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The Risk of the Right-Wing Push to Rewrite the Constitution

It may take just a few more state legislatures to trigger an Article V convention.
September 12, 2022
The Risk of the Right-Wing Push to Rewrite the Constitution
(Photo by Lambert/Getty Images)

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.

In a sense, this is old news: According to a New York Times article published over the Labor Day weekend, “Elements on the right have for years been waging a quiet but concerted campaign” to force an amendatory convention. Likewise, organizations in the political center and on the moderate left—including Common Cause, the League of Women Voters, the Sierra Club, and the AFL-CIO—have long followed the progress of the scheme and tried to alert the public to its grave dangers. So have authoritative voices from both sides of the ideological spectrum, including late Supreme Court justices Arthur Goldberg, Warren Burger, and Antonin Scalia and such prominent constitutional law scholars as Laurence Tribe and Walter Olson. Even a few unimpeachably conservative groups have published criticisms of the idea, as the Heritage Foundation did in a 2011 blog post noting “the lack of precedent, extensive unknowns, and considerable risks” of such a convention.

While a handful of figures on the left have called for a convention, it’s mostly wealthy right-wing funders who have, largely and purposefully out of sight, bankrolled the organized effort to foist one upon the country. A group called Convention of States Action—originally launched as a project of the conservative group Citizens for Self-Governance—has over the last dozen years received large grants from the Mercer family and funders in the Koch network. The Koch-network-backed American Legislative Exchange Council (ALEC) has likewise been pushing for a gathering to amend the Constitution.

The aim of these efforts is to organize state legislatures, in some of which these right-wing funders wield outsized influence, to call a convention as provided for under Article V of the Constitution. This article authorizes two-thirds of the state legislatures (that’s 34 today) to summon a convention to propose amendments to the nation’s fundamental law. As with amendments proposed the traditional way, three-quarters of the states (38 today) would then have to ratify the proposed alterations in order for them to become part of the Constitution.

Amendments can be proposed piecemeal and accepted or rejected by the states in such a manner that few or none may end up being adopted. But the greatest danger is that there’s nothing in Article V that prevents an amendatory convention from following the example of the 1787 convention in Philadelphia, which became a runaway convention by simply assuming its freedom to propose a substitute for the very frame of government, the Articles of Confederation, under which it convened. Can we imagine anything as authoritative, carefully considered, and acceptable to the people of 38 states emerging from a runaway convention today?

Making the emergence of anything suitable from an Article V convention, whether runaway or not, even less likely is that the entire process for the authorization and functioning of a convention is under dispute. And reaching agreement on the process would be a matter of unprecedented constitutional contention among the states, Congress, and the federal courts. Crucially in this regard, the number of states whose legislatures have fully and legally called for an Article V convention remains uncertain. It could be as high as 29. In July, as the Times reported, a Republican member of the House of Representatives introduced legislation calling on the National Archives to provide Congress with a report on all state legislative actions pertaining to an Article V convention—actions approving such a call as well as actions that have rescinded previous resolutions of approval. Similar legislation introduced in previous years went nowhere, but that could change if it seems that the 34-state threshold is getting nearer.

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

While conservative activists, state-level Republicans, and megadonors have been serious about this project for years, Democrats have largely looked away, yawned, and left raising the alarm to good-government groups. Why are those groups raising the alarm, and what’s at stake? If realized, the scheme would threaten the geopolitical integrity of the United States as well as Americans’ unparalleled, historic, continuing experiment in democratic representative government.

One Democrat trying to sound the alarm is Russ Feingold, the former three-term senator from Wisconsin. In a timely new book, The Constitution in Jeopardy, Feingold and coauthor Peter Prindiville note that “hard-right activists have seized upon the seemingly arcane constitutional convention mechanism for two reasons”:

First, some argue that state legislatures—not the voters—would select convention delegates. Second, some also argue that at a convention each state would get one vote, making the convention radically more malapportioned than the Congress or the Electoral College (California’s 39.5 million citizens would have the same representation and vote as Wyoming’s 579,000). Neither of these two claims is a settled matter of law, and each has been the subject of intense debate among constitutional scholars for generations. Yet 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.

The Constitution of the United States isn’t a perfect document. From its 1788 ratification, it has revealed its many flaws. One of its principal imperfections is the difficulty of amending it. But while that’s made our frame of government frustratingly rigid, it has also made it unusually stable. Once we exclude the original ten amendments known as the Bill of Rights, it has been amended only 17 times—on average roughly only once every 13 and a half years—since 1790.

By comparison, our sister republic France has by various means adopted and then tossed out, depending what you count, upwards of 15 formal written constitutional documents since 1789 and in the process—overlooking directorates, consulates, empires, and monarchies—created a series of republics of which the current Fifth French Republic is the most recent. As in so many other ways, the United States is exceptional among nations. It’s still governed by its original constitution, and its regime remains that of the First American Republic.

Yet there’s nothing sacred about the Constitution. Its origins always giving us pause, they should serve as a warning about all such efforts. The Framers were representatives of the agricultural and commercial gentry, all white males and many of those slaveholders; and the document they agreed on in Philadelphia, however extraordinary it has proved even with its imperfections, represented the politics, thought, and convictions of gentlemen of the particular social status they occupied. Through its few amendments, especially the Civil War-era Thirteenth, Fourteenth, and Fifteenth, we’ve rid ourselves, at least formally, of the most outrageous features of the original document—those protective of slavery and government by white males only. But other of its provisions, especially those that give each state equal representation in the Senate and provide for our unique Electoral College, have prevented, many would say, the full blossoming of a democracy in which every citizen’s vote would equal that of every other and the majority of voters of the entire nation would decide presidential elections.

It’s not irrational to suppose that a second constitutional convention composed of women as well as men, people whose families came from outside northern Europe, LGBT citizens, and people poor as well as rich and of all walks of life would write and send to the states for ratification a different document than the one that now orders our public affairs.

But would that constitution be better than the one we have? Would the kind of bargain that, in order to gain constitutional protection for abortion, would have to retain the Second Amendment be acceptable to state ratifying conventions whose members wanted also to curb gun rights? Would securing a provision to assure a balanced Supreme Court membership be worth reciprocally accepting a balanced budget provision, especially given the funds that would pour into convention candidates’ pockets from wealthy people and corporations to secure a balanced budget requirement?

And who would be our George Washington, our James Madison, our Alexander Hamilton? To be sure, those men had and still have detractors, and they differed, often sharply, among themselves. Even so, because they by and large came from similar backgrounds, were beneficiaries of similar educations, and enjoyed the same social standing, they more or less understood each other’s ideas, shared a common eighteenth-century Western worldview, and could thus come with decent comity to accept the constitution that remains in force.

But today? Who ­would serve as convention president, Newt Gingrich or Elizabeth Warren? Who’d be our James Madison—would it be one of the talking heads among cable-news favorites to argue gravely about constitutional matters, or would Judge Judy take the job? And who’d fill Alexander Hamilton’s shoes: Elon Musk or Bernie Sanders? Where would we look for our latter-day Ben Franklins—of course of different hues, sexual inclinations, occupations, residencies, and net worth!—to play Old Wisdom to the delegates?

However delicious may be the parlor game of imagining its cast of characters, it’s not hard to imagine a convention not even reaching consensus on small matters, let alone big ones. Alternatively and worse, a convention might be railroaded by one side: Depending on the method settled on for representation, it’s possible that the gathering could be so dominated by one party that the rules might be rigged—or, even if not rigged, open to charges of being rigged, as we’re no strangers to accusations of “fake news” and “alternate truths”—so that its legitimacy would be compromised from the start. There’s also the danger of rigged rules allowing what Feingold and Prindiville call the danger of “renegade delegations” eventuating in a runaway convention.

And if a convention’s rules 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—especially if some of the alterations to the Constitution under consideration were to touch on the Court itself?

Finally there’s danger even in a convention that fizzles out. Imagine an effort to call a convention that nears the 34-state threshold but doesn’t quite reach it. Or a sham convention—a gathering of delegations that has not met the threshold for legitimacy but assembles regardless and attempts to fudge the question of legitimacy. Or a legitimate convention that deadlocks and fails to recommend constitutional amendments. Or a convention that proposes amendments which then fall short of ratification. Many other complications can be imagined. But one conclusion is inescapable: Any intensive push to cross the constitutional finish line for an Article V convention has the potential to create huge new tears in the nation’s constitutional fabric.

As Edmund Burke long ago tried to teach us, stability as well as adjustment is necessary in a political regime just as it is in society. It’s probably better to live with the constitutional defects we know than the ones, unknown to us now, that would inevitably find their way unanticipated into a new frame of government. But more important is the fact that if a comparatively homogeneous group of men had difficulty coming to agreement on a constitution that, with some alteration, has withstood over 230 years of political experience and change, how much better at the job would be a gathering representing the fractious, brittle, at-each-others’-throats political and social realities of today’s United States?

The question yields its answer. Everyone should be frightened to the core about the damage that even the run-up to such a convention would do to the body politic. Any who write off the possibility or fail to take its proponents seriously assume responsibility for the disaster that’s likely to ensue should the proponents of an Article V convention succeed in setting one in motion. If that happens, the extraordinary American experiment in the self-government of an open society that has endured for over 230 years will be in never-before-experienced peril.

James M. Banner, Jr.

James M. Banner, Jr., is the author, most recently, of The Ever-Changing Past: Why All History Is Revisionist History (Yale, 2021).