Amending the Constitution - An Article V Convention of States
IT IS DIFFICULT TO AMEND THE CONSTITUTION
That is why we do not think of it as a viable path forward to advance some of our causes. Sure there are some petition drives in blue state America wanting to end corporate personhood or to articulate that only speech is speech, money is not speech, that sort of thing. Not many liberals view the route of pursuing an amendment to the Constitution to advance our interests as a realistic option.
Conservatives do not appear to share our reticence, though, but more on that later. First, let’s take a look at what it would actually take to amend the constitution.
(text swiped from lexisnexis)
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, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
WHAT ARTICLE V MEANS
It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other. ~James Madison, Federalist No. 43
There are two main parts to the process, with multiple possible routes to achieve both. The proposal phase and the ratification phase.
There are 2 avenues to propose an amendment.
- 2/3rds of both the US House and US Senate vote to propose an amendment. -or-
- 2/3rds of States legislative bodies can call for a constitutional convention to propose amendments or to propose to change the constitution as the convention sees fit.
- Each legislative body in each of 34 states must vote to call for a constitutional convention.
- Once this convention is convened, the convention delegates can set their own rules.
- There is no limit placed on the changes an Article V Convention can propose.
There are 2 ways for proposed amendments to clear the ratification phase.
- 3/4ths of the States vote through a State by State convention process.
- Each state legislature determines how delegates to their state convention will be selected. They could just assign members from the legislature or have citizens of their state vote for convention representatives or ask the governor to appoint delegates. -or-
- 3/4ths of the State legislative bodies vote by a simple majority of all members in each legislative body in that state.
The critical component in the entire process turns out to be that the US Congress decides which path the ratification process will take.
Why is that so critical?
If an amendment comes out of one of the proposal processes, the US Congress, through simple majority votes, determine which ratification process will be utilized. The parties that dominate the legislative bodies will establish the representation and rules of any convention established at any level. Republicans have control at every level right now.
We are not under any real threat of them being able to amend the constitution at the US Congressional level. They would need 14 Senate seats and 50 House seats. That is a total of 64 seats to pick up in both the Senate and House. While not impossible, that remains improbable. But conservatives are seriously pursuing this course none-the-less.
Here is the proof.
CONSERVATIVES ARE PURSUING AN ARTICLE V CONVENTION
As noted in the introduction, amending the constitution is difficult. Liberals have largely abandoned the idea as an approach to addressing our concerns in any serious way. Conservatives, on the other hand, are actively pursuing this option.
They are serious about convening an Article V Convention of States. There is much debate whether they can be constrained once called, but the idea is to convene them and have them focus on some of their pet issues. Of course, when a similar convention was convened under the Articles of Confederation an entire new system of government was ushered in to replace the Articles despite the only intent was to grant them a few more powers so they could function. Some academics think the language in Article V constrains them to only proposing amendments, others think they can basically rewrite our entire form of governance much as the founders did in 1787.
The Center on Budget and Policy Priorities has written a detailed post on this issue in the modern context that is well worth the read:
A number of prominent jurists and legal scholars have warned that a constitutional convention could open up the Constitution to radical and harmful changes. For instance, the late Justice Antonin Scalia said in 2014, “I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?” Similarly, former Chief Justice of the United States Warren Burger wrote in 1988:
[T]here is no way to effectively limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the Convention to one amendment or one issue, but there is no way to assure that the Convention would obey. After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda.
When you google Article V US Constitution there are a lot of conservative sources (few if any partisan liberal links found on first few search pages) discussing its use and we need to understand what they are up to:
- ALEC provides a pro forma document for state legislators to propose the calling of an Article 5 Convention. If ALEC is pushing this that means conservative dark money is behind the movement.
- The CBPP article linked above notes that 28 states have already passed resolutions calling for the formation of an Article 5 Convention of the States. It also notes that the 34 states required have actually passed such resolutions already, however, 6 have rescinded their resolutions.
- The Heritage Foundation acknowledges that there is a push for an Article 5 Convention — but they are concerned what the outcome might be. This article was written before republicans controlled so many state legislative bodies, more on that below. Consideration of a Convention to Propose Amendments Under Article V of the U.S. Constitution
- Breitbart is a proponent, calling the ability of the States to call a convention a “little gift”. Article V of the Constitution: An Emergency Solution, Hidden in Plain Sight
- Wisconsin is moving on adding their state to the list already calling for a convention. Senator: Wisconsin will move quickly on Article V resolution
- Wyoming too. Convention of States is necessary for Wyo., U.S.
- And many other states are working on passing new resolutions.
- CNSNews interviewed Reagan Justice Department Chief of Staff and a current radio host who favored a Convention arguing it would not be out of control. Mark Levin: States Should Call Convention to Propose Amending Constitution
It is important for us to understand the breadth and depth of this on the Republican side of the ledger. The article on Levin’s thoughts on this set up the rest of this diary nicely, particularly this part:
“There can be no runaway convention because three-fourths of the states still need to ratify [the amendments a convention proposes],” said Levin. “But we need to make it clear to the people in Washington that we do have a way out. There is a way forward. The states collectively, pressured by we the people, have enormous power.”
He may have been right about that when he said it 2013, but, he is dead wrong now. Although, from his perspective, the way the convention could run out of control would please him, and ought to terrify Democrats.
THE MECHANICS OF ARTICLE V
For simplicity sake, I am going to translate the fractions noted in Article V into the number of states required.
- 34 States = more than 2/3rds of the 50 States
- 38 States = more than 3/4ths of the 50 States
When you just look at the fractions you tend to think “well, it does not seem likely any one party will control all branches of enough states to do any of this, right?”
This is where a serious reality check is called for. First, let me present a few relevant data points:
PARTISAN CONTROL OF ELECTED BODIES IN STATES
- One Party Republican = 32 states
- One Party Democratic = 12 states
- Split = 6
Right now, today, as you read this sentence, the Republican party has single party control of 32 states entire legislative bodies. That is just two states short of being able to call for a Constitutional Convention to propose any constitutional amendment they like, or even propose to replace our constitution. I know, I know, that last point seems far-fetched, however, in the only related precedent we have, the Constitutional Convention of 1787, that is precisely what occurred. The delegates immediately declared their proceedings secret, and with only moderate resistance, immediately pursued rewriting the entire charter to their liking.
OK, proposing anything they want is just that, proposing it, big deal. Even if they get two more states, this country is so polarized the chances they will flip the 6 or 7 state legislative bodies they need to hit the ¾ threshold to actually ratify any of their radical notions is mind-boggling slim, right? No, not really. Republicans are, in fact, terrifyingly close to having one party control in the 38 states needed to ratify anything they like.
A LOOK AT THE SPLIT STATES
We are in serious jeopardy of losing most of the split states. let’s take a look at the makeup of the legislative bodies in each of those 6 states:
Boy, state politics can be a little complicated. Here is a state by state summary of what the data in the table reveals.
Alaska: Republicans easily control the Senate. Dems are actually also a minority in the House but a few Republicans have actually voted with Dems and independents to give Dems control of that body. So in reality, Republicans actually already have the votes in both chambers to pass a call for an Article V Convention.
Colorado: Republicans control the Senate and need to pick up just 5 House seats to control that body as well.
Maine: Republican control the Senate and need to pick up just 3 seats in the House to control that body as well.
Washington: Republicans need to flip 1 seat to control the Senate (currently a democratic coalition controls) and 4 seats to control the House.
Connecticut: Republicans are tied in the Senate so just need 1 seat to control with 4 seats needed to control the House.
New York: Republicans already control the Senate. They need to flip 30 seats to gain control of the House. New York’s assembly seems to be our blue firewall, and we all learned the hard way firewalls can still burn down.
THE BOTTOM LINE: Republicans can gain one party control of all 6 of these state legislative bodies by flipping just 48 seats out of the more than 7,383 state legislative seats across the country. They can take control of 5 states of the 6 they need to be able to ratify any amendment they like by flipping just 18 seats.
BLUE STATES WITHIN 10 SEATS OF REPUBLICAN CONTROL
We also can’t rest on our laurels in the states we presently enjoy one party control in both legislative bodies. In Delaware, Republicans need to flip 5 House seats and 1 Senate seat. In Nevada, Republicans need to flip just 6 Assembly seats and 2 Senate seats. In Oregon, Republicans need to flip just 6 House seats and 3 Senate seats. Finally, in New Mexico, Republicans need 3 House seats and 5 Senate seats.
In 4 of the 12 states with both branches of the legislature controlled by Democrats, Republicans just need to flip 31 seats altogether to flip them all.
24 SEATS BETWEEN US & THE WORST CASE SCENARIO
The path of least resistance for Republicans to be able to push through any amendment they like is to flip 18 seats in Connecticut, Maine, Colorado and Washington combined with just 6 seats in Deleware and some political maneuvering, including primarying their disloyal Rs in Alaska.
- Only 24 state legislative seats of 7,383 stand between us and a constitutional amendment banning abortion.
- Only 24 state legislative seats of 7,383 stand between us and the gutting of the 14th amendment.
- Only 24 state legislative seats of 7,383 stand between us and marriage being defined as only between 1 man and 1 woman.
- Only 24 state legislative seats of 7,383 stand between us and strict voting restrictions being placed in the constitution through amendment.
- Only 24 legislative seats of 7,383 stand between us and the repeal of the 17th amendment.
- Only 24 legislative seats of 7,383 stand between us and any number of nightmarish constitutional amendments the radical right might want to push through.
- Only 24 legislative seats of 7,383 stand between us and dissolution of our present form of governance. Some fear a Trump dictatorship, this could be the easiest path to achieve this.
.3%. That is our margin for error between us and our worse nightmare.
THAT IS TERRIFYING — WHAT CAN WE DO ABOUT IT
While there is a slim margin between us and this nightmare scenario, there are some areas to focus on to begin to turn this situation around.
The States that have already called for a convention.
I have not been able to find one clear source listing all of the active state resolutions that have been passed calling for the formation of an Article V Convention. A lot of conservative sources claim there are around 28 active resolutions. None of it really matters, if somehow all the currently open resolutions are not valid, Republicans need to flip as few as 3 seats in Maine and they would have the potential to control 34 states. If that happens, they can just repropose Article V Convention resolutions in the 34 states they would control.
It is worth noting that, according to the Wikipedia page, all states but Hawaii has, at one point or another in our history, passed a resolution calling for the formation of a convention.
Flipping red state legislative bodies.
Republicans are in a dominant position in state legislatures as noted in the table above. They control all legislative bodies in 32 states already, just 2 short of calling a convention and 6 short of being to ratify anything that comes out of that convention. That said, of those 32 states under total Republican control we need to flip less than 5 seats in each of 5 states chambers to begin to break this one-party hold on so many states.
Knowing these 2 things there are a few actions we must take to back away from this abyss.
CALL TO ACTION 1
In States under complete Democratic Party control
Contact your representative and demand they review the status of any resolution calling for the formation of an Article V Convention of the States. Better yet demand they propose a resolution rescinding any prior action that could infer and/or imply a call for the formation of said convention. I know a lot of us live in the Blue States and feel some frustration that we can not get engaged effectively by pressuring conservative lawmakers on our issues. Well, this is something we can do to engage our elected state reps, and we should do it soon. Conservative states are actively pursuing this now. We should be actively fighting it.
The last state on Wikipedia’s list to call for the formation of an Article V Convention was Rhode Island, get that rescinded now. New Jersey passed a resolution as recently as 2015, get them to rescind it now. California and Vermont passed such a resolution in 2014, reverse it now.
The resolutions passed in those states specify things like amendments overturning Citizens United. While that sounds good, Republican dominance in our state legislative bodies means they would set the rules and agenda of any convention called. We can not risk that, make sure your blue controlled state rescinds such a call today.
CALL TO ACTION 2
Flip Republican-controlled state legislative bodies where Republicans control all legislative bodies
Here is the lowest hanging fruit here:
- Minnesota Upper Chamber — need to flip 2 seats
- Arizona Upper Chamber — need to flip 3 seats
- Wisconsin Upper Champer — need to flip 5 seats
We could focus on these states and target these chambers in particular. Donate money to challengers in this state.
CALL TO ACTION 3
Flip any Republican-controlled state legislative body
While the states listed in ACTION 2 represent an intersection of the lowest hanging fruit to begin to break one party control of legislative bodies in a few states, and that is the most urgent task, flipping any legislative body would be helpful. Breaking Republican power here will take time and effort.