1
00:00:15,970 --> 00:00:23,050
Grace Mallon: Hello and welcome to Convention's a podcast about the history of constitutions brought to you by the Quill Project at Pembroke College, Oxford.

2
00:00:23,050 --> 00:00:29,650
My name is Grace Mallon and I'm your host. Cohosting today's episode is Dr Nicholas Cole, the director of the Quill Project.

3
00:00:29,650 --> 00:00:39,390
Hi, Nicholas. 
Nicholas Cole: Hello, Grace. 
Grace Mallon: Our guest is Robinson Wood Woodburn's, assistant professor of political science at Howard University.

4
00:00:39,390 --> 00:00:45,900
He's joining us today to talk about his new book, Hidden Laws How State Constitutions Stabilise American Politics,

5
00:00:45,900 --> 00:00:52,550
which is out this year with Yale University Press. Robinson, thank you for joining us.

6
00:00:52,550 --> 00:01:01,490
Robinson Woodward-Burns: Thank you for having me. 
Grace Mallon: It's a great pleasure. I obviously haven't had a chance to get my hands on the book itself yet,

7
00:01:01,490 --> 00:01:09,470
but I have had the opportunity to read the manuscript, which obviously overlaps a lot with my own interests in federalism.

8
00:01:09,470 --> 00:01:16,160
Which leads me to my first question. I'm always interested in the generation of of these projects,

9
00:01:16,160 --> 00:01:20,000
particularly when they sort of overlap with my own interest in state government and federalism.

10
00:01:20,000 --> 00:01:27,140
So how did you get interested in state constitution making and how did this project come to be?

11
00:01:27,140 --> 00:01:32,360
Robinson Woodward-Burns: That's a great question. State constitutions are pretty esoteric.

12
00:01:32,360 --> 00:01:40,370
The United States has these 50 states, each of which has its own constitution, but there's not too much academic attention that's been paid to them.

13
00:01:40,370 --> 00:01:48,020
And so I actually began by studying a particular constitution. It's one I'm sure, you know, graced the Pennsylvania Constitution of 1776.

14
00:01:48,020 --> 00:01:54,290
And it was for its own time a radical document. It did things that other documents in its time did not do.

15
00:01:54,290 --> 00:02:03,410
It was a unicameral ist document. It provided for one chamber of legislature because that was thought at the time to be more democratic.

16
00:02:03,410 --> 00:02:09,110
It had a very wide franchise, the widest in the Western world, according to this story.

17
00:02:09,110 --> 00:02:19,160
And Gary Nash at the time at least. And it also had a sort of idiosyncratic provision, an odd one in an early draught, which held, quote,

18
00:02:19,160 --> 00:02:27,200
An enormous proportion of property vested in a few individuals is dangerous to the rights and destructive to the common happiness of mankind.

19
00:02:27,200 --> 00:02:36,020
And so this sort of odd provision that eventually gets cut provided for mandatory property redistribution and potentially even land redistribution.

20
00:02:36,020 --> 00:02:43,250
So it was also an economically radical document. And that's sort of what got me interested in American constitution making at the state level.

21
00:02:43,250 --> 00:02:45,230
It was a very influential document.

22
00:02:45,230 --> 00:02:55,400
It went to the genesis of the Vermont and Georgia constitutions and ultimately backlash against the document shaped the United States Constitution,

23
00:02:55,400 --> 00:03:02,570
which was a much more conservative document. And so it was seeing the interaction between state and federal constitution making

24
00:03:02,570 --> 00:03:09,380
between state and national constitutionalism that inspired the project in a larger sense.

25
00:03:09,380 --> 00:03:11,060
Grace Mallon: That's really interesting to hear.

26
00:03:11,060 --> 00:03:19,220
I think the Pennsylvania Constitution is the gateway drug for a lot of people who end up being interested in state government,

27
00:03:19,220 --> 00:03:20,810
in state constitution making,

28
00:03:20,810 --> 00:03:32,180
because it is this sort of extraordinary, this extraordinary document about economic radicalism is so striking for the period that said,

29
00:03:32,180 --> 00:03:41,840
although I mean, one of the things that got me interested in the United States as a as a sort of area of study is federalism,

30
00:03:41,840 --> 00:03:50,570
American federalism, being this sort of peculiar system, this peculiarly old federal system.

31
00:03:50,570 --> 00:03:56,030
At the same time, what I find certainly working on federalism, working on state government,

32
00:03:56,030 --> 00:04:04,550
is there's still an overwhelmingly national focus in a lot of scholarship and also in the media.

33
00:04:04,550 --> 00:04:13,340
And I was wondering if if you Robinson and perhaps also Nicholas could comment on on why that is.

34
00:04:13,340 --> 00:04:22,550
Robinson Woodward-Burns: I think you're absolutely right. It's the case that most study of public law in the United States focuses on the national constitution.

35
00:04:22,550 --> 00:04:28,880
And there are a few reasons for that. One is that the Constitution, the federal constitution is relatively short.

36
00:04:28,880 --> 00:04:30,590
It's only seven to eight hundred words.

37
00:04:30,590 --> 00:04:37,910
And it's a lot easier as such to study the state constitutions have much lower bars to amendment and replacement.

38
00:04:37,910 --> 00:04:47,300
And as such, we've had many, many more state constitutions. We've had four hundred and eleven attempts to write new state constitutions,

39
00:04:47,300 --> 00:04:52,730
which has produced one hundred and forty four documents that have been ratified.

40
00:04:52,730 --> 00:05:00,830
And these are much longer documents. The Constitution of the state of Alabama, for example, is three hundred and eighty nine thousand words long.

41
00:05:00,830 --> 00:05:09,800
And so that's something of a deterrent to scholars. It's difficult, I think, to get into these constitutions with their thousands of amendments.

42
00:05:09,800 --> 00:05:15,930
And because of that, there's been a focus on federal constitutionalism, national constitutionalism, I think.

43
00:05:15,930 --> 00:05:24,590
So there's sort of a sacrifice that comes with that and that it requires one to ignore most constitutional change in the United States.

44
00:05:24,590 --> 00:05:30,560
So over ninety nine percent of amendments ratified in the United States have been to the state constitutions.

45
00:05:30,560 --> 00:05:37,790
There have been only twenty seven federal amendments ratified as opposed to the eleven thousand amendments proposed at the state level.

46
00:05:37,790 --> 00:05:44,810
And 95 percent of litigation in the United States is filed in the state courts rather than the federal courts.

47
00:05:44,810 --> 00:05:51,720
And so by ignoring state constitutionalism, really we're ignoring most of the constitutional change in America and.

48
00:05:51,720 --> 00:05:59,280
Studying instead is pretty small and unrepresentative slice of constitutionalism, and I think in some troubling ways,

49
00:05:59,280 --> 00:06:03,540
taking that very small slice to represent the whole in ways that misrepresents

50
00:06:03,540 --> 00:06:08,220
American constitutional change in American constitutional history more generally.

51
00:06:08,220 --> 00:06:11,100
Nicholas Cole: I think all of that, of course, completely right.

52
00:06:11,100 --> 00:06:21,510
The other thing, of course, is that the the national reporting of politics in America most naturally reports the workings of the federal government.

53
00:06:21,510 --> 00:06:30,090
And likewise, you know, historical writing that is of national appeal often focuses as well on the national government.

54
00:06:30,090 --> 00:06:38,370
So if you if you're looking for reasons why state constitutions are often neglected, those are part of the reason.

55
00:06:38,370 --> 00:06:43,510
I think another thing as well is that particularly because of the civil war,

56
00:06:43,510 --> 00:06:52,200
the the late 19th century historical trends that still in many ways influenced the way history is studied today,

57
00:06:52,200 --> 00:06:56,160
focussed on the the the business of constitution,

58
00:06:56,160 --> 00:07:03,960
writing in the founding moment and bringing together parts of the nation that really disagreed with each other.

59
00:07:03,960 --> 00:07:12,930
And there was a huge effort at the end of the 19th century to publish and edit the records of federal constitution writing.

60
00:07:12,930 --> 00:07:18,060
And in that narrative, state constitutions seemed much less interesting,

61
00:07:18,060 --> 00:07:28,920
much less important that the element of government that was perhaps failing in 1787 and which needed international politics to rescue it.

62
00:07:28,920 --> 00:07:30,810
And and by contrast, you know,

63
00:07:30,810 --> 00:07:42,060
the same amount of of money and attention has not been given to and paid to editing state level records and publishing them.

64
00:07:42,060 --> 00:07:50,130
And, of course, they are bound to be of of more local rather than more national interest.

65
00:07:50,130 --> 00:07:56,160
But that leaves everybody with the sense that constitutions all have the sort of qualities

66
00:07:56,160 --> 00:08:01,500
of the federal system and that the sort of really important things that people want to

67
00:08:01,500 --> 00:08:07,150
work out were how many people would be in a in a Senate or how would the how would the

68
00:08:07,150 --> 00:08:12,660
sort of schedule of elections between a lower and an upper house relate to each other?

69
00:08:12,660 --> 00:08:17,940
And so they miss the fact that actually the state level conversations are about a much

70
00:08:17,940 --> 00:08:24,630
wider range of topics than trying to navigate the problem of divided sovereignty,

71
00:08:24,630 --> 00:08:32,820
which is at the heart of the federal system. And I think people are often surprised when they when they turn to state constitutions just

72
00:08:32,820 --> 00:08:39,630
to see how rich the range of topics that's covered in different state constitutions is.

73
00:08:39,630 --> 00:08:47,430
Grace Mallon: I'm always interested in this myself, because my my own project was sort of inspired by the fact that the states seem to fall

74
00:08:47,430 --> 00:08:53,130
out of the historiography at exactly the moment that the federal constitution is created.

75
00:08:53,130 --> 00:08:58,530
And I think, you know, because historians perhaps quite naturally are just mostly interested in figuring out, well,

76
00:08:58,530 --> 00:09:07,930
how did you get this group of very disparate in some ways, polities, regions, peoples to come together as a nation.

77
00:09:07,930 --> 00:09:10,230
And so I suppose in that sense it's quite natural.

78
00:09:10,230 --> 00:09:23,460
But it's interesting to think about these things and to sort of get back to the argument of the book itself, hidden laws.

79
00:09:23,460 --> 00:09:26,370
What the book essentially does is, well,

80
00:09:26,370 --> 00:09:35,430
one of the things that the book does is it explains why the federal constitution has managed to have only 27 amendments,

81
00:09:35,430 --> 00:09:47,050
why it still looks very, very similar in terms of its text to what was produced in the 70s, 80s.

82
00:09:47,050 --> 00:09:56,170
By by the framers, and so what I wanted to ask you, Robinson, is, is how has the nation I mean,

83
00:09:56,170 --> 00:10:08,230
what is the role of state constitutions in allowing the nation to change so much while the Constitution on its face seems to have changed so little?

84
00:10:08,230 --> 00:10:11,560
Robinson Woodward-Burns: Well, thank you for that question, Grace. It's an important one.

85
00:10:11,560 --> 00:10:18,820
The United States Constitution, as I mentioned, has been amended only 27 times, and that's a remarkably low number.

86
00:10:18,820 --> 00:10:25,450
In a comparative context, we see that other national constitutions tend to be amended at a much higher rate.

87
00:10:25,450 --> 00:10:32,560
And similarly, the Supreme Court only rarely fundamentally reinterprets the meaning of the United States Constitution.

88
00:10:32,560 --> 00:10:33,790
So the question then might be,

89
00:10:33,790 --> 00:10:45,520
how has the United States Constitution remained in its fundamentals untouched or in some very fundamental ways untouched since it was framed in 1787?

90
00:10:45,520 --> 00:10:49,540
And I think there are maybe two main answers, neither of which I think is right.

91
00:10:49,540 --> 00:10:52,960
And that's sort of why I wrote the book, was to try to tackle these two stories.

92
00:10:52,960 --> 00:10:57,970
And so one would say the United States Constitution is just very difficult to amend.

93
00:10:57,970 --> 00:11:06,130
It sets the highest bar to amendment of any national constitution, according to a database built by the scholars Elkin's, Milton and Ginsburg.

94
00:11:06,130 --> 00:11:10,150
And they point out that this three quarters of states required to ratify an

95
00:11:10,150 --> 00:11:15,820
amendment is so high that it seems unlikely that the amendments would be ratified.

96
00:11:15,820 --> 00:11:19,810
And that might explain the longevity of the Constitution and the dearth of amendments.

97
00:11:19,810 --> 00:11:25,180
But one thing that they also point out is that constitutions that are hard to amend tend to be brittle.

98
00:11:25,180 --> 00:11:30,010
They break instead of bending. And in fact, these really hard to amend.

99
00:11:30,010 --> 00:11:36,790
Constitutions have shorter life spans. And so, if anything, the U.S. Constitution shouldn't have made it past the founding generation.

100
00:11:36,790 --> 00:11:40,780
And so we still have this puzzle of how the Constitution survived.

101
00:11:40,780 --> 00:11:45,940
Other people would point out that the federal courts in the United States, the national court system,

102
00:11:45,940 --> 00:11:51,610
has reinterpreted the Constitution to update it, to bring it into the contemporary era.

103
00:11:51,610 --> 00:11:57,190
But the issue there is that the federal courts tend to be fairly conservative in a small sea,

104
00:11:57,190 --> 00:12:03,910
since federal judges are appointed by Congress, they're nominated by the president, confirmed by Congress.

105
00:12:03,910 --> 00:12:07,990
And so they tend to uphold the values of the people who brought them into office.

106
00:12:07,990 --> 00:12:10,480
That is to say, they slow pedal change.

107
00:12:10,480 --> 00:12:19,360
So we see very little significant change coming through the federal courts relative to other court systems at the national level.

108
00:12:19,360 --> 00:12:28,630
So I think the explanation is instead what I call conflict, decentralisation and through conflict decentralisation,

109
00:12:28,630 --> 00:12:36,280
we see the state constitutions doing the heavy lifting in terms of addressing national political controversies.

110
00:12:36,280 --> 00:12:43,360
The U.S. Constitution, because its very brief, allows the states to work out many issues that the federal government also can intervene in.

111
00:12:43,360 --> 00:12:50,260
And so you've got this parallel system in which the federal government can intervene in many areas because of these high barriers to change.

112
00:12:50,260 --> 00:12:55,450
Rarely does, whereas the states with their much lower bars to amendment and they're much lower

113
00:12:55,450 --> 00:13:00,340
barriers to wholesale constitutional replacement are constantly undergoing change.

114
00:13:00,340 --> 00:13:03,130
You get these very long constitutions at the state level,

115
00:13:03,130 --> 00:13:09,490
hundreds of thousands of words that really tackle these national issues which are neglected at the national level.

116
00:13:09,490 --> 00:13:12,880
Conflicts at the national level tend to get decentralised to the states.

117
00:13:12,880 --> 00:13:20,470
And I think that's in a way that the American constitutional system has been able to grapple with needed change.

118
00:13:20,470 --> 00:13:27,790
It's a slow and it's a very inefficient system. But the benefit of it, I think, is longevity, that it's a very stable system.

119
00:13:27,790 --> 00:13:35,770
Grace Mallon: I think that point about concurrence, about the fact that, in fact, although there's this in these enumerated powers,

120
00:13:35,770 --> 00:13:44,080
although there's this sort of idea that the federal and state governments handle different areas of stuff,

121
00:13:44,080 --> 00:13:48,520
that there's actually a lot of overlap between what they can can manage.

122
00:13:48,520 --> 00:13:54,550
This is really interesting in the fact that the states end up handling what you refer to as a national,

123
00:13:54,550 --> 00:13:58,450
fundamentally national issues is absolutely fascinating.

124
00:13:58,450 --> 00:14:07,570
So this being a podcast called Conventions and one of our big interests being the convention as a model,

125
00:14:07,570 --> 00:14:14,770
I sort of wanted to ask by what processes do states change their constitutions?

126
00:14:14,770 --> 00:14:24,010
Do they have loads and loads of constitutional conventions, or are they they finding other ways to change their constitutions,

127
00:14:24,010 --> 00:14:31,000
to keep their constitutions flexible so that the national constitution can be relatively inflexible and as Nicholas.

128
00:14:31,000 --> 00:14:37,390
So that's my first question. And my second question is, as Nicholas mentioned, the state governments,

129
00:14:37,390 --> 00:14:43,510
when they're reforming their constitutions, are dealing with a huge number of different policy areas.

130
00:14:43,510 --> 00:14:46,400
So could you talk us through like that? The different.

131
00:14:46,400 --> 00:14:55,790
Areas of policy, that state constitutional change will handle that perhaps we might expect if we're looking at the federal constitution as a model,

132
00:14:55,790 --> 00:15:01,400
to be handled more by by legislatures rather than constitutional conventions, certainly.

133
00:15:01,400 --> 00:15:12,110
Robinson Woodward-Burns: So there's this question of how how state constitutions change and then there's the question of what what's in them and the how is fairly broad.

134
00:15:12,110 --> 00:15:22,250
There are many ways to change state constitutions if you're attempting to entirely replace a constitution to draught an entirely new constitution.

135
00:15:22,250 --> 00:15:29,660
There are several paths to do it. And perhaps the best-known one and one on which the project is focussed is the convention.

136
00:15:29,660 --> 00:15:32,240
And there's this wealth of conventions.

137
00:15:32,240 --> 00:15:42,680
There have been two hundred and fifty five constitutional conventions at the state level, all of which produce this great set of records.

138
00:15:42,680 --> 00:15:45,830
And that's not the only way to change constitutions.

139
00:15:45,830 --> 00:15:53,750
Beyond that, we see a rise in the 20th century in specialised commissions to draught state constitutions.

140
00:15:53,750 --> 00:16:00,770
There was in the progressive era in the United States in the late though eighteen hundreds and early 19 hundreds,

141
00:16:00,770 --> 00:16:05,360
an effort to have expert draughting of state constitutions.

142
00:16:05,360 --> 00:16:10,520
And that continued through the 20th century in which lawyers and academics and legislators

143
00:16:10,520 --> 00:16:15,550
and even governors would collaborate to draught a new constitution for the states.

144
00:16:15,550 --> 00:16:20,270
Very rarely. You might also see a legislature draught a new constitution for the state.

145
00:16:20,270 --> 00:16:27,960
But that's been fairly rare very early on. In fact, in the draughting of Pennsylvania's constitution in 1776,

146
00:16:27,960 --> 00:16:35,090
there was a large pamphlet literature which established that constitutions were designed to constrain or bind legislators,

147
00:16:35,090 --> 00:16:41,220
and therefore those legislators should not be the people left to draught a constitution. So that's been relatively infrequent.

148
00:16:41,220 --> 00:16:49,250
In fact, in total, legislatures have draughted constitutions less than a dozen times, and we've only seen a few dozen, a few dozen commissions.

149
00:16:49,250 --> 00:16:54,410
So the bulk of wholesale change has been through the constitutional convention process.

150
00:16:54,410 --> 00:17:01,460
But even that has actually started to sort of gradually subside in the end of the 20th century.

151
00:17:01,460 --> 00:17:05,930
And we've seen a rise. Instead of constitutional change through amendment,

152
00:17:05,930 --> 00:17:14,990
states can pass amendments that are sponsored by the legislatures or by the voters of the state through the initiative or referendum process.

153
00:17:14,990 --> 00:17:20,240
And as John Dynon, a scholar of American state constitutionalism, has pointed out in his book,

154
00:17:20,240 --> 00:17:26,030
State Constitutional Politics, Modern State Constitutional Change really works through amendment.

155
00:17:26,030 --> 00:17:34,340
And as he points out, there's all kinds of policy that gets embedded in amendments as well as through wholesale constitutional change.

156
00:17:34,340 --> 00:17:44,150
So essentially, if you're asking what can be included in a state constitution, its state constitution, to have plenary authority,

157
00:17:44,150 --> 00:17:48,770
they have this already state constitution draughters have the authority to tackle

158
00:17:48,770 --> 00:17:54,350
any issue that's not expressly forbidden to them by the federal constitution.

159
00:17:54,350 --> 00:17:58,100
And the federal constitution does disallow the states from, say,

160
00:17:58,100 --> 00:18:03,680
engaging in the coining of money or framing treaties or establishing their own armed forces.

161
00:18:03,680 --> 00:18:09,140
But outside of that, the states have the presumptive authority to engage in policymaking,

162
00:18:09,140 --> 00:18:17,150
and that can include contentious modern issues like the regulation of abortion or the rights of same sex couples,

163
00:18:17,150 --> 00:18:21,170
the deregulation of marijuana, the control of guns.

164
00:18:21,170 --> 00:18:27,800
So modern, really contentious issues are being worked out constitutionally to some degree through the federal courts,

165
00:18:27,800 --> 00:18:35,600
but to much greater degree through state constitutional reform and particularly now through state constitutional amendment.

166
00:18:35,600 --> 00:18:43,730
Nicholas Cole: I think I'm right that, the most recent so traditional form of of state constitutional amendment,

167
00:18:43,730 --> 00:18:49,850
that is a sort of convention and then then a popular ratification is Rhode Island, isn't it, in 1986.

168
00:18:49,850 --> 00:18:56,660
And the trend subsequently has been very much amendments on very specific issues.

169
00:18:56,660 --> 00:19:03,830
You know, sometimes I think seeming to contradict each other, you know,

170
00:19:03,830 --> 00:19:13,280
in some places since I was wondering what you thought the the trends over the next decade might be and whether anything had been lost through

171
00:19:13,280 --> 00:19:24,530
the shift to this new process of of amending constitutions by simply adding more amendments to the end of the on specific policy questions,

172
00:19:24,530 --> 00:19:34,950
as opposed to having processes to hammer out new texts and in some some sort of considered and holistic kind of way.

173
00:19:34,950 --> 00:19:42,620
Robinson Woodward-Burns: That's an excellent question. And you're absolutely right that this decline in constitutional replacement through convention

174
00:19:42,620 --> 00:19:48,230
has resulted in the loss of that tradition of deliberative constitution making one

175
00:19:48,230 --> 00:19:52,760
of one of the real sort of treasures of the American state constitutional tradition are

176
00:19:52,760 --> 00:19:57,650
these records in which we can see convention delegates debating how to build a consistent,

177
00:19:57,650 --> 00:20:01,430
coherent document. And that really has disappeared.

178
00:20:01,430 --> 00:20:08,750
Again, as you pointed out, Rhode Island in 1986 was the last state to draught an entirely new constitution.

179
00:20:08,750 --> 00:20:17,750
And there have not since been successful conventions, although just over a dozen states are required to have calls for conventions periodically.

180
00:20:17,750 --> 00:20:25,010
No state has done that. New York state recently rejected an attempt to draught a new constitution by convention.

181
00:20:25,010 --> 00:20:29,450
And there's been a little bit of research on this. But what we see is a lot of caution.

182
00:20:29,450 --> 00:20:36,560
People are unwilling to throw out the entire document when they can simply change the one part that they seek to change.

183
00:20:36,560 --> 00:20:40,010
And so we see this shift now towards revision by amendment,

184
00:20:40,010 --> 00:20:48,140
which creates these somewhat conflicting documents, documents that, like the Alabama Constitution,

185
00:20:48,140 --> 00:20:59,330
are very wrong, a bit parochial, has many different provisions which sometimes reflect the interests of particular policy or lobbying groups.

186
00:20:59,330 --> 00:21:04,760
It reflects, I think, a different conception of democracy, not that of the founding era of deliberation and convention,

187
00:21:04,760 --> 00:21:12,140
but that of the progressive era in the United States in which the public could voice its opinion through initiatives or referenda.

188
00:21:12,140 --> 00:21:17,660
And that's something of a troubling view in that we often see the public passing initiatives

189
00:21:17,660 --> 00:21:21,290
or referenda without fully understanding the content of what they're voting for.

190
00:21:21,290 --> 00:21:26,900
So I think you're right to point out that we see a decline not only in deliberative democracy that you find in conventions,

191
00:21:26,900 --> 00:21:31,880
but also in genuine public participation in the Constitution making process.

192
00:21:31,880 --> 00:21:36,520
I think we've lost something when we lose conventions.

193
00:21:36,520 --> 00:21:44,950
Nicholas Cole: I wondered as well about asking you about the question of statehood for the District of Columbia.

194
00:21:44,950 --> 00:21:52,330
Do you think we'll see a constitution written for a state of D.C. and what do you think that might look like?

195
00:21:52,330 --> 00:21:57,580
Or do you think that that question so hotly contested that it's never going to come to anything?

196
00:21:57,580 --> 00:22:04,420
Robinson Woodward-Burns: That's a great question. And one very close to my heart. I'm actually from Washington, D.C. and that's where I teach now.

197
00:22:04,420 --> 00:22:05,860
I think there are two questions.

198
00:22:05,860 --> 00:22:14,080
One, whether the district can draught a constitution, and two, whether Congress will actually grant statehood to the district under that constitution.

199
00:22:14,080 --> 00:22:20,770
D.C. actually has draughted a constitution. It did so in 2016 and the process was a bit contentious.

200
00:22:20,770 --> 00:22:28,180
The mayor's office, in collaboration with some members of the District of Columbia City Council,

201
00:22:28,180 --> 00:22:33,370
had a panel of lawyers draught a constitution which it presented to the public and then

202
00:22:33,370 --> 00:22:40,300
named the public presentation session a convention and someone who studies conventions.

203
00:22:40,300 --> 00:22:45,370
I can tell you that that's not an Orthodox convention. Normally, at least you elect delegates.

204
00:22:45,370 --> 00:22:51,820
At a minimum, those delegates would debate and present the Constitution for a public vote.

205
00:22:51,820 --> 00:22:59,650
While the D.C. Constitution of 2016 was subject to a public vote, it was not draughted by delegates who are popularly elected.

206
00:22:59,650 --> 00:23:06,910
And this actually might present an issue should D.C. get statehood, given this is not only an unorthodox process,

207
00:23:06,910 --> 00:23:10,510
but might actually violate the US Constitution's guarantee clause,

208
00:23:10,510 --> 00:23:11,620
which requires, quote,

209
00:23:11,620 --> 00:23:19,570
a Republican form of government long for a long time we've understood that to require electing delegates to a special convention.

210
00:23:19,570 --> 00:23:26,800
Now, I should say I'm actually a proponent of D.C. statehood. I think this is fairly easy to fix by simply having another convention.

211
00:23:26,800 --> 00:23:32,320
It's something that Washington, D.C. did successfully in nineteen eighty two in a much earlier statehood push.

212
00:23:32,320 --> 00:23:37,900
So I think this can be fixed even after should Congress pass the pending statehood bill.

213
00:23:37,900 --> 00:23:43,060
I think it would be possible afterwards for the district to hold a proper convention.

214
00:23:43,060 --> 00:23:49,270
The real issue here, and this is the issue perennially for states applying for statehood,

215
00:23:49,270 --> 00:23:54,280
is how it would change the balance of power in Congress and particularly the Senate.

216
00:23:54,280 --> 00:24:02,230
D.C. would receive one member would have one member in Congress's lower house, but two members in the smaller upper house,

217
00:24:02,230 --> 00:24:09,070
the Senate, which has only one hundred total members right now, it's split evenly 50 50 between the two parties.

218
00:24:09,070 --> 00:24:13,750
So adding two seats to the left leaning District of Columbia would also likely

219
00:24:13,750 --> 00:24:17,980
add two seats to the Democratic Party and pad their very narrow majority.

220
00:24:17,980 --> 00:24:26,650
This is why Republicans consistently opposed D.C. statehood, and this is historically not unlike the admission of other states.

221
00:24:26,650 --> 00:24:29,650
States have been denied admission on partisan reasons.

222
00:24:29,650 --> 00:24:37,330
The Republican Senate in the late 19th and early 20th centuries denied statehood to Democratic leaning New Mexico and Arizona.

223
00:24:37,330 --> 00:24:42,640
And that same Republican Senate admitted six states, many of which were underpopulated,

224
00:24:42,640 --> 00:24:49,040
to get 12 Republican senators in about a 12 month span in order to pad their own majority substantially.

225
00:24:49,040 --> 00:24:57,340
In fact, doing that bias, the current Senate towards these rural Western Republican leaning states, durably changing how the U.S. Senate works.

226
00:24:57,340 --> 00:25:01,750
So I don't think there's anything new in the politics around D.C. statehood.

227
00:25:01,750 --> 00:25:04,180
It really all comes down to partisanship, I think.

228
00:25:04,180 --> 00:25:10,390
Should Democrats hold the House of Representatives in twenty, twenty two and gain a few Senate seats?

229
00:25:10,390 --> 00:25:15,130
They'd probably be able to overcome the barriers they now face to passing D.C. statehood.

230
00:25:15,130 --> 00:25:21,100
But sadly, for the seven hundred twelve thousand DC residents,

231
00:25:21,100 --> 00:25:27,330
it really will sort of come down to what happens in the congressional election in twenty twenty two for that.

232
00:25:27,330 --> 00:25:29,670
Well, we'll have to see.

233
00:25:29,670 --> 00:25:41,280
Nicholas Cole: I can't resist asking whether you think had a constitution written by a panel of lawyers vs. an elected convention would look very different,

234
00:25:41,280 --> 00:25:45,430
or whether this is a sort of cosmetic issue.

235
00:25:45,430 --> 00:25:53,010
I I seem to remember that the original attempt to write a constitution for Massachusetts was rejected

236
00:25:53,010 --> 00:25:59,610
on precisely these grounds that that the that the delegates had not been properly selected.

237
00:25:59,610 --> 00:26:03,540
So this is actually an issue that goes all the way back to the the founding of the Republic.

238
00:26:03,540 --> 00:26:06,810
But but it but in fact, you know,

239
00:26:06,810 --> 00:26:16,320
does it result in something different or is this just just one of these sort of pleasing rituals of American statehood?

240
00:26:16,320 --> 00:26:19,980
Robinson Woodward-Burns: I think it's both. It certainly is a pleasing ritual of American statehood.

241
00:26:19,980 --> 00:26:24,600
I like that phrasing in that it's a very long tradition in American state constitution.

242
00:26:24,600 --> 00:26:34,020
draughting the idea that legislators cannot draught the Constitution, which will bind them is, I think, an inherent part of constitution making.

243
00:26:34,020 --> 00:26:43,080
Certainly you don't want people to select the rules that will determine their behaviour or the rules that are designed to constrain them.

244
00:26:43,080 --> 00:26:51,840
You saw in the draughting of the Pennsylvania constitution of 1776 this debate and then Massachusetts and seventeen seventy eight attempting

245
00:26:51,840 --> 00:27:01,440
to draught a constitution without properly electing delegates for which Massachusetts and its town meetings rejected that constitution,

246
00:27:01,440 --> 00:27:09,330
forcing the draughting of another one two years later. In terms of substantively whether these constitutions are different,

247
00:27:09,330 --> 00:27:16,620
it's kind of hard to say in that draughting constitutions by a panel of lawyers or an expert committee.

248
00:27:16,620 --> 00:27:24,150
And that's really what happened in the case of D.C. It's closer to a constitutional commission that's only been successfully done a few times.

249
00:27:24,150 --> 00:27:30,060
The real model is Florida's 1968 constitution, which was very carefully done.

250
00:27:30,060 --> 00:27:38,460
The difficulty is that D.C. is Constitution of Twenty Sixteen was written in the summer of twenty sixteen in the lead up to the presidential election

251
00:27:38,460 --> 00:27:46,950
of twenty sixteen in the expectation that Hillary Clinton would win the election and have a Democratic Congress quickly passed the Constitution.

252
00:27:46,950 --> 00:27:51,630
And so there are some pretty fundamental oversights in this hastily draughted document,

253
00:27:51,630 --> 00:27:57,240
one of which is that it would provide for the creation of a new state, Washington,

254
00:27:57,240 --> 00:28:05,100
D.C. The sole city in that state would be Washington, such that your address in that new state would be Washington,

255
00:28:05,100 --> 00:28:11,400
Washington, D.C. It's a typographical error that could have been avoided had the process not been rushed.

256
00:28:11,400 --> 00:28:16,830
And again, when we talk about the deliberative benefits of having a proper constitutional convention,

257
00:28:16,830 --> 00:28:22,410
this is one thing that I think would have probably come out in a real convention. Somebody would have caught that error.

258
00:28:22,410 --> 00:28:29,400
Again, as a proponent of D.C., I'd be happy to have a state that had a long and somewhat redundant name,

259
00:28:29,400 --> 00:28:36,690
given the benefits of statehood, full voting rights and so on. But it would be even better to have both statehood and a properly named state.

260
00:28:36,690 --> 00:28:39,780
I think 
Grace Mallon: I love this story.

261
00:28:39,780 --> 00:28:51,000
And it reminds me of the fact that that the neglected bit of the US Constitution being those final final sort of clauses at the end saying,

262
00:28:51,000 --> 00:29:01,330
oh, we should probably put in a comma here and take this one out. It's a fun side effect of US Constitution making.

263
00:29:01,330 --> 00:29:11,350
Well, thank you so much to Robinson and to Nicholas for joining me on this episode of Conventions, The Quill Project podcast.

264
00:29:11,350 --> 00:29:17,470
Thank you for listening to conventions. I'm Grace Mallon and I was joined by Nicholas Cole, director of the Quill Project,

265
00:29:17,470 --> 00:29:22,900
and Robinson Would Woodburn's assistant professor of political science at Howard University.

266
00:29:22,900 --> 00:29:30,910
His book, Hidden Laws How State Constitutions Stabilise American Politics is out now with Yale University Press.

267
00:29:30,910 --> 00:29:34,300
Next time, we're joined by Kiana MacAllister and Erika Croft,

268
00:29:34,300 --> 00:29:39,760
researchers at Utah Valley University's Centre for Constitutional Studies to talk about their work in

269
00:29:39,760 --> 00:30:14,570
reconstructing the reconstruction amendments and about the significance of America's second founding.