Monday, May 18, 2015


Article V defines two significantly different ways to amend the Constitution.  One way—and the only way which America has used in about 225 years—is for Congress to draft, debate, and pass (or not) amendments and to send those passed to the states for ratification.  The practice has been to address one amendment at a time.  The other way—one not used thus far—is for two-thirds of all state legislatures to call a convention “for proposing Amendments,” whatever they may be.  That is, states can call for a constitutional convention without having agreed on an agenda of possible changes to the Constitution or without having agreed upon or drafted even one proposed amendment.

The second way, the one never used, presents a problem in a country divided in fundamental ways.  The problem is that a constitutional convention can do whatever it chooses to do, whatever the real or declared intentions of the convening states.  And it would have historical precedent for doing whatever it chooses to do.  For the first one convened for the avowed purpose merely to amend the Articles of the Confederation and concluded that the country required an entirely new compact among the states—thus, the Constitution and, within a few years, the Bill of Rights, its first ten amendments.

Despite differences on some important issues, not least of which was slavery, the drafters shared a common culture and a common history in the American Revolution.  Today, many politicians seem to have nothing in common, not even an agreement on the importance of factuality and rationality in matters of policy; not a commitment to personal decency, integrity, and responsibility in political discourse and official conduct; and no understanding or acceptance of the traditional political “rules of the road”: moderation, negotiations, and compromise.  The dangers of a constitutional convention are a great threat to democratic government as Americans have known it for two-and-a-quarter centuries, yet a second constitutional convention seems likely.

In 2015, Republicans control both legislative chambers in thirty states.  Although the Nebraska legislature is unicameral and non-partisan, it is conservative and sympathizes with most Republican positions.  Depending on one’s idea of balance, two states are within a few elected officials in one or both chambers of becoming a Republican-controlled legislature.  The total of state legislatures controlled or nearly controlled by Republicans is 33 states.

For the past several years, as some media have noted, Republicans have invested heavily in influencing state, country, and even city elections.  Although some media sniff that such nationwide political involvement is unseemly, other media find it alarming.  Yet Democrats, who rouse themselves only for quadrennial contests led by the campaign for the presidency, have not considered the possibility that Republicans might have a long-range strategy to win enough legislatures—34 is the threshold number—to call for a second constitutional convention.

One major question is what Congressional vote does Article V require for approval of such a state-initiated call for a convention.  On its more obvious interpretation, approval requires only a simply majority, not a two-thirds, vote.  In which case, today's republican-controlled Congressits very large majority in the House and its large majority in the Senatecould easily, and would likely, approve such a call for a constitutional convention.

In these acrimonious and partisan times, what would a second constitutional convention undertake to do?  If the examples of recent legislative actions in states with governments controlled by Republicans—that is, with both Republican governors and Republican legislatures—the likelihood is enact a combination of political, economic, and religious provisions consistent with current Republican positions.  The basis of them would be a revised Preamble which would omit establishing justice and promoting the general welfare, and limit the functions of government to defending the country, ensuring domestic order (not “tranquility”), and promoting the economy.  I itemize a few specific items consistent with these narrow purposes; the list of possibilities is far more numerous.

First, Republicans would restrict the franchise in ways hindering or denying voting by the poor, minorities, seniors, and students.  Restrictions might include fees, some measure of income or property, or some degree of education.   They would limit individual freedoms and rights in the Bill of Rights, and limit or eliminate other amendments, including the 13th, 14th, 15th, 16th, 17th, 19th, 24th, and 26th.  They would limit political expression—for example, no flag-burning—and political action.  They would make the judiciary branch subservient to the legislative branch, in particular, the Supreme Court to Congress.

Second, Republicans would change the tax code to make it more regressive (disproportionately taxing lower incomes than higher incomes), would restrict or eliminate economic associations like unions, would eliminate tax exemptions for social activist organizations, would eliminate some departments (e.g., Education), would reduce the powers or eliminate regulatory agencies (e.g., EPA, OSHA), would reduce support to social service programs (Social Security, Medicare, Medicaid, Affordable Care Act), would reduce support for public institutions and infrastructures (schools, national parks and monuments, transportation), would increase police and posse comitatus powers, would greatly enlarge the military-industrial complex, and would more closely coordinate police, military, and intelligence agencies to serve federal, state, and local governments.

Third, Republicans would define America as a “Christian nation,” would ensure an unrestricted religious conscience/expression exemption to civil law, would elevate property rights over civil rights, would provide tax benefits to religious institutions (churches and schools), would outlaw abortion and possibly (some forms of) contraceptive medications or devices and (all forms of) abortifacients, and would define marriage as heterosexual (one man, one woman—no backsliding into polygamy, Utah!).

I have addressed only some of the positions which Republicans would be inclined to establish as Constitutional provisions.  The 10th amendment would be the basis for the resurrection of moribund doctrines of state interposition or nullification.  I suspect that the American Legislative Exchange Council (ALEC) is preparing, if it has not already prepared, both a draft call for a second constitutional convention and a draft for that convention to consider and approve.  Ratification would require only four additional states to those calling for the convention.

You may wish to support such changes in the country, its form of government, and the Constitution of the United States.  If so, you will support Republican candidates at all levels of government as they work to launch a constitutional coup against America’s democratic constitutionalism.  Your politics will find support from the unrestricted “freedom of speech” (money talks, right?) largess of today’s generation of robber barons.  In turn, you will support business efforts to control government and subvert government to promote business interests, with sops thrown to religious fundamentalists.

Unrestricted money and sophisticated technology make even local politics national.  In the recent recall election funded by Koch brother money and in repeated robo-calling by Congressman Steve Pearce in support of county land and water commissioners, Las Cruces has already experienced the influx of outside agents and outside money to subvert local decision-making processes through the exercise of top-down Republican power.

More will follow, and not only in an out-of-the-way small town in southern New Mexico.  You may want to continue to live under America’s democratic—neither liberal nor conservative—constitutional government—not under a constitutionally conservative regime which centralizes and concentrates political, economic, and religious power.  If so, you had better prepare yourself now.  Oppose with all possible vigor any effort to convene a constitutional convention.  Pay attention to state and local as well as federal elections.  Prepare to ignore or protest incessant, dishonest, and smearing campaign commercials.  Be on guard against the ugly political commercials from unknown sources and funders which flood the media at the last minute and pander to fear and hatred.  Finally, vote for candidates of either party who represent your real interests and your hopes that they will work with their colleagues for our better future.

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