Periodically, I come across reports updating progress toward a so-called “Article V” Constitutional Conventions. The last time I looked, twenty-eight states had called for one; only thirty-four are needed.
I’ve shared my concerns about that movement previously–in mid-2014, in a column for the Indianapolis Business Journal, and again, on this blog, in 2017. The major forces behind this effort to convene what proponents call an “Article V” convention are ALEC and the Koch brothers, which tells you pretty much everything you need to know about the motives of the proponents..
My original arguments against calling such a convention were rooted in history, which tells us that major changes in government rarely reflect the relatively benign and/or limited expectations of people who agitate for that change.
In this case, state lawmakers who favor a new constitutional convention argue that it would allow delegates to devise a framework for reigning in overspending, overtaxing and over-regulating by the federal government and would move the U.S. toward a less centralized federal government. Many of them insist that an Article V convention could be limited to consideration of those goals.
Warren Burger, former Chief Justice of the United States, begged to differ, writing
[T]here is no way to effectively limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the Convention to one amendment or one issue, but there is no way to assure that the Convention would obey. After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda.
But even if a convention could be limited, the enumerated goals are Pandora-box wide.
For example, Wall Street bankers argue that financial laws are “overregulation;” if polls are to be believed, most taxpayers view the same rules as barely adequate.
My definition of “overspending” would include the massive subsidies enjoyed by fossil fuel companies and the obscene amounts we spend on the military; yours might be Medicare or farm subsidies.
“Less centralization” could justify virtually any limitation of federal government authority, from FDA regulation of food and drug quality to laws against discrimination.
I could go on. And on. But the risk isn’t simply that a Convention could rather easily be hijacked by people who disagree with the conveners about the nature and extent of needed changes, or even the predictable influence of well-heeled special interests. The real danger is in calling together a representative group of Americans and asking them to amend a document that few of them understand.
Even bright graduate students came into my classes with little or no knowledge of American history or government. Most had never heard of the Enlightenment or John Locke or Adam Smith. A truly depressing percentage of my undergraduate students were unable to explain what a government is, and had no idea how ours operates. Separation of powers? Checks and balances? The counter-majoritarian purpose of the Bill of Rights? Blank stares.
The danger inherent in calling deeply polarized and depressingly under-educated politicians together to “improve” the Constitution should be obvious. Do we really want people like Marjorie Taylor Greene or Paul Gosar—or their Red-state-level clones–deciding how the American Constitution should be changed?
In the years since I first became aware of this effort, I have seen no reason to revisit my original concerns about such a convention. As Common Cause has warned,
With no rules and complete uncertainty about the constitutional process, an Article V convention would cause political and economic chaos. There is no language in the U.S. Constitution to limit a convention to one issue, no guidelines for rules to govern a convention, no rules on who picks the delegates and how they are selected, no guarantee that the American people would be equally represented, and no limits on corporate special interest influence.
I can only imagine what sorts of regulatory changes the Koch brothers hope to make, or what the armies of anti-journalism “Trumpers” would do to the freedoms of speech and press. Proponents of Pence-style “religious freedom” (a/k/a the privileging of fundamentalist Christianity) would see this as a God-given (!) chance to dismantle the Wall of Separation between Church and State.
We should also remind those who see such a convention as their chance to get rid of all those pesky constitutional provisions that keep them from installing a government more to their liking, that they are also at risk. A convention might also end up with participants reflecting the majority of Americans who think it’s time to get rid of the Second Amendment and the Electoral College, and a great idea to outlaw gerrymandering…
In other words, such a convention would be a monumental crap-shoot.
23 thoughts on “An Idea Whose Time Has Definitely NOT Come”
The situation really is worse than Professor Kennedy states. Given decisions like Citizens United, Daimler AG v Bauman and others, I believe SCOTUS would hold we cannot limit a corporation’s political involvement AND contributors are entitled to anonymity. That would mean billions dumped on the proceedings. We would have “rights” defined by agents of China, Russia and Sa’udi. Madison and Hamilton were concerned about foreign interference in our selection of a “chief magistrate.” They did not consider the outright purchase of this government.
As the Fascists are taking control of the Republican party they would also take control of a Constitutional Convention and would make Aynn Rand proud.
A Conditional Convention would be the fastest way to turn America from the United States into a “shit hole” country. The rich would get richer, the poor would ay, and the middle class would disappear. As Franklin said when asked about our form of government we are “A republic if you can keep it”.
Considering the fact the oligarchy assembled the first constitution and the country has veered even more to their liking in the past 40 years, what additional damage could they possibly do?
Suppose the people could assemble without oligarchic influence (lobbyists with checks). In that case, I’d be more inclined to say, yes, by all means, let’s update our independence from the UK monarchy and the US oligarchy, but the US oligarchy would never allow that. Instead, Koch shills would dominate it.
Could you imagine our corporate media covering such a convention? LOL
The corporate media assisted in pinning the entire Jan 6th debacle on Trump and then glossed over all the oligarchic funders of the insurrection, including the SCOTUS, military, and intelligence agency’s involvement. Not to mention the GOP’s involvement – the fascists among us.
In a world where fascists are patriots but socialists are too much like Russians and the Chinese, we have no business assembling anything in this country.
More scary thoughts and weeping – neither changes anything.
– Who are the 28 states? Might any be convinced of backing off if their citizens arose?
– Which of the 22 left are most in danger of joining?
22 states are in the hands of the GOP. 10 are divided. Looks like “they” are already making progress…
Start grassroots work to stop this in targeted states. Quit sitting and being scared – do something.
Absolutely spot on! Continued thanks for your important voice.
“Ah, what a cesspool of folly and foolishness, what preposterous fantasies, what corrupt police tactics, what inquisitorial, tyrannical practices! What petty whims of a few higher-ups trampling the nation under their boots, ramming down their throats the people’s cries for truth and justice, with the travesty of state security as a pretext.” J ‘accuse! Emile Zola 1898
“An Idea Whose Time Has Definitely NOT Come!” Sheila Seuss Kennedy, 2022
“…progress toward a so-called “Article V” Constitutional Conventions.” When did this begin and does it have the same chance of happening as the continuing years of investigations of Donald Trump has in resulting in charges being filed, trials being held and conviction of any of his blatant High Crimes and Misdemeanors?
“What petty whims of a few higher-ups trampling the nation under their boots, ramming down their throats the people’s cries for truth and justice…” A description of the minority Republican control over our House and Senate which will transition to their majority in the House with McConnell’s firm control over the Senate to be aided by Congress in only FOUR DAYS. “In other words, such a convention would be a monumental crap-shoot.” But a better chance of happening than any conviction of Donald Trump and ending his MAGA reign; the “Bigger Lie” continues to be that “No one is above the Law” which Trump has proven to be the lie as we continue to cry for truth and justice. “There can be no peace without justice.” Emile Zola
Happy New Year, y’all!
Sheila, you have omitted some important points in your thoughts this morning. The first one is huge – that any changes proposed by a constitutional convention would have to be approved by 3/4 of the states. You know how hard it is to get 3/4 of the states to agree on anything? Well’s it’s only happened 27 times in our nations nearly 250 year history. And only 16 times since 1795. The notion that there would be a “runaway convention” that would enact all sorts of nefarious changes to the Constitution is belied by this requirement. The Constitution only allows a constitutional convention to PROPOSE changes to the document.
Second, you say your objections are rooted in history…that history has led you to believe a constitutional convention would be bad. I would argue that the primary source for history should be the words of the Constitution which expressly provide for the second way of proposing constitutional amendments (the 2/3 of Congress being the primary process for proposing constitutional changes), through a constitutional convention. What you are essentially arguing is that the Founders were wrong in including this option in the Constitution. That’s a valid argument .. but I think it should be pointed out that calling a constitutional convention is not contrary to our written history.
Third, is the politics of the issue. You mention the Koch Brothers and ALEC support a constitutional convention. The Koch Brothers (actually “Brother” since one of them passed away) and ALEC are actually considered to be moderate, establishment figures in the GOP. You do also mention Marjorie Taylor Greene would go wild with such a convention. I haven’t heard her views on the subject, but my guess is she’s adamantly opposed to a constitutional convention. The reason why is that people on the far right and far left have been vehemently opposed to a constitutional convention for years. Those on the far right have the same concerns that Sheila has expressed, but they fear the adoption of liberal policies b a runaway convention. Moderates in both parties tend to be agnostic on the issue of a constitutional convention. Most haven’t given it a minute’s thought.
Me, I’m not in the slightest bit worried about a constitutional convention adopting far right or far left policies. That’s because of the 3/4 ratification requirement. And I do believe that there are many flaws in our Constitution that need to be address. For example, the Presidents’ power to pardon, House members tenure of 2 years (too short), problems with the Electoral College, etc. Those changes could be more quickly done with a convention. Do I think a Constitution would go rogue and propose repealing the First Amendment. Absolutely not. Plus, I keep going back to that 3/4 state ratification requirement.
No, I don’t lose sleep over the runaway convention possibility.
I would also note that the opposition to a constitutional convention seems to, for many people, be grounded in a basic distrust of American democracy. That’s again a common thread when it comes to people on the far right and far left of the political spectrum. Me, I have a lot more faith in our democratic form of government. It’s messy, but we usually end up doing the right thing.
If we want to improve our democratic republic, we could do it with two amendments. Get rid of the electoral college and put limits on the tenure of members on the Supreme Court. Give them a twenty year term. That’s long enough to prevent the political interference the founders feared.
I received two solicitations this month promoting a constitutional convention. The enclosure said that the movement had 5 million supporters; five out of 300 million didn’t sound like a real ground swell to me. And I share Sheila’s concerns about who makes the rules and steers the ship. As presented in the solicitation, there is less than 2 percent of the population that supports the convention idea.
My friend Paul Ogden once again misses a few things in that lesson of history that began in late 1786 and culminated with the ratification of The Constitution. Most importantly: once convened all bets are off. Stated slightly differently, delegates can change the rules for adoption of whatever they propose. And I would add that Mr Ogden cannot read into mtg’s mind. She lacksd one.
JoAnn, thanks for the Zola quote, which is spot-on.
The Koch brothers are no longer two, and David can not retire to the fields of Elysium too soon for me.
Oh! Was that a crass statement? Guilty as charged. I did a minor-mini celebration when I heard the news
that J.Edgar had died, and I can repeat that for David. The rancid influence of these two men, since the ’70’s,
is well documented (Democracy in Chains: the Deep History of the Radical Right’s Stealth Plan for America,”
by Jill Lepore).
Such a convention would simply be a (presumably) violence free coup, nothing less!
In Jane Mayer’s book, “Dark Money”, she describes the “star chamber” gathering of the richest of the richest capitalists in Palm Springs. Who chaired that gathering? Charles and David Koch. The agenda was just as was described by Sheila in the proposed Constitutional Convention. These Libertarian lunatics want NO regulation on anything. ONLY profits matter. The people? Not so much. It’s who and what these bastards are.
My point is that trying to soft-soap or apologize or rationalize a Constitutional convention is playing with matches in a swimming pool filled with napalm. NEVER fail to understand the completely fascist intentions of the mentally ill billionaires.
Only 2 % of the population supports the idea of a convention. So what? What % support nutty laws passed in Texas, Florida ana elsewhere? “Pols”, not people make such decisions. And relatively few people bother to vote.
I disagree with Paul’s versions of both the facts and likely results to be had in a Constitutional Convention where all bets are off in terms of delegate control. I think there is little if any distance between proposal and adoption and that putting runaway delegates in charge not only of the substance of the language to be adopted but the procedures to be employed in arriving at such a point is subject to convention stampede where right wing politicians and vested interests could erase the difference between 2/3 and 3/4 in order to end the Enlightened language of our organic law in favor of an anti-democratic wave sure to follow.
So as one dedicated to democracy, the Separation of Powers etc., am I fearful of the results stemming from a Constitutional Convention with the present forces of fascism and oligarchy running amok in this country? Terrified! Think Dobbs, Citizens United and other such anti-democratic holdings as conservative under the new regime, a new platform from which the Supreme Court could (and would per Alito and Thomas) constitutionally go even further backwards in matters of race, abortion, business regulation etc. etc. etc.
So what to do? Add four justices to the Supreme Court and plod along with occasional Amendments until (hopefully) the nation ends its love affair with anti-democratic elements and can feel secure in having such a convention. As of now, my vote is no – a thousand times no!
The movement to dissemble federalism and democracy is not going away because the people trying to destroy what has worked for 250 years for everyone are as dedicated to their goal as they have ever been. They have considerable help from some social and entertainment media as effective propaganda machines and a rural/wilderness culture that feels passionate about restoring a past that accommodated them. Let’s label it antienlightenmentarianism for it offers no real solutions for any real problems. They are only about tearing down with no idea for building anything up to replace what they destroy.
We, like Ukrainians, have to fight the battles smarter and be more driven by those in the world who understand freedom as the alternative to power and how freedom empowers diversity, and how diversity delivers effective solutions rather than just “turf”.
So “it can’t happen here”, right? Election of The Duck? “1/6”? Dobbs? Marjorie Taylor Greene helping decide the House Speaker? DeSantaclaus?
All is takes is us yapping, napping and not doing…
Happy New Year all – IGIO curmudgeon-in-chief
Paul is correct from what Ive heard or read about a constitutional convention. With runaway spending and the lack of ability to reign in a national that continues to endanger the livelihoods of our children a convention may be the only real way to solve that problem.
Every politician in Washington has learned how to abuse their privilege of being in office by using the federal governments purse to buy votes.
Obama was correct in saying its Congresses fault for not reigning in the debt, but he certainly was to willing to sign every emergency spending Bill. There are no more fiscal conservatives left.
The very programs we need will no longer be available because we care about.
“States where the Convention of States Application has passed in one chamber but not the other (all time):
New Mexico, Iowa, South Dakota, Virginia, North Carolina, New Hampshire
States considering the Convention of States Resolution in 2022:
Colorado, Hawaii, Illinois, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Pennsylvania, South Dakota, Vermont, Virginia, Washington, Wyoming.”…Convention of States Action ( likely a front for Koch and ALEC followers)
Indiana joined that call in 2016. Most of the states that have voted for are in the south and west. Wisconsin, Nebraska, West Virginia and South Carolina voted in 2022.
If the same actions to call for a Convention at the state level, I cannot imagine the mess that would result. Our General Assembly is full of grifters, con artists, bullies, xenophobes, homophobes and misogynists. Would a national convention be any different? Doubtful, maybe even more so.
Those wanting to have absolute power have been working on that project since before our inception. Women and minorities of all stripes would be the biggest losers. Follow the money.
Good points, but I’d prefer a Constitutional law professor to clear up some of the disputed points.
Dr. Kennedy, you’re on…
I will agree with one point that Paul makes. I no longer trust a polity that elects the likes of Trump (or some of his predecessors) to the Presidency.
The framers of the Constitution were the educated elite, for good or bad, but now we have a large minority of the population that believe in all sorts of truly wacko conspiracy theories from space lasers to the idea that the whole country and all of the courts conspired to deny that Trump is still the President.
I am currently reading Andy Borowitz’s “Profiles in Ignorance” where he posits that the country has gone from treating ignorance from ridicule (Indiana’s own Dan Quayle) to acceptance (the Yale educated “good ‘ol boy” Bush who gloried in not knowing or caring) to celebration (Donald J – spreader of lies who was known for not reading briefings).
This ain’t the ’70s when this was just a bad idea; now it’s a terrible, dangerous idea.
My fear is either a return to a version of the greatly successful Articles of Confederation, or a total White Nationalist take over, with ratification requiring the majority of the three most populous states (or six) – either way TX, FL, OH, NC – beating CA, PA – or even a simple majority of states
My one question is – Are there time limits for this process or could the last state approve 50 years from now?
Paul, once again you display your complete & total ignorance of the American political system. You once again earn an “F” for your “contribution”.
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