KENNEDY: Constitutional convention is idea whose time is not now

June 14, 2014

Sheila Suess KennedyPeriodically, lawmakers impatient to change government policies of which they disapprove will call for a constitutional convention.

Fortunately, these efforts have yet to succeed.

Why “fortunately”? Because—like poison gas—system change is only a great weapon until the wind shifts.

Activists clamoring for shortcuts to major change—revolution, a new constitution—always assume that the changes that ultimately emerge will reflect their own preferences and world views.

History suggests that’s a naive assumption.

Indiana Sen. David Long wants the states to convene a new constitutional convention, at which delegates would devise “a framework for reining in overspending, overtaxing and over-regulating by the federal government and moving toward a less-centralized federal government.”

He claims the convention could be limited to consideration of those goals, but even if he is correct (and many constitutional scholars disagree) his “limited” goals are Pandora-box wide.

For example, Wall Street bankers argue that post-recession financial laws are “overregulation”; if polls are to be believed, most taxpayers view the new rules as barely adequate. Who wins?

My definition of “overspending” might be the massive subsidies enjoyed by (very profitable) U.S. oil companies; yours might be Medicare or farm subsidies. Many Americans think we spend too much on the military; others target foreign aid.

“Less centralization” could justify virtually any limitation of federal government authority, from FDA regulation of food and drug quality to laws against discrimination.

But the risk isn’t simply that a convention could rather easily be hijacked by people who disagree with the conveners about the nature and extent of needed changes. It isn’t even the likely influence of well-heeled special interests. The real danger is in calling together a representative group of Americans and asking them to amend a document that few of them understand.

At the Center for Civic Literacy at IUPUI, we focus on the causes and consequences of what we’ve come to call America’s civic deficit. The data is depressing. Only 36 percent of Americans can name the three branches of government. Only 21 percent of high school seniors can identify two privileges U.S. citizens have that non-citizens do not. Fewer than a quarter of the nation’s 12th-graders are proficient in civics. I could go on—and on.

Even bright graduate students come into my classes with little or no knowledge of American history, episodic or intellectual. Most have never heard of the Enlightenment or John Locke. They certainly haven’t read Adam Smith.

A truly depressing percentage of undergraduates can’t explain what a government is, and they have no idea how ours operates. Separation of powers? Checks and balances? The counter-majoritarian purpose of the Bill of Rights? Blank stares.

To his credit, Long is one of the few Indiana legislators who recognize the importance of civics education and who support efforts to remedy the deficit. His efforts in this area have been truly praiseworthy, which is why I find his willingness to turn over the task of rewriting our Constitution to people who don’t understand the one we have so puzzling.

Think about this: Last weekend, at the Indiana Republican convention, Richard Mourdock compared today’s America to Nazi Germany—and got enthusiastic applause.

Do we really want people like Mourdock—or those who cheered his historical and deeply offensive analogy—deciding how the American Constitution should be changed?

Furthermore, the Constitution already provides We the People with a handy remedy for unsatisfactory governance: It’s called elections.

We’re apparently too apathetic to use the tools we have.•


Kennedy is a professor of law and public policy at the School of Public and Environmental Affairs at IUPUI. She blogs regularly at www.sheilakennedy.net. She can be reached at skennedy@ibj.com. Send comments on this column to ibjedit@ibj.com.


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