What’s in a Constitutional Amendment?

By Anne Schink

When one of my long-time League friends heard about the national League study on the Constitutional Amendment process she immediately said, “doesn’t anyone take civics anymore?” Whatever the answer to that question, the process of amending the constitution really does require some research. So the League formed a national study committee, asking three basic questions:

1) What makes a good constitutional amendment?

2) What rules govern the Article V provision for calling a constitutional convention?

3) Are there circumstances where a strongly held League position on an issue would override reservations about the process?

As a part of this process, we’re also discussing the questions at the local level around the country and about eight Portland League members gathered on November 21st to tackle the topic (League chapters in Bangor and Downeast Maine are also participating). A Study Guide was created for the project and the group used the guide as a frame for a very lively discussion. Using the pro and con statements provided for each section and background material, we analyzed different points of view for each of the three questions.

Section One

The group dove right into the challenging question of what characteristics make a ‘good’ amendment, considering:

  • Are the public policy objectives of such acute and abiding importance that the fundamental charter of our nation must be changed?
  • Can the amendment as written achieve its policy aims?
  • Will the amendment make the political system more democratic or promote individual rights?
  • Could the policy objective be achieved by a legislative or political approach that is less difficult than an amendment?
  • Is the objective more suited to a constitutional and general approach than to a statutory and detailed approach?

Section Two

The second section of the Guide considers aspects of an Article V Constitutional Convention. Our group was somewhat surprised to find that such a constitutional convention has never been tried! And there are no rules — nor is there agreement even among constitutional scholars on who might make such rules if any were proposed. This didn’t stop us from discussing the characteristics we think would be important if a constitutional convention were to be convened. Here are the conditions we considered to be essential:

  • The convention must be transparent and not conducted in secret;
  • Representatives at the convention must be based on population rather than by state;
  • Delegates must be elected rather than appointed;
  • Voting must be by delegate, not by state; the convention must be limited to a specific topic;
  • Only state resolutions on a single topic count when determining if a convention must be called;
  • The validity of state calls must be determined by the most recent action of the state (in other words, states can rescind their call up until the time the essential number of 34 states is reached).

There were many heated exchanges as we debated these issues. The League is nonpartisan so our members span the political spectrum. But, whatever our disagreements during the meeting, most often our discussions reflected the perspective of and issues affecting our small, rural state.

The final question in the second part of the study is whether the League would oppose calling a constitutional convention because of so many unresolved questions about the powers and processes of such a convention.

Section Three

This section asks what we termed a ‘balancing’ question. The League often takes positions on issues based on previous studies and so we reviewed established League policy to see if anything addressed or conflicted with the issues before us.

The question is whether the League would ever support a constitutional amendment or a call for constitutional convention on a topic where we already have a position even if the process was less than perfect. This also provoked lively debate. We recalled previous constitutional amendments (and those that are currently circulating, such as the Balanced Budget amendment or overturning Citizens United) that we really cared about and wrestled with the idea of how far we would go to support a strongly held position.

Conclusion

It was a challenging study and many of us changed our minds several times. In the end, though, we reached agreement on just about everything – and learned a lot. As my friend pointed out: we all need to study (and maintain our knowledge of) civics.

Our results have been submitted to LWVUS where they will be compiled with all the other local leagues that are participating in the study. The study committee and the national board will draft a consensus statement based on the results which will then be approved by the board at their January meeting.

We are enthusiastic that the results of this study will provide an interesting backdrop for the Money in Politics update that is to follow next spring. Because much of the rhetoric about “Overturning Citizens United” focuses on a constitutional amendment or, in some places, calling a constitutional convention, we will have solid information to bring to that discussion.

As we realized during the study process, this is not as easy as it sounds and there are consequences to using either of these methods for reversing the rulings of the Supreme Court, much as we dislike the current state of campaign finance law. These two studies complement each other and we hope that the conversation will continue with a newly adopted position on the Constitutional Amendment process.

To learn more, contact us:

Email: LWVME online contact form

Phone: 207-622-0256

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