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August 22nd, 2010

Constitutional Convention Myths

By Nathan Tucker

As Iowans consider voting “yes” for a state constitutional convention on the November ballot, several skeptics of the convention have raised valid concerns over the process and its implications.  Few dispute the need for serious reforms to be made to our constitution, but they question whether the convention is the best way to bring about those amendments.

Myth #1:  It will Open Pandora’s Box.  The first of these concerns is that a constitutional convention will allow the entire constitution to be rewritten and thereby open Pandora’s Box to all kinds of ill-conceived amendments.  But this overlooks the simple fact that both amendment processes—either through the legislature or a convention—equally raise the prospect of opening Pandora’s Box.

The Iowa Constitution simply does not give the convention any more authority to rewrite the constitution than it does the state legislature.  Each time the General Assembly considers amending the constitution, there is nothing to prevent it from deciding to scrap the existing document and start completely over.  The General Assembly is very much a standing constitutional convention possessing all the same powers a decennial constitutional convention would have.

At least, unlike the legislature, delegates to a constitutional convention are directly chosen by the people for the specific task of proposing the amendments they want.  Fears that liberals will hijack the convention to propose all sorts of radical changes are greatly exaggerated when liberals are in the process of running as fast as they can from their legislative agenda.  Additionally, under either amendment process (legislative or convention), the people have the final say on what amendments are eventually passed and which are not.

Myth #2:  All or Nothing Vote.  The second concern raised by skeptics of a convention is that it will combine all amendments into one omnibus amendment.  This would, they fear, require voters who want a balanced budget amendment to also have to vote for statewide health care.  But this is specifically prohibited under Title Ten of the Constitution, which requires amendments to be voted on individually. The people, therefore, would have the opportunity to vote for the amendments they want while at the same time rejecting those it deems to be imprudent.

Myth #3:  Not A Deliberative Process.  Skeptics of a convention have raised a third concern by claiming that the convention method would not be as deliberative as the legislative method.  Thought the convention process would be shorter than passing an amendment through two General Assemblies, it does not mean that it would have to be any less deliberative.

The process requires a public debate over the desire to call a convention, the legislature would determine how delegates to the convention are chosen, there would be elections for those delegates, the convention would deliberate, and any proposed amendments would have to be voted on by the people in a statewide referendum.  This is approximately a two-year process during which time there will be ample opportunity for public debate over how the constitution should be amended.

Myth #4:  The General Assembly Can Veto a Convention:  Citing the example in 1920-21 when the people voted for a constitutional convention but the legislature failed to provide for one, skeptics argue that “either chamber of the General Assembly can say ‘no’ and the Constitutional Convention will not happen.”  They do not argue that, as a matter of constitutional law, the legislature can veto a constitutional convention since Article X of the Iowa Constitution clearly states that the General Assembly “shall provide” for a convention.

Rather, they argue that, as a practical matter, proponents of a convention need to control both chambers of the legislature because some politicians may ignore their constitutional obligation.  But it stretches credibility to believe that these politicians, many of whom (rightly) argued that neither county recorders nor the governor had the constitutional authority to ignore court decisions, would suddenly feel equally free to abrogate their constitutional responsibility.

Additionally, 2010 is substantially different than 1920/21 in several ways.  First, there wasn’t a public demand for a constitutional convention in 1920/21.  The only “movement” for one occurred the Wednesday before Election Day in a single letter by one organization to its members.  Secondly, that sole organization urging a convention could not point to a single reason why a constitutional amendment was required at all, as opposed to changes that could occur by regular legislation.

Third, no legal challenge was mounted in 1920/21 challenging the General Assembly’s inaction.  The claim was made in 1920/21, and again in the present debate, that Article III, section 10, of the Iowa Constitution protects the right of “every member of the General Assembly…to dissent from, or protest against any act or resolution which he may think injurious to the public… ”

While certainly legislatures have a right to dissent from any bill they so desire, they do not have a constitutional right to ignore a constitutional obligation.  They no more can legally refuse to provide for a constitutional convention than they can refuse to call for House elections every two years, the reapportionment of legislative seats after every decennial census, or to provide for the judicial branch in violation of Article V, section 14.

If the legislature would fail to perform their constitutional function, we would expect and desire the courts to prevent such a constitutional wrong.  Nor is this a giant leap for the courts, who have, for instance, ordered reapportionment of legislative seats and, in rare cases, even done so themselves when the legislature has failed to do so.

If faced with such a legal challenge, the Iowa Supreme Court will doubtless understand that one of the issues before such a convention will be a marriage amendment.  Though such an amendment will obviously overrule the Court’s Varnum decision, courts in the past have demonstrated their willingness to allow the voters to override them.  For example, the California Supreme Court upheld that state’s recent marriage amendment that overturned the court’s earlier ruling which legalized same-sex marriage.

Myth #5:  Need to Control Both Houses of General Assembly.  Given the reasons cited in Myth #4, there is no need, from either a practical or constitutional standpoint, for proponents of a constitutional convention to also win a majority in both legislative chambers.  But, building on this faulty premise, skeptics argue that, assuming “you cannot win a majority in the House and the Senate [to pass legislation providing for a convention], how is it that you expect to be able to win a majority of Delegates to the Constitutional Convention?”

But it is not an apples to apples comparison to treat a special election for delegates to a constitutional convention the same as a general election.  There are many factors that go into the decision to vote a particular way in a general election—the individual candidate, the candidates up and down the ticket, the issues, the economy, party scandals, etc.  But none of those factors apply in a special election for convention delegates, where specific issues will dominate above all else.

Myth #6:  Conservative Issues Cannot Win Majorities of Convention Delegates.  Skeptics proceed to argue that socially conservative issues such as marriage will not be enough to win a majority of the delegate seats at a convention.  But these skeptics overlook the fact that thirty states, including liberal California, have passed marriage amendments.  Only one state that has voted on a marriage amendment has rejected it, and that state, Arizona, later passed such an amendment.  There is no reason to believe, therefore, that conservative issues cannot prevail at the ballot box.

In addition to a marriage amendment, there are also a number of issues that need to be addressed that would likewise have a great appeal to voters at large.  Issues such as a balanced budget amendment, a popular vote on tax increases (the People’s Right to Vote amendment), judicial reform, gun rights, etc. need to be addressed at the convention.  All of these issues resonate with a majority of Iowans who long to reform “business as usual” in government.

Myth #7:  Legislature Can Pass These Amendments.  This has brought up the interesting argument that, since some of these amendments have previously made it out of the General Assembly, nothing prevents the legislature from being able to put the same amendments before the voters in 2011.  For instance, the current judicial nomination process was passed out of the legislature and approved by voters in 1962, and a Balanced Budget Amendment made it out of the General Assembly and was narrowly defeated (51-49%) by voters in 1999.

Again, critics are trying to compare apples to oranges.  There are many factors that contribute to an amendment making it out of the legislature in a particular year that are not necessarily present in a later year.  For instance, the People’s Right to Vote Amendment (giving voters the right to vote on tax increases over 1%) made it through one round of voting in the legislature in 2004.  However, it failed to make it out of the second round in either of the following two years in order for the electorate to vote on it.  By contrast, a convention has a mandate to pass the amendments desired by the voters who called for it and elected its delegates.

In conclusion, amending the Iowa Constitution by a constitutional convention is no more scary then amending it through the legislature.  In fact, the convention route would allow the voters to have greater control over the process than relying on legislatures and their lobbyists in Des Moines.  Given the likelihood that the General Assembly will not, out of their own self-interest, pass all or some of the needed reforms, it is the responsibility of We the People to vote yes on the convention question to make the changes ourselves.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at nathanwt@juno.com.




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