Another Looming Threat

Is it time to re-examine some aspects of the U.S. Constitution? Undoubtedly. Is it incredibly difficult to amend that document in today’s polarized political environment? Yes. Does the undeniable accuracy of those observations support the growing movement to convene a Constitutional Convention?

Absolutely not.

Every so often, a reader will remind me that there is a stealth movement by far-Right activists to call such a convention–a reminder that makes the hair on the back of my neck stand up, because the goals of those ideologues are entirely inconsistent with the values of the U.S. Constitution and Bill of Rights.

A recent article from the Intelligencer explained who those activists are and what they hope to achieve.

On a recent spring morning outside the Pennsylvania State Capitol, a group of activists gathered to terminate the Constitution. Around 100 people drove in to Harrisburg from all over the state, showing up clad in white T-shirts and buttons depicting an American flag that nests COS, short for Convention of States, in the star area. Claiming endorsements from the likes of John Eastman, Sean Hannity, and Ron DeSantis, COS is a deep-pocketed right-wing movement that is quietly campaigning for states to call a constitutional convention, the first since 1787. “The government is out of control,” said Roy Fickling, a construction-industry retiree sitting on the balustrade. “It’s the only way to stop them.”

Just after 9 a.m., Rick Santorum waded into the crowd to deliver a speech about the “complete destruction” of America and the urgent need for a convention to radically amend the nation’s supreme law. “This is an existential fight,” said the Republican former Pennsylvania senator who is now a COS senior adviser. “It’s not about politics. The people on the left do not want the same America as you do. This is about good and evil.” The crowd applauded. He then went on to talk about trans issues. “The reality is this is a moment where we need patriots, just like we did in 1776.”

This effort is marketed as a move to cure what these activists see as the most pressing problems of the nation: ballooning debt and a “tyrannical” federal government.

Article V of the Constitution lays out two amendment mechanisms. The first is the one with which we are familiar. It has been used successfully 27 times. Congress passes an amendment by a two-thirds vote in each chamber, and three-fourths of the states ratify it. The second process has never been used; it requires two-thirds of the states to pass resolutions calling for a convention where delegates from the states can propose amendments.

To anyone disheartened by congressional gridlock, Article V may seem like a seductive idea. While proposed amendments would theoretically also have to be ratified by 38 states, that is cold comfort to the legal scholars who see calling a convention as a constitutional crisis waiting to happen. “The only precedent is the Philadelphia convention from 1787, and they ended up junking the Articles of Confederation and writing a whole new constitution,” said David Super, a professor at Georgetown Law. So far, COS has won 19 states of the 34 necessary to force such a convention.

The last century saw three major Article V movements, two of which reached 33 and 32 states.

While the idea may seem too outlandish to catch on, so did others. The independent-state-legislature theory made it all the way to the Supreme Court. The Second Amendment was once viewed by legal scholars as a clause regulating militias.  Abortion was a constitutional right for half a century.

We live in unsettled times…

The article identifies Meckler–the head of COS– as part of a “vast web of billionaire-funded right-wing efforts pushing radical movements to consolidate power under the guise of populism.”

The article is lengthy, delving into the background of Meckler, who comes across as a talented con man. It documents his transformation from moderate Left to hard Right–a transformation that made him useful to right-wing donors and led in turn to COS.

Meckler pitched the idea to the American Legislative Exchange Council, a clearinghouse for conservative policy, which became a key proponent, and COS began racking up state resolutions in the South and endorsements from Marco Rubio, Mike Huckabee, and James O’Keefe. In 2016, COS hosted a mock convention, where over 100 state lawmakers adopted amendments that would, among others, repeal the income tax and allow a vote of 30 state legislatures to nullify federal laws. Critics of COS “actually said something truthful,” Meckler told Mark Levin, another supporter. “They said, ‘This is intended to reverse 115 years of progressivism,’ and we say, ‘Yes, it is.’”

The Convention of States is just one more threat–as if we needed another!– to the American Idea….

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Justice Stevens Weighs In

Retired Supreme Court Justice Stevens has a new book out in which he makes the case for six Amendments to the Constitution.

  1. The “Anti-Commandeering Rule” (Amend the Supremacy Clause of Article VI) This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges and other public officials. in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
  2. Political Gerrymandering – Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.
  3. Campaign Finance – Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.
  4. Sovereign Immunity – Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.
  5. Death Penalty- (Amend the 8th Amendment) Excessive Bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.
  6. The Second Amendment – (Amend the 2nd Amendment) A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.

Of course, the likelihood of passing any amendments in this politically polarized age is fanciful; lawmakers can’t even manage to pass what should be relatively noncontroversial legislation.

Nevertheless, these eminently rational suggestions provide plenty of food for thought.  Not to mention, an implicit condemnation of our unwillingness to come to terms with the realities of modern life.

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