The American Conservative is a publication of nominally centrist conservatives that has criticized the “barking-mad pack of ideologues” trying to repeal ObamaCare by shutting down the government. In a piece entitled “Do We Need a Constitutional Convention?” Kevin Gutzman briefly reviews ideas from far-right radio host Mark Levin and asserts that an amendment convention is needed, but only along the lines being proposed by the Compact for America which is working for a balanced budget amendment. Mr. Gutzman, “is an American constitutional scholar, American historian, and Madison biographer notable for writing Virginia’s American Revolution: From Dominion to Republic, 1776-1840 and what has been described “the definitive biography” of James Madison, James Madison and the Making of America.”
The following is an interview with Gutzman conducted using Facebook messaging on October 6th and 7th. Part II of this interview, focusing on corporate personhood, can be read here.
VictorMTA: In your view do we need an amendment convention and if so, why? Why not go through the true and tried amendment process the previous amendments went through?
KG: Yes, I think we do. There are now severe imperfections in the federal system. These have developed since the Constitution’s implementation. The people who created the US Constitution foresaw precisely such developments, and so they included in the Constitution Article V, which provides two paths to amendment.
In the Philadelphia Convention, the committee that drafted the first version of Article V provided simply for a congressionally-initiated process in which Congress would propose amendments to the states for their ratification. In the full Convention, Virginia delegate George Mason objected that while good for some purposes, this proposal had a glaring weakness: it did not provide a practical way of reforming the system through amendment in case Congress were the problem. After all, Congress could not very well be expected to initiate an amendment process the purpose of which was to erect barriers to congressional overreaching or abuse. With that in mind, the Convention added the hitherto-unused provision of Article V empowering states to initiate the amendment process.
In my estimation, the chief problem in American governance today is that the Federal Government is no longer truly constitutional. Since the Revolution of 1937, the Supreme Court and inferior courts have been out of the business of holding Congress to the list of powers in Article I, Section 8 of the Constitution.
There is no way that Congress is going to initiate an amendment process to keep Congress from engaging in this kind of activity. Therefore, I favor the Compact for America interstate compact process for adopting a Balanced Budget Amendment (BBA). The beauty of the Compact for America process is that through it — exactly as Federalist spokesman George Nicholas told the Virginia Ratification Convention would be the case in 1788 — the states in calling the convention decide exactly how the convention will work, who the delegates will be, and what it will vote on. It leaves no chance of a runaway convention. The governors vote on the Compact for America BBA, and then they go home.
VMTA: If Congress is passing laws that are unconstitutional, why isn’t the Supreme Court striking them down?
KG: Since the Revolution of 1937, the Supreme Court is essentially out of the business of saying that there is any limit on Congress’s power to spend money. As I explain in JAMES MADISON AND THE MAKING OF AMERICA, this amounts to abandonment of the Supreme Court’s chief intended role in the federal system, but that’s what the Court has done.
VMTA: Why do you not count the landmark Citizens United decision which overturned the Bipartisan Campaign Finance Reform Act of 2002? What about Buckley v Valeo which overturned significant sections of the amendments to the Federal Election Campaign Act of 1971? Was that not significant? What about overturning a crucial component of the landmark Voting Rights Act of 1965?
KG: I think of campaign finance as a pretty trivial issue. That’s why I said “unless you count….” Buckley falls under the same heading. None of the three decisions to which you refer had anything to do with spending, of course. I agree with you about the VRA; sorry for the oversight.
VMTA: So you believe that American plutocracy, a government of, by and for the wealthy is acceptable? Laws to undermine plutocracy, i.e., CFR [campaign finance reform], are “trivial?”
KG: I don’t think that transferring power from current donors to the smaller group of wealthy people who own the communications corporations is a remedy. I also don’t think that limiting the extent to which particular individuals can advertise, when they can advertise, etc., has anything to do with limiting plutocracy. Do you think that when John McCain said he shouldn’t have to face negative commentary within a couple of months of an election, he meant that he wanted to limit the influence of plutocracy? I don’t agree.
VMTA: I was referring to the transfer of financial influence from the 0.26%, the “Lesters,” to 100% of the people along the lines suggested by Lessig’s idea of giving everyone campaign contribution vouchers of $50.00. That’s just one CFR idea, but the idea would level the playing field in campaigns so that the most popular ideas triumphed rather than the candidate who spends the most money. Of course, to be effective, CU would have to be overturned by overturning Buckley. Do you understand what that has to do with undermining plutocracy, or dollaracracy to use the name of a new book?
KG: Yet another idea for using the Federal Government as a device to transfer wealth. I oppose that desire in general. Sure, I get the connection; I also think Buckley was correctly decided, as was Citizens United [emphasis added]. I think that political spending is at the core of the 1st Amendment, and thus shouldn’t be regulated at all.
VMTA: As Dan Marks has pointed out, there are sufficient state resolutions calling for an amendment convention now. Congress still has to initiate this process, and they are not. How would the Compact for America BBA differ? Congress could still ignore these requests, could it not?
KG: I’m not aware that there are sufficient calls for any particular convention project. In case there are, we see another instance of Congress’s ignoring its constitutional responsibilities–just as it has since the Revolution of 1937 ignored the limits the Constitution places on its spending power.
VMTA: What mechanism does Compact for America plan to force Congress to acknowledge a convention call, even if the required number of states send new applications this and next year?
KG: There’s no “mechanism” other than popular support for making Congress call the convention. The system provides no such.
Unsolicited comment, KG: The wealthy are always going to be in charge. The question is what they do with their power. Presently, the give us money they’re taking from future generations via unlimited borrowing. They don’t care that many, many of these programs have no conceivable justification. For example, I have spoken with teachers across the country about No Child Left Behind. Private schools, public schools, northern schools, southern, schools, western schools — every school is full of people who hate No Child Left Behind. It is with us forever, even though it’s awful. That’s the way the Federal Government works.
VMTA: Isn’t your claim that “[t]he wealthy are always going to be in charge” a self-fulfilling prophesy? Shouldn’t the majority of Americans be represented in Congress, and not just those representing the “Lesters” as L. Lessig calls the campaign funders?
KG: If there’s some way to ensure that that happens without imposing limits on Americans’ political expression, I’m for it. You do know that John McCain said the reason for McCain/Feingold was that incumbents shouldn’t have to put up with criticism too close to an election, don’t you?
VMTA: By “Americans’ ” do you mean corporations, unions, special interests, etc? All three? Or do you mean natural persons?
VMTA: The quote is “The antidote to bad speech is more speech” and the source was J.S. Mill. The quote was never “The antidote to bad money is more money.” You believe that corporations should be free to spend millions on speech to support/oppose ballot measures, candidates and policy (fracking here in NY for example). That is certainly in alignment with the counter-revolution of the Louis Powell era (TM) and regressive case law, largely from Powell’s time on the Court. Have you ever heard the expression “corporate state” or “neo-feudalism” to describe the US?
KG: Actually, I was alluding to William O. Douglas. Sure, I’ve heard “corporate state” and “neo-feudalism.” Do you really think that having a Harvard Law professor concoct a new scheme for allocating political expression via a constitutional amendment is non-feudalism? And you keep ignoring the obvious problem: that your scheme will leave the campaigning of the NYT, ABC, NBC, CBS, PBS, the LAT, etc., completely unlimited.
VMTA: Lessig’s proposal was for legislation, not embedding CFR into the Constitution. And yes, his proposal, coupled with overturning reactionary Court decisions like Buckley and CU, would help get the American polity back on track as a democratic order, away from corporate feudalism and plutocracy. I see NYT, LAT, WaPo, CBS, NBC, ABC, CNN, TIME, AP, etc. as corporate papers supporting the corporate agenda, just not a vigorously as WSJ, NY Post, Fox News, etc. Corporate media is problematic, but this is off the topic at hand.
KG: “Back on track?” There never has been a point in American history when people with more money couldn’t buy more advertising, circulate more pamphlets, run more TV shows, publish more magazines, put up more Web sites, make more donations, etc., than average people. In fact, in THE FEDERALIST #10, James Madison said that one advantage of the large districts the Constitution would establish for congressmen would be that congressmen would be from more elite backgrounds than state legislators. Your idea that Lessig’s proposal would go “back” to something is mistaken: it would be a radical departure.
VMTA: You’re an expert on Madison. How would you define him using these four modern terms, radical, reformer, conservative or reactionary? Given his preference for “elites,” perhaps “elitist” is the best adjective?
KG: Madison was a republican, certainly, and an elitist. Faced with a constitutional problem, he pushed constitutional reform.
VMTA: I’m surprised that you used the word reform to describe our Constitution. 1) Wasn’t it a radical departure from the Articles of Confederation and the first democratic constitution on the modern era? Wasn’t it radical in its day, compared with the status quo?
KG: I suppose that’s in the eye of the beholder. I know a lot of people who think so. My own view is that it was right on that line.
VMTA: You support McCutcheon in the McCutcheon v FEC then? Do you believe that money spent on electioneering communication should be protected by the 1st Amendment?
VMTA: The compact approach streamlines amending the Constitution. If this approach is successful, then it could be duplicated for other proposed amendments, such as the We the People Amendment? Do you see potential success as a precedent?
KG: Yes, certainly, the BBA is only the first attempt to use it. It could thereafter become part of our normal political process — just as state amendments are in California, Texas, and other states.