Prologue: The Constitutional Convention of 1987

Prologue:

The Constitutional Convention of 1987

A SPECULATION

Imagine that a constitutional convention has been convened in 1987. On the two hundredth anniversary of the historic Philadelphia convention, delegates have gathered to write a new basic law for the United States. And you are one of these delegates.

Perhaps the constitutional convention will meet in San Francisco at the Cow Palace, as the grand conference center there is irreverently called. Or perhaps you will meet in Houston or Chicago or Kansas City or Boston or any of a dozen other great cities. Until quite recently, our three "capitals" were all in the east: Washington, D.C., the political capital; New York, the financial capital; Boston, the cultural capital. But time moves on, and our national center of gravity is no longer presumed to be on the east coast.

Let us assume, however, that for tactical reasons the convention will be in Philadelphia. Perhaps some committees will even meet in the very Convention Hall where the original founding fathers deliberated during the hot and humid summer of 1787. Sweeping changes in our government are most acceptable to Americans when garbed in history and symbols of continuity. Convention leaders will be morbidly aware that ratification of the new document will be hard to get; anything likely to increase public support for it will strongly appeal to them.

Even as you head for Philadelphia, however, you know the new convention will not be a rerun of 1787. Many differences are symbolized by the ways delegates are traveling to Philadelphia. The delegates of 1787 came in by horse, stagecoach, or ship; most of you are coming by jetliner, automobile, or Amtrak. True, one younger member from Montana is bicycling east, surveying grass roots opinions at campgrounds as she comes. But except for Ms. Morrison, you are getting to Convention Hall much faster than your predecessors did, even though the U.S. is a vastly bigger country in 1987.

Questions

Now let us stop imagining and start thinking. You have been asked to think about a convention that will write a new constitution for the U.S. What were your reactions? Were you surprised at the idea of a new constitution? Why? Do you assume that the present Constitution, the world's oldest written one, will remain in force forever? Or that it should? Did you take the very suggestion of a new constitution as a scandalous reflection on the present revered document?

Our present Constitution provides several methods of amendment. But if they wrote a perfect document, why did the founding fathers include an amendment clause? How did you react to the suggestion that you were to participate in the new convention? Did you think: Who, me? Why me? What is an obscure student lost in the shuffle of urban congestion or, equally lost, in the open spaces of rural Nebraska, doing at a constitutional convention? Or did you think: Well, it's certainly possible.

Members of the 1787 convention were young and obscure once, themselves. Will you still be a student in 1987? Or will you be a college graduate, perhaps with a professional degree? Of course, where you are and what you are doing will affect your chances of becoming a delegate. But remember: as a college student and presumptive graduate, your chances are already above average. Members of the 1787 convention were well- educated by the standards of their day, and a new convention is unlikely to be different in this respect. If you asked: Who, me? you are perhaps a woman [footnote 1] or a black person. The first constitutional convention was, of course, all white, and its members are quite literally called founding fathers. Can we assume, though, that the convention of 1987 will be the same in these respects?

What do you think you would need to know in order to do a good job of drafting a new constitution? Would it help to know something about the 1787 convention, the various objectives of its members, the arguments expressed during its debates? Where could you go to find out something about these things in a hurry?Footnote 2

Would it help to have some ideas about what a perfect constitution might look like? Where might we look for such ideas? Basic laws from many different countries can be inspected in most libraries. The United Nations in 1979 had 149 member countries, most of which had some kind of written charter. Perhaps we can discover good ideas in the Swedish constitution or in the Ecuadorian or the Egyptian. The U.S.S.R. adopted a new constitution in 1977, the sixtieth anniversary of the Bolshevik revolution of 1917. Can we afford to assume that there is no food for thought in the Soviet basic law?

Of course, existence of particular constitutional features is no proof that they are desirable. The original U.S. Constitution, for example, explicitly recognized slavery. The drafters themselves did not claim that they had produced a perfect document. "I never expect to see a perfect work from imperfect men," said Alexander Hamilton. Footnote 3

. Actual constitutions can provide inspiration, but cannot tell us what is desirable. To reach conclusions about desirability, we must employ principles of evaluation. We may therefore wish to consult great political philosophers like Plato, Aristotle, St. Thomas Aquinas, Thomas Hobbes, Jean-Jacques Rousseau, or John Stuart Mill. But here again our inquiry will be inconclusive. These six thinkers appear to disagree violently on basic principles. Worse, it is easy to construct lists of other philosophers with equal claim to consideration and whose views are even more varied.

Presumably as a delegate you would do well to know as much as possible about current public opinion and the basic desires of the people in 1987. You might or might not feel that the new constitution should reflect these prevailing desires. Public opinion, after all, could be shortsighted or even thoroughly perverse. But whether you agree with them or not, public sentiments are something you had better understand. If you agree, you will want to express them as fully as possible in your new document. If you disagree, you will want to know how far the new draft constitution can defy them and still secure ratification.

Is a New Constitutional Convention Advisable?

There are serious doubts that a new convention should be held. Obviously, no convention should be called unless it can be expected to write a better constitution than we already have. To what extent would a 1987 convention be in a position to write a better document than the charter of 1787, as amended?

Advantages. An obvious advantage in 1987 would be the accumulated experience in government that can be tapped by the delegates. Two hundred years under the present Constitution, a Civil War and several world wars as well as many "small" ones, a Depression and a multiplicity of recessions, two presidential impeachment crises, and more than 400 volumes of Supreme Court decisions have taught us much about what works and what does not.

Disadvantages. Any new convention faces numerous disadvantages. President Woodrow Wilson, attacking secret diplomatic agreements during World War 1, popularized "open covenants, openly arrived at." Domestically, "sunshine" or antisecrecy laws have become increasingly popular in the U.S. Pressure for the 1987 convention to be an "open" one might be overwhelming. One can imagine newspaper reporters, TV cameramen, and other journalists attending every convention session, every committee meeting. What effect will an omnipresent mass media have on the quality of debates? On delegates' willingness to back down from tentative proposals without fearing loss of face? On the delicate compromises essential to a successful convention? Will the delegates talk to one another, or will they make political hay and address the galleries?

How many Americans in 1987 will remember that the 1787 convention was entirely "closed," excluding both nondelegates and members of the press? That a committee was informally appointed to keep an eye on the aging Benjamin Franklin, lest his lips be loosened by a bit too much good cheer during his evening relaxation at a local pub? That the unofficial records of the convention were not published until decades after the Constitution was ratified? How many Americans in 1987 will be willing to settle for an open document, secretly arrived at?

How sophisticated are modern voters compared with their 1787 counterparts? In 1787 there were extensive limitations on the right to vote, including property ownership requirements. These restrictions, while horribly undemocratic, did mean that voters were above average in some respects: they were relatively wealthy, relatively well educated, relatively future-oriented.

Today's electorate is, by contrast merely average if by "electorate" we mean all eligible to register and vote. True, well educated people are more likely to exercise their right to vote than the less educated. But non-voting only reduces the differences from 1787. To appreciate the possible difference, imagine how the average modern reader would react to the Federalist Papers. These articles by James Madison, John Jay, and Alexander Hamilton, urged ratification of our present Constitution and were serialized in the New York newspapers.

Even more worrisome may be the proliferation since 1787 of organized interest groups. The pressures and influence exerted through these organizations could deflect delegates' attention from the general welfare. If it is greatly influenced by some of these pressures, the new constitution may not be worth ratifying. But if the delegates staunchly resist them, they may never reach agreement and ratification may be impossible.

Special domestic interests would not deliberately promote constitutional changes that would ruin the country. But the U.S. is an "open" society existing on a much smaller planet than in 1787, and nothing prevents foreign interests, private or governmental, from trying to influence the convention. This kind of international interference is not unprecedented. Perhaps you remember the Japanese prime minister who fell from power because of bribes allegedly received from an American aircraft firm.

Frankly, convention members will probably be charged with "selling out," even if they have done no such thing. Of course the founding fathers of 1787 had to take their own knocks, both from contemporary political critics and from later historians such as Charles Beard. [Footnote 4] But today, such charges are more likely to be taken seriously.

Another thing might render a new constitutional convention inadvisable: our current Constitution is not as obviously defective as the Articles of Confederation, which preceded it. In 1787 the inadequacies of our government were so clear that consensus on radical change was relatively easy to obtain. Chief defects included the lack of a national executive and national judiciary and of power to levy taxes. Extraordinary majorities were required to enact national laws, and individual states were free to obstruct interstate commerce. The Articles regime resembled the modern United Nations--a loose organization of independent governments--more than a real government. The founders feared that European governments would "divide and conquer" by dealing directly with state governments. Today's more subtle problems could hinder efforts to write and ratify a new constitution.

Finally, society today is vastly more complex than in 1787. As society gets more complicated, it becomes ever harder to predict the consequences of sweeping changes. It might be safer to continue our historical, piecemeal approach to constitutional change: one amendment, one judicial reinterpretation, at a time.

Not all objections to a new convention derive from its possible inexpediency. Discussing a new constitution may divert us from more important issues. "For forms of government let fools contest," said Alexander Pope two centuries ago. "Whate'er is best administered is best." [Footnote 5] To a reader familiar with the United States, the Union of Soviet Socialist Republics, and India, Pope's words may sound absurd. But how do we know that the contrasts between these countries result from different constitutions and not from more basic social conditions, which constitutions merely reflect?

More radically, why assume that we should have any government at all? If we find our car unsatisfactory, we do not necessarily replace it. We might do better to scrap it and use public transportation or a bicycle. It has been said that "that government is best which governs least." But as the anarchist Benjamin Tucker sarcastically pointed out, "that government governs least which governs not at all." [Footnote 6] If we agree that "least is best," how can we disagree with Tucker?

WHAT IS A CONSTITUTION AND HOW DO WE EVALUATE IT?

"Constitution" is an ambiguous word. It can describe a piece of paper largely ignored by those who govern. Or it can refer to how a particular government is constituted, how it works in fact. To date, the U.S.S.R's constitution has been largely a paper one, but the real constitution of the U.S.S.R. can be described. Does Russia, then, have a "constitution"? That depends on what we mean.

"Constitution" is often also used to express a value judgment. To be good, according to many writers, government must be constitutional. Calhoun, for example, said that constitution is the means by which we prevent government powers from being "converted into instruments to oppress the rest of the community." And "it is one of the most difficult tasks imposed on man to form a constitution worthy of the name.." [Footnote 7] Clearly, Calhoun used the term normatively rather than descriptively; "constitution" in this sense is inherently good, and a "bad constitution" would be a contradiction. (Descriptive here refers to things as they actually are; normative refers to what ought to be or ought to be done.)

To achieve clarity, I propose henceforth in this book to use "constitution" only in the descriptive sense. We will not assume that all actions allowed by the present Constitution are good. Nor will we assume that all bad actions are unconstitutional or that all unconstitutional actions are bad. We will still want to refer to the idea commonly expressed by constitution in the normative sense: the idea of what a constitution ought to say and of how a government ought to be arranged. When referring to a constitution that is perfect, according to some yardstick external to that constitution, I shall therefore use the term metaconstitution. And when referring to what my own personal analysis suggests is the ideal constitution, I will use the same word capitalized: Metaconstitution.

In these terms, the convention of 1987 must try to write a new constitution that will be more metaconstitutional than our present one. As a delegate, you will be responsible for formulating your own concept of the metaconstitution, of what a constitution would say if it were perfect. Even if your reactions to my Metaconstitution are completely negative, you may learn a lot in figuring out where I have gone wrong. What is important is that you improve your ability to think clearly and coherently about politics. I have tried to present my evaluations as sharply and baldly as possible. My analysis may be faulty, but I agree with Francis Bacon that "Truth emerges more readily from error than from confusion." Footnote 8.

The image of the metaconstitution that you bring to Philadelphia in 1987 may not be very different from that inspiring the delegates in 1787. You have grown up in a country strongly shaped by the values of the founding fathers. And many of their concerns were lasting ones. National security, for example, a big worry in 1787, will probably still be a problem in 1987. Even ideal internal arrangements will not guarantee the welfare of Americans if we cannot fend off foreign attacks. Likewise, 1987's delegates will probably share with their predecessors a strong concern for national prosperity. Recognizing that man does not live by bread alone, Americans have always regarded it as a nice thing to have around the house. Another continuing desire will probably be maximum individual liberty combined with strong government protection from abuses of that liberty by others. And 1987 delegates will be at least as interested as the founders in reconciling governmental sensitivity to majorities with stability and with decent treatment of minorities. The modern concept of what constitutes a deserving minority will, of course, be much broader than it was in 1787.

Basic values animating the two conventions may prove in fact to be amazingly similar. With some simplification, the beliefs of the founding fathers can be expressed as four propositions:

• First: There should be government. Anarchy, that is to say, cannot create a good atmosphere in which people live. There must be some central authority having final say in political matters, with power to suppress those not complying with its decisions. As Carl Friedrich has put it, "Constitutionalism came as restraining, civilizing improvement; there must first be government, in other words, before it can be constitutionalized." [Footnote 9] The founding fathers took the desirability of government for granted.

• Second: Government power should be restrained. As we know, the separation of powers as a means to this end was a most influential idea among the delegates at Philadelphia in 1787.

• Third: The people should be the ultimate foundation and origin of power. The founders were clearly interested in democracy, although that was not all they were interested in and their Constitution (before amendments) was not a highly democratic document.

• Fourth: Even democratic power is still power and should be restrained This idea grew out-of a reaction to excessive devotion by some people to the third proposition and is basically a reemphasis of the continuing validity of the second.

As Alexis de Tocqueville wrote, a generation after our first Convention:

If it be admitted that a man possessing absolute power may misuse that power . . . . why should not a majority be liable to the same reproach? Men do not change their characters by uniting with each other. . . . For myself, when I feel the hand of power lie heavy on my brow, I care but little to know who oppresses me; and I am not the more disposed to pass beneath the yoke because it is held out to me by the arms of a million of men. Footnote 10

These four propositions can be found in only two consecutive sentences of the Federalist, Number 51:

In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed [proposition 11; and in the next place oblige it to control itself [proposition 2]. A dependence on the people is, no doubt, the primary control on government [proposition 3]; but experience has taught mankind the necessity of auxiliary precautions [proposition 4].

Presumably members of a new convention would find these ideas just as compelling as delegates did in 1787. Differences, however, might occur about what "auxiliary precautions" we should adopt as means to these ends. In 1787 delegates opted for federalism and the separation of powers as major precautions. The Bill of Rights was added soon after the Constitution had been ratified. You and your fellow delegates in 1987 might want to look back at the intervening 200 years and ask: How well have these "precautions" actually worked? Were they too little? Too much? The wrong kind?

WHY SHOULD WE THINK ABOUT POLITICS?

By now you may have another question: What is the relevance of all this to the average student? Even if by some wild coincidence there is a convention in 1987, probability that any of us will be delegates to it is obviously very low. There are more than two hundred million Americans, and only a tiny fraction of one percent could participate in any convention. Why should the average person be able to think clearly about politics? It is a good question, to which I would like to give two answers:

First, most of you are or soon will be a member of the ultimate authority in the United States: the electorate. True, the electorate does not and indeed cannot make the day-to-day government decisions. It exercises power only in general terms and over the long haul. Each voter wields only a fraction of the sovereign power, one vote out of hundreds, thousands, or, at the national level, tens of millions. However for reasons we will discuss later, close elections are common in the United States. Quite often, for example, the presidency would have gone to the other major candidate if only a few voters in certain states had voted differently. Like it or not, realize it or not, you will be wielding political power.

Second, consider the many personal decisions you will have to make during your lifetime. You are already making some of them: what to study; what profession to prepare for; how long to continue your formal education; whether to buy a car and, if so, which one; whether to get married; whether to have children; where to live; what job to accept; whether to subject yourself to dangerous medical treatment or to live with an unpleasant but potentially correctable health problem. By learning to think about politics, which includes making "big" decisions on behalf of large numbers of people, perhaps you can improve your ability to make "small" decisions. Politics is often dramatic, and studying it may uncover principles equally valid, but less obvious, in a purely personal or private context. And maybe there will be times in your life when public issues intrude themselves into Your private affairs. Somebody may try to build a freeway through your back yard, or to draft your daughter (or you!) to fight a war in Antarctica, or to destroy your business by discriminatory legislation. When your own affairs are concerned, there is no such thing as a "small" decision. Any method of learning to decide more wisely ought to be in your interest. Studying politics may be one of the best methods.

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Footnotes

1. This text is not based on any sexist assumptions. However, I will use the linguistic convention of "man, he," as the generic reference instead of the bulkier "he or she."

2. Carl Gustavson, A Preface to History, New York: McGraw-Hill, 1955, p. 3.

3. Federalist, Number 85.

. 4. Charles Beard, An Economic Interpretation of the Constitution of the United States, New York: Macmillan, 1913.

5. Alexander Pope (1688-1744), An Essay on Man, New Haven: Yale University Press, 1950, pp. 123- 124.

6. Benjamin Tucker, "State Socialism and Libertarianism," in Irving L. Horowitz (ed.), The Anarchists, New York: Dell, 1964, p. 181.

7. John Calhoun, A Disquisition on Government, Indianapolis: Bobbs-Merrill, 1953, p. 8.

8. Quoted in Thomas S. Kuhn, The Structure of Scientific Revolutions, Chicago: University of Chicago Press, 1962, p. 18.

9. Carl J. Friedrich, Constitutional Government and Democracy, Boston: Little Brown and Co., 1941, p. 37.

10. Alexis de Tocqueville (1805-1859), Democracy in America, New York: New American Library, 1956, pp. 114, 149.