[As we saw in Part One, there has been renewed discussion recently about the meaning of the term natural born citizen as it is found in our Constitution. The questions that pundits and constitutional lawyers have generated about that term – including the possibility of lawsuits to force a court test and resolve the issue as settled law –have added even more volatility to this election cycle. But the natural born citizen controversy is merely a harbinger of many other modern-day issues that have not been addressed by our 18th century national charter. In this second article of the series, we’ll look at other issues that are of greater importance than the native born controversy and are crucial for restoring the promise of our democracy as it is challenged – and debased – by the rise of oligarchs and multinational corporations hell bent on total control of the electoral process.
So forget about the Koch Brothers, Walmart and other denizens for a moment. Instead, close your eyes and ears to block out all of the noise and distraction generated by the presidential campaign and say … what if. What if we had a way to do some major repair work on our Constitution? What if we could fix some things and greatly improve our republic? Where could we start? What comes first?
In her classic 1966 book, Miracle at Philadelphia, Catherine Drinker Bowen wrote about the Constitutional Convention of 1787 and succinctly described the product of four months of spirited debate by the wise men who helped birth our nation:
“… to write a national constitution that can be carried in the pocket is perhaps an achievement of art as well as judgment.”
But where Shakespeare though that brevity was the soul of wit, the serious work of examining our great national charter, containing only 4,543 words in the original version and amended only 17 times since the adoption of the Bill of Rights, may now prove to be a bit too brief and too short on detail in an age of increasing complexity, when some changes to our governance are way overdue. When you look at the last two years, the interest in constitutional reform seems to be accelerating.
Some examples of that acceleration:
- A resolution at the 2015 Democratic National Committee’s winter meeting called for an amendment “to explicitly guarantee an individual’s right to vote.”
- Comedian John Oliver observed that more than four million Americans (mostly minority) who reside in the U.S. territories of Puerto Rico, Guam, American Samoa, the Northern Marianas and the U.S. Virgin Islands can fight for their country but still can’t vote.
- Multiple public interests groups, prominent public figures and sixteen state legislatures have passed resolutions calling for a constitutional amendment to negate the effects of the disastrous Supreme Court Citizens United v. FEC
- And then we have a growing list of individuals who are hoping for a clearer meaning of the term “natural born citizen,” a movement that arose as a conspiracy theory questioning the location of Barack Obama’s birth but has now morphed into an earnest discussion about the qualifications of a presidential candidate born of an American mother in Canada.
Certainly there is no end to the voices from both the right and left that are calling for new constitutional amendments, including several governors who are trying to build campaigns (read John Kasich and the Balanced Budget Amendment) around ideas that appeal to their base, and others who are promoting an amendment to address a single issue.
And then there is Texas Governor Greg Abbott, who, along with presidential candidate Sen. Marco Rubio, recently entered the conversation when both expressed the need for a constitutional convention. Article V of the U.S. Constitution allows 2/3 of the states, or 34 legislatures, to approve resolutions that would establish such a convention, a complex undertaking and an untried process that would be filled with uncertainty as to the eventual outcome of its deliberations.
Here is how one article summarized Abbott’s agenda for constitutional reform which some observers see as a throwback to pre-Civil War political thought:
Abbott’s ideas about transforming our federal system into a confederation (where have we seen that idea before?) serve as a model to illustrate the dangers of an Article V Convention. Just last month, the citizens’ lobby, Common Cause, published a position paper warning about such an idea as a “Convention of States,” and their caution about a constitutional convention should be considered a primer on the subject.
While many conservatives favor such an approach, the reaction of one prominent figure on the right provides additional caution. “I certainly would not want a constitutional convention. Whoa! Who knows what would come of it?” said none other than Justice Antonin Scalia, who must have recalled the title of the 1987 film, Where No One Has Gone Before. Fittingly, Harvard Law Professor Tribe’s research about an Article V Convention are detailed in the Common Cause paper and are worth reviewing by proponents as well as opponents, including the concern about the relationship of the convention to Congress and the states, and how the Supreme Court might be involved as an arbiter of procedural disputes.
So what do we have here? Amid calls for needed reform, we have on the one hand a clear need to bring the Constitution into the 21st century, yet we see individuals like Greg Abbott and special interest groups spanning the political spectrum wanting to take us where no one has gone before.
How then do we reconcile the what if with the what to do?
In Part Three, we’ll look at a little history and what I characterize as fault lines in our body politic as a way to reconcile the what if question with a what to do prescription.
Denis Smith is a retired school administrator, Fulbright Fellow, and a former graduate and undergraduate history student. He was born in Philadelphia, birthplace of the United States Constitution, and maintains a strong interest in ensuring a healthy democratic system of government.
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