September 22, 2022
The Constitution is in Jeopardy
ACS President
For months now, ACS has been talking about democracy’s moment of truth. This moment of truth is the result of January 6th, the damage being wrought by our packed Supreme Court and by federal judges willing to flaunt the rule of law, and the growing threat of election subversion.
This moment of truth also encompasses another, potentially graver threat to our democracy that in comparison to those previously mentioned has flown under the radar. Factions of the Right are looking to engage in sweeping constitutional redrafting by convening what is known as an Article V Convention. If those behind this effort have their way, we could reach a day when we no longer recognize our federal government or our founding document.
Article V of the Constitution sets out two methods for amendment. All 27 amendments to the Constitution have been achieved through only one of those mechanism, namely by having 2/3rds of both chambers of Congress propose an amendment that is then ratified by 3/4 of state legislatures.
The other method is to have 2/3rds of all state legislatures apply for an Article V Convention and then to have 3/4ths of the states ratify any amendments proposed by the Convention. Not only has this method never been utilized, however, it’s completely unclear how an Article V Convention would even work in practice. The Constitution says nothing about the rules for such a Convention, nothing about how delegates would be selected, and nothing about how amendments would be agreed to. Amidst this gaping uncertainty, factions of the Right see opportunity to control the process of constitutional amendment.
The fact that our Constitution can be amended is one of its defining features. Our founding fathers expected the Constitution to be amended, even seeing amendment as key to the Constitution’s longevity in contrast to the Articles of Confederation. George Washington, who presided over the original Constitutional Convention, famously remarked that the Constitution was not “free from imperfections.” He nonetheless encouraged states to ratify the document, pointing to Article V and the opportunity it presented for those imperfections to be corrected and the Constitution amended as needed.
Our Constitution to this day suffers from founding failures and has contributed to inequity across this country. We should have a national dialogue in this country about how Constitutional amendment could address some of these founding failures and continued inequities. However, such a conversation must be transparent and inclusive. And that is exactly what the far Right’s effort is not. The far Right has no interest in inclusivity or transparency, quite the opposite. They want to control the process, including who participates – and who does not.
Those behind this effort want to advance radical alternative theories for American governance. They want to disassemble the federal government and replace it with a minimalist one that can do little to provide for national welfare or defense. A convention could also be an opportunity for the Right to win certain culture wars by banning abortion or enshrining extremist interpretations of the 2nd Amendment. It is not hyperbole to say the changes sought could be lethal to American democracy should the far Right get the convention they are hoping for.
Just like the Right spent decades prioritizing the federal courts in order to eventually succeed in packing the Supreme Court. The far Right is willing to play the long game with a constitutional convention. They already have been working on this for years, have held mock conventions, and have spent years lobbying state legislatures to apply for a convention. This is why we need to sound the alarm! Because we are already behind the curve.
ACS has been and will continue to speak out about the inherent dangers in holding a constitutional convention and about our grave concerns about this particular effort by factions of the Right. We are living through democracy’s moment of truth, and it will take our collective engagement and activism to ensure democracy lives through it.
I am on the road more and more now and am grateful for the opportunity to connect with our chapters in person and away from Zoom. Each time I visit with one of our chapters, I come away inspired by the work being done and the commitment to the progressive legal movement. Whether it is sounding the alarm on Article V, unveiling the fiction of originalism, or engaging on truth, racial healing, and transformation, our chapters are having enormous impact on their campuses and in our communities. Our chapters make ACS uniquely positioned to raise the collective alarm about threats to our democracy, and I look forward to meeting with many more of our chapters in the weeks and months ahead.
For more information about Article V and this dangerous pursuit by the far Right, listen to this week’s Broken Law podcast episode, which features an interview with me and my co-author Peter Prindiville, about our new book “The Constitution in Jeopardy.” You can also read my op-ed in The Guardian that further discusses this effort by the far Right. And check out our Article V webpage for news on upcoming events related to this topic, including my upcoming programs with ACS chapters.