As the author of Article XIV of the state Constitution, a section that streamlined the amendment process, hereby facilitating improvements in judicial selection and the adoption of separation of powers and one that also established procedures for a decennial referendum on the calling of a Constitutional Convention, I would be remiss if I remained silent with regard to the fate of referendum Question No. 3.
Naturally, I favor a “yes” vote on the question of authorizing a constitutional convention. Much has transpired in the nearly three decades since the last convention that can best be addressed by an open convention of the people.
In the process of writing our 155,000-word analysis of all 121 sections of the existing constitution, “The Rhode Island Constitution: A Reference Guide” (2007), Justice Robert Flanders and I discovered a number of inconsistencies, obsolete provisions and vacuums in power and authority that need correction.
These technical issues are in addition to much-publicized changes such as the item veto, stronger Ethics Commission supervision of the General Assembly, legislative redistricting reform, judicial magistrate selection and the establishment of education as a fundamental right – something Thomas Dorr advocated in his People’s Constitution of 1841.
However, this commentary is written primarily to address the fears of opponents. One negative argument suggests that a Constitutional Convention puts civil rights at risk. History emphatically proves the opposite. Our Article I – “Declaration of Certain Constitutional Rights and Principles” – by its placement demonstrates the primary concern of our constitutional drafters for individual liberty. The 1973 convention, in which I served as secretary and delegate, expanded voting rights. The 1986 convention, in which I served as general counsel to the president, ensured the people’s rights to our shoreline – Section 17, protected private property rights in cases of eminent domain – Section 16, banned any law abridging the freedom of speech – Section 21, gave rights to victims of crime – Section 23 and added a concluding provision – Section 24, to embrace the concept that the Rhode Island Constitution is to be interpreted as expanding and not limiting individual rights, even though similar rights in the U.S. Constitution may be more narrowly defined. So much for conventions as threats to civil rights!
Despite this record of rights expansion, a handful of delegates from the 1986 Convention have described that assemblage as hijacked by legislators and special interests. I did not see any inordinate influence from either. As I recollect, the 1964-1969 Convention, in which I served a research advisor, had three incumbent legislators and one sitting judge. The 1973 convention had three incumbent state senators, but I do not recall any incumbent state legislators serving as delegates to the 1986 Convention. Nonetheless, I would favor barring general officers, judges, state legislators and council persons from running as a delegate to the next convention. Their election would be a form of dual office holding.
Others have criticized the procedure whereby convention delegates must be selected from House representative’s districts. How was I to provide for delegate election if not from existing voting districts apportioned in accordance with the one-man, one-vote principle? The alternative – statewide election – is not only impractical, it is ludicrous. It would magnify the cost of running, favor those with previous statewide exposure – for good and ill, create a sectional imbalance and increase the work of campaigning 75-fold.
From 1796 until 1986, a Constitutional Convention was regarded by reform-minded Rhode Islanders as the best way to achieve necessary and desirable governmental improvements. The conservative law-and-order faction that vanquished Thomas Dorr and his band of reformers drafted a Constitution in 1842 that deliberately omitted a procedure for the call of Constitutional Conventions. They were wedded to the status quo, in which they exercised political dominance. In 1883, a Supreme Court, responsive to those same opponents of change, stymied the equal rights movement of that decade by advising the malapportioned Senate that there existed no power in state government to authorize a Constitutional Convention.
In 1935, this reactionary ruling was rejected by a new Supreme Court that came to power via the famous Bloodless Revolution. This court found authorization in the now-repealed residual powers clause of the State Constitution. In 1973, I not only made the convention procedure constitutional, but also periodic, because I realized that the inability to call a Constitutional Convention to achieve sweeping democratic reforms was a root cause of such major local upheavals as the Dorr Rebellion and the Bloodless Revolution.
As Thomas Jefferson wrote on the 40th anniversary of his famous Declaration: “Laws and institutions must go hand in hand with the progress of the human mind. As ... manners and opinions change with the change of circumstances, institutions must advance also to keep pace with the times.”
Fear mongers and alarmists have no rational role in deciding whether or not a Constitutional Convention should be called into existence. They should save their criticism until the popular referendum on that Convention’s product, and then rely upon the fairness and intelligence of the electors.
This is not the time for political paranoia or Constitutional constipation. The Constitutional Convention is America’s greatest contribution to the art of governance. It is admired and emulated by people worldwide. Hopefully Rhode Island will not again – as in 1787 – be the embarrassing exception.