The Constitutional Convention itself was called in 1787 to revise the Articles of Confederation, but it eventually led to the drafting of an entirely new Constitution. The convention delegates crafted a new framework for the United States, which was subsequently ratified by the states. Rewriting the document would take another constitutional convention which could either be called by both chambers of Congress voting with two-thirds majorities or by a request of two-thirds of the state legislatures. The new document that comes out of the convention could be ratified by two thirds of each chamber of Congress or by three-fourths of the state legislatures (38 of them). So, given the state of partisan division in the country… not likely to happen in our lifetimes.
In 1861 there was a Conference on Amendments (or Peace Conference) in response to the secession crisis leading up to the Civil War. It never got much traction and didn’t lead to a convention, just to a meeting of 131 politicians (from the states that hadn’t already seceded) at the Willard Hotel in February. Seven slave states that hadn’t seceded— Delaware, Kentucky, Maryland, Missouri, North Carolina Tennessee, and Virginia— did send delegates. It was a dismal failure and didn’t do anything to slow down secession and Civil War.
Today, both progressives and conservatives— for very different reasons— would like to rewrite the constitution. Progressives note that a document written over two centuries ago doesn’t adequately address current— even urgent and existential— societal challenges like climate change, digital privacy, income inequality, gun control, social justice... There’s an obvious need— neglected in the first go-round— for strengthening protections for women, racial minorities, LGBTQ individuals, immigrants and other historically marginalized communities… not to mention democracy itself. There’s an obvious need to address campaign finance reform to reduce the influence of money in politics as well as promoting fair and accessible elections. Conservatives, on the other hand, have very different priorities: limited government intervention that promotes their own diseased vision of so called “individual liberty,” though probably not the individual liberty to own slaves... but that kind of thing.
Progressives understand that the process of rewriting the Constitution could easily lead to unintended and catastrophic consequences, potentially undermining individual rights or the balance of powers. When I was growing up there were movements and calls for constitutional conventions to address a range of issues, including civil rights, voting rights, a balanced budget, term limits and campaign finance reform. Some states, including California and Ohio, passed resolutions in support of a constitutional convention, but none ever reached the required threshold of two-thirds of states to be called.
On Friday, The Nation published a warning from former Senator Russ Feingold. “This August,” he wrote, “a far-right group is convening its third-known practice session on how to rewrite the Constitution to advance partisan goals. The organization, Convention of States, is not only rehearsing how to amend the Constitution; it is also promoting a highly undemocratic method of doing so. If Convention of States gets its way, our country will be thrown into a constitutional crisis with no guarantee that our democracy survives… Article V sets out two methods for amendment… On its website, Convention of States includes a video that claims to explain how Article V works. The video is patently wrong in several regards, most worryingly in its claim that at a convention, each state would get one vote. There is a reason Convention of States is planning for and promoting this highly unrepresentative, undemocratic method of amendment: It would enable a minority of Americans to amend our Constitution. Specifically, a white minority. A ‘one state, one vote’ process would give Wyoming’s overwhelmingly white population of 576,000 the same voting power as California’s diverse 39.5 million people. North Dakota’s overwhelmingly white population of 779,000 would have the same voting power as New York’s diverse 19.7 million people. This disproportionate power structure is alarming in the US Senate; it would be even more alarming as the structure by which the US Constitution is amended. And yet, the Constitution does not require that an Article V convention be representative. It does not require that democratic procedures be used to ensure inclusive consultation and genuine majority decisions. This ambiguity would certainly allow for a representative, democratic process, but it also would allow for an undemocratic “one state, one vote” procedure. It is in this ambiguity that Convention of States sees opportunity, and why more people need to be paying attention to this run at our Constitution.”
Keep in mind, "this ambiguity" has plagued the U.S. even before the Revolutionary War began— and was part of the lead up to the Civil War! Had Virginia, then the biggest colony, not agreed to compromise with tiny New Hampshire at the first Continental Congress (1774), the history of the country might have unfolded in a very different way. In his new book, Disunion Among Ourselves, Eli Merritt wrote that "The central question was: How would they represent the people of their respective colonies on the sensitive, potentially historic resolutions advanced on the floor of Congress? Would it be by colony, one-colony-one-vote, a formula favoring small colonies like New Hampshire and Delaware, or by population or wealth, tilting the power scale by a factor of three or four times to large colonies like Virginia, Massachusetts, and Pennsylvania?... The thrust of [Patrick Henry's] argument was that a representative Congress must be one of the people, counted proportionally, not by colony. He therefore vehemently opposed the rule of one-colony-one-vote. Each individual— by which he meant each white male of standing, owning a defined minimal amount of property— must be given equal voice. This was a self-evident truth of the reigning white male republicanism of the day. If not, the first American Congress, of many to come, Henry projected, would itself be rightly judged as trampling on the sacred principle of the equality of the people. 'A precedent ought to be established now,' he pressed, 'that it would be great injustice if a little colony should have the same weight in the councils of America as a great one.'"
Advance 250 year years, back to Russ Feingold's serious warning:
On its website, Convention of States asks, “Why call an Article V Convention?” and answers by stating, “Simple: to bring power back to the states and the people, where it belongs.” A “one state, one vote” procedure would not bring power back to the people, however, at least not all the people. It would perpetuate the political dominance of white people, who make up a declining percentage of this country’s population.
Convention of States further misinforms the public by claiming that delegates to a convention would be selected by state legislatures. There is nothing in Article V that specifies how delegates would be chosen or how amendments would get proposed. But again, in the absence of a nationwide conversation about constitutional amendment, Convention of States sees opportunity to advance its desired undemocratic plan without organized opposition or pushback.
…At the group’s last mock convention, held in 2016, also in Williamsburg, Va., “delegates” passed an amendment to drastically curtail Congress’s lawmaking authority and executive agencies’ rule-making authority. Such an amendment could and likely would, for example, cripple the ability of agencies like the Environmental Protection Agency to combat climate change or the Centers for Disease Control to respond to a pandemic. Additionally, “delegates” passed an amendment to enable state legislatures to nullify federal laws and regulations, which would turn our federal system on its head. This is their goal, to minimize the federal government and empower states in a way that will preserve white dominance in this country.
One more area where Convention of States gets Article V wrong: The Constitution does not specify that a constitutional convention can be restricted to specific topics. So, even if a constitutional convention were convened with a single and specific amendment in mind, once convened, delegates could pursue any array of amendments they desired. Convention of States can state that its objective is for a constitutional convention to be convened to “limit the power and jurisdiction of the federal government, impose fiscal restraints, and place term limits on federal officials.” Not only are the first two of these extremely broad, but it is naive to believe that a convention, once called, could be restricted to only these topics.
There can be genuine policy debates about the role of government, and there should be a conversation in this country about constitutional amendment to address the founding failures of our founding document. But a genuine policy debate and any discussion about amending our constitution needs to be inclusive, transparent, and democratic. What Convention of States is doing is none of these things.
Convention of States is doing more than holding mock simulations. It is lobbying inside state capitols for state legislatures to apply for a constitutional convention. And here is perhaps the scariest part of all this: The Constitution does not give Congress discretion on whether to call a convention. Article V is clear in this respect. It states that Congress “shall” call a convention if two-thirds of state legislatures apply for one. To stop the right’s sought-after capture of our Constitution, it must be stopped at the state level.
There are already proposals in Congress regarding an Article V convention. While the accuracy of the state count in these proposals and by Convention of States is dubious, the mere existence of these proposals is deeply concerning. On an encouraging front, Oregon recently withdrew its application for a constitutional convention. More states should consider doing the same.
In sum, Convention of States is charting a course for a constitutional crisis, and too few people are paying attention. This threatens all of us, and we need to be collectively engaged in sounding the alarm. If we wait until Congress is compelled to call a convention, it’ll be too late.