A qualified ‘yes’ to a constitutional convention

Recommended: Steven Taylor’s post about the need for a conversation about the US constitution, with a nice overview of the evolution in his own thinking on the matter.

Steven is one of three coauthors with me on a forthcoming book on US democratic institutions and practice in comparative perspective. (The others are Arend Lijphart and Bernie Grofman. Earlier drafts of the chapters are on my website. The book itself is set to be published by Yale University Press in a year or so.)

10 thoughts on “A qualified ‘yes’ to a constitutional convention

  1. I am in agreement with Taylor on the necessity of a conversation and perhaps even an actual Convention, but have essentially an very opposite view to his on the power of the States. With regard to the issue of state equality in a Convention, which I agree would be deeply flawed, I suggest requiring a ‘double majority’ – a majority of states representing a majority of the total population (or something to a similar effect) – for any proposal.

    With regards to the book, I seem to recall the suggestion that someone made (was it you, MSS?) that in the US, “19th-century” consensus-building/finding methods are used (recall elections, bicameralism, presidential veto) in conjunction with the continuing use of plurality voting systems, while in Europe the chief consensus-building tool is proportional representation, while the other methods are to a greater or smaller extent absent. Does anyone else recall such a comment?

  2. JD, your formula of double (or concurrent) majority is sensible. With certain variations, it is similar to provisions on constitutional amendment in some other federal systems, including (from memory–always dangerous!) Australia, Canada, and Switzerland.

    As for the comment you mention, it sounds like something I might have said, though I am not sure I did. I think I make a broadly similar point in the “Dikes and Votes” post that is linked over there on the left sidebar under “Preserved Fruit”.

  3. Indeed I did post that comment, but the thought behind it was not solely mine. It was – I think – Clarence Hoag and George Hallett, who wrote the US text on Proportional Representation in 1922, who made that basic point. I don’t have a copy to hand but it was something like: the US uses a wide variety of electoral and institutional methods – I think they particularly mentioned bicameralism, the filibuster and rotating terms – to try to constrain the tyranny of the plurality, whereas PR takes care of that in one hit.

    Thus, eg, having a winner-take-all Presidency is a mechanism that seeks to ensure a decisive mandate for the nationwide majority (well – plurality; and diluted, of course, by regional weighting, but bear with me); having a very non-per-capita-apportioned Senate is an attempt to make sure that certain minorities don’t miss out on representation. A PR system would ensure both at once.

    Likewise the perennial US debate at State and (especially) local level over single-seat FPTP versus MNTV at large. Proponents of SMDs are quite correct that allowing voters to elect more than 1.000 candidate each can exclude minorities from representation. And proponents of MNTV are entirely accurate in countering that SMD boundaries can be gerrymandered. Again, a system of PR would square this particular circle.

    Or, rather, it looks like squaring the circle because the concept is so unfamiliar even to many politically active and interested Americans. (Eg, I think I’ve mentioned the 1970s encyclopaedia that “explained” how French elects its Chamber of Deputies by cumulative voting; likewise MSS has deplored the tendency to misdescribe SMD-based allocation of presidential convention delegates as “proportional”.)

    The US system operates to protect, or favour, two kids of minorities:

    (a) in the legislative/ electoral process – those that are geographically concentrated enough to form majorities in districts or (especially) States. This favours, eg, Mormons over Muslims. The number of African-American CongressReps is much larger than 4.35 times the number of African-American Senators.

    and

    (b) in the judicial/ constitutional process – lone individuals, irrespective of how large a bloc they represent. Thus it doesn’t matter if 80-90% of voters favour school prayer, affirmative action or flag-burning bans: if you can make out a constitutional claim against any of these policies, that’s a trump for the lone Alan Bakke/ Tex Johnson/ Madalyn Murray O’Hair.

    What the US (unusually among democracies) doesn’t formally represent is geographically-dispersed groups over a certain size (5% or whatever). If they can’t claim some constitutional right qua individuals, and they don’t form a majority within a State or at least a Congressional district, they don’t get a seat in the legislative or the judicial forum.

    (A partial exception if they can mobilize a definite number of voters in a presidential primary campaign or election: it is ironic that the competing candidates’ “camps” in each primary tend to work something like parties in a multiparty system, with prizes such as convention speaking slots or jobs in the Administration being offered to placate the losing factions so they don’t abandon the party).

    Britain and Canada have equally pluralitarian (national) elections but their appointed upper houses mean that representatives of geographically dispersed minorities can be given official seats in the hope their voters will support the major party that “looks after” them. A fortiori the odd combination of appointment and PR election that composes the Australian Senate. Whereas the GOP might believe that homeschooling evangelicals are under-represented in national politics, or the Democrats might think that American Muslims deserve more of their number in Congress, but actually getting them into office means finding a hospitable locality and then running the gauntlet of two direct elections, primary and general, both decided by plurality or majority.

  4. @2 Australia certainly uses double majority for constitutional referendums. I know Switzerland does as well, because we pirated it from them quite explicitly when we wrote our constitution. Canada’s amendment formula does not involve referendums and requires ratification by provincial legislatures. Depending on the issue the number of provincial legislatures can range from all to 1.

    And on an entirely separate issue, is anyone aware of government shutdowns that have happened outside the US?

  5. “Depending on the issue the number of provincial legislatures can range from all to 1.” erm, what do you mean Alan?

  6. I take it Alan means that amendments on some topics require all the Provinces to agree; some (a boundary adjustment, say) require only the one specifically affected Province to ratify; and the normal default rule is “two-thirds of Provinces with 50% of the population”.

    Historically, the Canadian federal constitution (nee British North America Act 1867) was quite prescriptive about certain features of the Provinces’ constitutions (eg, specifying electoral districts, and requiring Quebec to have an appointed Legislative Council with a specified property qualification for members). So I assume that a number of matters that would be “internal housekeeping” in other federations require a national constitutional amendment in Canada. Of course, in some respects the national Constitution of Canada is very easy to amend, even compared to India, Austria or Malaysia and especially compared to the US, Germany or Australia.

  7. I mean that the Canadian constitution contemplates amendments whose effect is restricted to a single province and which only require ratification by that province. Bear in mind the constitution specifies provincial governments in some detail. There have been a number of one-province amendments, such as New Brunswick adopting the federal language rules.

    Most amendments require the ratification of the legislatures of ‘at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the province’. A small class of amendments require ratification by the legislatures of all the provinces.

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