Constitutional conventions historically expand rights

Robert O. Flanders
Posted 10/16/14

Opponents of a state constitutional convention worry that such a gathering might diminish civil rights. Throughout the long march of American history, just the opposite has occurred. To paraphrase …

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Constitutional conventions historically expand rights


Opponents of a state constitutional convention worry that such a gathering might diminish civil rights. Throughout the long march of American history, just the opposite has occurred. To paraphrase what Martin Luther King Jr. said of the moral universe, the arc of state constitutional amendments is long, but it bends towards justice.

State constitutions preceded the federal constitution in America and provided models for framing the Bill of Rights. After the American Revolution, Rhode Island clung to its Royal Charter of 1663, while other states adopted constitutions.

Problems with how state governments operated under their early constitutions and defects in the Articles of Confederation led to the Philadelphia Convention of 1787. James Madison, the architect of the U.S. Constitution, singled out the need to curb the all-encroaching power of state legislatures: “Experience has proved a tendency in our governments to throw all power into the legislative vortex.”

During the progressive era, between 1890 and 1914, state constitutional reformers set as their goal to re-establish popular sovereignty in an increasingly urban and industrial society, one in which concentrations of power and wealth had corrupted the democratic process. During this era, new constitutional devices, including the secret ballot, voter initiative, and referenda, became the means to secure popular rights in state constitutions, to restrain legislative tyranny, and to subordinate special powerful interests to the general welfare.

By 1995, states had convened over 230 constitutional conventions and adopted 146 different constitutions. Voters in those states approved over 6,000 amendments to their current constitutions.

State constitutions have long provided for and protected rights that exceed those guaranteed under the federal constitution. These include rights to obtain judicial remedies; the right of victims to address the sentencing judge and obtain relief from the criminals that harm them; rights to education; and rights to privacy not protected under the federal constitution. Indeed, an array of substantive rights beyond those protected under federal law has developed through state constitutional conventions and amendments, including expanded voting rights, rights of incarcerated individuals, rights to public assistance, environmental and natural resource protections, and equal-rights amendments. Some state constitutions even guarantee the right of employees to organize and bargain collectively both in the public and private sectors.

Opponents of Question 3 have yet to offer any substantive example of a state constitutional convention that recommended the roll-back of a civil right which the voters then approved. Their consternation over an anti-abortion amendment proposed by Rhode Island’s 1986 convention arouses fears without noting that state voters – by a two-to-one landslide – rejected that proposal. They offer no data to suggest either that delegates would be more likely than the General Assembly to advance such a proposal again or that voters would be more supportive than they were in 1986. Although some loud voices may oppose abortion, equal marriage, and other civil rights issues, the opponents offer no evidence that a majority of voters would actually diminish any civil rights.

A convention can only recommend constitutional changes. It will be up to the voters to decide what changes to actually make in the constitution. Opponents also ignore the fact that federal law trumps contrary state law; in no event can our state constitutional rights dip below those rights, such as abortion, that are protected under federal law. Thus, concerns about a convention diminishing civil rights are unfounded.

The main goal for a constitutional convention now is to enact the kind of structural changes that are needed to better balance power in the state and to limit the legislature’s ability to enact laws that have given us 38 Studios and other abominations.

When opponents of a state constitutional convention begin parading their horrible what-ifs about how outside interests and out-of-state money will inevitably corrupt such a convention, consider how fiercely they seek to protect the status quo and preserve the influence and prerogatives they currently enjoy against even any discussion of possible alternatives. Notice how adamantly they deny that they are fear mongers – even as they hypocritically use out-state funding from unions and other special interests to conjure up every possible negative to dissuade the voters from approving such a convention.

What the opponents of a convention fear is the messy process of democracy. They so distrust you, the voters, that they want to deny you the right to determine what should be our most fundamental laws under which we live and govern ourselves!

What solution do they offer to Rhode Island’s abysmal economic rankings and chronically excessive unemployment? Will the General Assembly ever let voters decide about a line-item veto or allow citizens to obtain judicial remedies when state government violates the rights enshrined in our state constitution? Will the legislature ever subject its members to the same ethics rules as all other public officials accept? Will legislators ever seriously consider limiting their own terms in office? Will they restore the independent judicial nominating process that voters approved in 1994 but which they have subverted?

If you’re fed up with insider deals such as 38 Studios and the political status quo, then vote yes on Question 3 to hold a constitutional convention here in Rhode Island.

Robert G. Flanders Jr. is a former justice of the Rhode Island Supreme Court and treasurer of RenewRI, the coalition urging approval of a constitutional convention.