A Plea to Improve the State Constitutional Convention Process

Abstract

The contemporary democratic function of the periodic state constitutional convention referendum should be to provide a mechanism for the people to amend a state constitution about matters that are extremely difficult to address via a legislature due to a legislature’s institutional conflict of interest with the people. Examples of such matters include redistricting, ethics, and term limits reform, as well as resetting the checks & balances between the legislative, executive, and judicial branches of government in a way that constrains the legislative branch. Unfortunately, the state constitutional convention cannot fulfill this democratic function if the legislature has undue control over implementing it. This working paper proposes a solution to this problem: a new type of public body that consists of a series of constitutional convention “e-juries" (a variation on the "mini-public" idea) that would iteratively choose among plans submitted by contestants for creating a constitutional convention's enabling act. The proposal is applied in the context of Rhode Island's state constitutional convention convening process. An alternative and less radical use of such an e-jury would be as a last resort remedy for the courts if a legislature failed to implement a constitutional convention as mandated by a state’s constitution. Thus, even if a constitutional convention e-jury was never called in practice, it could have a salutary deterrence effect on a legislature. A multistage e-jury could also be used to deal with other democratic reform problems where the legislature has an institutional conflict of interest with the people. The state constitutional convention is an institutional gem in the rough that merely needs some shining for its democratic value to shine through.