If you haven’t realized that the Ol’ Pussy Grabber isn’t the only threat to our democracy and rights, then you haven’t been paying attention. Unfortunately, I figure about a third, if not more, haven’t been paying attention. Unfortunately, sticking our fingers in our ears, squeezing our eyes shut, and singing la-la-la-la isn’t going to make the threat go away.
Perhaps the overturning of Roe v. Wade has caught the attention of some of the the low-information low-participation members of our country. Perhaps.
Perhaps we are all starting to understand that there really has been a concerted, well-organized, well-funded, long-term effort to overturn Roe that included the training and placement of forced birth judges onto the federal judiciary including the Supreme Court. Perhaps.
There is another concerted, well-organized, well-funded, long-term effort launch Constitutional Convention as outlined in Article V of the Constitution. Let’s do a deep dive into an Insider article explaining the whole thing because we all need to know what is at stake in the ’22 election. And, after we get to the end, let me know how full your pants are in the comments. I know, mine are pretty full.
The Constitutional Convention
Rick Santorum’s Introduction
Here’s Rick Santorum (R – the frothy mixture of lube and fecal matter that is sometimes the byproduct of anal sex) explaining the goal of such a convention to a group of Repube lawmakers at an ALEC meeting in December 2021, “You take this grenade and you pull the pin, you’ve got a live piece of ammo in your hands… 34 states — if every Republican legislator votes for this, we have a constitutional convention.”
Hunh. The Constitutional Convention is a grenade. Wonder what Santorum wants to blow up?
“We would be aiming at the Deep State and potentially the federal judiciary as well.”
The old Steve Bannon war on the Deep State, burn ‘er to the ground strategy, eh?
I’m old enough to remember the launch of the Republican plan to dominate state legislatures called Redmap so they could gerrymander their way to Gingrich’s wet dream of an anti-democratic permanent majority. They’re still working on it.
It is clear that someone some where in the conservative-Repube social hierarchy has a long-term plan that they’re enacting. They’ve had set backs along the way, but they ain’t giving up, so we should be taking the possibility of a Constitutional Convention very seriously.
It should motivate people to the polls just like the possibility of a 7-2 conservative majority on the Supreme Court and the theft of Merrick Garland’s seat should have motivated us in 2016. We all know how that turned out.
Article V: Amending the Constitution
The writer’s of the Constitution knew that times would change and our foundational legal document would have to change with them — Sorry, originalists, if this ain’t true, why’d they allow for a process to amend It? Hah! I’ve run circles around you logically! They provided two ways to do so outlined in Article V.
- WAY #1: A two-thirds majority of Congress can approve an amendment. Remember the ERA? And, then we wait around while three-fourths of the state legislatures approve it. It takes a while, but that’s how we’ve gotten all 27 of the current amendments to the Constitution.
- WAY #2: Two-thirds of the state legislatures can call for a convention in which to propose and approve amendments. Once done, three-fourths of the state legislatures must approve them. Two things to point out here:
- One, two-thirds of the states currently stand at 34. We have nineteen who have approved a Constitutional Convention — did you know that? Three-quarters is 38.
- Two, no other governing body or office gets a say. No governor, no Congress, no President, no judge. Just the state legislatures. That should give us all the heebedee-jeebadies.
- And three, it’s never been done before. It’s been threatened. That’s how we got the Seventeenth Amendment allowing for the direct election of senators in 1913. The threat convinced Congress to act. More on that later.
The Conservative Constitutional Agenda
If you’re having an anxiety attack contemplating the likes of people like Kari Lake and Doug Mastriano leading a wholesale rewrite of the US Constitution, (a) you’re not a lone and (b) don’t worry, they have a very limited and focused agenda. They won’t consider any amendments that are outside of these three areas — They promise. Honest they do, so just relax, and trust them — “impose fiscal restraints on the federal government, limit its power and jurisdiction, and impose term limits on its officials and members of Congress.”
That’s not much, right? Of course, you realize that anything and everything falls within those parameters. They say their only interested in returning power to the states, you know, like states rights. They blog about stopping federal overreach on abortion, guns, and immigration and other hot-button and pet issues of conservatives everywhere.
Fear not, though, gentle reader, least you believe our very democracy is at stake. None other than Rick Santorum himself offered these reassurances, “we have the opportunity… to have a supermajority, even though…we may not even be in an absolute majority when it comes to the people who we agree with” because each state would only get one vote at the convention giving low-polutaion conservative states an equal voice to high-population liberal one. Because democracy.
All is not doom and gloom, though. There is a #SilverLining on which to hang your hopes for the continuance of our democracy. According to a Georgetown University constitutional law expert, David Super (emphasis added), “It’s clear to everybody working on this that the convention proponents have no honest path to 34 states.” And, we all know how moral and upright conservatives are. They would never do anything dishonest just to take over a government and force us all to live by their religious views, right?
Still, Super has a point. Even if they get their stupid convention and pass all of the draconian fascist amendments they want, they still have to convince 38 states to approve them, and that could never happen. Not even with all the billions that ALEC (tobacco and pharmacy money), the Kochs, the Mercers, and Bitcoin have been pumping the effort up with.
Vote Vote Vote!
It probably is okay if you don’t get excited about the boring old ’22 midterm elections because the president isn’t on the ballot. You can probably skip voting for judges, sheriff, school board, state legislature, and secretaries of state. They obviously aren’t as important.
It’s clear that the Repubes and their conservative big money backers are coming for our democracy and aren’t going to stop unless and until We the People stop them with ballots.
Correction:
I regret that I listed Josh Shapiro as Big Lie advancing anti-democratic candidate for Pennsylvania governor and former state legislator. The line has been updated to Doug Mastriano who is the Republican candidate for governor and former state legislator and alleged anti-Semite and 6 January insurrectionist and all round alleged Nazi. Ye Olde Blogge apologizes for the error and Josh Shapiro.
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The Psy of Life 
Well, it’s actually four ways to amend the Constitution, because it takes two steps, there are two alternatives at each step, and 2 X 2 = 4. Either 2/3 of Congress or 2/3 of the states can propose, then in either case these proposed changes are ratified by either the legislatures or conventions of 3/4 of the states.
What’s really important here is this aspect of the ratification part of the process, that Congress gets to determine two things that allow the red state legislatures to be bypassed.
Congress calls the national convention if 2/3 of the states ask for one. The states that did the asking do not do the calling, and cannot set the conditions for the call. A D Congress could call on the D caucus in House and Senate to be the national convention, or it could call any group of people thought to be reliable in rewriting the damn thing. Of course any rewrite has to make it impossible for Rs in the future to amend away all the good stuff in the new constitution.
The second thing Congress gets to do is to decide between state legislatures vs state conventions as the ratifiers. Congress could certainly claim that this means that it gets to call these state conventions as well, and thus determine their composition. Any potential objections from SCOTUS on this point could be dealt with by the law that issues the call providing that no question arising under this law falls within the jurisdiction of any court.
Of course this is all way too rich for the blood of our Ds, so it is difficult to see them going for it by having blue states suddenly join the red states in calling for a convention. We’re close to 2/3 as it is, so just a few D state leges could easily get this done.
Well, the fact that Congress gets to call the state conventions means that if we let the the national convention be triggered while the Rs have majorities in Congress, we won’t be able to rely on the difference between Ds controlling at least 1/4 and only 1/3 to stop whatever atrocity of a new constitution they want to impose on us. If we are to have a national convention, if we can’t stop it because the Rs are going to get 2/3 of state legislatures, far better to have the both the national and the state conventions called by the current D Congress.
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Howdy G!
Thanks for the informative comment. One little quibble, though. The article says that upon “on the Application of two thirds of the Legislatures of the several States, [Congress] shall call a Convention for proposing amendments.” The use of the term shall means mandatory. It is not optional.
Otherwise, I’m not sure where you get the idea that Congress gets to (a) set the terms for the convention or (b) determine how the states will organize the state conventions.
The 21st amendment, repealing prohibition, is the only one ratified by state convention. States created a process for ratifying it. Some states created a general process that could be used at anytime, others created an ad hoc process applicable only to the 21st amendment.
As far as I can tell, if we go the national convention route, the amendments are proposed at the convention. There is no discussion of how such a convention will be organized or convened. Since it’s never been done before, no one really knows. I doubt Congress gets to have much of a say in its organization, though. I guess, they could pass legislation concerning the matter and it could be litigated in the courts.
The resolution calling for a convention by the group, Citizens for Self-Governance, has done so to propose amendments limiting federal spending. It has been passed by nineteen states. Should it reach the 34 state threshold, however, it is possible that any amendment could be proposed.
Once the convention proposes an amendment, though, Congress will determine whether it is ratified by state legislators or state conventions. It must be ratified as written. The states cannot make changes to it.
I think the real fear here is that there is a well-organized well-funded group of conservatives out to end our democracy and that they could easily take control of any national convention once called.
There is no safety in the state convention ratification process. States could easily pass legislation to organize state conventions that would include a biased set of delegates. Again, this could get litigated in the courts, but it creates an avenue for radical change to the Constitution.
I would love to have a look at your sources for the control that Congress might have over a national convention and state conventions. I think controlling this process is one of the reasons that the Republicans have pursued dominating state legislatures for the past thirty years. That and gerrymandering.
Huzzah!
Jack
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It is true that 2/3 of the states can only require a national convention to propose the amendments, while 2/3 of Congress has two options, write the amendments itself, or call a national convention to propose them. Sure, that makes five ways to amend the document, not four as I stated originally.
I don’t see any way to interpret the language that says Congress calls the national convention to mean that it has to cede control to any other body over the terms of who the delegates are or how they decide on their proposed amendments. It’s not as if there is any precedent the folks who wrote and approved the Constitution could be imagined to have meant by saying that Congress calls the convention. If anything, the example of the convention that produced the Constitution, to which state legislatures sent delegates, but was not called or had its parameters set by any organ of the US govt, would argue that having Congress call the convention means that the states are to be denied selection of delegates or setting of procedure for the national convention. What the Constitution provides is that 2/3 of the states can demand that Congress call the national convention, but that it is called into being by Congress. The US govt cannot now be bypassed in amending the form of our govt, as it was in 1787. States can start the process, but the process then takes place as set up by Congress.
It is not so clear that the state conventions can have their parameters set by Congress, should Congress choose state conventions for the approval step, instead of state legislatures, but it does follow logically. If the intent was not to give Congress power to set their parameters as well as those of the national convention, why let Congress have the choice to make it state conventions and not state legislatures? Is there any reason for leaving Congress that choice other than to give it the power to bypass state legislatures? Does it make sense to imagine that state legislatures can be passed over for the approval step in favor of conventions, but then these same legislatures are given the power to frame their state conventions as they will? Why not just proclaim themselves the state convention, if Congress is not to be allowed to prevent that by setting some other means of choosing delegates? What limitations on state legislatures setting up their conventions do you propose as obviously required, if we are to interpret the intent here as giving state legislatures the power to call their conventions according to their discretion, limited only by whatever specifics you propose?
The simplest answer, the only answer that is workable, is that Congress sets the parameters for the state conventions as well as the national convention. If Congress wants to let the current power structure in the states have any input, allow them to have any idiosyncratic features, fine, that’s Congress’s decision. It’s also a possible decision to cut state govts entirely out of the picture, and given the composition of so many state govts, that seems the only prudent choice. The bottom line is that the way it is set up, the states should only exercise their authority to demand a national convention if they trust Congress to implement it reasonably in accordance with their desired outcomes, because after Congress meets the demand for a national convention, the process is entirely in the hands of that body.
As to what the courts might do to intervene at any point in this, God knows. it’s none of their business anyway, as they are not set up as a constitutional court, and are given no role in the amendment process. SCOTUS has evolved anyway into an ennearchy that can do just about anything it wants and be obeyed, so, sure they could write the rules if they wanted to and probably get away with it. But they would have to invent these rules they come up with entirely out of whole cloth, because there is no strike zone defined for any of these questions, in the Constitution, in statutes, or in the common law. I have no sources to cite for these questions either, because there are no sources. We will all just have to go with common sense, which is the only source I can cite for what I argue above. What could go wrong with relying on common sense?
Besides common sense, we will have to rely on a willingness of the people who have that common sense, plus common decency, to exert their just powers. Congress is given the power, and thus the duty, to limit the jurisdiction of the courts. Any statute passed to call any of these conventions should of course have a provision to deny jurisdiction over these matters to the courts, which we know are currently controlled by R political hacks. Fat chance getting Ds to do that, but there we are, if it comes to calling conventions, that’s what the situation would require, because the current SCOTUS majority can’t even be trusted to call balls and strikes honestly in a legally well-defined situation, and God help us if we let them decide something like this where there is no strike zone to enforce even if they did posses common sense and common decency.
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Howdy G!
Wow, you’ve really got some strong opinions about this matter, but you should really do some reading on it. For example, the Founding Fathers wrote extensively about their approach to government and there intentions for the Constitution. Many of these opinions can be found in the Federal Papers. I don’t know that the answers to the questions you answer are in there, but many answers are.
No one knows how a national convention would be organized because no one has done it. Sure, Congress could try to set the parameters but should the people at the convention ignore those parameters or challenge them in court, we don’t know what would happen.
As far as the state conventions go, setting common sense aside, we have had one amendment pass with that method, so there is precedence. The states were allowed to organize their conventions as they saw fit. Some passed general laws that addressed organizing state constitutional conventions whenever it would be called for and some, only for that specific event. New Mexico passed a resolution naming the state legislators as the delegates. The Supreme Court has ruled that a state referendum cannot take the place of a state convention.
There is a fair amount on reliable scholarly websites that address these issues. I’ve read them. The consensus is as I’ve stated. A national convention to amend the Constitution runs the risk of allowing any amendment to be written and passed. It is a risky proposition no matter which political party controls Congress because it has never been done before.
Huzzah!
Jack
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The factor in calling these conventions, national or state, that determines what they will do is their composition, who gets to attend and vote. If the composition of the national convention was meant to be left to state govts, the 2/3 of the states would have been given the power to call the national convention themselves. They would have to set out in their demand how this convention is to be composed. If the state conventions were meant to be called by state legislatures, and thus have their composition determined by those bodies, why would Congress be given a choice between state legislatures and state conventions as the ratifying bodies?
I certainly agree that the national convention route to amendment creates great risks, including the one you cite that its scope could probably not be limited, by the demand from the states, or Congress’s call. In fact, I am adding to the list of potential dangers by pointing out the immense power that a simple majority in Congress has by virtue of calling national and state conventions. An R majority in both chambers could respond to the demand for a national convention by choosing a composition of both national and then state conventions that would insure passage of any amendments that majority wanted.
I pointed out that the Ds aren’t going to go for that sort of power grab with their current majority in both chambers of Congress. That sort of constitutional hardball just isn’t in us. That, and we couldn’t hold a majority for that sort of thing anyway even if most of the members of the D caucuses were game for it. My point is that the Rs seem plenty game for that sort of thing. Let them get to their 2/3 of the states demand for a convention while Rs control Congress, and it’s game over. We won’t be able to use the requirement to get 3/4 of states to ratify as a backstop, because this R Congress would choose state conventions as the ratifiers, and they would pack them shamelessly with whatever stooges they need to approve anything.
As for what legal precedents might surround the 21st’s ratification by state conventions, those are just obiter dicta. The courts can’t enjoin legislatures or conventions to do anything. It’s like the idea that Texas v White supposedly ruled that secession was unconstitutional. That said, if Congress chose to leave the composition of the ratifying conventions up to each state in that one case of the 21st, that hardly prejudices its authority to choose differently the next time a different Congress might decide to call state conventions instead of legislatures as the ratifiers. I am sure all sorts of legal scholars have made pronouncements on these issues, but those would be obiter dicta squared, ideas issued by folks who aren’t even judges deciding a case. Please give me any such citations you might have of such obiter dicta, judicial or pure kibbitzing, because of course any reasonable person will listen to an argument to judge its soundness. It is, however, clear that there is nothing close to settled law covering such matters. We can all issue our own obiter dicta, all of which stand or fall solely on the soundness of what is said, and not on any authority of the speaker holding a judgeship or academic position
As to consulting the Federalist Papers, please cite anything relevant you may have read. I suspect there isn’t much there at all relevant, because that set of essays, however head and shoulders it is above most journalism, is basically a sales job. I think it does an excellent job of arguing fairly for the Constitution where the authors choose to argue, but they tend very strongly to not bring up the weak sides, necessary ambiguities, and structural flaws of a plan of govt that they are trying to sell.
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Howdy G!
I leave any desire for research on the matter up to you. It is but an Internet search away.
Let me know what you find out, if you would.
Huzzah!
Jack
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Hmm, this gives me pause, considering that Project Do Better has been looking to call for a Constitutional Convention in about 60 to 65 years, by Phase IV. That plan proposal was based on the idea that the culture of this country will have changed sufficiently by that time to make a con-con reasonable. But if things continue as they stand currently for the next 50 years, then a con-con would be a disaster.
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Howdy Inspired!
My apologies for the late reply. Your comment got buried in the spam file. Luckily, I check the file before deleting it.
That is some long-term planning if there’s an organization dedicated to doing something very difficult in 60 to 65 years when most of its members won’t be a live.
The one thing the Nazis among us have shown us is that our Constitution has weaknesses and needs either amending or revising, proving once again that every silver lining has a dark center. Unfortunately, in our current climate, we’ll be lucky if the planet is still inhabitable in 60 years and that we still have a functioning democracy.
Huzzah!
Jack
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Reblogged this on cabbagesandkings524 and commented:
Calico Jack – The people who want to rewrite the Constitution
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One thing Article 5 does not do is set the rules of representation (how many votes each state gets) or procedures in such a convention, or the process by which those would be determined. If the convention were to be called for starting with the states, I’m sure there would be model legislation from the Heritage Foundation or ALEC that standardized all that (probably already written), there could be fights about the details. And, the Red States wouldn’t be the only ones at the Convention. Still, the whole scheme is reason enough to Vote Straight Blue (as if we needed one more).
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Howdy Bob!
We don’t need to risk opening up the Constitution to such rabid maniacs who would like nothing better than to codify their theocracy in our foundational legal document. You can’t trust them not to try and rat fuck the process.
And, you know that ALEC or someone has the amendments already written. They are working out what will serve corporations best. They’ll have to deal with the crazies that get elected, but they won’t ever unite enough to advance their measures. Even if they did, as long as they don’t interfere with corporate profits, they won’t care.
Huzzah!
Jack
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When I think about the GOP coalition, I usually see this:
1 – Libertarian Anarcho Capitalists who want minimal taxes, little or no regulation of their business, and police protection from their slaves. They provide the money.
2 – White Nationalist Christians who want an all white world. They provide the militias and cannon fodder.
3 – Dominionist Theocrats, the White Taliban/ISIS homophobic misogynists who are more willing to tolerate POC
4 – Old Guard Republicans who want to take their party back from the crazies and get back to business as usual (an endangered species).
They all manage to get along after a fashion as the party of opposition. Given real control, they tend to splinter. Look at what the TEAParty did to poor old John Boehner. In a way, it may be that the GOP has been the part of opposition too long for its own good and has not had to have actual solutions to actual problems.
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Howdy Bob!
Part of the problem is that their leadership, such as it is, aren’t vision or governance oriented. They are all strategy. Okay, McConnell is strategy. Trump, MTG, Boebert, RoJo, Hawley, Cotton, et al. are all show and sound bites. McConnell’s guiding philosophy is to keep the donors and saps happy. Trump et al’s is to grift.
If government can’t do anything effectively — as Reagan told us — but you can’t get rid of it, then the only thing left to do is to render it useless by giving it to people who won’t use it to govern, but to enrich themselves.
I listened to Chris Hayes’ podcast, “Why is This Happening,” and he reran his interview of Elie Mystal who noted that after Obama, the first thing the right did as soon as they could was gut voting rights to prevent Black people from voting.
Huzzah!
Jack
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They claimed that government can’t work and then set about to prove it.
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To justify limiting it and turning over controls to states or no control. States are code for white supremacy. Essentially, we are seeing the legislative and governing agenda of the Confederacy being enacted 150 years after losing the Civil War.
Jack
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With the landed aristocracy of the planters replaced by the Koch brothers and their ilk.
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My biggest fear is that the super wealthy hundred billionaires are too wealthy to be influenced, controlled, or stopped. The amount of money they have to throw at a problem or issue can easily overwhelm it. And there are always those of lose morals who will sell out and do their bidding.
Jack
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The applicable metaphor may be, “Set a thief to catch a thief,” which is why they hate George Soros and Bill Gates, always including them in their conspiracy claims. We need more “woke” billionaires.
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How to woke a billionaire?
Could be the title to a rom-com.
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Maybe the writers of “9 To 5” would take it on?
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