By Philip Drucker
If you are like me, and there are several of you who might want to get that checked, among the right wingnut’s daily dosage of madness, misconceptions and flat out flights of fancy concerning a quick fix for what ails us under the US Constitution, you were wondering not if, but when the urgent, one stop shopping, original intent/séance driven necessity for convening an Article V Continental Congress would again make its way back to the #1 spot at the top of the “I don’t really understand it but it sounds so darn good when Mark Levin says it,” clearly quixotic MAGA induced and fueled by hatred and fear of the deep state fantasy du jour hit list of methods of preserving our democracy without actually needing the people to vote.
In simple terms, Article V contains the Constitutional methods for amending the Constitution. In relevant part and with emphasis added,
“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments,”
In addition to the power of Congress to submit and/or approve of constitutional amendments, Article V reserves to the States the power to call a Convention of States to propose and possibly pass amendments separate and independent from the Federal Government.
Currently, it would require 34 states to call for a Continental Congress and for the approval of 38 states to pass any amendment thereby altering the black letter text of the Constitution and who knows, along with it the future of the American body politic. Or lunatic, as the case may be.
Then of course, there is reality. By design, the Founding Fathers intended to make it difficult to amend the Constitution. Only 27 amendments, including the first 10 all at once (Bill of Rights) have come to pass. However, it is once convened that the real trouble starts.
Why? In a nutshell, there are no other constitutional rules of conduct to guide the actions of the delegates from the various states thereby making the whole affair particularly subject to outside influence, most likely in the form of corporate sponsorship demands and the agendas of special interest groups of all shapes and sizes in general.
In fact, due to the lack of any other meaningful ground rules, the convention could set its own agenda and importantly, writes its own rules including changing the ratification process itself. For instance, if 38 States approval is a bridge too far, why not make it a simple majority, as in 26?
Similarly, there is no way to effectively limit the agenda of items that could theoretically be addressed during a Continental Congress. You can offer fake limitations, but there is no way to enforce any pre-existing conditions so to speak upon the delegates once the whistle blows.
That’s right, anything goes no matter how crazy, insane, otherworldly, I’m not saying it was ancient aliens but it was, swamp fever dream induced I hear voices and they are not terribly friendly proposition it may seem to the average sentient human being as nonsensical in the extreme. I repeat, there are no limits on what matters are open for discussion. Nada. Zip. Zilch. None.
This is an area so fraught with peril that even the let’s call him conservative ex-Supreme Court Justice Antonin Scalia, when asked about the possibility of convening a modern-day Convention said;
“I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?”
Whoa! Indeed. Remember, we haven’t even touched upon the subject of how the states will choose their delegates. Or, importantly, what interests of the states’ diverse citizenry, if any, must a delegate represent? All, some, none? The ones they like? I don’t know and neither do “they”, even if “they” say they do. They don’t.
So, from a practical viewpoint, what does this mean? Not to give anyone any ideas (I’m sure this is already in the works), once convened, the States vote to change the ratification process to agreement by ½ or the states or 26, followed by the 26 least populated states voting to ratify the Bible as the law of the land and by further tinkering with the process, relegate the Constitution, including the Bill of Rights, to the status of a set of really good, but hardly necessary to follow suggestions.
Oh, if you go out there into the Internet wasteland, you’ll see groups claiming they already have as many as 28 states, perhaps even 30 on board and ready to call for a Convention. The reality (there’s that pesky word again) is it’s probably safe to assume 16, maybe 18 states would sign on. With that said, could it happen again? The answer is yes, it could.
And now for the question that seems to be on a lot of people’s minds. How likely is it that within the next 30 days Trump would be able to put together enough states to sign up as part of the 36 States required to call the Convention, and then once underway, introduce an amendment or two overturning the results of our last election, or at least the Electoral College results, and while he’s at it, proclaim himself President, Monarch, King, or Dali Lama if he so desires for life? Well, the answer would be not likely, not likely at all.
But, this is where democracy itself gets interesting. Isn’t it true that in a democracy, the people could theoretically vote to abandon democracy? Instead, choosing whatever form of government the majority sees fit? Why yes, it is. The only thing scarier is having the minority choose to ditch our democratic way of life, by way of an abstract, little used and even less understood, purposely vague from the word go amendment process contained in Article V of the Constitution that I’m guessing 2 out of every 3 of you said “What?”
Did I mention there is no specific constitutional directive that any of the results of a Constitutional Convention can be challenged in the Courts? Just thought I’d throw that in. America is a funny place, isn’t it? Why yes, indeed it is.
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