The Dean of the UCI Law School, the eminent and rightly respected Erwin Chemerinsky, claims a Constitutional Convention will fail in today’s LA Times. He draws upon his experience chairing an LA City Charter revision commission in the late ’90s to suggest that although California’s Constitution is clearly broken and in need of change, a Convention will come apart on the same political rocks that have previously prevented change:
My experience as chairman of a similar convention — an elected commission created in 1997 to propose a new Los Angeles city charter — makes me skeptical that a constitutional convention can provide a solution to the serious problems that face the state….
Even if there is a constitutional convention, and even if it does come up with a coherent and meaningful package of proposed changes, it’s uncertain that that package would ever be adopted. There are countless controversial issues that could doom it….
I have no real objection to a convention. I just don’t believe we can count on it to solve our problems — and certainly not in a timely fashion.
Chemerinsky’s points are worth considering, even if I ultimately disagree with them. Neither myself nor the Courage Campaign (where I work as Public Policy Director) believe that a Convention is the only way to reform the state. Chemerinsky calls for putting an initiative on the ballot in 2010 to eliminate the 2/3rds rule, and both myself and the Courage Campaign completely agree with that. Restoring democracy to the initiative process cannot wait for a Convention. It needs to happen as soon as possible.
That being said, I think Chemerinsky is not taking into consideration some fundamental differences between the LA City Charter review process and a Constitutional Convention for California.
The primary difference is context. In the late 1990s California was enjoying prosperity, and that made it seem like government was working well enough. There was no crisis, no immediate and obvious reason to change the LA City Charter, even though there were certainly ways it could have been improved. In the absence of a sense of crisis, there was no momentum to carry through the proposed changes over the opposition of the interests Chemerinsky alluded to.
We are in a completely opposite situation today. California is suffering from the worst economic downturn since the Great Depression. Our government is distrusted and disdained by large majorities of the population. And the failure of government has been made obvious to everyone. There are two fundamental things that American government must do – protect rights and promote prosperity. California’s government is failing us on both points.
Californians are fed up with the status quo. They are looking for inspiration, hope, and change. A Constitutional Convention, properly convened, limited to focus on structural problems and that proposes sensible solutions, can inspire people to overcome the obstacles to change. Especially since CA in 2009 isn’t LA in 1999.
Chemerinsky is right, of course, that voters might reject the proposals put forward by a Convention. But then that’s the nature of constitution-making in America. The US Constitution came within a hair of being rejected – had a few votes gone a different way in Massachusetts and Virginia, the Anti-Federalists would have prevailed and the status quo would have continued even in spite of the dire economic crisis of the 1780s.
That’s a risk we have to take. California’s government is broken, and now many people are going to suffer as a result. I’m willing to try and fail rather than not try at all.