Pro and Con
A state constitutional convention comes up for a vote—whether politicians, or voters, want it or not
Published: October 13, 2010
The last time Maryland had a constitutional convention, society was weathering the influences of “[a] population explosion, inferior schools, congestions, unemployment, racial hatred, the hippies and flower children, H. Rap Brown, and glue sniffing,” in the words of one delegate at the time. This Nov. 2, 43 years later, Maryland’s citizens have the rare opportunity to decide once more whether it is time to re-examine the state’s framing document.
Maryland’s constitution requires that the General Assembly put the question of whether to hold a constitutional convention to voters every 20 years. (Thirteen other states have similar provisions. The idea is thought to have come from Thomas Jefferson, who said, “[E]ach generation . . . [has] a right to choose for itself the form of government it believes most promotive of its own happiness.”) Advocates of a new convention say it would be a chance to modernize an archaic document loaded down with amendments, and to address topics legislators may be reticent to attend to, such as term limits. Opponents say opportunities for constitutional change are embedded in the legislative process, while tinkering with the entire document is risky, expensive, and potentially wasteful. Just look what happened the last time around, they say.
The constitutional convention of 1967-’68 came about not as a result of the 20-year cycle, but because of a U.S. Supreme Court ruling that declared Maryland’s legislative districts unconstitutional because they did not comply with the Court’s one-person-one-vote ruling. (The rural population had much greater representation than the urban population.) Gov. J. Millard Tawes called for a convention, proclaiming the extant 1867 constitution “very restrictive to the successful operation of an efficient state government and entirely too clumsy and ineffective as a document of basic law.” The voters agreed, and a convention was called.
Seven hundred candidates vied in a nonpartisan election for 142 delegate seats at the convention. Donald P. Hutchinson, now president and CEO of the Maryland Zoo, was, at 21, the youngest delegate elected. “It’s probably, even today, 43 years later, the best four-month governmental learning experience I’ve ever had,” he says. “It was worthy from a personal perspective, and I think it was worthy from the electorate’s perspective.” (If a convention were voted in today, a special election for delegates—188 this time, to match each senator and delegate in the General Assembly—would be held, and the group would convene in the State House for deliberations.)
According to one estimate, less than 10 percent of the 1967 delegates were elected officials. But, says Julian “Jack” Lapides, then a newly elected state senator representing Baltimore City, they were an educated group. “By and large the convention delegates were really outstanding and learned and progressive,” he says. “People knew it was gonna be a chore, not a plum.”
After months of grueling debate, the delegates produced a new constitution. They had streamlined the document, re-apportioned legislative districts, eliminated elected offices in the courthouse, and created the post of lieutenant governor, among many other changes. The final draft was a “beautiful theoretical document,” according to current Assistant Attorney General Dan Friedman, author of a reference guide on the state constitution. And theoretical it remained, because when the constitution was put to voters in 1968, it was decisively rejected.
Hutchinson says the delegates did not initially even consider that the public might veto their work. “There was just an assumption that this convention would result in a brand new state constitution that in many ways would restructure government,” he says. He and others who remember the months leading up to the vote say the strongest opposition came from elected officials whose positions were threatened by the proposed changes. “You had the politically entrenched politicians pretty much against it,” Lapides says. “That’s what defeated it.”
J.H. Snider, a political scientist who runs marylandconcon.org, a blog advocating for a new constitutional convention, says the reason the new constitution failed to pass was, in part, procedural. “The strategic mistake they made was you don’t try to put everything in one ballot item,” he says, “because the opposition will focus on the controversial things and the whole thing goes down.” The delegates could have extracted controversial proposals and made them separate ballot questions, as other states have done, he says, thus increasing the chances that the bulk of the document would have been approved.
The defeat inspired a 1970 book titled Magnificent Failure: The Maryland Constitutional Convention of 1967-1968. But over the years it became clear that despite the loss, the convention was not a total failure. “The result of the convention largely has been realized in a piecemeal fashion,” Hutchinson says. Many of the convention’s proposals—such as the creation of the lieutenant governor post—have since become law, through the amendment process in the legislature.
Opponents of a new constitutional convention say such constitutional reform through amendment is perfectly adequate. “There’s always opportunity to change the constitution without calling for a wholesale constitutional convention,” Sen. George Della (D-Baltimore City), whose father served as a delegate in the 1967-’68 convention, says. “We have the legislative process, the chance to initiate changes issue by issue.”
All those amendments lead to a messy document, convention advocates say. “If you use piecemeal reform, you get individual items added to constitutions and over time the constitution loses its coherence,” says G. Alan Tarr, director of the Center for State Constitutional Studies at Rutgers University. “It’s sort of like building a house and adding addition after addition.” The Maryland constitution is, at 47,000 words, one of the longest state constitutions in the country, and generally agreed to be unreadable. Hutchinson, however, says this is not a compelling reason to call a convention, despite fond memories of his own experience as a delegate. “Are there many, many things in our constitution that ought not to be there? Absolutely,” he says. “But the fact is that the structure of Maryland government is a relatively sound structure.”
Snider says the legislative process does not allow citizens to address issues that represent a conflict of interest for legislators, such as term limits, campaign financing, and the mechanisms governing redistricting. “Constitutional conventions were created as a checks-and-balances institution,” Snider says. “The whole idea is when the legislature isn’t doing what they’re supposed to do, it’s a safety valve.” This is all the more true, he says, in states like Maryland that don’t have ballot initiatives.
Convention opponents are not convinced. “Who is gonna be involved as a delegate to a constitutional convention?” Della asks. “Is it gonna be John Doe citizen, or is it gonna be someone who’s [already] involved in the policy-making process for the state?” The slack economy has entered the debate as well. Early this year, state Sen. Allan Kittleman (R-Howard and Carroll counties), one of the more vocal convention opponents, issued a statement that read: “This obviously is not the time to change the Constitution of Maryland or bear the expense of a Constitutional Convention.” According to figures from a report by the Constitutional Convention Commission, the 1967-’68 convention—including the elections—cost about $3.5 million. Adjusted for inflation, that would equal about $23 million in the current economy.
In the end, the dispute over whether to hold a constitutional convention may be moot because of a quirk in said constitution. In order for the question to pass, an absolute majority of voters must say “yes,” not simply a plurality. This means that the majority of voters participating in the election as a whole must vote “yes,” not only those voting on this particular question. This rule has doomed the constitutional convention vote time and again. In 1950, for instance, more than 200,000 people voted in favor of a convention, while less than 60,000 were opposed. But a convention was not held because so many voters left the question blank.
“I’m trying to get out the message that whether you like constitutional conventions or not, you should vote, because a non-vote is a ‘no’ vote,” Snider says. But there’s been little campaigning on the matter from any quarter, and constitutional conventions are nearly always voted down. There hasn’t been one in any state since the early 1990s.
Lapides says the public no longer seems to have an interest in local government. “There was great fervor for [a constitutional convention] last time,” he says. “Now I see absolutely no groundswell at all. If one person out of 50 knows that question is on the November ballot, I’ll send you a quarter.”
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