Just last week, the mainstream media cheered on Joe Biden’s hypocritical and dishonest wrapping of himself in the Constitution while demagoguing his political opponents. Today, the New York Times hits the panic button over the use of a legitimate constitutional measure as a means of limiting Washington’s power. In its haste to hysteria, the NYT manages to miss a fundamental point about Article V and a state-called constitutional convention.
But if “elements on the right” want to use it, it must be dangerous:
“We are very concerned that the Congress, if it becomes Republican, will call a convention,” said Mr. Feingold, the co-author of a new book warning of the risks of a convention called “The Constitution in Jeopardy.”
“This could gut our Constitution,” Mr. Feingold said in an interview. “There needs to be real concern and attention about what they might do. We are putting out the alert.”
While the rise of election deniers, new voting restrictions and other electoral maneuvering get most of the attention, Mr. Feingold rates the prospect of a second constitutional convention as just as grave a threat to democratic governance.
“If you think this is democracy’s moment of truth, this is one of those things,” he said.
Elements on the right have for years been waging a quiet but concerted campaign to convene a gathering to consider changes to the Constitution. They hope to take advantage of a never-used aspect of Article V, which says in part that Congress, “on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments.”
What’s the difference between a congressionally approved constitutional amendment and one produced by an Article V convention? Other than the absence of Congress, nothing at all. The NYT makes a dishonest attempt to suggest one, emphasis mine:
Throughout the nation’s history, 27 changes have been made to the Constitution by another grindingly arduous route, with amendments originating in Congress subject to ratification by the states.
With sharp partisanship making that path near impossible, backers of the convention idea now hope to harness the power of Republican-controlled state legislatures to petition Congress and force a convention they see as a way to strip away power from Washington and impose new fiscal restraints, at a minimum.
This is the only mention of ratification in the entire article (other than a passing mention without that word made near the end), and it’s a red herring so badly constructed as to appear intentional. A constitutional convention can’t pass amendments, let alone replace the entire Constitution, on its own — their work has to be ratified by the states as well. Apparently, no one at the NYT bothered to look into what happened at the original convention of states.
After the first convention adopted the Constitution in 1788, the finished document still needed ratification by the states. The ratification process in 1788 is what produced our Bill of Rights, in fact, since several of the states refused to ratify it until specific guarantees on civil liberties were included in the document. Shortly after the constitutional era started in the fall of 1789, Congress proposed and approved twelve amendments, ten of which were ratified by enough states to be added to the Constitution by 1790.
And there is nothing illegitimate, radical, or extremist about using a well-known constitutional process to advance questions to the states. The framers included Article V as a way for states to bypass a potentially imperial Congress that would act to usurp sovereign authority from the states. Had the framers only allowed Congress to act as gatekeeper to the amendment process, states would have had no other recourse. We haven’t had an Article V convention until now, but arguably we haven’t had a pressing need for one until recent years. The writing on the wall for the necessity of an Article V convention can be traced back to the 17th Amendment, which transformed the Senate into a forum for state interests into a populist copy of the House, and which touched off an arrogation of authority by Washington that accelerated over the last several decades.
But what happens when “elements of the right” at such a convention propose radical and extreme amendments to or replacements of the Constitution? Unless those “radical and extreme” proposals are wildly popular with the state legislatures or constitutional conventions in 38 states … nothing at all. The rules of the current Constitution would apply throughout, and as Eugene Volokh points out, it will stamp out any proposals except the most mainstream:
If a constitutional convention is called and proposes amendments, they still have to be ratified by legislatures or conventions (the convention gets to decide which) in 3/4 of all states:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress;
Maybe I’m wrong, but I expect that this will be a pretty serious bar to any particularly radical proposals. If you disagree, tell me this: What amendments do you think a convention could propose that would get the support of legislatures or conventions in at least 38 of the 50 states, and how conservative (or liberal) do you think those amendments would be?
So what would likely happen in an Article V convention? There may be a lot of unusual proposals, such as repealing the Second Amendment, banning abortion, or even legalizing abortion until the moment of birth. Those would likely fail on the floor of the convention anyway if all 50 states participated, and none of them would get a 38-state supermajority for ratification. The proposals most likely to succeed would be a constitutional amendment requiring Congress to balance its budget every year and perhaps one that seriously limits the Interstate Commerce Clause that Washington has abused for nearly a century at the expense of state sovereignty.
That explains why Feingold and NYT are having panic attacks at the thought of the states bypassing Congress to apply limits to its power. It’s no more a deep and abiding love of the Constitution, no more than Biden’s shrieking on Thursday night. It’s about Congress getting held to account and limited in its social engineering capabilities, and the end of the power of progressives.
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