A far-right movement to 'rewrite the Constitution' has 'immense potential for lasting harm': historian

12 September 2022

Altering the U.S. Constitution in any way is always an uphill climb. For many years, liberal and progressive critics of the Electoral College have been calling for it to be abolished — only to be reminded by other liberals and progressives that doing so would mean changing the Constitution.

Meanwhile, on the far right, some MAGA Republicans have been calling for a full-fledged constitutional convention. That idea is by no means universally loved among conservatives. But in an article published by The Bulwark on September 12, author James M. Banner Jr. emphasizes that such a convention is not outside the realm of possibility if enough GOP-dominated state legislatures sign on.

“Radical conservative activists are working with Republican state legislators to trigger an extraordinary special convention to rewrite the Constitution of the United States,” Banner warns. “The possibility of it actually happening is real enough that everyone needs to pay attention — fast.”

Banner notes that outspoken opponents of such a convention can be found on both the left and the right.

“In a sense, this is old news,” Banner observes. “According to a New York Times article published over the Labor Day weekend, ‘Elements on the right have, for years, been waging a quiet but concerted campaign’ to force an amendatory convention. Likewise, organizations in the political center and on the moderate left — including Common Cause, the League of Women Voters, the Sierra Club, and the AFL-CIO — have long followed the progress of the scheme and tried to alert the public to its grave dangers. So have authoritative voices from both sides of the ideological spectrum, including late Supreme Court justices Arthur Goldberg, Warren Burger, and Antonin Scalia and such prominent constitutional law scholars as Laurence Tribe and Walter Olson.”

Banner adds, “Even a few unimpeachably conservative groups have published criticisms of the idea, as the Heritage Foundation did in a 2011 blog post noting ‘the lack of precedent, extensive unknowns, and considerable risks’ of such a convention.”

The author points out that an “aim” of Convention of States Action and other proponents of a constitutional convention is to “organize state legislatures…. under Article V of the Constitution.” Article V, Banner writes, “authorizes two-thirds of the state legislatures — that’s 34 today — to summon a convention to propose amendments to the nation’s fundamental law.”

“As with amendments proposed the traditional way, three-quarters of the states — 38 today — would then have to ratify the proposed alterations in order for them to become part of the Constitution,” Banner explains. “Amendments can be proposed piecemeal and accepted or rejected by the states in such a manner that few or none may end up being adopted. But the greatest danger is that there’s nothing in Article V that prevents an amendatory convention from following the example of the 1787 convention in Philadelphia, which became a runaway convention by simply assuming its freedom to propose a substitute for the very frame of government, the Articles of Confederation, under which it convened. Can we imagine anything as authoritative, carefully considered, and acceptable to the people of 38 states emerging from a runaway convention today?”

Banner warns that the “push for an Article V convention” has “immense potential for lasting harm.”

“A convention might be railroaded by one side,” according to Banner. “Depending on the method settled on for representation, it’s possible that the gathering could be so dominated by one party that the rules might be rigged — or, even if not rigged, open to charges of being rigged, as we’re no strangers to accusations of ‘fake news’ and ‘alternate truths’ — so that its legitimacy would be compromised from the start…. Everyone should be frightened to the core about the damage that even the run-up to such a convention would do to the body politic.”

Banner continues, “Any who write off the possibility or fail to take its proponents seriously assume responsibility for the disaster that’s likely to ensue should the proponents of an Article V convention succeed in setting one in motion. If that happens, the extraordinary American experiment in the self-government of an open society that has endured for over 230 years will be in never-before-experienced peril.”

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