Re-legitimizing our aging Constitution.
In a representative democracy, governing is left to the appointed few, but the rules that govern the governors must be periodically and directly refreshed by the people or our great democratic experiment teeters into illegitimacy. Without each generation’s purposeful renewal of this parchment “Contract with America”, the entire document yellows and fades away.
As we argued here in Keeping the Constitution, there is much to admire about our founding documents and the people who keep its promise alive. But our patriotic pride should not color the reality of a flawed parchment which has not aged well.
It is time for the people to craft a new Bill of Rights.
How will we accomplish this goal? Passing one, let alone a half dozen amendments in a new Bill of Rights, has not been attempted since the Founding. Realistically, it takes a crisis to pass a single amendment- often in response to years of unrest. Even when an issue bubbles to the surface with broad public support, tribalism and special interests can peel off enough dissenters to prevent ratification.
“Keeping” the Constitution fresh is not a regular political habit of our citizens¹.
More chastening, people lead busy, complex lives. Our attention span is stretched to the limit, and may break during the ratification process. In a representative government, most of us have outsourced our priorities to the media and political parties. Other than clever tweets or emotional outbursts at the Thanksgiving table, we barely engage with the broad range of issues at stake.
Change is scary, fundamental change even more so. Not surprisingly, many people (and pundits) take the easy way out by worshiping the Founding Fathers as demigods and swearing the Constitution is working just as prophesied.
Moving the country from managing-a-crisis to maintaining-a-constitution requires a social reawakening. While logic and deliberation play a key role, so does passion. And anger. Perhaps triggered by the gridlock and disfunction which has left most of America unhappy with its leaders, questioning whether democracy is a promise unmet.
We intend on catalyzing that awakening. Respecting the Article V Constitutional Convention’s “spirit” while initially sidestepping the byzantine Article V petition route.
Instead of asking for permission to amend from state legislatures or Washington, we will hold a “National Citizen’s Convention” to debate, prioritize and then help ratify a new Bill of Rights. A National Citizen’s Convention is a blend of marketing, politics, renewal and deliberation. We will leverage the energy and wisdom of the crowd to avoid phrasing amendments with unclear language. And we will harness social media and public protest to build a groundswell of supporters to pressure Congress into acting, and the states into ratifying.
Democracy is hard work. It’s time to roll-up our sleeves and pitch in. otherwise, as Montesquieu (Spirit of the Laws, 1748) noted,
“The tyranny of a prince in an oligarchy is not so dangerous to the public welfare as the apathy of a citizen in a democracy.”
But not all amendments deserve ratification.
To last the test of time and avoid misinterpretation by later generations, Constitutional amendments must be carefully devised and drafted. Amendments without broad-based support will not be ratified, while those ignoring key, powerful constituencies are doomed to fail. History also demonstrates that ambiguous aspirational amendments, like the 2nd or the ERA, are easily distorted by the opposition or later undermined by the courts and changing political winds.
Additionally, not every pressing issue requires, or is even best served, by a constitutional amendment. In most cases, laws and regulations perform a satisfactory job keeping the whole legal enterprise in sync with the times, albeit slowly and unevenly.
For example, the 27th Amendment (preventing Senators and Representatives from granting themselves a raise without an intervening election) in principle should have been rendered moot by a simple House and Senate rule. A wasted amendment.
“Gay marriage” could have been enshrined as a separate constitution amendment (or perhaps as part of a larger, more expansive definition of “inalienable” individual rights or a revised ERA). Instead, the Supreme Court agreed (after 30 years of citizen agitation and victories at the state and local levels) to discover a “new right” within the umbrella of the existing Constitution. A de facto acknowledgment that the Constitution belongs to the public.
Historically, nearly 12,000 amendments have been introduced in Congress, thirty-three advanced to the States, and only twenty-seven ratified (the majority were political stunts intended to score points with their base).
The NCC will only propose amendments that reflect the hopes and desires of the public AND can achieve a supermajority of states for ratification.
The Process
In preparation for a National Citizen’s Convention (NCC), we propose crowdsourcing to help winnow, and then draft, a list of worthy potential amendments. Deliberative Democracy experiments have moved into the mainstream, and are proven effective speaking truth to power while driving consensus on contentious issues (most notably in Ireland with abortion rights, Oregon on ballot initiatives, and Texas on renewable energy). The same collaborative process can be harnessed to stress test the amendments against potential opposition tactics, and to identify key influencers in every state legislature to assure passage.
Special care must be taken to prevent foreign agents or bad actors from hijacking the process.
In preparation for the National Citizen’s Convention, we will hold numerous physical mini-deliberations across the country, in addition to online crowdsourcing (most likely in collaboration with WeAmend.us) to gather a wide list of potential amendments for the new Bill of Rights. Employing consensus-driving software combined with human moderation and citizen polling, we will down-select to around a dozen possible amendments for consideration by the NCC. To assure passage in our highly polarized state legislatures, all sides will need to compromise, perhaps yielding on citizenship qualifications to gain voting rights, or fiscal restraint for rebalancing executive power. In other words, a negotiation.
* Just like the original Constitutional Convention*
This same platform will empower a second, critical step- writing draft amendments. Words matter². Comma placements matter. Crafting an amendment which is acceptable to a broad swath of the public, yet not easily gamed by opponents or distorted by history, is a challenge best addressed by many eyes on the prize. While social media often degrades into pointless debate and personal attacks, groups do a superb job nitpicking and uncovering flaws in proposed language³.
Finally, we will gather in Philadelphia at Independence Hall for a two week-long public discussion and debate. With a new Bill of Rights draft as the outcome.
Who should attend the Convention?
In a typical Deliberative Democracy initiative, participants are selected at random using statistical methods to assure broad representation. This methodology is effect for debate but implementation often lags aspirations because the decision makers rarely have skin in the game. Or lack the agency to organize and harness the tools of government for passage. So we propose choosing delegates with ratification in mind.
The NCC launches with five delegates from every state, representing each constituency (one from Congress to approve the amendment, one from State Legislatures to ratify and three from the Public). We will ask each congressional delegation and each state Speaker to nominate a delegate. And we will select public representatives from citizen’s groups in each state, trying to balance demographic representation with the ability to organize. If neither legislative body cooperates, then citizen’s groups with similar political leanings will be chosen as substitutes, but we intend to publicly shame uncooperative politicians. In order to expand the interest base and build public support, some of the delegates may be well-known, popular, iconic individuals. And the selection process itself is an opportunity to raise awareness and create a bit of a competition.
Other invited observers would include legal experts and historians to provide facts-on-demand, but not to make policy. These fact-givers will help answer delegate’s questions about the law and the context within which their proposed amendments will be judged. Our experience working with diverse teams strongly indicates that when the stakes are high, people more seriously collaborate across ideological lines and the outcome is more robust. A briefing book, explaining the challenge and offering pre-reading material will be available at least a month before the event⁴. Teams with experience moderating large, diverse group discussions will help facilitate the discussion. A common set of rules of order, which are mandatory for participation, will prevent small factions from dominating or disrupting the Convention.
There will also be an online presence to allow public comment as the proceedings unfold. Along with the usual social media feeds.
Aspirationally, we’d lobby congressional delegations and state legislatures to agree, IN ADVANCE of the Citizen’s Convention, to introduce the resulting amendment in Washington and the states en bloc. And let the public decide on its merits.
A rough schedule indicates the entire submission process should take four years- two to organize, secure funding and complete the crowd-sourced platform. One to plan and hold the NCC. And one to lobby Congress. State ratifications will take longer and will require NCC chapters and partners with local knowledge to help navigate passage through each legislature. A decade in total.
Expenses, excluding volunteer’s contributions in-kind, are estimated at $150m. Or less than the cost of one cup of coffee per voter. A bargain, by any measure, to keep our Constitution.
Conclusion
Democracy is hard work. When we delegate our democratic responsibilities to others, we should not be surprised when the laws benefit the delegates to the detriment of the people.
Though ambitious, the National Citizen’s Convention echoes the spirit and optimism of the American Revolution. As Founding Father James Wilson²⁹ insisted:
“This Constitution stands upon this broad principle. I know very well, sir, that the people have hitherto been shut out of the federal government; but it is not meant that they should any longer be dispossessed of their rights. In order to recognize this leading principle, the proposed system sets out with a declaration that its existence depends upon the supreme authority of the people alone. […] The people, possessing that authority, will continue to exercise it by amending and improving their own work.”
Endnotes:
The Flemish effort to institutionalize deliberative democracy is highly informative, both for its thoughtful checks and balances, recognition of the key role of social dynamics, and its ultimate failure to achieve legislative approval. Van Crombrugge, R. (2020). The Derailed Promise of a Participatory Minipublic: The Citizens’ Assembly Bill in Flanders. Journal of Deliberative Democracy, 16(2), pp. 63–72. DOI: https://doi.org/10.16997/jdd.402
[1] Amendments are far more common at the state level. Some 24 states permit citizen initiatives. Eighteen allow citizens to propose constitutional amendments. http://www.iandrinstitute.org/states.cfm. The Maryland State Constitutions Project reported in 2000 that “there have been almost 150 state constitutions, they have been amended roughly 12,000 times, and the text of the constitutions and their amendments comprises about 15,000 pages of text.” http://www.stateconstitutions.umd.edu/index.aspx Data analyzed from https://ballotpedia.org/Amending_state_constitutions and http://www.iandrinstitute.org [2] Referring to the 14th Amendment: “Although well aware of the strategic concerns that prompted such language, Stanton, in a prescient warning, declared that “if that word ‘male’ be inserted, it will take us a century at least to get it out.” DuBois, Feminism and Suffrage, 59–61; Griffith, In Her Own Right, 123. via The Right to Vote: The Contested History of Democracy in the United States by Alexander Keyssar [3] Landemore, H. (2015), Inclusive Constitution Making. J Polit Philos, 23: 166–191. doi:10.1111/jopp.12032 32 Center for Deliberative Democracy https://cdd.stanford.edu [4] Elliot’s Debates, 2:443;2:498. https://memory.loc.gov/ammem/amlaw/lwed.html