Conventional Wisdom

The breaking news from Ireland this week—understandably overlooked by breaking news closer to home—is that the not-particularly-secular Emerald Isle has put itself on the fast track to recognizing same-sex marriage.

At a gathering of the country’s constitutional convention, 79 percent of those present voted in the affirmative on the gay marriage question—a recommendation the Irish government will decide upon in the coming months.

As surprising as this latest seal of gay approval might be, to me the even more striking revelation was also the more all-encompassing:  That is, the news that the Irish Republic had commissioned a constitutional convention in the first place.

It is not every day that a stable, peaceful, modern democracy decides to embark upon a wholesale rewrite of the defining document of its society, government and culture.

One cannot help but wonder:  Could it happen in America?

The proposition is not a new one.  No less than Thomas Jefferson, in a 1789 letter to James Madison, mused that “every constitution […] naturally expires at the end of 19 years” and can (and should) be completely redone thereafter—Jefferson’s premises being that 19 years constitutes a single generation of Americans and that “the earth belongs to the living and not to the dead.”

Periodic calls for a “second constitutional convention” have sounded through the years, both at the state and federal levels, although none has yet borne any fruit.

The relevant clause in our current Constitution is Article V, which outlines the ways in which the document may be amended, as it has been on 27 occasions to date.  In addition to the usual method, whereby an amendment is proposed by two-thirds of both the House and Senate and then ratified by the legislatures of three-fourths of the states, a national convention may be established “on the Application of the Legislatures of two thirds of the several States.”

A key question here—unanswered, since it’s never been tested—is whether these provisions apply only for the purpose of enacting a single amendment, or whether we could go the extra step and, as Jefferson recommended, actually rewrite the whole thing from scratch.

As (and if) such lawyerly matters get sorted out in due course, we are surely entitled to engage in thought experiments and wish thinking in the meanwhile.  With the Irish example now before us, some of the issues involved become less abstract than they might previously have been.

For instance:  Were a full-fledged second constitutional convention to occur, of whom would it be composed?

Our original convention, for all the political wrangling involved, contained such minds as James Madison, Alexander Hamilton and Benjamin Franklin.  By contrast, in Washington, D.C., today, we have a Congress that recently managed not to pass legislation on gun control that is supported by roughly 90 percent of the public.  Are we really prepared to entrust this lot with refashioning our most sacred national document?  And if not them, then whom?

The convention in Ireland is composed of exactly 100 individuals:  A government-appointed chairman, 33 members of the legislatures of Ireland and Northern Ireland, and 66 randomly-chosen citizens who constitute “a representative sample of the Irish public” with respect to age, gender and geography.

Transplanting this approach to America, we might wonder what a “representative sample” of Americans would look like in such a context.  Would we not want to include a wide cross-section of political views?  Religious affiliations?  Economic statuses?  Levels of education?  Occupational backgrounds?  Or would we be content to have 100 white male lawyers hammering this thing out?

Oh yes, and then there is the minor matter of what a brand new U.S. Constitution might say.

The Irish convention is focused on eight particular items.  Besides same-sex marriage, these include such disparate considerations as shortening the presidential term of office, lowering the voting age, formally encouraging a greater presence of women in public life and—my personal favorite—discontinuing the status of blasphemy as a common law offense.

Would our First Amendment survive a hypothetical rewrite?  How about the Second?  Would we retain term limits on our commander-in-chief, perhaps imposing them on senators as representatives as well?  Would a revamped Bill of Rights be longer or shorter than it is now?

Finally, what of the wisdom of Jefferson’s sentiment in the first instance?  Is it really true that the world belongs only to those who presently inhabit it, or is there value in retaining the basic outline of views of those (such as Jefferson) who, however fallible and unable to predict the future, are due a certain deference from their unique position in history?

To some of these questions, we might never receive adequate answers.  And so we have no choice, then, except to keep on asking them.

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One thought on “Conventional Wisdom

  1. Interesting post! The Blasphemy bit of our Constitution is ridiculous all right but no one has ever actually been prosecuted for it because it was never defined by statute so judges just kind of side step over it!

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