On March 29, 2014 at Bryant University, I attended “A Constitutional Convention for Rhode Island?” The conference was produced by the Hassenfeld Institute for Public Leadership at Bryant with help from Roger Williams University and the Rhode Island chapters of Common Cause and the League of Women Voters.
I was initially skeptical that the conference would provide a balanced presentation. The first source of my concern was an op-ed by Gary Sasse–opening speaker, panel moderator, and founding director of the Hassenfeld Institute. His November 6, 2013 op-ed, distributed to conference participants, was titled “Is a Constitutional Convention Really Needed?”, to which he answered, without explicitly saying so, “no,” albeit with qualifications. If he was to be the moderator of the panel, “For and Against a Constitutional Convention for Rhode Island,” that seemed to be a bad omen.
A second concern was Common Cause’s prominent role, including an “Introduction to the Rhode Island Constitutional Convention Process” by John Marion, Executive Director of Rhode Island Common Cause. In recent years, Common Cause’s national organization has been strongly opposed to state constitutional conventions, and, one way or another, state chapters have either been neutral or opposed to yes votes on referendums to convene such conventions. (If anyone knows of a Common Cause state chapter that actively supported a yes vote during the past two decades, please send me the information.) Also alarming was a document that Rhode Island Common Cause handed out. The document, listing constitutional amendments introduced by the legislature, appeared to signal the familiar anti-convention narrative that the conventional constitutional amendment process is adequate for democratic reform, despite the fact that it gives the General Assembly a veto on change. Along these lines, Rhode Island’s chapter of Common Cause opposed a yes vote in 1994 and 2004 (but not in 1984). Moreover, it may have played a decisive role in defeating the 2004 referendum, where the final vote was a close 48% for and 52% against, and Common Cause waited until just before the election to announce its opposition, when the no campaign was worried about the outcome and setting a media blitz in motion (see “Hiding Behind Mr. O’Brien,” Providence Journal, January 25, 2005).
A third concern was that the only organization I was familiar with on the “for and against” panel was the ACLU, which has been implacably opposed to state constitutional conventions at both the national and state levels of its organization.
But my skepticism proved unwarranted. Overall, I thought the panels both highly informative and balanced.
The conference core consisted of two panels: a “national” panel and a “local” panel. The national panel consisted of Alan Tarr and Robert Williams, two of the leading legal scholars of state constitutions, including the amending process for state constitutions. They explained how constitutional conventions work and some common misperceptions regarding them. Throughout, they maintained an even handed scholarly tone. Of the two, Williams was more inclined to bend to political reality and grant the legislature veto power over a constitutional convention’s agenda, what is known euphemistically as “the limited constitutional convention.” Most of Rhode Island’s constitutional conventions during the 20th century have been of that nature. But the periodic referendum, added to Rhode Island’s Constitution in 1973, forces the legislature to resort to more indirect and potentially controversial methods to maintain control.
The panelists did make a few minor factual mistakes. Rhode Island has had 11, not 8, state constitutional conventions since the early 19th century. The Federal Constitution had one, not zero, popular referendums to ratify it. Twelve states initially convened constitutional conventions to ratify the proposed Constitution–but not Rhode Island. Perhaps copying the historically revolutionary method its neighbor, Massachusetts, used to ratify its state constitution in 1780, Rhode Island initially used town meetings to vote on whether to ratify the Federal Constitution. This wasn’t even an option for states outside New England that lacked town meeting government. It is true that fourteen states have provisions in their constitutions for periodic referendums to convene a constitutional convention, but in Oklahoma the legislature has refused to comply with this constitutional provision for more than forty years. Effectively, therefore, there have only been thirteen.
My big surprise was the “local” panel. As expected, the ACLU Rhode Island’s Executive Director Steven Brown attacked the referendum vehemently and from many different angles. But the two other panelists, perhaps motivated by the vehemence of Brown’s attack, did an equally competent job responding. Justice Robert Flanders, former justice on Rhode Island Supreme Court, was expected to be Brown’s counterpart, taking the strong “for” position. Jared Goldstein, Professor at Roger Williams University, batted cleanup and was expected to take on the role of ambivalent moderate. Although Goldstein started by expressing his ambivalence and modest support for a state constitutional convention, the substance of his subsequent remarks elaborated upon and supported the comments of Judge Flanders.
The result was that the panel actually tilted in the “ayes” direction. This reflected the audience, as an informal hand poll of the approximately 150 audience members reflected overwhelming support for a “yes” vote. There were also many people in the audience implacably opposed to a “yes” vote. This was perhaps best reflected in some of the tweets.
Notably missing from the panel was the conservative attack on state constitutional conventions. Many conservatives tend to fear that state constitutional conventions could lead to radical and dangerous changes, such as endangering property rights. In this sense, there is a natural alliance of those on the far left and far right in opposing state constitutional conventions. But since traditional conservatives are not a strong political force in Rhode Island, I think it was reasonable for conference organizers to omit them from the panel.
More questionable was the lack of a public labor union voice. If the referendum vote is expected to be close, recent experience, including Rhode Island’s 2004 experience, would indicate that the public employee unions will be the primary behind-the-scenes financier and organizer of the no campaign. They should be given the opportunity to express their views publicly.
One quibble with the conference design: all audience questions had to be submitted ahead of time on file cards, which were then filtered and edited by a conference moderator. Although this format is popular when public officials are the speakers and won’t allow open questioning, it’s highly unusual in academic and think tank settings.
At the end of the conference, I chatted with Common Cause’s John Marion. He observed that the state chapters are independent of the national organization and that some local chapters, such as Colorado, have taken stands in opposition to the preferences of the national organization. I got the sense, as evidenced by the excellent conference that he helped organize, that he had a genuinely independent and curious mind. I hope that before he seeks approval from his Board for a position, he will share with them the Providence Journal’s post-mortem on the 2004 referendum, “Hiding Behind Mr. O’Brien.” My bet would be that his Board ends up taking a neutral position.
A webcast of the entire conference should be posted online within the next month.
The Providence Journal ran a story on the conference, which covered the substances of the various panelists’ remarks (something I have not done here).
–by J.H. Snider, RhodeIslandConCon.info and president of iSolon.org.
Related articles published after the above blog post was published
Series of Articles in Anchor Rising & The Ocean State Current
Morse, Carroll Andrew, A Constitutional Convention for Rhode Island? How the State Constitution is Not Just a Mini-Federal Constitution, Anchor Rising & The Ocean State Current, April 1, 2014.
Morse, Carroll Andrew, A Constitutional Convention for Rhode Island? The History and Legal Framework, Anchor Rising & The Ocean State Current, April 2, 2014.
Morse, Carroll Andrew, A Constitutional Convention for Rhode Island? The Pros and Cons of Democracy and Rights, Anchor Rising & The Ocean State Current, April 4, 2014.
Select Items from the Convention Posted on the Common Cause Rhode Island Website
‘A Constitutional Convention for Rhode Island?’ Common Cause Rhode Island, April 1, 2014. [Its handouts from the March 29, 2014 event; more items to come.]