Constitutional caution: Before holding a constitutional convention, Pennsylvanians should know what it will address

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I'm an agnostic about whether Pennsylvania should hold a constitutional convention. I do know you cannot debate the convening of such a convention in the abstract.

While I am as fed up with state government as anyone else, I want to know what a convention would actually propose that would improve matters. You can be sure that anything a convention proposes will be approved by the voters. So we had better debate the merits of likely proposals now, rather than concentrating on holding a convention first.

Three leading subjects of popular dissatisfaction today are the General Assembly's size, unresponsiveness and secrecy. How would these be dealt with?

Reducing the size of the Legislature, which ironically was increased at a prior constitutional convention in the name of reform, would save some money and cost a few politicians their jobs. But it would not make the Legislature better. Such a change might even make the Legislature more unresponsive to the electorate and increase the influence of large campaign contributions by making legislative districts bigger.

The obvious mechanisms to deal with unresponsive politicians are popular initiative, referenda and recall. But overuse of these has helped render California ungovernable. Certainly its state government now performs in a worse fashion even than that of Pennsylvania. And the fragmentation of power brought about by direct citizen action in California is now preventing government reform there.

Drafting bills in secret and adopting them at the last minute without debate, as was infamously done to produce the gambling and pay raise legislation, is already illegal under the Pennsylvania constitution. That document now requires that "[e]very bill shall be considered on three different days in each house" and prohibits any change in a bill during legislative consideration that alters "its original purpose."

The gambling bill originated as a one-page proposal for background checks on applicants for horse-racing licenses, the pay raise as a one-page statement that the governor should receive the highest executive branch salary. If the courts refuse to enforce plain constitutional language, there is nothing a constitutional convention can do about it.

Not only is it unclear how effectively a convention would address popular concerns, it is certain that savvy interest groups would use a convention to advance long-sought goals that the people of Pennsylvania are not necessarily thinking about.

A convention would address merit selection of judges, for example. But voters have not indicated a desire to make that change. Such a convention would also debate anti-tax proposals, such as requiring a two-thirds vote for any tax increases. But high taxes is not a structural issue. We could elect low-services, low-tax politicians now. Term limits also might be a good idea. But we have not really discussed them at the state level.

Finally, a convention could be counted on to bring unanticipated changes.

The 1968 constitutional convention added language strengthening the independence of the judiciary, though even most delegates seemed unaware that it had happened. This language has helped turn the Pennsylvania Supreme Court into a law unto itself. For example, though there is undoubted popular support to eliminate private contacts between judges and legislators, which apparently occurred during consideration of the last pay raise bill, the justices refuse to make that change and the Legislature is powerless to do so.

The worst possible unanticipated change at a convention would be amendments to our Declaration of Rights. Though most people assume that such convention action could be prohibited, no one knows that for sure.

None of this should be taken as opposition to holding a constitutional convention. But the debate about holding one should proceed along the lines it did in 1967: First the subjects to be addressed should be specified and then a range of proposals should be delineated. At that point Pennsylvania could have a fruitful debate about whether such a convention should be held.

Bruce Ledewitz is a professor at Duquesne University School of Law ( ). He teaches courses in Pennsylvania and federal constitutional law and is co-director of the Duquesne Law School Pennsylvania Constitution website ( / pa-constitution).


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