Constitutional Convention: What History Teaches

from the Sacramento Bee, www.sacbee.com/opinion/story/1717487.html

A constitutional convention has been proposed by some California business leaders as a vehicle to fix the Golden State's deeply entrenched political and economic woes. While a convention offers the hope of a new beginning, it also inspires understandable fear that hard won rights may get trampled in the horse-trading. The state's leadership in recent years has hardly inspired confidence. Why should we imagine that it could match the brilliance of James Madison, George Washington and the other Founders, and chart a new course for our state?

The first thing to recognize is that the Founders were not as brilliant as the mythmakers would have us believe. Their initial design of government -- the Articles of Confederation -- was a timid attempt at national governance, more dysfunctional than California's government today. To their credit, once they realized their design had faltered, they were bold enough not merely to tinker around the edges. They had the courage to fix their eyes on a new horizon, completely redesigning their existing governmental structures to create Version 2.0, which became an inspiration to the world.

But birthing a new form of government did not occur without labor pains. During the Constitutional Convention of 1787 in Philadelphia, scholars such as Yale University's Robert Dahl have shown, the Constitution was hashed out by delegates who were thoroughly confused and at times beyond their depth. The meandering trail of proposals for electing the president, for example, revealed a divided and fumbling body.

Starting in mid-May 1787, the delegates debated several different methods for months, changing their minds incessantly and finding no consensus. On three occasions during July, the delegates voted for the selection of the president by "the national legislature" -- what we know today as a British-type parliamentary system.

But apparently this proposal didn't satisfy, so over a hot, muggy August, other proposals from subcommittees were thrust forward and defeated. As late as August 24, despite mounting pressures to complete their work and return home, the delegates still had not settled upon a final proposal for electing the president. Running out of time, the delegates turned the dilemma over to yet another committee.

By Sept. 4, this committee recommended a solution the delegates already had rejected - that the executive be chosen by electors appointed by state legislatures. Two days later, they tweaked the proposal yet again, so that instead of the state legislatures automatically appointing the electors, legislatures were allowed to choose the method for selecting the electors - the practice we still use today.

Finally the weary delegates, who had been meeting by that time for nearly four months away from hearth and kin, adopted this compromise with nine states in favor and two opposed. Ten days later, the Constitution was signed and the convention adjourned.

To observers like Dahl, what the torturous record of proposals and counterproposals suggests is a group of baffled, confused, even floundering men who settled on a solution more out of desperation than confidence. Like the formation of the Senate, the American method of choosing the president was not founded on constitutional theory, high principle or brilliant design. The Founders simply ran out of time and ideas.

It's important to emphasize the confusion -- rather than the brilliance -- that reigned at the Constitutional Convention for a few reasons. One, it shows that designing a new system involves uncertainty and a degree of bewilderment, no matter how talented the people in the room. If we overeulogize the Founders and make them seem so brilliant and California's "new Madisons" so dim by comparison, it's kind of a setup for saying a constitutional convention in California will probably fail.

Second, if we recognize that the Founders were not so brilliant after all, or at least were quite confused amid their brilliance -- yet they plunged forward anyway -- that is a far more powerful message for us to ponder. It means they courageously embarked on substantive overhaul of their key institutions despite their lack of clarity and consensus over what the final product would be. They didn't just tinker around the edges because they had the certainty that the status quo was no longer acceptable.

That should give Californians the fortitude to know that, while we may not be completely clear on where we are going, like the Founders, we can be clear that we must push forward nonetheless. We should be emboldened to think outside the usual boxes, putting on the table substantive reforms like proportional representation, a unicameral legislature, lowering the two-thirds threshold for enacting budgets and taxes, and more.

While it may not be obvious right now who are California's Madisons, Adamses and Jeffersons, it would be a mistake to underestimate what California's leaders might be capable of producing if we dare to try.

Steven Hill is director of the Political Reform Program of the New America Foundation and the author of "10 Steps To Repair American Democracy" (www.10Steps.net).