NER Washington forum; A U.S. Constitutional Convention?, part 2

I think that our founding fathers Jefferson and Madison and Washington and Franklin would roll over in their graves at the thought of a constitutional convention opening up that basic charter upon which this country's been founded. The voice you just heard was that of United States senator Joseph D tydings Democrat of Maryland and our guest this week on the NE our Washington forum a weekly program concerned with the significant issues before us as a nation. This week a discussion on the possibility of a United States Constitutional Convention. This program was produced for national educational radio through the facilities of W am you American University Radio in Washington D.C.. I'm Bill Greenwood. Our guest is Senator tydings is serving in his second year as a member of the U.S. Senate. He's a member of three committees the District Committee which oversees the government in the District of Columbia. The Public Works Committee and the Judiciary Committee. Senator tydings has been perhaps the most vocal opponent of an effort to

convene a so-called a constitutional convention an assembly which would have the power of presumably to rewrite this nation's fundamental governmental document. Senator tydings has a first question. Would you give us some historical background on this constitutional convention controversy. Yes the petitions which have been submitted by a number of states are really a back door attempt to revoke the one man one vote Supreme Court decision when their one man one vote decision was handed down. It outlawed the rotten borough legislative system in this country it said that every person is entitled to an equal vote in the legislature. This immediately raised a great how particularly among the vested economic interests and the legislature towards themselves who would be in a sense Mal apportioned out of their seats or with or at least have to compete with every other legislator or in a base of equal vote on the basis of equal votes

twice a cent of their decks and attempt to demand the Constitution through normal channels which requires a two thirds vote of each house of the Congress the Senate and the House of Representatives and ratification by three fourths of the state legislature. Well he never made it the first step. The Senate never adopted the Dirksen Amendment it was defeated twice. We thought that the temple was dead. However quietly and almost to repetitiously without the public realizing what was happening the electorate a number of the rotten state legislatures before they were required to reapportion past petitions memorializing the Congress under Article 5 to convene a national constitutional convention. There have been received by the Congress today there has been action by some 32 state legislatures now all of the action is not similar and not all calling for the same thing and the action on the part of 27 of the legislatures was done during a period when they were

illegally apportioned themselves so it's a very questionable whether they could legally do what they had attempted to do namely legalize their own illegitimacy insofar as apportionment is concerned. However we faced a situation today where there are 32 states who have acted in some manner or another to petition the Congress to call it National Constitutional Convention. If the Congress were to receive two more petitions Senator Dirksen has said that he will file an act or file a resolution which would in effect have the Congress call a national constitutional convention. Why do some of these states want to mention vast uneconomic and iris as one reason would you explain that. Yes under the whole rotten borough system where you had say as in the state of Maryland in my state where you had less than 20 percent of the population electing over 50 percent of the membership of one house or another it

was very easy for the big interests in some state its all its banking smaller summits of power companies who wish to control the state legislatures it's very easy for them by putting their influence and their money in certain districts to elect a few san state senators or state representatives and control the state legislature. They like the things the way they were they could defeat progressive taxation and they could keep the taxes generally speaking on the lower income groups. They could protect their own vested interests that they could control the situation. And of course it was an anathema to them to think of a fairly apportioned state legislature where the average citizen having an equal vote and of course they have been fighting this tooth and nail a fair portion of it movement. They've been the leader that they bankrolled a big public relation firms that have sought to have the rotten borough amendment passed the Dirksen Amendment these are the same invested interests that are behind the efforts in the state and some of the state

legislatures to file these petitions. Secondly you had the legislators themselves in the very legislatures which were ruled as unconscious and constitutionally apportioned by the courts these legislate or seeing if they were going to be in a sense. Required to compete with the entire state or on an equal footing they immediately rushed through without public hearings without notice or anything. These petitions memorializing the Congress to call a national constitutional convention for the purpose of making legal their own illegal apportionment and naturally they're prying trying to protect their own seat to their own position so to speak. So that's basically the motivation behind the two principal forces in favor of the rotten borough Mal apportionment system. My rotten bro you do in effect and mean the improperly importunate Yes the rotten boroughs it goes back from the great English scandals in the 19th century

where you had some boroughs in the House of Commons that were really nonexistent actually under the water electing members to the House of Commons and you had a town town with maybe five or six people electing three or four members of the House of Commons in a great city like Leeds or Birmingham with one. Same principle as in California where you had one area with seven in one area with 12 million people electing one state senator and a county with 12000 people electing a state senator. That's a rotten borough system. Senator tydings Let's talk about mechanics for a moment. How would such a convention be convened if 34 states wanted it. You see there is the rub. Yes. Such a convention work and Dean done questionably the rules and the direction would be set up by the proponents of the convention. Unquestionably Senator Dirksen and the proponents of the rotten borough

system would see that the representation was based on the old rotten legislative system so that you wouldn't have equal representation in the Constitutional Convention. They might well say that each state would have the same number of representatives. They might require that rather than having the state legislatures ratify the constitutional conventions that special conventions in each state be convened on the basis of the whole rotten borough apportionment there are all sorts of ways that they could manipulate to avoid the people having an opportunity to elect their own delegates to the Constitutional Convention and ratifying it. But even more horrendous would be the opportunity for the extremist groups of so-called New Left. Are they extreme right the John Birchers the groups that are supported by the way out extremists a Ku Klux Klan that group the thought of them and they attract great sums of money. The thought of them

being able to elect these groups representatives and perhaps take control of the convention and changing the basic charter for instance amending mending out to throwing out the First Amendment the freedom of religion or the freedom of speech or the Fifth Amendment the 14th Amendment. Just the very thought of that the opportunity to tear apart our basic charter is just unconscionable. Senator we know and now know that there are several ways these delegates can be chosen and how many would there be in numbers. Well you don't know you see that would be. However the plan was a proposed by Mr. Dirksen we have no idea. How is that. We've never had a constitutional convention before hopefully we won't have one. The only constitutional convention this country has ever had national was the Constitutional Convention which produced our basic charter in 1787. That's right and if you'll recall that constitutional

convention was called by the Continental Congress operating under the Articles of Confederation. A number of the states had petitioned the Constitution. The Continental Congress to call a convention for the purpose of strengthening the Articles of Confederation and that was a purpose for which it was call. However when a constitutional convention convened it decided not to just amend the Articles of Confederation but to complete a complete new document. The charter our constitution and they never even submitted it back to the Continental Congress as they were required to do. They provided that each state should elect delegates to a state convention and when I think seven states ratified the Constitution went into effect with seven or eight states I'm not sure which and they never went back to the Continental Congress or to the original state legislatures. And that's the only. Basis the only precedent we have for a constitutional convention

and therefore with this is a basis or as a precedent. You can elect the delegates any way the Congress passes a resolution to do so. The action of the convention could not be limited. It couldn't be restricted to one man one vote. It would be open if the delegates wanted to repeal the Fifth Amendment if they wanted to limit the power of the jurisdiction of the Supreme Court. As many of these extremist groups the Liberty Lobby etc have been advocating that they could do it. And that's one of the really scary. We don't know what could happen. I mean they could completely scrap our system they could come up with a state government they could come up with a state religion they could come up with a presidency with the power of virtual power of a dictator. They could come up with an anarchy and they could destroy our basic the Bill of Rights. It's just that so let the idea the thought of electing the extremist groups that are

wandering around today tinker with our basic charters just on thinkable Sen tydings what you're saying then is that the composition of this group would be up to the Congress when they decide to add it. But it can be assumed that all states would be represented at such a convention. Yes how would the states. Received voting power that is would each state have the same power in voting on amendments methods of changing the Constitution. Well that's quite possible. We it would depend on the resolution authorizing the call for the Constitutional Convention. You could do it on the basis of each state having equal vote on the basis of representation in the House of Representatives. There are a number of alternatives unquestionably the proponents of the Constitutional Convention call would try and set it up in such a way as to limit the right of the average citizen to participate. I mean they were they would I for instance I don't think they'd be

satisfied with representation on the basis of each state's representation in the House of Representatives. They would probably try and do it to each state having the same vote. I don't know quite what they say there's been no guidelines sat no speeches made on what this resolution to call with can and pain but my thought would be that it would probably be drafted in such a way as to limit the rider participation of the voter in the country. Well you you mentioned limitations and this brings up another mechanical question then would it be possible to hold closed sessions of this convention things being done behind closed doors. Yes they could adopt any rules they want if they're starting from scratch. And when it was completed they could come out with any form of charter they wish. In other words the people might suddenly one day wake up in a group of individuals come out and say this is what we've done and recommend. That's right. That's that's quite correct.

Do you see any possibility Senator tidings that the convention might choose to completely rewrite the constitution from start to model. Well I would sincerely hope that they wouldn't do that. But to give them the opportunity we only have one precedent that's exactly what they did what happened the other time that fortunately at that time was before our nation was founded really we needed a basic charter. But we've had a great charter it's withstood withstood the vicissitudes of time. It's enabled this country to develop from a small group of 13 colonies with less than 20 million people to the most powerful nation the world's ever seen through a common market with almost 300 million people. I think it's done remarkably well it's a durable effective charter. And I just don't like to have it tinkered with in Mass. We have an effective way to amend the Constitution has been amended I think since the Bill of Rights some 25 26 times it can be done when the people want it to be

done. But to allow the whole thing to be thrown open is just right. Is there any time limit during which the states must ask for this convention to be convened. Well that's a good legal question. We have no precedent here. I would feel personally that the original petitions were filed I think back in 92 to 64 I would think that if I 968 four years later they didn't have their full quota that it would they would definitely be outdated. The new legislature would have to act. And something might be argued that way now. But the question with which we have no basis on which to make a judgment. Senator Robert Kennedy has taken a similar attitude saying that he feels a two to three year deadline should be imposed. Can this legally be imposed you say there's a question.

Well you'd have to go to the courts to determine if this means possibly then a showdown of sorts between the legislative and Supreme Court. Well and not necessarily because the legislature would first have to adopt the resolution for a formal call I don't think that the national legislature will ever adopt such a resolution. How imminent is the possibility of a full scale battle over the legality of some of these contested legislative modes. Well I don't think it's imminent because the legality would not arise unless the Senate and the House of Representatives passed a memorial calling a national constitutional convention then it would be could be challenged in the court on the basis that the call was illegal because of petitions and cells weren't legal. I don't anticipate first that they're going to be any more petitions filed of any type along the subject of 30 to file now. I think that the people have been awakened. I think that the legislators themselves are alert to the problem to the danger. So I don't think it will receive

any more petitions I think that the strong possibility that states will receive next year petitions already sent in. And finally that even if these first two requirements are first two situations don't occur as I predict. I don't think that the Congress would act in any event I think that the senators could be convinced of the illegality of the petitions themselves too. Who to stop the passage of a of a constitutional convention call. And you say because these legislators were not properly apportioned the convention call was illegal. Would this not mean then that all of the laws passed by these legislatures really legal and now the Court has specifically ruled on this point. The courts have ruled that the action of an illegally apportioned legislature on normal matters state matters

housekeeping matters are valid even though it was constitutionally valid Corson. But when a state legislature seeks to legislate making its own mal apportionment legal in other words to legitimize its own illegality that they cannot do. It's a basic law of equity you cannot come into equity court and seek justice or fairness or equity if you have unclean hands for instance at the basis of all divorce matrimonial divorces equity. You go an equity court to do equity. Now my husband. Cannot come in to the board and do a divorce court and seek equity a divorce from his wife that he himself is committing a dollar in other words he has to have clean hands. And my point there is that the state legislatures which are illegally apportioned they can't come into court or come to the Congress and ask the Congress to

call a constitutional convention because of their petition to make legitimate or legal or only illegality illegal apportionment sounded tydings assume that 34 states do pass these memorials. Is it possible for Congress to refuse to convene a constitutional convention just absolutely the Congress. Well first of all happy mag and a determination as to the legality of the 34 petitions. Now that's where the that's where the fight will come. As I've indicated to you I feel very strongly I think that there is precedent. We have decisions in the courts which would hold that the occasions of the illegally of course in legislatures are invalid are illegal for the purpose of calling a constitutional convention to make legitimate their own illegitimacy. And I think that this can be argued and I think in a majority or at least a substantial number of the Senate would

support my position enough to stop the adoption of such a resolution. I understand that but if the Congress right now now steps some of the however avoid the next question is suppose enough other states come expose all of the new legislatures that are fairly porous and then if you had 34 fairly apportioned states all acting then you'd have to call a constitutional convention if it was a legitimate and legitimate legal action on the part of the state you would have to call it. And I would vote that way. Otherwise though there is still a possibility of it being thrown into the courts. You from the election is really through the Congress. Well get out some of these as well. Now that the court case would not arise there once a Congress is refusing Congress cannot be enjoined into action by the courts. They can't force us to pass a law. However if the Congress passed a law passed a resolution calling a constitutional convention

then that law that resolution can be Chalons on the basis that there were not 34 legally constituted petitions memorializing Congress for that call. I see if the Congress then refuses to act. That's the end of the matter. The end of the matter is right for the United States as you know is the oldest existing constitutional democracy in the world today. What effect do you think such a convention might have on other smaller countries in which we're trying to export our type of government. Well unquestionably it would upset them it would disturb the balance the equanimity. Really the basic symmetry of our system the fact that we've operated under the same document that we've been able to adjust with the times to adapt with the times. I think it would be a blow to constitutional democracies all over the world to have our basic charter opened up for all types of amendments and changes.

Senator tidings you have in effect said that one of the major reasons of this attempt is to override or avert the unpopular Supreme Court rulings. That's right. Would you say then that this is a slap at our judicial check and balance. Well unquestionably it's an attempt to circumvent or to upset a Supreme Court decision. It's an attempt on behalf on the part of the powerful economic and commercial interests that used to control so many of our legislatures and legislate tours. It's an attempt on the part of these interest to gether with many rotten barrel legislate tours that had great power under the old rotten system to regain their own power and not to permit the people had the opportunity to elect their own legislatures. Why do you feel Senator Dirksen has taken such a strong lead in this. Well I think that Senator Jackson as a spokesman in the national arena for many of the

same vested commercial interests on the national scene which have such a great stake in the in the state and control of the state legislatures. You don't feel then that he is diminishing his duty as minority leader taking a lead in this. This is now and certainly Senator Dirksen has a right to take a lead in this. He's a leading spokesman for powerful business and economic interests in this country and he has every right to take it. I just don't happen to agree with him. Could you generalize and say that such a convention if it were assembled might signal a beginning to an end in risk with respect to our form of government. It could imagine one of my fear. And that's one of the reasons why I take such a conservative position. These are the this issue that I guess think that we have a great charter a great constitution worth conserving worth preserving as one of the

major opponents of a constitutional convention Senator timings what would you recommend the general citizenry do to try to block this simply feel as you do. I think they should contact their local state legislator or us and advise them or write them about what they feel that we shouldn't have a national constitutional convention and ask their legislature tours either to rescind a petition if their state legislature has already filed one or else not to pass one if they haven't. But I think the way to approach this is to contact your local state legislator or state representative. Obviously however on the other hand if everyone agreed with you there would not be this many resolutions now pending with them now but bear in mind that a great many of these were midnight resolutions passed by legislatures about to be put out of business or about to go out of business because they'd have to be re-elected by the people and not by a rotten system and they rushed the

memorial's through in a sort of a last ditch effort to preserve their own skins. The new legislatures would never pass them. They wouldn't pass them now. But enough of the old ones did. And that's what we're concerned with. The legality of these old midnight petitions. Can you say that. Do you expect an effective attempt at halting the convening of such an assembly. Oh yes we've been making I think effective steps just the alerting the public. Pressing upon them the possibility of doing what we're doing now on radio or on television or writing in the press speaking on the floor of the Senate I think that in of itself is a most effective step we can take because the possibility is just unthinkable. That was United States senator Joseph D tydings Democrat of Maryland. Our guest this week on the n e our Washington forum. You've been

listening to a discussion on the possibility of a US Constitutional Convention. Senator tydings has been arguing against such a convention replying to statements made on this program last week by U.S. Senator Everett McKinley Dirksen who favors a constitutional convention. Last week Senator Dirksen had this to say. A number of articles have been written on this on the various titles. I see one by a senator which is and they are tampering with the Constitution. Well I can't think of a more stupid statement in there with full regard for the Senate for the very good reason that first this is the people's government. Secondly this is the people's guns. Because the preamble begins with the words We the People of the United States and for a

variety of reasons do ordain and establish this Constitution. And since that is a perfectly valid constitutional procedure there is no reason why it shouldn't be done and it shouldn't be a labor effort to tamper with the kind of that I could say that after a hundred and eighty three people aren't entitled to have a look see at the organic act in the country. This would be a strange country and how could you contend that. It was positive already of all the virtues like you have already the people their freedom their rides and their right to alter their government if they want to. As Jefferson Lee cited in the Declaration of Independence you will find people who probably have not gone into this Is there really is a

good and who get rather sentimental about it when you wave the flag and say Don't tamper with the Constitution. The Constitution is a manmade document. Those were some of the arguments advanced last week by U.S. Senator Everett Dirksen a supporter of a US Constitutional Convention this week you heard Maryland Senator Joseph tydings repeating the arguments of Senator Dirksen. This program was pretty it was for national education already all three of the facilities of W am you f our American University Radio in Washington D.C. I many our public affairs director Bill Greenwood inviting you to listen again next to wait for another edition of the NDR Washington forum a weekly program concerned with the significant issues before us as a nation. This is the national educational radio network.