Good morning Mr. Chairman and members of the Committee, and thank you for this opportunity to testify on what I believe is the most important reform this Commonwealth could undertake. Although I have many opinions regarding improving our most fundamental law, the focus of my testimony will be on the mechanics of a constitutional convention rather than any particular changes to the document.
Constitutional conventions are called from time to time to address issues that are either impossible or too fundamental to submit to regular legislative bodies. While some conventions over the years have been revolutionary in nature and some could be more properly labeled as adjustments, all constitutional conventions are a response to some crisis in public confidence, be it external or internal to the workings of government. That we are broaching the subject today is evidence that a crisis exists.
While there is no specific methodology for calling a convention within the current Constitution, this was not always the case. The original 1776 version did include a procedure for calling a convention, vested in the Council of Censors, a body of citizens elected every seven years to compare the actions of government with the provisions of the Constitution.
I won't delve into the brief but fascinating history of the Council, but I have attached to my testimony an editorial on the subject for your review. For our purposes today, suffice it to say that by calling the convention of 1790, the General Assembly not only stripped the people of their power to call a convention through the Council - it also abolished the Council itself.
But even in the absence of mandated methodology, the Constitution itself can still guide us in organizing a proper convention. Members of this committee have already acknowledged the ultimate power of the people enumerated in Article I, Section 2, and that any convention held today should be a citizens' affair. The committee has also voiced a preference for the exemption of Article I, and this falls squarely in line with Section 25, which states that the enumerated rights of Article I "shall forever remain inviolate."
Beyond these two points, however, the document has remained silent on the issue of a convention for 217 years. For further guidance, we must rely on our understanding of exactly what a constitution is, our judgment of historical precedent and the nature of the crisis at hand.
Constitutions are agreements between citizens to define how they will govern themselves by enumerating some of their indefeasible rights and granting limited privileges to those elected to positions of public trust. Our Constitution is a specific set of rules written as clearly and succinctly as possible to avoid confusion and loose interpretation.
As the document’s owner, only the citizens should determine whether or how to alter the frame of government. Delegates to a convention, not the enabling act of the General Assembly, should make that determination. For this reason, I respectfully oppose any subject limitations on a convention - other than the exclusion of Article I, for reasons previously stated.
Basing a convention on the 1967 model fails to recognize two important facts. First, that convention served merely as a capstone for general revision of the document, much of which had already been accomplished before the convention through the amendment process. Second, the revision movement of the 1960’s was based on the notion that the crisis of that time was caused by factors external to government. Today’s crisis of public confidence largely stems from internal factors - namely, the abuse of governmental power and a failure to enforce the Constitution as written.
I acknowledge and concur with previous testimony regarding the importance of institutional knowledge at a convention. However, that knowledge should not be in the form of ex officio delegates. It could just as easily be accessed through testimony and reference materials given at hearings, just as I am doing here today.
I am aware of previous testimony by the ACLU regarding the prohibition of public officials serving as delegates, however the case cited in that testimony (U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779) was a U.S. Supreme Court decision regarding a state’s interference in a federal election. We are clearly speaking to a state issue today.
The sovereign people of Pennsylvania, at all times, absolutely have the right to determine the qualifications for delegates to a state convention, just as they do for state Senator, Representative, Governor or Justice of the Supreme Court. In the absence of a constitutional mandate, an act of the General Assembly is the proper legal instrument for carrying out the will of the people.
Turning to historical precedent for a convention, I have already noted the questionable origin of the 1790 convention, in that the General Assembly called it without having the authority to do so. In addition, the people never cast a vote on adoption of that Constitution. The 1872 convention tampered with Article I despite a specific prohibition in its enabling act.
In 1967 the convention was directed by elected officials, delegate selection was controlled by political committees, and both the enabling and adoption referenda were voted on at primary, rather than general elections. Following any of these precedents would be unacceptable in today’s climate.
Regarding the nomination and election of delegates, a citizens’ convention would demand that ballot access be as free, fair and accessible as possible. Setting the petitioning requirement at 100 signatures would encourage increased competition, robust debate and a large pool of alternate delegates to fill potential vacancies. A citizens’ convention would also demand that delegate elections be run as non-partisan affairs.
To ensure that all proceedings at a convention are deliberative; to avoid whimsical, radical or knee-jerk proposals; and to prevent it from getting mired in controversial partisan issues - such as the uniformity of taxation clause - the enabling act could simply require that any proposed changes to the Constitution be approved by a two-thirds majority of the delegates on final passage.
Neither of the preliminary proposals offered by Senator Piccola or Senator Ferlo specify any delegate compensation other than “reasonable expenses.” I urge you to consider that we’ll be charging a group of citizens with revamping the most important and fundamental document in the Commonwealth. I hardly believe this important task could be properly addressed by citizens working in their spare time in the evenings or on weekends, and I would certainly oppose a convention of only wealthy or elite delegates.
One of the current proposals limits the convention to a three-month session, while the other suggests six. For a citizens’ convention to be truly deliberative and meaningful, a longer convention is warranted to allow for a substantial amount of citizen input and an opportunity to finely hone proposed changes. If history is any indicator, a new Constitution may be in effect for the next 100 years or more. Anything worth doing is worth doing carefully and thoughtfully.
I am concerned about the provisions for lobbying included in the two preliminary proposals. A citizens’ convention, above all other functions carried out in the common interest, should be unburdened of the influence of special interests. Delegates to a convention must be insulated from the pernicious lobbying tactics normally accepted for regular legislative bodies. Interest groups who wish to influence the proceedings should be limited to providing reference materials to the convention as a whole or through public testimony before its committees.
This committee has acknowledged that several sections of the current Constitution are already so clear and concise that simply abiding by the limitations already in place would go far in reforming government in Pennsylvania. I couldn’t agree more. The problem, as I see it, is that there are no direct methods of enforcement contained within the document itself.
When the General Assembly passes a new statute and criminalizes a particular action, it often recommends the sanctions for breaking that law. The Constitution, which is legally superior to any statute, deserves to be protected in the same manner. This alone is reason enough to alter the document. Any law, frequently ignored or rarely enforced, is no law at all - and this is the underlying reason for today’s crisis in public confidence.
A citizens’ constitutional convention is the right tool to address the crisis at hand in 2007, but it must be a convention with a deliberate emphasis on the common interest, rather than self-interest. The process must look forward as well as backward. It must be focused on the structure and integrity of government rather than partisan issues. And it must be a conversation where private citizens, rather than elected officials, are doing most of the talking.
If we truly believe in the inherent right to self-governance as enumerated by Article I, a citizens’ constitutional convention provides no cause for hand ringing, anguish or hesitation of spirit. I urge you to take action on this matter as soon as possible so the citizens of this Commonwealth can get on with their lives, confident that government is acting in a manner which adequately protects their rights and properly fulfills its duty to the public good.
Thank you again for the opportunity to speak with you today. I’d be glad to answer any questions.
Suggested language for a 'ConCon' enabling act: www.pacleansweep.com/ccc07.html
PACleanSweep is a non-partisan effort dedicated to returning honor, dignity and integrity to government in Pennsylvania. For more information, please visit www.PACleanSweep.com.
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