Ruling the US supreme court isn’t enough. The right wants to amend the constitution
In a recent primetime address, President Joe Biden spoke about “the soul of the nation” – calling out rightwing forces for their numerous efforts to undermine, if not overthrow, our democracy. Biden’s speech was prescient, in more ways than one. In addition to many Republicans promoting the “big lie” that the 2020 election was stolen and working to fill elected offices with people ready to subvert the will of the people, there is a conservative movement underway to radically rewrite the US constitution.
The right has already packed the supreme court and is reaping the rewards, with decisions from Dobbs to Bruen that radically reinterpret the constitution in defiance of precedent and sound legal reasoning. But factions of the right are not satisfied to wait for the court to reinterpret the constitution. Instead, they have set their sights on literally rewriting our foundational document.
Why bother with constitutional interpretation when you can change the actual text? This strategy by factions of the right could carry far graver consequences for our country and our democracy than even the right’s packing of the court or the Capitol attack on January 6.
Our founding fathers did not see the constitution as written in stone; they expected it to be revised and believed that revisions could help the document endure. As such, they included in Article V of the constitution two different mechanisms through which to amend the text.
All 27 amendments to the constitution have been achieved through only one of those mechanisms: by having two-thirds of both chambers of Congress propose an amendment to the constitution and then having that amendment ratified by three-quarters of state legislatures.
There is a second mechanism, however. The second option is to have twothirds of all state legislatures (34 states or more) apply for a constitutional convention and then to have threequarters of all state legislatures or state ratifying conventions ratify any amendments proposed by the convention.
To be clear, a constitutional convention under Article V has never before been held. Moreover, the constitution provides no rules on how a constitutional convention would actually be run in practice. There is nothing in the constitution about how delegates would be selected, how they would be apportioned, or how amendments would be proposed or agreed to by delegates. And there is little useful historical precedent that lends insight to these important questions. This means that nearly any amendment could be proposed at such a convention, giving delegates enormous power to engage in political and constitutional redrafting.
A convention would be a watershed moment in American history. And this is exactly what factions of the right are banking on. Rather than a deterrent, they see the constitution’s lack of clarity on how a convention should be run as an opportunity to pursue new theories of constitutional power and change.
The Convention of States Project, the American Legislative Exchange Council (Alec) and other rightwing organizations have spent more than a decade working to persuade state legislators to pass applications for an Article V convention. This effort has recently attracted a who’s-who roster of far-right supporters, including the Trumpist attorneys John Eastman and Jenna Ellis, and financial support from conservative megadonors.
As legislatures continue to trend conservative in many states, due in no small part to partisan and racial gerrymandering, factions of the right see an increasingly viable and potentially imminent path to securing the 34 applications necessary to call a convention. In recent months, some congresspeople have even claimed that the constitutional threshold has been satisfied and that Congress must call a convention. While their counting is dubious, the momentum that they could nonetheless achieve is deeply worrying.
Those involved in this effort have made their radical aims quite clear: to disassemble modern government and the century-old New Deal consensus, returning the country to the troubling, splintered times when the federal government could do little to provide for national welfare or defense.
A convention would also be an opportunity for the right to try to ban abortion in this country, to further whittle down voting rights and to enshrine their interpretation of the second amendment. Put simply, the opportunities for radical rewriting could be nearly endless, given the complete lack of restraint that the constitution puts on an Article V convention.
Like recent attempts to overturn the 2020 election using anti-democratic theories, far-right activists are forging ahead into this vast constitutional unknown. They are already holding mock conventions with the aim of controlling the process and the outcome should an actual convention come to pass.
The US constitution is by no means perfect. The inclusion of Article V is evidence that even the framers expected amendments. George Washington famously remarked that the constitution was not “free from imperfections”, but he nonetheless encouraged his fellow citizens to ratify the document because those imperfections could be mended over time.
Constitutional amendment could be a legitimate method for addressing the founding failures of the constitution. That said, any conversation about how to go about amending the constitution needs to be transparent, inclusive and informed. What factions of the right are pursuing is anything but. They are pursuing exclusively partisan outcomes and have sought to keep their efforts opaque. They do not seem interested in a representative, democratic process.
Biden was right. The soul of our nation is under threat. This plan by the far right could send this country into a constitutional crisis, one much more damaging and far-reaching than January 6. Concerned citizens of all ideological stripes should speak out against this radical effort. The far right has benefited from having its efforts conducted mostly under wraps. That must change. A light must be shined on these efforts so they can be stopped and our constitutional democracy preserved.
Russ Feingold served nearly two decades in the United States Senate and is president of the American Constitution Society