Source: Laurence Lessig, Huffington Post
Two hundred and twenty four years ago, people of radically different views put aside those differences long enough to save this Nation. America was on the brink of collapse. Its first constitution was an unmitigated disaster. Only a radical, and some say illegal, reform could restore the promise of the nation declared a generation before when it claimed its independence from Britain.
We forget this fact about them today. To us, they all look very much alike — white guys, some in wigs, eloquent and brave no doubt, but certainly not the picture of significant difference in either ideas or values. Yet when the men who founded this nation met in Philadelphia in the summer of 1787, there were fundamental differences among them. Slavery, for example: The men who founded this nation were critically divided on this fundamental question. Some thought it natural and appropriate. Some thought it the quintessential injustice. Yet they were able to put even this difference aside enough to craft a pact that would give birth to our constitution (and eventually, death to slavery).
On September 25 & 26, I will co-host a conference at Harvard with Tea Party Patriots co-founder Mark Meckler, on whether it is time for a new constitutional convention. Our conference is obviously not that convention. We don’t pretend to parallel that event two and a quarter centuries ago, and certainly not any of its characters.
But as many of us believe that our nation has come to another moment of crisis in its capacity to govern, some of us believe we must begin to talk through whether fundamental reform through a convention will be required.
Meckler and I want to have that conversation the way our Framers did — as a respectful discussion among people who disagree fundamentally. I have enormous respect for Meckler, and the movement that he helped to birth. But I am not an ally of the Tea Party. I share the belief that our nation needs fundamental reform. I don’t share a belief in the substance of the reform that the Tea Party has pushed.
Yet the differences between Meckler and me, or between the Tea Party and the Left more generally, are tiny as compared to the differences among many of our Founders. However much we disagree, our disagreement is puny as compared to the fight over slavery, or the decision about whether to found this nation as a monarchy or a republic. Meckler and I believe that if THEY could put aside their differences long enough to debate with respect the changes their constitution might need, then WE should be able to put aside our much smaller differences to focus on a way to end our own crisis of governance.
The convention that we will discuss is not, however, the same sort of convention that gave birth to the Constitution. It is instead a convention explicitly envisioned by that constitution. Article V of the Constitution gives the states the power to demand that Congress “call a Convention for proposing amendments” to the Constitution. Such amendments are only valid when ratified by 3/4ths of the states.
Never in the history of the Nation has an Article V convention been called — though we came close a century ago, when the call for a convention to make the senate elected was within one vote of the necessary two thirds. That was enough to spur Congress to reform itself, by proposing its own amendment and ending the need for a convention.
We will start this conversation with all of us not yet convinced that a convention is either necessary or wise. It is my view that is is. Meckler doesn’t (yet) share that view. And over the course of the two day event, lawyers, historians, political scientists, and activists from both the Left and the Right will discuss whether and how a convention might proceed.
I am open to being convinced that a convention is unwise (though I would then despair about how we will effect the fundamental reform our government needs). But I am convinced already that much of the debate about a convention is, let’s say, under-informed. We should at least be able to have a conversation that remedies this, even if we can’t agree about whether a convention would be wise.
But please save the rage that these efforts at across-the-isle exchange inevitably inspire. I can distinguish between talking to someone, and agreeing with them. We all should recognize that the very reason our Republic embraced a representative democracy was because it was clear to our Framers that there would always be people to disagree with. What we’ve lost is not a world in which everyone agrees. What we’ve lost is a practice of respectful deliberation about those disagreements. If it does nothing else, this Conference on the Constitutional Convention will demonstrate that practice.