Richard Labunski: Congress Should Call Conventions for Flag Amendment

Richard Labunski, in the Lexington Herald-Leader (7-4-05):

[Mr. Labunski, a journalism professor at the University of Kentucky, is the author of The Second Constitutional Convention (2000).]

If the U.S. Senate follows the House and approves a constitutional amendment to allow laws punishing the burning of the American flag, it would be the first time in the nation’s history that Congress has proposed an amendment to curtail First Amendment rights.

Freedom of speech is a bedrock principle of our constitutional system and should be limited only after careful deliberation.  That is why Congress should do something it has done only one time before:  Choose the convention method of ratification.

Article V of the Constitution requires that amendments proposed by Congress be ratified by 38 states.  Congress must decide whether amendments will be approved by state legislatures or by conventions whose delegates are elected by the people.

Congress has chosen conventions for only one amendment.  In 1933, Congress worried that state legislators, who disproportionately represented rural and often dry counties, would not approve the 21st Amendment to repeal prohibition of alcohol. 

With no precedent and little guidance from Article V, states were not sure how to proceed.  But eventually, 43 states provided for conventions, with 39 of those states approving convention laws within four months of the amendment’s submission by Congress.

In almost every state, candidates ran on a slate in favor of or opposed to the amendment.  That placed the focus on whether alcohol should be legal and not on the candidates seeking election to the conventions.

It took only about nine months from submission of the amendment to approval by a sufficient number of states, one of the fastest ratifications in the nation’s history.  Twenty-one million voters participated in the elections to choose delegates to the conventions, with 73 percent showing their support for the amendment by electing candidates favoring repeal.

If Congress goes with the usual practice and gives ratification of the flag amendment to state legislatures, the debate would be largely confined to legislative chambers.  People would be able to write or call their legislators, but citizens would not be directly involved in the decision.

If, on the other hand, a slate of delegates were on a ballot seeking election to a state convention, the public would have the chance for a robust discussion of freedom of speech and whether it should be modified by the flag amendment.

States would have substantial discretion over how delegates are chosen.  If candidates run on slates committed to a position on the flag amendment, the discussion would be confined to the campaigns.  The delegates would simply show up and vote. 

If, however, states allowed at least some delegates to run on unpledged slates, as eight states did in 1933, then the debate would continue at the convention itself.  If enough uncommitted delegates were elected, the conventions could become deliberative bodies that consider what freedom of speech means to this country.

The elections would probably have some of the worst elements of our modern electoral system.  Substantial sums of money would be raised and spent by both sides, and TV and radio ads would exaggerate and distort the consequences of approving or rejecting the flag amendment.

But for something as important as modifying the First Amendment, the American people should be directly consulted.  That can be done only through ratification by conventions.

The Constitution would be in no danger from these conventions.  The only issue before the delegates would be to approve or reject the flag amendment.  The conventions could not propose other changes.

In an era in which Internet technology allows ordinary citizens to communicate with a potentially large audience, and with TV networks providing coverage of the elections and conventions, the country would have a chance to talk about whether the Constitution should, for the first time, be changed to limit the rights protected by the First Amendment. 

Such a national discussion would, ironically, honor the First Amendment at the very time the American people consider whether to curb the freedoms it protects.  An amendment that has done so much to protect personal liberty and that occupies such a special place in our constitutional system deserves no less.

Note: The information about the 21st Amendment is drawn from David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995 (University Press of Kansas, 1996), pp. 282-287.