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Lawrence Lessig

Lawrence Lessig

Posted: June 14, 2010 10:22 AM

Rhode Island's David Segal's Call for a Constitutional Convention

What's Your Reaction:

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 CallAConvention.org.

 
 
 

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ZeraLee
A Citizen's View from Main Street
04:56 AM on 06/20/2010
A Constitutional Convention would be dangerous in the hands of the far right. We could wind up with a Theocracy or conservative social engineering.
09:52 PM on 06/15/2010
When we hold a political convention to nominate the President, the delegates do not mandate who will take office, they simply build consensus about who they think has the best chance to win. Delegates to the Article V Convention are not going to mandate new amendments, but simply build consensus about what could possibly be ratified today. How is building consensus a bad thing? And how are delegates going to stand before the nation and propose that corporate rule remain in place? Think peoples. We need to dust off the Constitution and put it to work for us here and now before it's to late. It is there in our Constitution for a reason, and if not now--when?
10:47 PM on 06/15/2010
No, No, No, You do not ever let them hold a Constitutional Convention. If they are ever allowed to do this they can scrap our entire Constitution and our Bill Of Rights. And don't think for one minute they wouldn't. We would have no voice or say on the matter. The state legislators are the ones who get to ratify the results not the people. Any time some nut job calls for a new Constitutional Convention run him out of town on a rail tarred and feathered. Don't ever be fooled into this one. What we have now isn't perfect but it's the best we've will ever have.
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racetoinfinity
restore Glass-Steagall now!
11:53 PM on 06/15/2010
Gee. I wonder if everyone said that before all the amendments to the Constitution were voted in in the last 250 years. You know, those horrors like The Bill of Rights, abolished slavery, gave blacks and women suffrage, allows direct election of senators, revokes the poll tax as a prerequisite to voting??
11:55 PM on 06/15/2010
Your thinking on this subject is not informed. The delegates cannot ratify what they propose, and it's irrational to think 38 states are going to ratify the repeal of the Bill of Rights. A convention is spimply a deliberative assembly which operates on parliamentary procedure. Yet what it does, is it wakes everyone up, and that dynamic is what creates a balance of power back towards the people. Simply holding elections for delegates will do more for this country than the convention itself because suddenly the airwaves will be filled with ideas that the forces of institutionalized corruption do all they can to suppress. I hope you take a step back and really think about how you've been conditioned to perceive the convention clause of the U.S. Constitution.
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mackbolan
Libertas inaestimabilis res est
11:00 PM on 06/15/2010
repost...

@alipes who said..."3) The Article V Convention cannot propose a new constitution, it can only propose amendments to the one we have. By holding a convention we'll re-establish order and safegaurds against the current chaos."......
---------------------------------------------------------------------------------------------------------------------------------------------
don't make absolute statements that you cannot back up....

There is, however, the concept of the Amendment Convention as noted in Article 5. The power or limits of such a convention are unknown because there has never been one. It is thought, however, that a Convention would be able to propose any change to the Constitution it decided to, including full replacement.

if you have anything which contradicts the above statement i would like to see it....
11:47 PM on 06/15/2010
It's not a concept but a clause of the "Supreme Law." A concept and a legal clause are not one and the same thing. In Article V note the language: "...to this constitution...." Those words mean that whatever is proposed, it must be as an amendment, which means if any delegate wanted to alter the seven articles--the structural law--they would first have to propose an amendment allowing that, get it ratified by 38 states, and then come back to propose a new constitution.

The power/limits of convention delegates are exactly same as the power/limits of members of Congress. There is absolutely nothing unknown about the Article V Convention except what amendment proposals will be on the table once it adjourns. Delegates must be chosen as members of Congress are, by the people of their states. The Supreme court has either directly or indirectly ruled on all these issues in over 208 cases regarding this matter in all its particulars. Check foavc.org or article5.org for more info.
09:40 PM on 06/15/2010
@EdWoodJr: The Founding Fathers are not going to solve our problems, and the call to "the intent of the Founders" has been illegitimate since before Reagan abused it as an excuse to proceed with the dismantling of government - and governance.
I still agree with Ellis that the Constitution is not there to provide 'all the answers', but to provide a framework to resolve the questions - the problem is not with the Constitution, as far as I can tell, the problem lies with the Politics of Money.
@MAH1952: And what was this about That is why there was no direct election of Senators? The only office elected through the Electoral College is the Presidency, and last time I checked, the President is not a sitting senator!!
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MAH1952
08:30 PM on 06/15/2010
Oh boy! First of all the Founding Fathers may have written We the People but they meant we the educated thinking people, not the Glenn Beck is the second coming of Christ people. That is why there was no direct election of Senators. Right now the US is ready to slide into (at best) an oligarchy and (at worst) a dictatorship because the vast number of Americans cannot get involved in their own country. I agree with the ACLU. We would end up with a Consitution looking more like Nazi Germany or Soviet Russia than what we have now.
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spottery2k
04:49 PM on 06/15/2010
language not only express thoughts. It makes possible thoughts which could otherwise not exist without it." ~Bertrand Russell

"For all mental processes fail to grasp reality itself, and in order to represent it, to hold it at all, they are driven to the use of symbols. But all symbolism harbors the curse of mediacy: it is bound to obscure what it seeks to reveal." ~Ernst Cassirer.

http://www.scottpotter.net/documents/The%20Prophets%20of%20Revolution.pdf
(pdf)

http://www.scottpotter.net/media/mp3/podintro-full-score.mp3
(mp3, 4-min)

http://www.scottpotter.net/media/mp3/intro-full.mp3
(mp3, 13-min)”
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teva
04:40 PM on 06/15/2010
Term limits. Period.
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MAH1952
08:32 PM on 06/15/2010
Ah. They are called elections and the reason the same crooked bums keep getting elected is because the American people are too fat and lazy to go vote. Maybe if every voting booth supplied free food and ESPN we could have 100% turnout.
11:40 PM on 06/15/2010
Or, MAH1954, it should be law that every one over the age of 21 must be vote or be held in contempt of federal law. One has to wonder how a tax break for voting would interest those "fat and lazy"people who you say does not care about the vote?

Direct democracy is the only true way for governance of, by and for the people. Is it possible? Why not? The way our political/social/economic system is now run means corruption is all but guaranteed. When a candidate has to come up with X amount just to be considered a candidate, should tell you that it is money that runs our "democracy".
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edwoodjr
04:39 PM on 06/15/2010
So is it something we can agree on or not? There's no way the Founding Fathers could possibly anticipated ap
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BenTrem
CMC since '72; compulsively tech_doc
04:26 PM on 06/15/2010
Testing the water in case there's some real interest in deploying a solid discussion framework, I just ran my mouth here: http://tl.gd/1t9cp9 < (#Web2.0 #Gov2.0)
In that blurt I refered to how "Most folk most times are perfectly happy to, as I tweet it, contribute comment #4385 for a total of 6712 ... which is kinda sad, I think." Here, with this post on this site, we have a case in point: 14 pages of comments. Who thinks that's in any way effective for anything except create (possibly, at best) the false sense of participation? I don't.
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garcohsf
03:34 PM on 06/15/2010
To be one of "We the People" in the Framers' day you had to be male, white and propertied. Mr Lessig knows this. So why does he pretend that they were somehow "democratic" in any sense we'd understand?

We now have technology that would permit every citizen to instantly vote on all matters that come before Congress. Suppose that's what the constitutional convention led to--true democracy. Would Mr Lessig favor that? I sure wouldn't.

If the electorate doesn't like the people in Congress, they should vote in different people.
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ChrissyN
04:25 PM on 06/15/2010
Yeah, have to say I agree with you. One need only read Fed. 10 to realize that one of their concerns was mob rule. We are not a true democracy, but rather a democratic republic. I for one believe that idea works, but perhaps the implementation needs tweaking. I do believe a Constitutional Convention is in order, but not for the reasons Mssrs. Lessig and Segal believe.

Corporations do have too many rights currently, and unfortunately that is due to an amendment that was intended to help the downtrodden (The 14th.) Perhaps and amendment that excludes corporations from being given the rights of individuals is in order.

I also take issue with the overall argument of founder infallibility that both the left and right make (and of course the founders agreed with them.) They were human beings with all the flaws thereof. They could not imagine a country 300 million strong or instantaneous transcontinental communication, two ideas that drastically alter the character of our society from theirs.
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MAH1952
08:37 PM on 06/15/2010
It is only because Americans cannot differentiate between what is good for the individual and what is good for the country that we are in this mess. What corporations need to realize is that moral responsibility is as much a requirement for them as for the individual.
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modwrit
02:22 PM on 06/15/2010
They wrote a new Constitution for Iraq and look how well that turned out.
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Cosatjockomo
01:38 PM on 06/15/2010
The court has also taken the Necessary and Proper clause and turned it into Necessary or Proper. Congress loves doing things that they claim are necessary but are also clearly improper (the [un]Patriot Act, protecting the individual from themself, bank bailouts, mandated insurance, etc.) and doing things that are proper but are clearly unnecessary (drug prohibitions, licensing countless professions, congressional pork)
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QDP
disillusioned green architect
01:33 PM on 06/15/2010
You are absolutely right! The naysayers do so because of pure greed, rampant within the current political system. Our current system of governance has so many advantages for corporations, their interests, special BUSINESS interests and the various lobbyists, that it is a huge uphill battle about money and power we will face to engage in modification of this important document.

However, if we don't try for a Convention, then the senseless form of government we have right now will continue. From Black Wave big oil to The "Too large to fail" financial crisis, our politicians are paid for and only represent corporate interests not the American voter.

We need to update the voting mechanism, show donation transparency across the board and limit contribution limits to strict, unbiased propositions and clear address. Once our leaders start voting again for the good of the country, we might have a chance in solving our immense foreign challenges,in defense, in trade, in deficit balancing and in responsible representative government action. Our leaders are clearly out of touch with their electorate.

Our Constitution was designed and engaged to be mutable, meant for correction, change and updates. Now is the time to do so, eminently!
01:04 PM on 06/15/2010
The author is too late to the game. If we had insisted that all major changes to the constitution take place via the amendment process, we wouldn't be where we are. Instead, the court has used the commerce clause to give congress (and administrations through unconstitutional delegation) unlimited power. It is upon this unlimited spending power that the special interests prey. Remove the spending power, and the interest groups can't afford their efforts.
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Devaron Namsaar
12:53 PM on 06/15/2010
I do not believe a Constitutional Convention is the answer to todays broken government. A well thought out Constitutional amendment or two would be more in line with what needs to take place. The reasons a Constitutional convention would not work is the same reason the government is broken. the greed and immorality of present politicians created the problems we have and to ask these same people to fix what they have broken is insane. Its like asking the inmates of an asylum to determine what is wrong and make the repairs... NOT!!!
The answer may be the impeachment of of the Congress followed by some severe jail time for the several members.
Once we allowed the politicians to accept financial help for their election from corporations and special interest groups and individuals we stepped over the line of legal and responsible elections. Another name for contributions to a politician is bribery and this is illegal, but it has been taking place for several decades, and the recent Supreme Court decision to make corporations into people is nothing less then proof absolute that this government is failing and the people in charge are nothing less then corrupt, immoral and insane. Unless you have another answer for their stupid and morbid actions.
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Cosatjockomo
01:55 PM on 06/15/2010
Just as the Tea Party movement was immediately hijacked by the money'd, so too would the convention. It's likely they'd end up doing exactly the opposite of what we wanted, just as our cries that health care was too expensive was met with a mandate that we had to buy it even if we could not afford it. Reform will only come when they feel the cost of not reforming is greater than the reward for maintaining the status quo. So you have but 2 choices. Make them suffer the costs of not reforming (since the system won't do it we'd need some mobs to dispense some justice on the lobbiests and bribing businessmen, scare them into knowing their very lives depended on it) or destroy the status quo (economic suicide). Personally, I'm for seeing it all fall apart - so lets crack open some more seals (thanks BP for getting the ball rolling) and get these end days underway.
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jmiro
04:42 PM on 06/15/2010
believing in the apocalypse is nihilistic, what good would any of our attempts at a solution be.
End time belief is bad for humanity period.
12:35 PM on 06/15/2010
A Constitutional convention would cancel the United States of America. The only thing wrong with the Constitution is America today. John Adams said: " Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other".

Essentially our constitution has been made into a suicide pact, and Americans steeped in ignorance love to have it so. Opening up the Constitution for revision would be an even bigger disaster.