How Do We Claim What Is Ours – Let’s Try Democracy

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress . . .

Our original Constitution was not only written over two centuries ago, but it was written with the influence of a very antidemocratic spirit. We have amended the Constitution to include new groups of people within the umbrella of “we the people,” and to make other improvements, but we have not amended the Constitution in the dramatic ways in which its authors certainly expected we would need to. We’re dragging around with us a radically outdated structure of government. And, yes, even today we fail to live up to some of its better ideas, but that is in part because of the limitations imposed on us by some of its worse ones.

At this point of crisis, in the midst of economic and political turmoil, we are in need of serious change. I think we should seriously consider working to move two-thirds of the states, through their legislatures or through state conventions, to call a new constitutional convention as one of several approaches to reforming our government. It’s about time we made the first use of a tool that has been sitting there gathering dust in Article V for over two centuries!

In fact, a group called Friends of the Article V Convention has documented at least 754 applications already filed with Congress by the states (at least one from each of the fifty states) calling for a convention. But only four states have taken this action since the year 2000. Some combination of the following may be required to make a convention actually happen: new applications must be grouped within a short period of time from two-thirds of the fifty states, public pressure must be placed on Congress, or lawsuits must be brought against Congress by the states. The states’ applications need not be identical in language or raise the same topics or propose the same amendments. But our goal should be to propose and pass at the convention a group of amendments that accomplishes comprehensive reform.

By proposing a coherent set of amendments, we can develop our vision of a better nation, facilitating the work that will win partial victories short of creating a constitutional convention—and perhaps victories at the state level as well. In order to work for a new national convention, we need not all agree on every goal, only on the need for major reform. From any individual’s point of view, of course, opening up the Constitution to major changes will present the risk of making it worse. But if the convention itself is designed to include some of the reforms (public financing, public broadcasting, etc.) that we hope it will impose on the Constitution, the risk may pay off.

States could put the question of supporting a convention to a public vote or create requirements that must be met for citizens to force such an initiative to a vote. A more deliberative procedure might be tried as well. In 2004 and 2005, British Columbia, Canada, made use of a tool called a citizen assembly. The government randomly selected 160 people: eighty women and eighty men representing each electoral district and native peoples. The assembly was assigned to review a single major issue, in this case the province’s system of representative government. It heard from experts and held public hearings all over the province. It recommended policy changes that included shifting to a multi-seat proportional representation system. In 2005, 58 percent of the public voted for the proposal, but 60 percent was required for passage. However, the reform idea had gained momentum and appeared likely to eventually pass. The citizen assembly idea has now taken hold in Ontario, Quebec, and New Brunswick as well. In 2007, a citizen assembly in Ontario recommended changing the province’s electoral system to allow for proportional representation, but the proposal was defeated in a public referendum.

A similar idea is “deliberative polling” as proposed by James Fishkin. A representative random sample of citizens are brought together in small groups to discuss their concerns. They are provided with factual information related to their concerns, and the groups are assembled for a three-day process of deliberation, during which they can consult with experts and policy makers. The more democratic the process is through which we create a constitutional convention, the more democratic will the outcome be.

Many of the changes that most need to be made at the constitutional level could quite easily garner overwhelming popular support. These would begin with an appropriate second bill of rights. They would also include restrictions on abuses of power, as discussed in the first sections of this book.

Under a new and improved Constitution, the people should have the right to know the laws of the land and to have the laws applied equally to everyone. While I expressed reluctance above about amending the Constitution only to ban signing statements, a major revision of the Constitution should certainly establish that the president has no right to use signing statements or any other documents to encourage the violation of laws as passed by Congress and signed into law and no right to spend public (or private) funds on any activity authorized only by a signing statement, and that the Supreme Court has the exclusive power to rule on the constitutionality of laws.

The president and his or her subordinates should also be forbidden to create laws by (even if publicly) signing any document, be it an executive order, a memo, a determiniation, a finding, a directive, a proclamation, or any of the dozens of other labels applied to decrees from on high. Congress should give the president explicit and limited rule-making powers. All rules should be publicly available. And Congress should be understood to have the power to overrule them.

Government employees should have the right to expose violations of the law by superiors without negative consequences. The executive branch should be required to comply with oversight requests from Congress, a congressional committee, or the Supreme Court, and in order to claim any privilege from doing so should be required to present its case in closed session and abide by the decision of the Congress or the congressional committee or the courts. The vice president should be required to comply with all laws and rules applying to the legislative branch and to engage in no executive branch activity. The House, Senate, or any committee thereof should explicitly possess the power to hold noncompliant witnesses in contempt and to imprison them until the end of a two-year Congress in the case of the House or a House committee, or for a maximum of six years in the case of the Senate or a Senate committee. And so on.

Another important goal in revisiting the Constitution would be to deny the rights it conveys to corporations, while extending humans’ rights into the workplace and into privately owned spaces such as shopping malls. Corporations are not mentioned in the Constitution, but at this point it is probably going to take a Supreme Court decision or a constitutional amendment to strip them of rights that should belong to us.

There has been progress on this front. Localities around the country, including Humboldt County, California, have denied corporations personhood and forbidden them from, for example, giving money to political campaigns, or from dumping sewage sludge on farms. We should follow these examples as well as legislating at the federal level a repeal of falsely claimed corporate power. We should repeal the antilabor Taft-Hartley Act, which limits the right to form unions and to strike, and pass the Employee Free Choice Act, which enforces the right to form a union. We should bust up all corporate monopolies. We should not allow any corporation to become so dominant that when it goes broke the government claims an obligation to bail it out with our children’s money for our own good. And we should prevent our government from engaging in such bailouts, particularly without the approval of Congress as required by the Constitution. But our hands will still be tied as long as corporations are considered constitutional persons.

On December 20, 1787, Thomas Jefferson wrote to James Madison, listing items he thought belonged in the Bill of Rights. He began with these: “freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land . . .” Yes, restriction of monopolies. Jefferson thought that was centrally important, and I think he was right.

A great deal of useful information on the problem of corporate personhood is available from the Program on Corporations, Law and Democracy (POCLAD). One result of the legal fiction that a corporation is a person is that the rights of real live people vanish on private property, making it hard to talk politics where people do their shopping or to talk union where we work. My friend Mike Ferner, a member of POCLAD, complained (in an e-mail to me),