratify the convention’s recommendation.
There is also no reason to worry that periodic convention referenda might give rise to excessive constitutional instability. These referenda fail about three-fourths of the time--which means they only succeed on the rare occasions when the public is convinced that constitutional change is necessary. In fact, in only one state, New Hampshire, have convention referenda passed more than three times, and those (13!) successes occurred not because New Hampshire voters love playing James Madison, but because there was, until recently, no other way to amend the state’s constitution.
The case for periodic convention referenda is thus strong. When they succeed, archaic state constitutions are updated and obstructionist state legislatures are bypassed, while individual rights are preserved. And even when they fail, the public has the chance to reflect on fundamental constitutional issues and to express its satisfaction with the status quo.
Do these arguments hold at the national level as well? It would certainly seem so. The U.S. Constitution has also grown obsolete in places (see, e.g., the Electoral College), self-interested federal legislators block just as many needed reforms as their state counterparts, and the national public would benefit too from some deliberation on our country’s constitutional underpinnings. Of course, the odds that a constitutional amendment providing for national periodic convention referenda will pass anytime soon are very low. Still, in this season of political optimism, one can hope that when America’s next “constitutional moment” arrives, Jefferson’s advice, ignored by the Framers in 1789, will finally be heeded.
Nicholas Stephanopoulos is an attorney with the Washington D.C. office of Jenner & Block.
By Nicholas Stephanopoulos