What if…the United States held a Constitutional Convention?

The United States constitution is an extraordinary document, if only for the fact of its longevity. It has been the bedrock of the legal order governing that country for over 250 years, and that counts for something. Having said that, one cannot but help notice, as the citizen of a functioning and healthy democracy, that there are those in the US for whom the document and its writers are regarded as more of a fetish than reverence.

The founding fathers themselves knew that consitutions need to be amended and adjusted in line with changes in society, and the obsession with referring to “what they meant”, giving dead men from a quarter millenium ago a veto over the 21st century is simply bizarre. In short, there should be nothing unAmerican about revising and even replacing it.

It’s worth recalling that the America of the late 1700s was a predominantly rural place, and most states had broad similarities. That is simply not the case now: urban and rural Americans live more and more divergent lives that in other places would be almost foreign.

This is not the first time America has been divided, it’s true. But the divisions of the civil war were morally clear. The core cause of the Confederacy was no less evil than that of the Third Reich. The problem with today is that the wide divisions between Americans are not as morally clear cut, but cultural. From guns to abortion to science to healthcare, there are radical differences, and it is worth questioning how a country can proceed with these seemingly intractable issues on the table, steadfast held in place by a constitution designed for a different age.

What if opponents, liberals and conservatives, decided to confront the issue head-on? What if they decided a genuine good faith effort to revise the constitution for the America they lived in? How would it actually work?

For a start, it has to be approached on a simple rule: nothing is agreed until everything is agreed. This is to prevent any side banking concessions made by the other side without conceding anything themselves. A sort of constitutional Without Prejudice clause.

Secondly, how would the convention be chosen? I would suggestion a convention of 200 delegates: 100 directly elected by statewide PR based on population, and the second 100 nominated by the state legislatures on the basis of two delgates per state. That would give every state a fair say, allow for democratic input and also ensure, using PR, that Democrats from Texas and Republicans from Massachusetts would be included.

Thirdly, the two parties could jointly nominate an agreed panel of liberal and conservative constitutional scholars to meet in camera and prepare, on the basis of 75% agreement, a series of constitutional amendments which they will propose en bloc. By the way, don’t assume that all conservative constitutionalists will oppose any changes . As the National Constitutional Centre in Philadelphia shows here, there are many reforms conservatives would like to consider.

The panel could propose the slate of reforms to the Convention with an understanding that they may only be amended or agreed with 75% of the vote of the Convention.

Would it work? If, as I said, it was approached in good faith, but that is an issue in itself. Large numbers of US politicians and media players are now making lucrative careers and money from perpetuating an environment of division and mistrust, and that may be a hurdle too high to overcome.

Additionally, I can’t help feeling personally that the solution will lie in compromise and enhanced states rights, including the right to restrict (at state level) both abortion and gun ownership. Americans could do a lot worse than look at the European Union as a model. The EU has certain union-wide freedoms which all members must respect, but also wide latitude on cultural issues. For example, neither abortion nor same-sex marriage are union-wide rights, but a ban on the death penalty is, as is transporting guns across state borders. A looser American Union based on a common currency, trade, freedom of movement and defence would easily resemble the United States of the founding fathers…

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