Rhode Island Constitutional Convention President Kevin A. McKenna presides over a session of the 1968 convention in the House of Representatives chamber at the State House. (Rhode Island State Archives)
The well-funded coalition of labor and civil liberties groups opposing the calling of a Rhode Island constitutional convention is using the history of Rhode Island’s 1986 convention to make its case. In doing so, the Rhode Island Citizens for Responsible Government has committed the fallacies of composition and presentism.
The fallacy of composition is to mistake the part for the whole. For example, if constitutional democracy has flaws as a system of government, that doesn’t prove that it is worse than all other systems of government, such as autocracy. Similarly, if Rhode Island’s convention process is flawed, that doesn’t prove it doesn’t serve a vital democratic function.
To be sure, Rhode Island’s 1986 convention was deeply flawed. The legislature and its special interest allies were successful in attaining too much influence over the convention. This included the House speaker’s son and daughter elected as convention delegates, an ally of the speaker elected convention president, and the legislature’s improper micromanagement of the convention’s budget and staff. One consequence was the convention proposing one of the speaker’s pet projects: a ban on abortion. In 2014, the last time the convention referendum was on the ballot, this “No” coalition so hyped this anti-abortion proposal that many Rhode Islanders thought it was the 1986 convention’s primary work product rather than merely one of 33 proposals it approved. (The abortion proposal also only squeaked by the convention — approved with the smallest majority, 54.2%, as opposed to an average majority of 86.5%.)
Since the current democratic function of a convention is to break the General Assembly’’s monopoly power over proposing constitutional amendments, if state lawmakers can control a convention, they can subvert that function. The reason that democratic function is essential is because a constitution limits a legislature’s power, and it’s thus a conflict of interest for the legislature to design its own powers. Historians have lauded America’s creation of the constitutional convention as its greatest contribution to the worldwide development of constitutional democracy because it solved the foxes-guarding-the-chicken coop problem. American states have held 236 conventions, including 10 in New Hampshire during the 20th century.
Despite flaws, Rhode Island’s 1986 convention was nevertheless independent enough of the legislature and its special interest allies to propose popular and desirable amendments that lawmakers had refused to propose, including a state ethics/anti-corruption commission, a public right to shoreline access, and a constitution the average person could understand. The latter involved a drastic shortening of the Rhode Island Constitution by deleting language that legislative amendments and superseding federal law had made obsolete, and understandable only to special interest lobbyists and constitutional lawyers.
Historians have lauded America’s creation of the constitutional convention as its greatest contribution to the worldwide development of constitutional democracy because it solved the foxes-guarding-the-chicken coop problem.
Even on the abortion issue, the convention process worked as it was supposed to because, unlike legislatures, which can both propose and pass laws, a convention can only propose them, and the public overwhelmingly voted down its proposed abortion law.
The fallacy of presentism is to interpret the past by the values of the present.
In 1986, Democratic controlled state legislatures, especially those in states with large Catholic communities, were still pushing anti-abortion legislation. For example, in 1986, the Massachusetts Legislature, representing a demographic like Rhode Islands, passed an anti-abortion amendment that was defeated at the polls. Rhode Island House Speaker Matthew Smith was shrewder by getting the convention to introduce a similar proposal and thus protect his members from needing to make a controversial vote. In 1986, many Democratic leaders still thought the Catholic rank-and-file would follow their religious leaders in opposing abortion, but Catholic voters definitively proved them wrong. Today, the Rhode Island AFL-CIO, a key organizer and funder of the “No” coalition, routinely cites the 1986 convention’s abortion proposal as a reason to vote against a convention. But it doesn’t mention that in 1986, it refused to take a position on that proposal because its members were divided on the issue. Nor does it mention that in 2014, when it last touted the 1986 anti-abortion proposal as a reason to vote against calling a convention, opposition to abortion bans in Rhode Island had increased from 66% to 93%.
If presentism was an acceptable normative framework to evaluate current democratic institutions, then all current state legislatures that existed prior to the U.S. Civil War, including the Rhode Island General Assembly, would have to be denounced as inherently racist, sexist, and anti-LGBTQ+. I would suggest that such a normative stand should be treated with ridicule for its haughtiness and narrow-mindedness.
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