Right-Wing Groups Push To Rewrite Constitution, Raising Risks

There’s a real possibility that the United States could be about to go through one of the most radical constitutional transformations in its history, one that would fundamentally alter the way the nation is governed and the way it is governed by its citizens and the courts, as well as the way it is governed by its political parties.

Radical conservative activists are working with Republican state legislators to trigger an extraordinary special convention to rewrite the Constitution of the United States. The possibility of it actually happening is real enough that everyone needs to pay attention—fast.

This is not new news: According to a New York Times article published over the Labor Day weekend, many people have been trying to force an amendatory convention for years. Organizations including Common Cause, the League of Women Voters, the Sierra Club, and the AFL-CIO have been warning people about the dangers of this scheme for a long time. Many other people who are experts on the topic have also spoken out against this idea, including late Supreme Court justices Arthur Goldberg, Warren Burger, and Antonin Scalia and well-known constitutional law scholars Laurence Tribe and Walter Olson. Even a few conservative groups have published criticisms of the idea, as the Heritage Foundation did in a 2011 blog post.

Some people on the left have asked for a constitutional convention, but it is mostly rich people on the right who have paid for the organized effort to have one. A group called Convention of States Action, which was started by the conservative group Citizens for Self-Governance, has gotten large grants from the Mercer family and other right-wing funders over the last twelve years. The American Legislative Exchange Council, which is backed by the Koch brothers, has also been pushing for a constitutional convention.

The goal of these activities is to get state legislatures, where these right-wing funders have a lot of power, to start a convention like the one described in Article V of the Constitution. This article says that if 34 of the legislatures agree, they can start a convention to suggest changes to the Constitution. If three-fourths of the states (38) agree with the changes, they can become part of the Constitution.

Proposals to change the Constitution can be made a little at a time, and each state decides if it wants to accept the change or not. But the biggest danger is that there is nothing in the Constitution that would stop a convention from doing whatever it wanted, like the convention in 1787 did. That convention went beyond its original purpose, and created a new plan for the country instead of fixing the existing one. It’s hard to imagine anything good coming from a convention like that today.

The process for authorizing and running an Article V convention is unclear, which makes it unlikely that anything will come from it. If it does happen, it would be a big constitutional argument between different states, Congress, and the federal courts. Right now, it’s unclear how many states have actually called for an Article V convention.

Many Republicans, even those not usually of radical temperament, have reject the norms of constitutional government for the sake of power in recent years. The January 6th insurrection and all that led up to it is one example of this. The push for an Article V convention is another of these chaotic, norm-denying efforts that has immense potential for lasting harm.

There is a project that conservatives have been working on for years that Democrats have not paid attention to. This project could be harmful to the United States and to Americans’ democracy.

One Democrat, Russ Feingold, is trying to tell people that the Constitution is in danger. In a new book, The Constitution in Jeopardy, he and coauthor Peter Prindiville write that “hard-right activists have seized upon the constitutional convention mechanism for two reasons”:

State legislatures—not the voters—would select convention delegates. This would make the convention radically more malapportioned than the Congress or the Electoral College. Convention proponents embrace the uncertainty and praise its potential. Even if their extreme policies are rebuffed in Congress and at the polls, it is possible that activists might be able to use the amendment mechanism to foist their agenda on an unwitting majority.

There are flaws in the Constitution of the United States. It is hard to change. This makes our government hard to improve, but also makes it more reliable. There have been only 17 changes to the Constitution since 1790, on average about one every 13 years.

The United States has not adopted or thrown out any constitutional documents since 1789, while France has done so 15 times. The current Fifth French Republic is the most recent. The United States is exceptional among nations in this way, as it is governed by its original constitution and remains in its First American Republic regime.

The Constitution is not a sacred document. It has many flaws and does not protect everyone equally. It was created by a group of white men who were slaveholders. Through a few amendments, we have gotten rid of some of the worst features of the Constitution, but there are still many problems with it. For example, it gives each state equal representation in the Senate and provides for our unique Electoral College. This means that the vote of each citizen is not equal to the vote of every other citizen, and that the majority of voters in the nation does not decide presidential elections.

Irrationality would be to suppose that a second constitutional convention, made up of different types of people than those who wrote the current constitution, would not produce a different document to govern public affairs.

Would a new constitution be better than the one we have? In order to get constitutional protection for abortion, would we have to keep the Second Amendment? Would it be worth it to have a balanced Supreme Court if we had to have a balanced budget?

Our country’s founding fathers, George Washington, James Madison and Alexander Hamilton, had disagreements but were able to work together to approve the Constitution. They came from similar backgrounds and had similar educations which helped them to understand each other’s ideas.

Who would be the president of the convention, Newt Gingrich or Elizabeth Warren? Who would be our James Madison- one of the talking heads on cable news or Judge Judy? Who would fill Alexander Hamilton’s shoes, Elon Musk or Bernie Sanders? Where would we look for our Ben Franklins- different hues, sexual inclinations, occupation, residency, and net worth- to play Old Wisdom to the delegates?

It’s hard to imagine a convention reaching a agreement on anything, let alone big matters. It’s possible that one side might be able to control the convention if they can rig the rules in their favor. This could lead to a convention that is not consider legitimate. There is also the danger that some delegates might go against the agreement, leading to a chaotic convention.

If the rules of a convention were challenged in court, what would protect us against the members of the Supreme Court intervening in a way that further undermined the legitimacy of both the convention and the Court?

There is danger even in a convention that does not work out. Imagine if an effort to call a convention gets close to the 34-state threshold but does not quite reach it. Or if there is a sham convention—a gathering of delegations that has not met the threshold for legitimacy but assembles anyway and tries to pretend it is legitimate. Or if there is a legitimate convention that cannot agree and fails to recommend constitutional amendments. Or if there is a convention that proposes amendments which are not approved. There are many other possible problems. But one conclusion is certain: Any intensive push to cross the constitutional finish line for an Article V convention has the potential to create large new problems for the nation’s constitutional system.

As Edmund Burke taught us long ago, we need both stability and adjustment in a political regime, just as we do in society. It’s probably better to live with the constitutional defects we know about than with the ones we don’t know about yet, which would inevitably find their way into a new frame of government. But more importantly, if a relatively homogeneous group of men had difficulty coming to agreement on a constitution that, with some alterations, has lasted over 230 years, how much more difficult would it be for a group representing the fractious, brittle, hostile political and social realities of today’s United States?

The question’s answer is that everyone should be scared about the harm that even attempting to have a convention would do to our country. Those who write-off the chance or don’t take its supporters seriously are responsible for the possible terrible event that could occur if the people who want a Article V convention succeed. If that happens, it would be very dangerous for the American experiment of self-government which has lasted for over 230 years.

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