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OpEdNews Op Eds    H3'ed 6/14/10

Rhode Island Rep Calls for a Constitutional Convention

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Message Lawrence Lessig
I just testified before the House Judiciary Committee of the Rhode Island State Legislature, in support of a resolution introduced by Representative David Segal. Segal's resolution would exercise Rhode Island's right under the United States Constitution to demand that Congress call a convention "for proposing amendments" to the United States constitution. There has never before been such a convention, but I was very happy to testify in support of Segal's resolution.

The push for a convention is not a step lightly taken. Ours is the world's oldest continuous (written) constitutional government. There is plainly something our framers got right.

Yet it is impossible for any fair minded soul, whether Democratic or Republican, to look at the current state of the American democracy and not believe that something has gone profoundly wrong. Our framers intended a Congress "dependent upon the people alone." We have evolved a Congress dependent upon campaign funders. That competing, and indeed corrupting, dependency has destroyed Congress's ability to answer its first obligation fairly. It has distracted Congress from the demands that this democracy makes upon it, and fundamentally weakened America's trust in this the most important branch of the Framers' design.

Congress will not end this distraction until it fundamentally changes the way its elections get funded. But can it? Does it have the will? Could anyone imagine it will have the will after the full effect of the Supreme Court's decision in Citizens United -- empowering even more corporate power in all elections -- kicks in?

That's the question that Segal's resolution begs: Is a body so deeply addicted to the current system capable of changing that system? Can we trust the victim of a dependency to free itself from that dependency?

More and more are coming to believe that the answer is no. That this system has so entrenched an economy of corruption -- not the corruption of bribes, but a corruption of the sole dependency our framers envisioned, upon the People -- that only outsiders can now change it. And our framers gave one kind of outsider -- state legislatures -- that power. Segal and others now believe that it is legislatures that have the responsibility to exercise it.

Segal's proposal was opposed by the ACLU. Speaking on behalf of the organization, Steve Brown told the committee:

I'm not sure it's in the best interest of this country to be spending hours, days, weeks, and months discussing some of the most controversial issues in this country as to whether they should be part of our constitution. Regardless of whether it is a red state or a blue state ... this is not how legislatures in the 50 states should be debating very controversial issues.

I'll confess I was a bit shocked when I heard this well known and successful defender of liberty deny to "the People" the liberty to determine their own government. I'm a card carrying member of the ACLU. But if that organization now represents the idea that the only people entitled to determine what the Constitution means are five justices of the Supreme Court (preferably counseled by lawyers like Brown), then perhaps it is time I rethink whether I should be carrying that card.

The ACLU of course supported the decision of the Court in Citizens United. They consider it sacrilege to now argue to change a rule that recognized a protected liberty interest.

But there was nothing in the original Constitution that said anything about the liberty of corporations (as distinct from "the Press") to engage in politics. And there was plainly something in the original constitution that spoke of the liberty of "We, the People," through their representatives, to deliberate about the scope and limits of our Constitution. To now entrench the former, and unmentioned, liberty by arguing that we should never (or at least for "the next two hundred years," as Brown put it) exercise the latter, clearly intended, liberty is to turn the Constitution on its head.

Our Constitution was not made for lawyers. It was not to be trusted exclusively to judges. Yet somehow we have allowed a professional class of "civil libertarians" and judges to claim to themselves alone the right to say what our fundamental law should be. This is not just contrary to American traditions. It is destructive of democracy. The "Right of the People to alter" their government, as the Declaration of Independence declares, is "unalienable," and even if it's not, we certainly never alienated it to judges, or Congress alone.

As I began the drive back to Boston after my testimony, I heard a familiar voice on the radio. Jimmy Wales, the founder of Wikipedia, was defending democracy on the Internet. Sure, Wales acknowledged, the Internet revealed all the problems with democracy in real space. But as he concluded, "I say having people talking to each other about real issues is always good for democracy."

One would think. Unless of course one were from a professional class keen to keep "real issues" far from the dirty hands of "the people."

That is not my class. And I hope Rhode Islanders will tell their representatives, that is not their class either.

You can read Segal's resolution here, and read more about the call for a convention at

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Professor of Law, Harvard Law School, Co-founder of Change Congress
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