Debate focus: Does Constitution still work?

The idea of changing, rewriting, editing and modifying the U.S. Constitution according to the wishes of contemporary society has been around for years.

Many of the originators of the idea were those who wanted a requirement that the federal government balance its budget each year.

But the effort this weekend gained considerable attention with Harvard Law School's Conference on the Constitutional Convention, which jointly was organized by Harvard Law Professor Lawrence Lessig and Tea Party Patriots founder Mark Meckler.

Lessig said he would like to see a constitutional convention, even though opponents are concerned the document could be amended, rewritten or shredded in favor of a substitute.

The result could affect speech rights, gun rights and marriage.

"There are people who are passing resolutions through legislatures calling for a convention, so I just wanted to continue that conversation," he said.

The opposition to a convention has been strong, as WND has reported. For example, in Wyoming, lawmakers voted to rescind their call for a convention over concerns a contemporary rewrite of the founding document would open the door to controversial social agendas, such as same-sex marriage. Wyoming Gov. Dave Freudenthal signed the bill.

The Wyoming Family Coalition said the measure, sponsored by state Rep. Bob Brechtel, R-Casper, was intended to announce the state's opposition to "any attempts to dismantle the United States Constitution which has generally served the country well for nearly 230 years."

WND reported when Wyoming legislators expressed alarm at the idea previous votes in the state would be used to call for such a convention and also when a public policy organization reported that the nation was only two state votes away from the necessary two-thirds required to call a convention.

Brechtel's resolution repealed all prior requests formally made by Wyoming to call for a constitutional convention.

Lessig, however, noted Tea Party Patriots founder Mark Meckler is open to holding a new convention.

"I called Mark. I said, 'Mark, let's have this conversation with Tea Party and Fix Congress First, and he said, 'Wonderful,'" Lessig recalled.

He said although there are movements around the country calling for a convention, he narrowed the focus of his event to having a dialogue about the Article Five concept itself.

Nick Dranias, director of the Goldwater Institute's Moller Center for Constitutional Government, said he's a constitutional conservative but said possibly it's time to consider a new convention.

"I think we can have a new convention. Article Five provides the framework for how we can have a convention. Every state would be equally represented and it would be an orderly event if we follow the provisions of Article Five," Dranias said.

Meckler said it might even encourage people to talk about a convention as a way of retaking control of government.

"Sometimes we're inflamed over very important and legitimate issues. We have significant differences between ourselves and the different groups in society – about the remedies for wrongs," Meckler said. "We have differences on the amount of government there should be or the amount of taxes we pay, whether we should be in the wars, pro-life versus pro-choice, marriage and family, gay marriage."

Meckler said that sometimes it's necessary to have difficult discussions over those issues, but politicians often have used the issues to divide.

"If Democrats hate Republicans, if liberals hate conservatives, if pro-life hates pro-choice and marriage and family hate gay rights activists, and if we spend all of our time fighting each other, then the politicians can do what they want," Meckler said.

Meckler said that divisions among the American people mean a consolidation of political power in Washington. He believes it's time for the people to find common ground to stand against the political machine.

"When they take our rights away, when they invade our privacy, when they overreach with things like the Patriot Act, that doesn't affect conservatives, that doesn't affect liberals, it doesn't affect a single race or religion, it has an equal effect on all of us. It affects every citizen in the nation, both parties," Meckler said.

"We do have a two party system in this country and that's the problem. It's the incumbents versus the citizens," Meckler also said.

In his talk to the conference, Lessig agreed that there is enough common ground on both ends of the political spectrum to talk about a constitutional convention.

He said a good example of how people from diverse points of view can work together is the drafting of the present Constitution.

"When the framers gathered in Philadelphia to, as some say illegally draft a new Constitution, they were not unified in their views about the right way to run a republic or the right values a republic should embrace. Indeed there were slave holders at that convention and people who thought slavery an abomination," Lessig said.

"This was a fundamentally divided nation but a nation that had the maturity to put aside even that difference long enough to have a conversation about how to frame a nation that could succeed because they saw the United States that had been born after the revolution was about to fail," Lessig said.

"There is no difference among anyone in this room as profound as the difference over slavery. We are not that far apart. There is no need for anyone in this room to have the moral indignation that people felt in the context of the argument about slavery against anyone in this room," he said. "We don't have to be that great in this sense as they were, we just have to practice the way to speak that we all teach our children."

The vehicle for holding a convention comes from the Constitution itself.

Article Five states, "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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

However, not all conference speakers at even this conference support a new constitutional convention.

Harvard Law Professor Lawrence Tribe, who represented former Vice President Al Gore in 2000, is against it.

"The stakes in this instance are vastly greater, because what you're doing is putting the whole Constitution up for grabs," Tribe explained.

Tribe said the Framers had a relationship that 21st century Americans don't have.

"Are we really up to it [like] those guys who were up to it in 1787? There was a bond that connected them even though they differed on issues like slavery," Tribe said. "They had all come out of the revolution. It's great when people of very different views can talk and converse but the stakes in this conversation are relatively limited."

Listen to an interview with Tribe:

Article Five discusses when a convention can be called, who can call a convention and how many votes each participating state can have. However, Tribe saidthe language in the Constitution leaves some leeway as to what may happen in an actual convention.

And besides, he said, the present Constitution has worked well.

"The Constitution has served us fairly well. It's not as though it's been a massive failure. I think it's done pretty well by us," Tribe said.

Tribe said the system isn't as broken as those pushing for a convention want others to believe.

"It seems to me that the very thing that is said to make a convention essential is the supposed failure of our political process – its paralysis, its capture by special interests," Tribe said.

"To rely on the supposedly failed process in order to put up a backstop so that putting the whole Constitution on the table seems to me to be in two different worlds at once," he said.

Tribe explained that one world is filled with those who believe the political process has failed. He said the other world is populated by those who still support the political system.

Those two "worlds," he said, will give any convention two opposing directions for the country's future.

He added that he believes the system isn't broken beyond repair.

"I'm not ready to give up on politics believe it or not. To say at this moment that politics is broken; we have to put the Constitution up for grabs in a new convention seems to me to be risking something that has stood us in enormously good stead over the course of two centuries – something that has been the model for the world," Tribe stated.

"American exceptionalism is in large part because of constitutional exceptionalism," he added.

At the last Constitutional Convention, in 1787, the proposal was to make modifications to the Articles of Confederation, but delegates simply threw them out and wrote a new Constitution, according to historians.

Chuck Baldwin, former presidential candidate for the Constitution Party, said the delegates to the 1787 Constitutional Convention were "freedom-loving patriots who had just fought a bloody war for independence and were in no mind to re-enact tyranny upon the land they had just fought to liberate."

"However, can one imagine what would happen if the current bunch of politically correct leftists in Washington, D.C., were to be granted the power to rewrite our Constitution?" Baldwin continued. "It would be the end of the United States of America, and that is no hyperbole."

The effort to establish a convention began about 40 years ago, mostly based on issues such as the desire for a balanced budget amendment to the Constitution.

"Since then, 32 states have issued the call. The total number of states that are required to enact the Con Con is 34," Baldwin wrote. "Simple math reveals that we are only two states short of this disaster. As word of this potential calamity began to surface, the effort stalled with the total states issuing the call stuck at 32.

WND reported that President Obama, as an Illinois state senator in 2001, said he believed the Constitution was flawed, because it failed to address wealth redistribution, and he asserted the Supreme Court should have intervened years ago to accomplish that.

Obama told Chicago's public station WBEZ-FM that "redistributive change" is needed, pointing to what he regarded as a failure of the U.S. Supreme Court under Chief Justice Earl Warren in its rulings on civil rights issues in the 1960s.

The Warren court, he said, failed to "break free from the essential constraints" in the U.S. Constitution and launch a major redistribution of wealth. But Obama said the legislative branch of government, rather than the courts, probably was the ideal avenue for accomplishing that goal.

In the 2001 interview, Obama said:

If you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote. I would now be able to sit at the lunch counter and order and as long as I could pay for it I'd be OK

But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it's been interpreted, and the Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can't do to you. Says what the federal government can't do to you, but doesn't say what the federal government or state government must do on your behalf.

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And that hasn't shifted and one of the, I think, tragedies of the civil rights movement was because the civil rights movement became so court-focused I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalition of powers through which you bring about redistributive change. In some ways we still suffer from that.

The interview is available here: