A Constitutional Convention for Rhode Island? The Pros and Cons of Democracy and Rights

This past Saturday, the Hassenfeld Institute for Public Leadership at Bryant University, the Roger Williams University School of Law, Common Cause Rhode Island, and the League of Women Voters of Rhode Island co-sponsored a forum on the upcoming general election ballot question of whether or not to hold a state constitutional convention in RI, and on the convention itself that might follow.

Telling the audience that “the ACLU has very serious concerns about the proposal for a constitutional convention, and they are both substantive and procedural”, Steven Brown from the Rhode Island Chapter of the American Civil Liberties Union spoke against a constitutional convention.  The portion of his presentation discussing substantive objections is excerpted below.

“The votes that voters get to choose across the country are on some of the most divisive, controversial, social, ideological issues there are; abortion, gay rights, same-sex marriage, anti-immigrant. We are deluding ourselves if we think we can hold a convention and not have those issues come to the fore”.

“It really is a national matter now. There are national interest groups that are interested in using state constitutions to push these controversial measures”.

“We also have the history here in Rhode Island, from our 1986 convention….what was the major, controversial divisive issue that came out of that? A constitutional amendment declaring that life begins at conception. Everybody went into that convention, talking about the same things people are talking about now; a line-item veto, redistricting, things of that sort. But it was an abortion amendment that took hold in that convention, and there’s no reason to believe that 30 years later, things are going to be better, and that we aren’t going to see anti-marriage amendment issues, or anything of the sort”.

“What’s troubling about that is that we are talking about individual rights that should not be subject to majoritarian control. You’ll hear about all of the safeguards that are in place; first you have to elect the delegates, and then the convention has to vote to approve an amendment, then it’s up to the voters to approve or reject it….They aren’t safeguards, when you’re talking about minority rights”.

“You have a majority, both in the convention and out in the public deciding whether or not minority rights will continue….The fact that it’s possible, after spending millions of dollars, thousands of hours of time to defeat [amendments], that’s not the answer, especially since many of the times they aren’t defeated. Most of these social amendments that have been proposed elsewhere, these ideological amendments, have been approved by the voters. So, from a civil liberties standpoint, we’re very concerned about that”.

“One other thing I want to mention about 1986…abortion was the big issue. There were two other amendments that came out and were approved by the voters, both of which had a very significant adverse impact on civil rights and the rights of racial minorities. One was an amendment authorizing the denial of bail to people with various drug offenses, and that is an amendment that had and continues to have a disparate impact on racial minorities. The second one had to do with voting rights. It expanded the number of ex-offenders who lost their voting rights upon being convicted of crimes and, in fact, it took the General Assembly itself to propose a constitutional amendment to undo that in 2006, and the voters approved it, but they had to do it because of a vote that came out of the constitutional convention”.

Professor Jared Goldstein of the Roger Williams University School of Law began by stating he was “mildy in support” of a constitutional convention, with the second half of his remarks serving as a direct counterpoint to Mr. Brown’s strong substantive objections.  It’s also interesting to note that Professor Goldstein’s mention, near the end of his presentation, of “trust in the dead hand” could be interpreted as meaning that progressives opposing a constitutional convention are acting too conservatively!

“In state-after-state over the last 30 years, [people] have been asked to have a constitutional convention, and they’ve turned them down in every case, since the last one was held in Rhode Island, largely because of the progressive coalition that I tend to support, that is unions, teachers, people who support abortion rights, the LGBT community, and the ACLU. And they oppose it for many of the reasons that Mr. Brown has articulated, that they fear losing hard-fought gains, and they fear the Pandora’s Box that may occur in a constitutional convention. In a certain sense, I share their views”.

“One thing, when you look at other states that have had constitutional conventions, as a general matter, the outputs tend to be very mild, very centrist. If anything, I would criticize them for not making broad, progressive recommendations. But even if they were, as we know, the voters get a second chance. The voters have to approve them”.

“On a basic level, the concern that we’ll have a runaway convention, or that they’ll pass recommendations that are contrary to our fundamental rights is really a point of view that expresses simple, profound distrust of the people, that is, we can’t trust the people the enact legislation that will help us because they may take away our constitutional rights”.

“Where did all these constitutional rights come from? We shouldn’t have minority rights put up to a majoritarian vote, but every protection for minorities in the constitution was adopted through a constitutional amendment, through a political majoritarian process. These protections for minorities didn’t just come down from the heavens. The people created them, and the people, I think in general, can be trusted to do the right thing”.

“The concern that the people are going to be debating abortion, or debating gay marriage, or debating animal rights is not something to be feared; that’s what democracy is about. Don’t we want the people to decide these fundamental questions about what our society is like?…If the answer is no, then who do we trust? Do we just want the judges to decide what our rights are? What are they basing them on? A document, created by the people, sometime ago. Really, it’s just saying we trust the dead hand. We trust other people, who have created these rights, and not the current generation”.

“I think if we were to hold a constitutional convention today, with this group in the audience, they would most likely come out with recommendations that most Rhode Islander’s would support, and if they didn’t, they get the chance to say no”.

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