Russ Feingold, Boston Globe, May 23, 2023.
The past few years have seen the rise of a modern American authoritarian movement in this country. The people driving this movement, the Steve Bannons and John Eastmans of the far right, have denied election results, fostered election subversion, and helped mastermind the Jan. 6 insurrection. Now they have set their sights on rewriting the US Constitution to solidify right-wing minority rule.
Our founders certainly did not intend the Constitution to be written in stone. They planned for it to be amended by including in Article V two methods by which to do so. And amended the Constitution has been, albeit rarely. Each of the 27 amendments — 28 with the proposed Equal Rights Amendment — has utilized the same one of the two methods provided for in Article V. Namely, two-thirds of Congress proposed each of the amendments, and three-quarters of state legislatures subsequently ratified them.
Article V, however, provides a second method for amendment — a constitutional convention. This method has never been utilized, in large part because the Constitution provides zero guidance on how a convention would work in practice. It does not specify how delegates would be selected, nor how amendments would be proposed or voted upon.
Rather than be deterred by this ambiguity, the far right sees opportunity. It has been conducting a multiyear stealth campaign to persuade state legislatures to pass resolutions asking Congress to call a convention. There are conflicting claims as to how many states have already done this; Article V requires two-thirds of states to apply. Compounding the confusion, some resolutions call for a convention on a specific topic, despite the Constitution providing no method by which to restrict the topics taken up at an Article V convention. Whatever the current number of valid applications, the far right is actively working to increase it. The far right’s numbers are dubious, but its momentum is undeniable.
The leading group pushing for this, the Convention of States, has convened mock conventions to practice monopolizing the process. At a 2016 mock convention in Williamsburg, Va., “delegates’’ passed amendments to: slash Congress’s lawmaking authority (e.g., gutting the ability to deal with public health emergencies), minimize executive agencies’ rulemaking authority (e.g., crippling the Environmental Protection Agency’s ability to deal with climate change and protect clean water), and perhaps most important, to enable state legislatures to simply nullify federal laws and regulations. It’s fair to assume that added to that list today would be a federal ban on abortion and repealing the right to same-sex marriage.
Perhaps even more alarming than the desired amendments is how the group intends to propose and ratify them: Each state would have one vote regardless of its population. California’s 39.5 million people would have the same one vote that Wyoming’s 577,000 people would. This outrageously malapportioned process would inflate the power of small states and minimize that of large states, akin to the grossly malapportioned Senate and its filibuster.
This one-state, one-vote method would also have the intended consequence of minimizing the voices of people of color. The 10 least populated states in the country are overwhelmingly white, while the 10 most populated states are some of the most diverse. It is not a coincidence that the political factions that support this one-state, one-vote procedure are the same factions that have worked to gerrymander electoral districts, suppress voting rights, and defend the Electoral College. Their goal is to lock in right-wing, white minority rule.
The US Constitution is an extraordinary document, but it is by no means infallible. Written only by white men and interpreted for most of American history by white men, it still fails to reflect the input and perspective of large swaths of the American public. Constitutional amendments should be on the table to remedy the founding failures of our founding document — including to amend and clarify Article V. This process of amendment, however, must above all else be democratic, transparent, and inclusive. In other words, the opposite of what this right-wing movement is pursuing.
Already, there are proposals in Congress relating to an Article V convention. While there are no precedents or rules for a convention, Article V is clear about one thing: that Congress “shall’’ call a convention if two-thirds of state legislatures apply for it. The “shall’’ implies that Congress’s role is not discretionary and merely administrative if the two-thirds threshold is met. We are not there yet, but we could be soon. This country may be on the verge of a constitutional crisis, and too few people are paying attention.
Russ Feingold is president of the American Constitution Society and served 18 years as a US senator from Wisconsin.
Image Credits: Michael Flippostock