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Conservatives Are Planning To Rewrite The Constitution

A constitutional convention is legally uncharted territory. Once convened, there are no laws to govern how it would proceed.

Over the next few months, you will probably start hearing about an “Article V” convention, or a “Convention of States,” or a “constitutional convention” — a discussion bubbling up from the depths of the deplore-o-sphere, where all the nation’s worst ideas come from.

We have not had a constitutional convention of any sort since 1787, a date of sufficient distance relative to our short-lived country that the idea might seem too far-fetched to even flag for criticism. The Framers’ lack of attention to detail on the matter suggests that even they didn’t take the possibility of it happening very seriously.

Even a couple of years ago, the prospect of a constitutional convention seemed the stuff of Alex Jones monologues (Jones has, of course, endorsed the idea). But these days, Jones’s network has a White House press pass and the ear of the president himself. We are so far on the other side of the looking glass that improbable events might be closer than they appear.

This convention is essentially a push to reconsider the fundamentals of the nation’s founding document. The proposal for it is supported by the same matrix of power and money that inflated the tea party into a national force. It’s not even a different version of the tea party coalition. The Convention of States movement features the exact same cast of characters: the Koch brothers, Glenn Beck, the American Legislative Exchange Council (ALEC), and — as of this week — Jim DeMint, former South Carolina senator and recent head of the conservative think tank The Heritage Foundation. He was forced out at The Heritage Foundation because its board thought he was too focused on electoral politics and not serious enough about conservative ideas or policy.

That might tell you all you need to know about the idea: Whatever it is, it’s not about conservatism. An Article V convention would be a means to an end. What end? Well, DeMint explained his decision to join the Convention of States campaign with laudable transparency: “The Tea Party needs a new mission. They realize that all the work they did in 2010 has not resulted in all the things they hoped for.”

A convention of states would be an end run around Donald Trump’s legislative incompetence, but it’s born from the same impulse that elected him: the fracturing of political norms and a desire to shore up white supremacy by any means necessary.

As a matter of historical record, an Article V convention is based on the never-used constitutional provision that allows for states to call a convention for the purpose of proposing amendments if two-thirds — or 34, as of now — of state legislatures pass resolutions in favor of such a convention. Right now, backers of a convention say that 28 states have resolutions of some kind in place. (Though it's worth noting that because the resolutions are not identical, and some date back to the 1980s, no one knows for sure what the real count toward a convention is.)

Imagine that significant procedural mystery is cleared up. Fine. What sorts of amendments might be on the agenda? Well, here we can’t claim surprise that a process centered on empowering “states’ rights” tracks with every other past movement that has waxed nostalgic for a weak federal government; “states’ rights” is almost always synonymous with the rollback of people’s rights, and this somewhat more convoluted version of the legal argument is no different.

In some arguments for a convention of states, this retrograde desire for oppression is obvious. DeMint’s organization cites the reversal of the Obergefell case, the Supreme Court's same-sex marriage decision, as one reason to call a convention. The Arkansas Senate’s resolution calling for an Article V convention involves two amendments: one that defines marriage as “between a man and a woman,” and one declaring that life begins at conception. Just because some proposed resolutions don’t explicitly target civil rights — and instead talk about limiting the jurisdiction of the federal government — doesn’t mean they are any less threatening to the pursuit of social justice in this country. What do you think would happen in Texas if, as their pro–Article V governor has suggested, the Constitution were amended to allow states to overturn Supreme Court decisions?

Some Article V resolutions avoid this controversy by citing only a desire for a balanced-budget amendment, but those are not exactly neutral tools, either. The Center for Budget and Policy Priorities has discussed in detail how a constitutionally determined balanced budget would wind up hurting the already vulnerable, but I can make it pretty simple: In an economic downturn, the federal government would be forced to make budget cuts to social programs (as they make up the bulk of government spending); without government assistance, poor and unemployed people would have even less money to spend, further shrinking the economy — and triggering further cuts to government programs.

The utmost danger of an Article V convention premised on a balanced-budget amendment is that there’s absolutely no guarantee that such a convention could be constrained by the resolutions submitted by the states. A “runaway convention," as it's called, could take on any amendment introduced there, whether suggested in state resolutions or not.

But Harvard Law professor Laurence Tribe has cheekily pointed out that a “runaway” convention is only possible if you have some sense of what a constrained convention might be. A constitutional convention is legally uncharted territory. Once convened, there are no laws to govern how it would proceed. There’s no guidance for who the delegates might be, or how many. Would the states be equally represented, or would it be proportional? Some combination? Imagine: the Electoral College, but for constitutional amendments. What could go wrong?

What’s more, there’s no guarantee that the proceedings would be public or transparent in any way — which seems to be exactly what the backers of the idea like about it. From ALEC’s own FAQ for state legislators interested in passing Article V resolutions:

Will demonstrators be allowed and/or controlled [“controlled”!] outside the convention hall? Inside the convention hall, convention rules control.

One Wisconsin state representative reflected the idea more bluntly. After expressing concerns about public support for a convention, she was told: “You really don’t need people to do this. You just need control over the legislature and you need money, and we have both.”