The Long Con
I wish I could muster the optimism of Richard Kreitner, Lawrence Lessig, and others regarding the theoretical progressive benefits of a constitutional convention [“Conventional Wisdom,” Nov. 20/27]. Kreitner daydreams of “lively and profitable discussion,” while Lessig writes in his book Republic, Lost that “The key is a simple compromise. We get to consider our proposals if you get to consider yours.”
This sounds great in theory—presuming that all sides approach the project with a good-faith willingness to consider proposals from across the ideological divide. However, this presumption flies in the face of the observed behavior of the Republican Party over the past decade. This is the party that, in opposition, obstinately said no to everything President Obama tried. This is the party that, in leadership, refuses to dialogue with the minority party. This is the party whose obstructionism baited the Democrats into scrapping the filibuster for judicial nominees and then, after refusing to hear the Merrick Garland nomination, scrapped the filibuster for Supreme Court nominees and confirmed the odious Neil Gorsuch on a simple-majority party-line vote.
Based on the evidence, it doesn’t seem likely that conservatives clamoring for a constitutional convention harbor any intentions other than gaming it for their own exclusive benefit. Any liberals who are gambling their support for a constitutional convention on the presumption that their conservative counterparts will approach the project in a spirit of constructive compromise need to be prepared for the conservatives to eat their lunch.
In his article urging the left to “embrace the movement for a new constitutional convention,” Richard Kreitner ignored the most important issue: Who would be the delegates?
They would certainly not be a cross section of the American population. Instead, they would be appointed by state legislatures, and thus would be similar to party superdelegates and the members of the Electoral College. In accordance with the state-oriented voting rules, a conservative voter in Wyoming would have 80 times the representation of a liberal voter in California.
Can anyone doubt that the Koch/Wal-Mart plutocrats will be able to fill those seats, the way they have done with the House and the Senate? Can anyone doubt that they will continue to use the same bulldozer technique of “no compromise ever” that they have used in those bodies since the election of Obama? The several states that have already gone on record for a balanced-budget amendment give an indication of the ways they will enforce party unity, eliminating any possibility of a reasoned middle ground.
In the Congress, at least we can look forward to the next election to try to overturn their disastrous legislation, but what will we be able to do if they change the Constitution itself to solidify the hegemony of the plutocracy?
There certainly are important liberal amendments that need to be added to the Constitution, but it is a fantasy to think that any of them would be made by a Koch convention. There is nothing in Article V that would prevent a convention from simply casting aside the current Constitution and writing a new one, closer to the desires of the reigning plutocracy, just as the 1787 convention ignored the rules of the Articles of Confederation. What an ignominious end to the much-touted “City on the Hill”!
Scalia was right: “This is not a good century to write a constitution.” Not at a time when the plutocracy is at the height of its control of every aspect of government, both federally and in the states.
We first have to do the hard work of wresting control back to the people, against the current odds of gerrymandering, unlimited money, voter suppression, and a controlled media. And once we do regain control, a dangerous, omnipotent convention will not be necessary; we would be able to pass individual amendments through congressional action.
We should not accept the spider’s invitation to enter its web. Let us instead adopt the slogan “No Koch convention!”
santa monica, calif.
Richard Kreitner Replies
My article addresses most of the points raised by these letters, so I won’t rehash them. Others—“City on the Hill”(!)—are self-refuting. I do, however, want to note one particular strain of rhetoric often wielded by reflexive opponents of an Article V convention and found, predictably, here.
I stand accused by Ulysses Lateiner and Harvey Frey of daydreaming and fantasy, respectively, yet it seems to me that it must be those who believe salvation lies somewhere down the road we are currently traveling who are, in fact, the unwitting victims of their own comforting illusions. Frey looks forward to victory in the next election while nodding to “the current odds of gerrymandering, unlimited money, voter suppression, and a controlled media.” How, exactly, victory over these odds will occur is left up to “hard work.” I realize this might diminish the swelling returns of the “Now more than ever” school of fundraising, but what, dear friends, if hard work isn’t enough? The skilled marketers of the Democratic Party—those savants—may win back the Senate, the House, and perhaps even the presidency in 2020 (though, of course, there’s absolutely no reason to think the Electoral College won’t allow the bastards to snatch victory from the jaws of defeat yet again, as it has twice already in this lamentable century). But without first adopting a truly bold new program for reconstruction and renewal—which, with all due respect to Chuck Schumer’s “Better Deal,” appears to be nowhere on the horizon—what will that avail? As I write, an act of class warfare of unprecedented scope and brutality is sailing to passage in the Senate. So much damage has been done in only the first year of Trump’s administration that I fear it’s distinctly possible, even probable, we may never recover.
In another moment of national crisis, following the deadlocked election of 1800, Thomas Jefferson called the possibility of future conventions “a perpetual and peaceable resource…in whatever extremity may befall us.” I thank the writers for their thoughts, and I recognize the risks, but I remain unmoved. A country that finds itself blown this far off course and yet forswears the only instrument available for self-correction is a country that no longer believes it is capable of self-government, and may not be, and may well deserve the entirely foreseeable consequences of that information getting abroad.
new york city