Tuesday, August 16, 2011

Of Constitutional Conventions and Secession

In late September of this year, Harvard Law School will be hosting a Conference on the Constitutional Convention. Rather than being an actual Convention for forming a new government like that held at Philadelphia, it more closely resembles the much less famous Annapolis Convention. Think of it more as a grand jury rather than as a courtroom jury. This convention is being sponsored by the Left and the Right.

I have to admit, I am a bit skeptical about this. Were our current Constitution more strictly obeyed, in particular in matters of federalism and limitation of powers, I think our system would be working smoother. Any change to our system would require 3/4ths of all states to sign on to. The problem this convention is going to run up against, and which is no real secret, is that there are two dominant political philosophies that are pulling in the opposite direction. Statists on the Left will want to remove obstacles to government action while Tea Partiers like myself wish to see restrictions tightened. Realistically, there is no compromise that will satisfy these diametrically opposed notions.

Let me illustrate this point. Lawrence Lessig, the Left sponsor of this convention, argued at the Huffington Post that if our Founding Fathers could compromise enough on slavery to create a functioning government, surely our differences can also be put aside to find meaningful compromise. Lessig is wrong, however. The Founding Fathers did compromise, as did later generations in 1820 and 1850 under the notable leadership of Henry Clay, but none of them actually found a solution to the problem of slavery. In the end, what eliminated the problem was not rational discussion but the death of over half a million Americans during our Civil War. Compromise postponed dealing with the problem; it did not solve it.

The Left and the Right in this nation have a very different idea as to the proper role of government, which in turn leads to different interpretations as to the legal powers of the government. This is best appreciated in the current debate over ObamaCare's constitutionality.

SCOTUSblog has held a symposium on this very issue with a number of top legal scholars from both sides. This is not the time and place to go over the merits of each side's case (I have done that elsewhere), but just consider how radically different their views are. One the pro side, defenders of the ACA say that Congress may regulate interstate commerce or any activity that could potentially impact interstate commerce, even on an infinitesimal level. Against this, detractors point out that any moment of our lives could theoretically be used to impact interstate trade and that this basically gives Congress carte blanche, that Congress may only invoke this power to regulate existing trade that does in fact cross state lines. Where, exactly, are these two sides to compromise, either with existing Constitutional language or with any proposed amendments that both sides would have to agree to? The Left will not allow any constitutional movement Right; the Right will not allow any constitutional movement Left; ergo, we will not move as one unit.

Perhaps rather than a political marriage counseling session, we may wish to consider a political divorce? If this convention is really about spit balling ideas, I don't see why secession should be so quickly dismissed. Let's get this out of the way right now: this is not an advocation of slavery. Yes, 150 years ago the Confederate States broke away largely (but not entirely) because of slavery, but it is a non sequitur to then imply that every secession act is thereby about slavery.

Would it be an easy process? Absolutely not, but neither would it be impossible. The Soviet Union managed to break apart fairly peaceably. Southern Sudan split from Sudan and Montenegro has recently joined the world by splitting apart from the rump of Yugoslavia. A call for secession is not a call for violence; we could split and go our separate ways, assuming both sides are willing to concede the independence of the other group.

The details of such a secession can be discussed later. I'm not necessarily advocating this position; I am advocating, however, that we at least examine it. I have no illusions about it being the saving grace that will create a perfect world. Politics would still exist within whatever nations are created by the division, but I believe it would be much less over principles and more over which form of administration is best to achieve fairly agreed upon principles. I see no particular reason why the divided nations could not peaceably coexist.

Anyway, it is an idea that would actually go somewhere. To try to shift the whole United States left or right via a constitutional change is impossible. Any changes all sides would agree to are likely to be dealing with extremely minor problems.

I am looking forward to seeing what this convention produces.

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