No Conservative Should Support Holding A Constitutional Convention at This Time

NOTE: The current Louisiana Constitution was written by a state constitutional convention, which was called by the Louisiana Legislature in the spring of 1972. The process began years earlier as political leaders, citizens, and the media debated the need for a new constitution. In 1971, both gubernatorial candidates, Edwin Edwards and his opponent J. Bennett Johnston, promised a new constitution. After Edwards was elected, he took the lead in promoting the idea. 

The bill called for 105 elected delegates to be chosen by the voters from state House districts and 27 appointed delegates chosen by the governor and various special interest groups. 

Voters elected delegates in the fall of 1972.  By late 1972, delegates were meeting unofficially to get to know one another, discuss rules and procedures, and choose officers. The convention convened in early 1973 and divided into committees with each committee assigned an article of the constitution. 

A large staff was chosen for research.  

Delegates studied all previous Louisiana constitutions, the constitutions of the other 49 states, and many foreign countries.  

Delegates went on the road, and hearings were held throughout the state.  Some of the committees were deeply divided and considered their articles for months.  

The governor tried to weigh in and got his way on some things, but the delegates were mostly very independent.  

Delegates were well aware that their job was not to please the political powers or passions of 1973 but to produce a document that would last for generations to come.  

At times, it appeared they would never be able to agree.  Above all, they knew the people would have the final say and the document would have to be acceptable to them.  

Delegates learned that it was not about winning on every issue but constructing a constitution that could serve all the people and that everyone could live with.

To the surprise of many, principled compromises prevailed, and the entire body — liberals and conservatives, blacks and whites — agreed.  The final version of the constitution was approved with only one dissenting vote.  

Then began the work of selling the proposed Constitution to the people.  Delegates of all persuasions pulled together.  The people distrusted the political process and were skeptical.  However, on April 1, 1974, voters across the state went to the polls and approved the Louisiana Constitution of 1974 by a vote of 53 percent to 47 percent.

Fifty years later, one of the few surviving delegates to the convention is Central City News editor Woody Jenkins.  Elected as a delegate from North Baton Rouge at age 25, he served on the Committee on Bill of Rights and Elections.  After three months of stalemate, committee members asked him to write a proposed Bill of Rights of the new Constitution, which he did. The committee accepted most of his work, as did the convention as a whole.  Today it is the Declaration of Rights of the Louisiana Constitution of 1974.

By Woody Jenkins, Editor, Central City News – Baton Rouge

The Governor addressed a joint session of the Louisiana Legislature on Monday, March 11, and outlined his goals for the Regular Session, including a constitutional convention. 

No bill has yet been introduced to call a constitutional convention but reports are that the plan is for the legislature to adjourn the current Regular Session two or three weeks early and then function as a constitutional convention to draft a new Louisiana Constitution.

As one of the few surviving delegates who served in the Constitutional Convention of 1973 that drafted the current Louisiana Constitution, I would like to stress that drafting a constitution is a monumental undertaking.

While an individual might be able to write a constitution pleasing to himself in a few days, that’s not how it works. In a free and open society, the entire state has to be involved.

First, there have to be very strong reasons to draft a new constitution, and there should be widespread acceptance of those reasons.  A constitutional convention is usually called in a state because there are serious problems that deeply affect people and demand a solution.

It’s not enough to say the Constitution is too long or too short.  There must be substantive problems that demand such a serious, expensive, and time-consuming undertaking.

Remember, when a constitutional convention is held, everything is at stake.  Every principle of government and all of our rights under the state constitution are on the table and subject to change.

In preparation, there must be town halls, hearings, and public debate.  Editorial boards and civic organizations must weigh in.

Typically, before a constitutional convention is held, legislators have tried many times to amend the constitution through the normal amendment process and failed. 

All of that happened before the Constitutional Convention of 1973 was called.  

Most important, in 1972, the State of Louisiana was under a federal court order to reform its property tax system.  At that time, Louisiana levied a property tax. However, the federal courts found that the property tax system was being administered unequally.  For example, while the state property tax was the same in every parish, a homeowner with a $50,000 home in Caddo would pay far more than a homeowner with a $50,000 home in Jefferson Parish.  The system was clearly broken and violated equal protection of the law.

Correcting the property tax system would have been very difficult through the amendment process. Of all the reasons to call a constitutional convention, complying with that federal court order was the most compelling. 

It took two years from introduction of the bill for a constitutional convention in the spring of 1972 until the people voted on the proposed constitution in the spring of 1974.

Delegates to the Louisiana Constitutional Convention of 1973, or CC/73 as it was called, soon realized that writing a new constitution was not about getting their way. They had to produce a document that most delegates would accept and that the people of the state would vote for.  They learned to coalesce around the shared values that unite us all.

Over and over again, proposals were defeated because delegates realized they would not be accepted by the voters.

For most of two years, the state virtually stood still as every aspect of the new constitution was debated in the constitutional convention.  It was top-of-the-front-page news almost everyday.

A staff of 75 researchers was assembled and hearings were held throughout the state.  Delegates read all of Louisiana’s past constitutions and the state constitutions of every other state. The constitution of virtually every nation around the world was examined. 

The debates during CC/73 dealt with our fundamental rights and the great principles upon which republican government is founded.

On many occasions, it appeared the entire venture would fail.

The debates of delegates have been preserved online at the website of the Louisiana Legislature at legis.la.gov.  Those debates have been cited by Louisiana’s courts of appeal and by the Louisiana Supreme Court on hundreds of occa

When the proposed Louisiana Constitution of 1974 was approved and signed by the delegates, it was widely praised as the finest in the country.  

Liberals, conservatives, blacks, whites, business, and labor all supported it.

Yet, despite all of the massive amount of work that went into the proposed constitution and its widespread acceptance, the new Constitution passed with only 53 percent of the vote!  Such was the distrust that people had of their government.

Is It Time for New Constitution?

Honestly, it is an absurd idea to have a constitutional convention that would last for the final two or three weeks of the legislative session. That’s an insult to the concept of constitutional revision. 

Furthermore, Louisiana is a very conservative state, and no conservative could conceivably support calling a constitutional convention under the circumstances suggested today. 

Here’s why! 

We have a Constitution that is the most protective of individual rights in the United States! No state even comes close to matching the Louisiana Constitution in its support of the rights of the individual.

Furthermore, the Louisiana Constitution is the most conservative constitution in the nation!

Calling a constitutional convention is like playing with fire!

All of our hard-won liberties and all of the safeguards in the Constitution would be at stake.

Let’s review some of the things that are in the current Louisiana Constitution that would be put at risk by a constitutional convention. 

What Would a Constitutional

Convention Put at Risk?

Let’s start with the Declaration of Rights of the Louisiana Constitution. 

First, there is Article I Section 4, the Right to Property. Do you realize that the United States Constitution does not explicitly recognize 

and protect the Right to Property?

Furthermore, the Louisiana Constitution of 1921 was virtually silent on the Right to Property.

Under the U.S. Constitution, there is only the requirement that if your property is expropriated by government, you are entitled to “just compensation,” which really means fair market value. 

However, the Louisiana Constitution of 1973 provides owners of property far more protection than simple “just compensation.”  

If your property is taken in Louisiana today, you are entitled to compensation to “the full extent of the owner’s loss.” That’s a very different concept. That includes environmental considerations, historical values, loss of your business, and loss of future profits. 

In addition, under the new Constitution, the amount of compensation in expropriation cases in Louisiana is determined by a jury.  A jury is much more likely to be sympathetic to the property owner.

That was a big change because the prior constitution did not allow jury trials in expropriation cases. So the right to property is something very well protected in Louisiana. 

Then there is the Right to Privacy. Neither the Louisiana Constitution of 1921 nor the U.S. Constitution protects the Right to Privacy. 

However, the Louisiana Constitution of 1974 certainly does!  It prohibits invasions of privacy without probable cause and a warrant signed by a judge.  In our world of medical tyranny, cameras everywhere, and digital spying, that is a most important right!

Our Louisiana Constitution of 1974 provides far more protection for the Right to Keep and Bear Arms than the U. S. Constitution. The federal constitution says, “A well armed militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged.”

The wording in the U.S. Constitution is problematic.  It refers to “the right of the people” which has been interpreted as a group right that refers to the right of the society to arm itself.  The reference to a militia only affirms that interpretation.

However, the Louisiana Constitution of 1974 says, “The right of each citizen to keep and bear arms is fundamental and shall not be abridged. Any restriction on this right shall be subject to strict scrutiny.”  Strict scrutiny is the highest level of scrutiny that can be applied to any restriction and is very strong protection for this right.

The Louisiana Constitution of 1974 prohibits euthanasia and physician-assisted suicide — one of the few constitutions to do that.

Likewise, the current constitution prohibits excessive punishments. To cite the example of President Trump being fined more than $300 million for a bookkeeping error, that could never happen under the Louisiana Constitution.

The Louisiana Constitution of 1974 also protects the Right to Life, and there are few constitutions in America that do that. 

Louisiana Constitution of 1974 also states that marriage will be between one man and one woman.  What that means is if the Supreme Court reverses its decision on marriage, Louisiana law on marriage will immediately go back into effect. 

Our current constitution recognizes state sovereignty. This means Louisiana has all powers not already delegated to the federal government. 

The state constitution also recognizes access to the courts which was very important during the pandemic. 

It recognizes victims’ rights as a constitutional right. 

The Louisiana Constitution provides that every state agency will have an administrative code. That was not true under the old constitution and it was almost impossible to find out what regulations agencies had adopted. 

The Louisiana Constitution provides that open meetings and access to public records are constitutional rights. 

The Louisiana Constitution of 1974 provides strong protection for taxpayers and requires a 2/3rds vote of both houses of the legislature in order to raise taxes. Believe me, that would be at risk at a constitutional convention! 

The Louisiana Constitution provides that the legislature can only raise taxes every other year.  That reduces our exposure to tax increases to half the time the legislature is in session.

The Louisiana Constitution of 1974 requires a balanced state budget and forbids debt.  As a result, the state has no debt for operating purposes.  Its only debt is for capital expenditures such as roads and bridges.

The Constitution also has a tax expenditure limit which limits the overall level of taxes that can be levied in any given year.

The Louisiana Constitution provides that a bill must be read on three separate days in each House.   This forbids a bill being introduced and voted on the same day.  The Constitution requires that all bills shall have a public committee hearing and the public must be allowed to testify.

There are a lot of people who would like to pass bills in one day. The governor would give a rah-rah speech about it, the legislature would get excited and hold a committee hearing over in the corner of the chamber, and the house would vote on it and pass it the same day. However, the state Constitution prevents such abuses.

Is the Constitution Too Long? How does the length of the constitution affect anything? How does it affect our lives or our rights or the operations of government? 

Believe me, the length of the Louisiana Constitution is NOT why a constitutional convention is being proposed!  There is something much bigger in play.

Of course, the Louisiana Constitution was not very long when it was passed by the people in 1974. Since then, the legislature by a 2/3rds’ vote has amended the constitution many times. 

Why has the Louisiana Constitution been amended so many times?

There is a simple answer to that!

The reason so many amendments have been adopted is the current legislature never trusts future legislatures! 

So they embed their policies in the Constitution.  Quite often these policies involve retirement systems or trusts or property rights that legislators fear future legislatures will raid or destroy.

You see, legislators know that legislatures cannot be trusted!

To anyone who says “Trust the legislature,” I say if you can trust the legislature, why even have a constitution?

The Bill of Rights of the U.S. Constitution and the Declaration of Rights of the Louisiana Constitution are fundamentally a list of
don’t’s for government.  These restrictions on government say over and over again “No law.”

A Constitution is meant to restrict and control the government and especially the legislative branch of government.

I want to ask you this: If the legislature of today does not trust the legislature of tomorrow, should we? 

Legislators know themselves and they know how the legislative process works. They know it can move very quickly, and it can be done rather carelessly. 

During legislative session, there are hundreds of lobbyists. There are donors.  There is a governor, often quite powerful. There are back room deals and corruption.

Of course, if you try to conduct a constitutional convention using the existing legislature, all those influences are present. 

A constitutional convention is supposed to be different.  It should be a place where people are chosen based on their wisdom and their ability to deal with constitutional issues. 

The Real Reason for Calling 

A Constitutional Convention

With all of these considerations, why would anyone want to call a constitutional convention today?

I met with a friend of mine who is one of the leaders promoting a constitutional convention, and he told me the real reason.  I think you will be shocked! 

I asked him what he wanted to accomplish with a constitutional convention.

He said “Well, the first reason is to do away with homestead exemption!”  

I said, “Do away with the homestead exemption?  You have to be kidding!”  

He said, “No I’m not!  If we bury that in the proposed constitution, it won’t get a lot of attention, and we will be able to pass the whole thing with some things that people wouldn’t necessarily like.” 

I said, “You realize the homestead exemption was passed in the 1930s after tens of thousands of families lost their homes for nonpayment of property taxes?  In part because of homestead exemption, Louisiana has the highest rate of homeownership in the United States!  That’s a good thing!”

My friend said, “Homeowners are not paying their share of the taxes. Business pays too much.” 

I said, “Homeowners are the backbone of America.  They pay all the taxes through income taxes, sales taxes and business taxes.  Homeowners aren’t on welfare or involved in crime.  They take care of their property and contribute to the community!”

I’ve been an advocate for 50 years of doing away with the state personal and corporate income tax. But my intention all along was to cut government — to cut government equal to the amount that we cut income taxes. But that’s not what they’re talking about at the State Capitol right now. They’re talking about repealing the personal and corporate income tax, and raising property taxes in their place. 

Mainly, they want to raise the property tax and shift the tax burden to homeowners. 

In my view, there is no good tax, but the sales tax is probably the fairest because everybody pays it and if you’re buying something at least you have some money and there’s an incremental cost. 

The next best is probably an income tax because at least you’re making money and you have some money you might be able to pay the income tax with. 

The property tax is probably the worst tax because if your property taxes go up, you don’t necessarily have the money to pay for those higher taxes.  You may be on a fixed income.  You may be elderly or just not have a source of income to pay higher property taxes. 

So now you’re down at the  courthouse for a tax sale on your home. That will not build a better state.  It will move us in the wrong direction away from home ownership. 

When I first arrived at the Capitol as a new legislator in 1972, the budget was $1.6 billion. Today it’s pushing $50 billion. Inflation might justify a $10 billion budget but not $50 billion. 

Government has grown exponentially over the last 50+ years.  So if we eliminate the income tax, we need to cut government spending accordingly. 

I asked my friend what’s the second reason for wanting to call a constitutional convention? The first reason is not good. 

He said, “Well, we need to do away with supplemental pay for policemen and firefighters.” 

I said, “What?  You can’t be serious!” 

He said, “Yes, look at a town like Simmesport. Their police are getting supplemental pay. The state is subsidizing the police force in that town. The town should take over  responsibility for that pay at the local level.”

I said, “Wait, let me ask you a question. What laws do you think the police in Simmesport are enforcing? They are mostly enforcing state law!  At least 80 percent of what they enforce is state law. You don’t think the State of Louisiana should pay part of the cost of those police enforcing state law?”

I said, “I thought we were against defunding the police?’

He said, “We’re not defunding them. They will be paid by higher property taxes at the local level. We’re going put the homestead exemption, supplement pay for police, and a lot of things in the statutes and we will be able to abolish them with a 2/3rds vote of both houses of the legislature instead of a constitutional amendment.” 

I said, “Well, that’s no real protection for the homestead exemption or supplemental pay for police.  Those things should be in the Constitution.  We have a different world with a partisan legislature. Now 2/3rds of the House is Republican and 2/3rds of the Senate is Republican. Basically, a lot of the time, you only need three people to get a 2/3rds vote — the governor, the speaker of the House, and the president of the Senate.  A 2/3rds vote is not the protection it used to be.  But why should our home owners or our police have to fight that battle?  Keep the homestead exemption and supplemental pay in the Constitution and leave them alone!” 

I said, “You know, repealing supplement pay for police has been tried before, don’t you? I remember the day the bill was supposed to be heard in committee. That day, hundreds of police officers came to the Capitol in full uniform. Do you know what happened?  You could not find a single member of the House or Senate who knew a thing about that bill! Even the author of the bill said he didn’t know a thing about it!”

I told this particular gentleman, “You should not get Jeff Landry in trouble by proposing doing away with the homestead exemption or supplemental pay for fire and police. Those are terrible ideas, and you will not be able to sneak these things into the constitution and expect that constitution to pass, I promise you!” 

The predicate has not been laid for constitutional revision. You have to show the need and that you have tried to change the constitution through the normal means through amendments and failed. 

Conservatives cannot support a constitutional convention, and it’s best to leave it alone, at least for the foreseeable future.