TESTIMONY OF ! LAWRENCE LESSIG! ROY L. FURMAN PROFESSOR ! OF LAW AND LEADERSHIP! HARVARD LAW SCHOOL HEARING ON JRS 27!

VERMONT LEGISLATURE

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APRIL 24, 2014

On September 15, 1787, just days before the final draft of the Constitution was to be published to the world, the Framers were still debating the precise method by which that document could be changed. The draft presented by the committee on detail effectively gave Congress the exclusive power to amend the Constitution. That exclusivity, in the minds of some, was a problem. George Mason rose to ask, What if Congress is the problem? “No amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive.” It was an obvious point. Article V as then drafted gave the nation no ordinary mode by which an oppressive Congress might itself be the target of amendment. I say “ordinary,” because we forget today that it was completely taken for granted then that the people always had an extraordinary mode by which an oppressive government might be addressed. That extraordinary mode was a constitutional convention — the perpetual power, as Jefferson put it in the Declaration of Independence, to “alter or abolish a constitution.” The Framers didn’t need the Constitution to affirm that power. In their world, that went without saying — though some state constitutions, like Vermont’s and New Hampshire’s first constitutions, did expressly affirm the power of the people, as Vermont put it, as “an indubitable, unalienable and indefeasible right” — “to reform, alter, or abolish, government.” But the Framers’ first constitution didn’t adopt the practice of stating the obvious. Or stating the “indubitable, unalienable, and indefeasible.” The first constitution instead stated settlements about the matters that could be settled, one way or the other. So the question Mason was asking was not whether the people would

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have the extraordinary power to call a constitutional convention, but rather whether the Constitution itself would embody a different, lesser power, by which some regular body of government would be an effective safety valve on an “oppressive” Congress. That safety valve turned out to be you — the state legislatures. The Framers decided that you would be the constitutional backstop to assure or protect our Republic. That if Congress became the problem, then you, state legislatures, would have the responsibility to provide a solution. The means by which you would have that power was one type of convention. And I mean those words quite precisely. For the Framers, as for us, obviously, there are many types of “conventions” — there’s a constitutional convention, but there’s also a Elk Convention. And a Democratic Convention. And Republican Convention. The point is there’s no magic in the word “convention.” Any power attached to an event called a “convention” depends upon the character of the call. The Democratic National Convention doesn’t have the power to amend the Constitution. The National Rotary Convention doesn’t have the power to amend the Constitution. And neither does the convention referenced in Article V have the power to amend the Constitution. And the Framers of our Constitution were quite precise about the character of the call that might produce a convention under Article V. When two thirds of state legislatures demand it, Article V requires that Congress “shall call a Convention for proposing Amendments.” A “convention for proposing amendments.” Proposing amendments. If the English language has any meaning, then it should be perfectly clear that Article V does not give Congress the power to convene a “constitutional convention.” It does not giving Congress the power to convene a “convention to revise the Constitution.” It gives Congress the power to call a convention for the single purpose of proposing amendments. This difference is crucial — and yet almost forgotten today. So let me state it again: the Framers did not give the state legislatures the power to convene a “constitutional convention.” That power was taken for granted, and was not then ever vested in any regular body of government. The power the Constitution gives state legislatures is the power to demand that Congress convene what we should call a “Proposing Convention” — a convention

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that can propose amendments, which are only valid if ratified by 3/4ths of the state legislatures, or state conventions, as Congress shall determine. What, then, if this proposing convention “runs away”? But the question is, to what? What’s the worst thing such a convention could do? At its very worst, a Proposing Convention could propose a set of crazy amendments. A set of changes that no one in their right mind could accept. Crazy stuff. Radical stuff. Like a volume of the Yale Law Journal — designed simply to make eyes roll. That’s the risk of a runaway Proposing Convention — a set of bad ideas. There is not a risk — at least, again, if the English language has meaning — that it could change the Constitution directly, or change the procedure by which amendments to the Constitution get made. But didn’t the convention that gave us our Constitution run away in exactly this way? Didn’t they exceed the scope of their call? And didn’t they change the mode by which an amendment could be ratified? Some say they did. Some say they didn’t. Here’s the point that I say: the convention that drafted our Constitution was not convened pursuant to a clause in the Articles of Confederation that gave anyone the power to convene a convention “for proposing amendments.” It is not even clear that it was Congress that convened the original constitutional convention. Whatever that thing was — and in my view, that convention was a “constitutional convention,” and thus not at all like the “Proposing Convention” that could be convened under Article V — it wasn’t what we’re talking about when we talking about state legislatures calling on Congress to convene a “convention for proposing amendments” to the Constitution. Whatever that thing was, it isn’t this thing. This is a proposing convention. It simply has the power to propose. So let’s imagine the worst. For some, that might be to abolish the Second Amendment. For some, that might be to abolish the right of a woman to choose to terminate a pregnancy. For some, that might be to abolish marriage equality. Whatever — you think of what you think is worse. And once you have that worst possible proposal in your head, now I want to ask you to calculate

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the probability that that worst possible proposal is actually ratified as an amendment. Here are the numbers you need to know to calculate that probability: 13, 18, and 27. Thirteen: It take 38 states — either legislatures or state conventions, as Congress may choose — to ratify an amendment. 38 means that the vote of one house in 13 states can end the possibility of an amendment’s ratification. 13 states. Eighteen: There are 18 double blue states in America — states in which both houses are Democratic. If the convention proposed an amendment to end gay marriage, does anyone doubt that we could find 13 houses in those 18 states to block such am amendment? Twenty-seven: There are 27 double red states in America — states in which both houses are Republican. If the convention proposed the abolition of the Second Amendment, does anyone doubt that the gun lobby would succeed in finding 13 houses in those 27 states to block such an amendment? The point is that any partisan amendment almost by definition fails to be ratified under this system. It may well be that the proposing convention goes wild. But so what? Any wild thing they do is guaranteed to die in the states. The worst that would happen is a waste of time — which of course is the new normal for how Washington works. But, the skeptic insists, there’s a chance, isn’t there? There’s some chance that something terrible might happen, isn’t there? Of course there is. A chance. In my view, a tiny chance. There is no doubt a tiny chance that something terrible will happen. But against that tiny terrible chance you have to weigh one terrible certainty: that if we don’t do something, our government — our government, our federal government — will fail. There may be an infinitesimally small chance that a convention would go rogue and states would follow. But there is almost certainty that if we don’t find a way to fix the corruption that plagues our government, our government will fail.

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Because our Congress is politically bankrupt. The way money influences politics is the source of that bankruptcy. More than 90% of Americans believe it important to “reduce the influence of money in politics.” And if we don’t, then Congress will fail to address sensibly every important issue of federal policy — from climate change, to health care, to the debt, to financial reform, to taxes, to GMO. Congress is not, as JRS 27 puts it, dependent on the people alone. Congress is dependent on its funders, and that corruption of Congress is catastrophic for this republic. That is a certainty. And that certainty will certainly produce, for our children, if not for us, a catastrophe. Congress is the problem. The Framers chose you as the one ordinary body of government to step in and fix that problem. It it is time — now — for your to do that duty. For it is no exaggeration to say — this republic depends upon you doing your duty. You are the backup. I urge you to step up. Finally, I urge you to step up now. There are currently more than 25 active calls for an Article V convention pending before Congress. All of those calls are for conservative issues. Next year I believe there will be at least another 10. It is urgently necessary that we get a progressive call for an Article V convention presented before Congress, so that it doesn’t feel obliged to exclude progressive issues from any convention agenda. Whether or not you fear a runaway convention, in my view, the practical political question that should be addressed is whether the impending convention will exclude the issues that JRS 27 presents. There is, in my view, a significant chance that it will. And if it does, the most promising chance for fundamental reform of the corruption of money in politics will have been lost. Progressives might worry about a parade of horribles that an Article V convention might present. Meanwhile, conservatives are making it happen.

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