DispatchesJP Leskovich is a rising 3L at the University of Pittsburgh School of Law and JURIST’s News Managing Editor. He filed this dispatch from Phoenix. This is the third in a series of dispatches he’s filed as an embedded reporter for JURIST at the Model Constitutional Convention sponsored by the Center for Constitutional Design at ASU Law.
US law student and undergraduate delegates passed four proposed amendments Sunday at the first-ever Model Constitutional Convention hosted by Arizona State University (ASU) Sandra Day O’Connor College of Law. This followed two days of discussion and deliberation in Phoenix, Arizona.
The previous day, we delegates had discussed 20 proposed amendments to the US Constitution addressing a wide range of topics. Sunday was voting day. There were 100 voting delegates, two per state. Although delegates were present to represent territories, they did not have voting rights due to their lack of statehood. The threshold to pass an amendment was 76 votes, reflecting the US Constitution’s requirement that 3/4 of states ratify an amendment before it takes effect. This meant amendments needed a broad consensus to pass. We had worked hard to reinvigorate our democracy, so the question was: would we succeed?
Although the majority of proposed amendments failed, leading to some concerns that the Convention would walk away with no amendments and serve as a symbol of the country’s division, we ultimately passed four amendments: a version of the Equal Rights Amendment (ERA), an amendment enshrining tribal sovereignty, an anti-gerrymandering amendment, and an amendment limiting the use of eminent domain.
We voted by standing if we were in favor of a proposal and counting off to see the total number. Whenever an amendment reached the required 76th vote, the room would erupt in a roaring applause. This was particularly true when we passed our first amendment, the ERA, with 84 votes. This amendment prohibited states from denying equal rights on the basis of sex, gender identity, or sexual orientation. It was a revised version of the Equal Rights Amendment that was nearly ratified in 1970s.
The amendment was introduced by the delegates representing Delaware and initially only protected sex. After debate on Saturday, it was changed to include gender identity and sexual orientation. Some were concerned this would make it harder to get the votes from more conservative states it would need to pass, especially since an amendment narrowly enshrining marriage equality received only 66 votes. But the Convention came together to declare that equal rights, including rights for women and LGBTQ+ people, should be a fundamental value of American constitutional law.
Rebekah Lazar, an undergraduate from Lafayette College and one of the delegates from Delaware, said she and her fellow Delaware delegate were initially unsure whether to start narrowly with only protecting “sex” to cater to “more bipartisan coalition” or whether to “really just take in full waves of change.” They initially started small, but Lazar said they were very happy to see that the amendment was changed to be broader and ecstatic to see that it passed. She said that young people rallying behind this amendment made her “really hopeful” change could be around the corner:
I was looking around the room thinking like it’s cheesy, but there could be the next president in this room, the next senator, the next Congresswoman, anything like that, or Congressman. And it’s just exciting to be in a room with such competent, powerful, passionate people to see where they go, especially when the ERA is in their minds, and what they’re looking to do on their college campuses and careers beyond.
The second amendment that passed was an amendment enshrining tribal sovereignty in the US Constitution. In my second dispatch from this Convention, I spoke with the amendment’s sponsor, Crispin South, a Choctaw law student at ASU and a delegate representing Oklahoma. He said the amendment was important to protect tribal sovereignty from Supreme Courts that often don’t understand the rights tribal nations have. The amendment received overwhelming support, with 91 votes, showing a clear desire for a constitutional framework that respects and empowers tribal nations.
South said the amendment’s overwhelming passage should send a message to Oklahoma governor Kevin Stitt and the Supreme Court that “anti-tribal tribal theories have no place in this nation’s future,” and said it made him optimistic:
I think the fact that delegates from all across the country, from this generation, are so broadly supportive of tribal sovereignty and Native American rights is extremely encouraging. I hope this starts a real conversation on how our country and our Constitution can do a better job of living up to their commitments to indigenous peoples.
There were no indigenous people at the original Constitutional Convention in 1787 and South said he felt he had a “duty” to be at this Model Convention to “prevent harm from being done to tribal nations.” He was successful in achieving the opposite of harm: the Convention overwhelmingly affirmed that tribal sovereignty is fundamental.
The third amendment that passed was an amendment prohibiting gerrymandering, including both political and racial gerrymandering. This was a response to the growing trend of gerrymandered Congressional and state legislative districts, which are fine-tuned to produce certain outcomes instead of reflecting the will of the people. Many delegates spoke in favor of this amendment, saying it was critical to reinvigorate American democracy, combat polarization, and make government more effective. Representing Wisconsin, where the state Supreme Court recently struck down some of the most gerrymandered state legislative districts in the country, I felt this amendment was necessary to ensure that the American people have a democracy that represents them. The amendment passed, but only barely, with exactly 76 votes. Although not as emphatic as the first two, it is still a clear call from this generation for a truly democratic system.
The fourth and final amendment to pass was an amendment limiting eminent domain. It was in response to the Supreme Court decision Kelo v. New London. In that case, the court ruled that the government could take someone’s property for private economic development under the Fifth Amendment’s Takings Clause, saying it qualified as a “public use.” This amendment effectively repealed that, saying that takings for private use were not valid.
The amendment actually failed initially with only 69 votes, because some delegates (including myself) had concerns that some of the original language, like “really public,” was too ambiguous. However, Anne Bailey, the Brigham Young University law student who represented Utah and sponsored the amendment, hustled to secure changes that would allow the amendment’s passage. In the end, we suspended the rules to remove the ambiguous language and passed the amendment with 85 votes.
“I was thrilled that we were able to get enough people on board who wanted to restrict that [eminent domain] a little bit further, again, to return to the original meaning of public use and not allow that power to be unnecessarily abused,” Bailey said after the amendment passed. “I hope it sends a message that we value individual liberty, we value property rights, we don’t want the government unnecessarily interfering in our ability to live our lives.”
The 16 other amendments that failed covered a range of topics, from territorial voting rights in Congress to restorative justice. They received different degrees of support. The closest amendment to passage, with 71 votes, said that a Supreme Court nominee would automatically become a Justice if the Senate did not hold a hearing or a vote, a response to the Senate’s obstruction of Merrick Garland’s nomination in 2016. The amendment with the least votes, only 9, would have given the states the power to regulate guns, bypassing the current Second Amendment. Its supporters said it was necessary to combat gun violence. Its opponents had various motivations: some expressed concern about removing a right from the Bill of Rights, and other expressed concern that it would prevent federal gun regulations.
Only four amendments may have passed, but this was still seen as a resounding success by the Convention delegates. Reaching 76 votes is a substantial hurdle, so the fact we were able to come to that consensus on four topics shows the hunger for reform and democracy. Jordan Pittman, the ASU law student representing Missouri and the Convention’s elected Vice President, said the country should note how we were able to come together in pursuit of a better democracy:
I hope the country learns from this convention that while our politicians and government may often be dysfunctional, the American people have much more in common than it seems. We can still agree on many things, despite the real controversies of our time, and constitutional change is possible despite its difficulty. I’m hoping that as people look for ways to change the broken nature of our politics, they’ll see the work we’ve done here at this convention and be inspired by it.
Unlike the original Convention in 1787, which was only composed of white men, this Convention reflected the vast diversity of America. “Student delegates came from different walks of life, different areas of study, and had vastly different perspectives,” said Riley Hebert, a undergraduate from California Lutheran University who represented West Virginia and served as the Convention’s elected President. It was not lost on us that the first Convention had no women present and ours elected a woman as President. “It certainly feels like the righting of an egregious wrong,” Herbert said.
This diverse, representative group of Americans came together to see if we could work together to reinvigorate our democracy. Over the course of three days, we certainly had some heated debates. But at the end of the day, we were driven by the desire to construct a system that works better for everyone. We were united by the promise of American democracy and a desire to see that promise more fully realized.
I was honored to participate in and report on this Convention. Hopefully, it shows the country that constitutional reform can be possible, that we can build a better democracy, and that young people have an inclusive and democratic vision of the future.
“I hope our nation sees just how emboldened our generation is to create lasting legal change,” Herbert said. “The profound ambition and passion I saw in our committee room is so indicative of the incredible perspectives we bring to the table. I can’t wait to see what everyone at the Convention goes on to do!”
