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February 6th, 2010

Constitutional Convention – Promise or Mayhem?

Capitol DomeGiven the unwillingness of Democratic leaders to allow a marriage amendment to the Iowa Constitution to come to the floor in either chamber of the General Assembly, the question has been raised as to the practicality and the wisdom of pursuing a constitutional amendment by another procedure—the constitutional convention.

The Promise:

The Iowa Constitution provides two methods by which it can be amended. The first and most common procedure is for a majority in both the Iowa House and Senate to pass the proposed amendment in two consecutive terms of the General Assembly. The word term should not be confused with a session of the Iowa legislature. The word term refers to the period between general elections in Iowa when new legislatures are voted in, while the word session refers to a particular period when the legislature is actually convened.

For example, the latest term of the Iowa General Assembly began when it first convened after the 2008 elections, and the next one will begin the first time it convenes after the 2010 elections. The current session, however, of the General Assembly began on January 11th when it convened for its annual meeting and it will, tentatively, end March 31st.

This distinction is important because, if the marriage amendment is passed by both chambers this year, it must be ratified against next term which, fortunately, it also next year. But if, however, the amendment is not passed this year, it has to be passed in either the 2011 or 2012 session and in either the 2013 or 2014 sessions before it can even be presented to the Iowa voters for ratification

This process is long and laborious and, given the Democratic majorities in both chambers of the General Assembly, seems doubtful of producing a marriage amendment in Iowa. Because the problem of elected representatives ignoring the will of a majority of their constituents is not new, however, the Iowa Constitution provides an alternative procedure which bypasses the legislature in amending the Constitution—a constitutional convention.

This process is described in Article X, Section 3 of the Iowa Constitution:

At the general election to be held in the year one thousand nine hundred and seventy, and in each tenth year thereafter, and also at such times as the general assembly may, by law, provide, the question, “Shall there be a convention to revise the constitution, and propose amendment or amendments to same?” shall be decided by the electors qualified to vote for members of the general assembly; and in case a majority of electors so qualified, voting at such election, for and against such proposition, shall decide in favor of a convention for such purpose, the general assembly, at its next session, shall provide by law for the election of delegates to such convention, and for submitting the results of said convention to the people, in such manner and at such times as the general assembly shall provide; and if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the general assembly, voting thereon, such amendment or amendments shall become a part of the constitution of this state. If two or more amendments shall be submitted at the same time, they shall be submitted in such a manner that electors may vote for or against each such amendment separately.

Since 2010 is a “tenth year thereafter,” voters will have a chance this year to vote on whether or not a constitutional convention shall be held to amend the existing constitution. On its face, this procedure appears to be much simpler and much more attainable than the traditional process of amending the Constitution via the legislature.

What About the Mayhem?:

However, there are several serious objections to pursuing this option. The first is that while this process isn’t dependent upon the approval of an unresponsive and derelict majority in the General Assembly, that same majority has the responsibility of deciding the process by which delegates are chosen to the constitutional convention. Hence, the argument goes, the Democratic majority will draw the districts from which delegates are chosen in such a way as to ensure they retain a majority in the convention.

While this is a viable concern, I think the concerns over drawing delegate districts are overblown for several reasons. For instance, any other scheme for drawing delegate districts than using existing districts for state legislatures (either senate and/or house) is extremely problematic because of constitutional issues. Because the last time the General Assembly tried to draw the lines up itself it was found to be unconstitutional, it delegated the job to the nonpartisan Legislative Service Bureau.

Therefore, I anticipate the General Assembly to simply utilize the existing state senate districts as delegate districts as they did for the 1857 constitutional convention in order to avoid any legal challenges. Even if, however, the General Assembly tried to gerrymander the delegate districts, I have enough faith in the people in this climate of outrage at politicians, tea parties, and Republicans winning in Massachusetts to elect responsible delegates who will abide by the will of their constituents and not the wishes of Democratic party leaders Senator Mike Gronstal and Speaker Pat Murphy.

And second objection to a constitutional convention is that it would, in essence, open Pandora’s Box—anything and everything could be proposed at the convention. Conservatives would come with their wish lists of items such as a marriage amendment, tax and budget reform, gun rights, and gambling, while liberals would champion such causes as union rights, environmental regulation, and health care reform.

While this is certainly a plausible scenario, whatever amendment(s) the constitutional convention produces must be voted upon by the people before it is ratified. I have enough trust in the people that they will reject any liberal amendment. Furthermore, not to discourage my fellow conservatives, only the marriage amendment will likely be ratified by the people as it alone has a huge majority behind it.

A third objection is premised on the first two—that the Democratic Party will manipulate the delegate districts to elect a majority and, once seated, they will seek to throw out the entire existing constitution and replace it with some sinister but yet undefined constitution. Though constitutional conventions have been known to do this (the U.S. Constitutional Convention, for instance, proposed an entirely new constitution rather than simply amend the Articles of Confederation for which it was nominally elected to do), what evil constitution will they seek to replace the existing one with?

I see liberal amendments as a much more attainable goal for liberals than an entire scrapping of the entire constitution, but I again put my faith in the people to reject either. Though left to their own devices Democrats would doubtless seek to create much mischief, their fear of the electorate, especially in this environment, will help restrain this tendency. Last April they dared conservatives to pursue a constitutional amendment, little realizing that at the time the Democratic Party’s popularity had already crested and they were about to taking a beating at the polls. Now, they have enough to worry about just to get reelected without attempting much large-scale change in the Constitution.

A fourth objection appears to concern the issue of amendments—that a conservative amendment (i.e., the marriage amendment) may be joined with a liberal one (i.e., health care reform). But this is specifically prohibited under Title Ten of the Constitution, which requires amendments to be voted on individually. And as can be seen from Section 29 of Article Three of the Constitution, each amendment can only embrace one subject. Therefore, an amendment concerning the subject of marriage, for instance, cannot also deal with the subject of health care reform.

Interestingly, the odd argument has been raised that a constitutional convention can ignore this prohibition because its sole purpose is to amend or repeal the constitution. Such an argument, however, appears to put the cart before the horse—even if the constitutional convention wanted to propose an amendment (or a new constitution) that would repeal this prohibition, the existing Constitution remains in effect until the new amendment is voted on by the people.

A constitutional convention does not become a “living constitution” unto itself simply because it can repeal the existing constitution. For instance, the Articles of Confederation remained in effect with the full force of law until the U.S. Constitution was ratified by the 9th state (the minimum required for ratification). It is only when the proposed amendments are approved by the voters that they become law.

The Solution:

Though mayhem appears plausible but unrealistic, conservatives should not fear advocating for a constitutional convention. With that said, however, mayhem is best kept at bay by having a sound, long-term strategy—making the sole purpose of the constitutional convention to amend the Iowa Constitution to create a 3rd procedure by which it could be amended: a ballot initiative whereby citizens can directly propose constitutional amendments without reliance on the legislature or resort to potentially opening Pandora’s Box with a constitutional convention.

This strategy serves two purposes. First, if this is the entire purpose of a constitutional convention, it takes the fear and wild speculation out of the process. Conservatives don’t have to fret that liberals will highjack the convention and steamroll a liberal constitutional remake, nor will liberals have to fear the same about conservatives. It is a willingness to agree to disagree by recognizing that a constitutional convention is not the most appropriate forum for such explosive and controversial issues. In this political environment, Democrats may well find it hard to be reelected unless they pledge to only seek this one amendment at the convention rather than pursue a liberal agenda.

Second, while this would mean an additional wait of a few years before a marriage amendment is placed on the ballot for the people’s vote, it is well worth the wait. For the issue is not simply the definition of marriage in Iowa, but the problem of judicial activism, and there is no other remedy to unconstitutional judicial decisions than to provide individuals with the ability to quickly trump the court’s decision by amending the Constitution. It is only then can we become a country in which we truly are sovereign.

The following is my proposed amendment to the Iowa Constitution to allow for ballot initiatives:

Article X Amendments to the Constitution

Ballot initiative. Section 4. The initiative is the power of the electors to propose amendments to the Constitution and to adopt or reject them.

(a) An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed amendment to the Constitution and is certified to have been signed by a number of electors in each one-half of the congressional districts of the state, and of the state as a whole, equal in number to 15 percent of the votes cast in each of such districts respectively and in the state as a whole for all candidates for Governor at the last gubernatorial election.

(b) The initiative measure shall have been signed by the petitioning electors not more than twenty-four months preceding the next general election and shall be filed with the Secretary of State at last 120 days before the next general election.

(c) The Secretary of State shall upon its receipt determine, as provided by law, the validity and sufficiency of the signatures on the petition, and make an official announcement thereof at least 60 days prior to next general election. The Secretary of State shall then submit the measure at the next general election after it qualifies.

(d) Such proposed amendment, existing provisions of the constitution which would be altered or abrogated thereby, and the question as it shall appear on the ballot shall be published in full as provided by law. Copies of such publication shall be posted in each polling place and furnished to news media as provided by law.

(e) The ballot to be used in such election shall contain a statement of the purpose of the proposed amendment, expressed in not more than 100 words, exclusive of caption. Such statement of purpose and caption shall be prepared by the Secretary of State, and shall consist of a true and impartial statement of the purpose of the amendment in such language as shall create no prejudice for or against the proposed amendment.

(f) If the initiative measure is approved by a majority of electors qualified to vote for members of the general assembly, voting thereon, in two of the last three general elections, such amendment or amendments shall become part of the constitution of this state.

(g) An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.

(h) An initiative measure may not include or exclude any political subdivision of the State from the application or effect of its provisions based upon approval or disapproval of the initiative measure, or based upon the casting or a specified percentage of votes in favor of the measure, by the electors of that political subdivision.

(i) An initiative measure may not contain alternative or cumulative provisions wherein one or more of those provisions would become law depending upon the casting of a specified percentage of votes for or against the measure.

Written by Nathan Tucker

About the Author

The Iowa Republican

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