A Second Constitutional Convention? Some Republicans want to force it

Senate candidate and former U.S. Sen. Russ Feingold at the Winnebago County Democratic Party’s Indigo Dinner in Fond Du Lac, Wis., March 20, 2016. (Mark Kauzlarich/The New York Times)

WASHINGTON — Rep. Jodey Arrington, a conservative Republican from Texas, believes the time is past for something the nation hasn’t experienced in more than two centuries: a debate on revising the Constitution.

“I think the states owe a convention,” said Arrington, who in July introduced legislation to direct the United States archivist to record petitions for a convention from state legislatures and compel Congress to schedule a convention when several states have applied for a . “It’s time for the states to come together and rein in Washington responsibly.”

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For Russ Feingold, the former Democratic senator from Wisconsin and president of the American Pension Association, a liberal judicial group, that’s a terrible idea. Feingold sees the prospect of a constitutional convention as an extremely dangerous threat from the right and suggests it is closer to reality than most realize as Republicans push to regain control of Congress in November’s midterm elections.

“We are very concerned that Congress, if it goes Republican, will call a convention,” said Feingold, the co-author of a new book warning about the dangers of a convention called “The Constitution at Risk.”

“This could destroy our Constitution,” Feingold said in an interview. “There has to be real concern and caution about what they might do. We are raising the alarm.”

While the rise of abstentions, new election restrictions and other electoral maneuvers get most of the attention, Feingold views the prospect of a second constitutional convention as an equally serious threat to democratic governance.

“If you think this is democracy’s moment of truth, this is one of those things,” he said.

Elements of the right have been waging a quiet but concerted campaign for years to call a rally to consider changes to the Constitution. They hope to take advantage of an unused aspect of Article V, which says in part that Congress, “upon the exercise of the legislatures of two-thirds of the several States, shall call an assembly to propose amendments.”

Throughout the nation’s history, 27 changes have been made to the Constitution through another extremely laborious route, with amendments coming from Congress subject to ratification by the states.

With intense partisanship making that path nearly impossible, proponents of the convention idea now hope to harness the power of Republican-controlled state legislatures to petition Congress and force a convention they see as a way to remove power from Washington and impose new fiscal restrictions. in the least.

“We must channel energy into restoring and reclaiming this country’s traditional values ​​and founding principles of limited government closer to the people and individual freedom and responsibility,” said Rick Santorum, the former Republican senator from Pennsylvania who has become a conference champion. a conservative conference this spring in the state.

Santorum was pushing for Pennsylvania to become the 20th state to formally request a convention in recent years, out of 34 states required. But it’s unclear how many states have weighed in, since not all have adopted the same language and some petitions were filed decades ago or more and may even have been invalidated.

Arrington believes that when the pending petitions are fully factored in, the 34-state goal may already be exceeded. His legislation would require the archivist to “authenticate, count and publish” states’ applications, forcing Congress to act.

“The problem is they didn’t have a ministerial, ministerial mechanism for the archivist to keep a count and report to Congress,” Arrington said. “I think we’ve crossed that line, and it’s not a congressional discretion — it’s a constitutional mandate — that Congress has to pick a date and place for the convention.”

Like others, the proposal by Arrington, a deficit hawk who hopes to become chairman of the Appropriations Committee next year, would seek to limit the convention to examining fiscal issues to serve as a check on federal spending and taxation.

But Feingold and his co-author, constitutional scholar Peter Prindiville, say the problem is that there is no certainty that the convention could be forced to stick to a set agenda. They say a “runaway” process would be a distinct possibility, with delegates seizing the opportunity to push wholesale changes to the founding document and pivot to areas where they would seek to limit federal power over the environment, education and health. care, among others. issues.

“A convention by definition is an independent, separate constitutional body,” Priddyville said. “It would be the ultimate high-risk concentration.”

They say the reliance on language calling it a “convention of states” is misleading — “historical” in the view of Feingold and the book, which lays out the history behind Article V and previous attempts to invoke it.

“Despite convention advocates’ claims of legal certainty, the most important questions about what an Article V convening would be called and how it would function remain unsettled,” the authors write in the book. “The framers left no rules. In this uncertainty lies great danger and, potentially, great power.”

What also worries the authors is that leading proponents of the convention idea come from the right and include representatives of the tea party movement, the Federalist Society, far-right grassroots activists and figures allied with former President Donald Trump, such as John Eastman, a lawyer who wrote a memo for Trump outlining how he might seek to overturn the 2020 election.

But support and opposition for a convention don’t break entirely along party lines. Some Republicans have resisted calls at the state level to pass resolutions in favor of a convention, worried that such a rally could open the door to a weakening of the Second Amendment and a rollback of gun rights.

And some liberals have hailed the idea of ​​a convention as a way to modernize the Constitution and win changes to the composition and power of the Supreme Court, secure abortion rights, impose campaign finance limits and find ways to deal with 21st-century problems. such as climate change.

“There are smart people and a few on the progressive side who are willing to roll the dice,” Feingold said. “It’s crazy for me to take the opportunity.”

Arrington said he sees fears of a runaway convention as overblown and noted that even if the gathering ends up with a set of controversial changes, it would still need approval from 38 states — a daunting task in itself. He said he hoped the threat of a convention could force Washington to get more serious about fiscal responsibility.

“Ultimately, once the conversation is had, once it becomes more real in the mind of Congress, I hope to light a fire,” he said.

Feingold and Prindiville say they hope the prospect of a convention designed by conservatives ignites a different kind of fire — one aimed at finding a better way to change the Constitution to meet the modern moment.

While a convention is a bad idea, they say, accepting that the Constitution remains set in stone is almost as troubling. They support the debate on new ways to move forward with constitutional change.

“The time has come to begin a serious national debate about the future of the Constitution in American public life,” their book says. “We must reclaim the founding generation’s faith in bloodless revolution by reforming Article V to provide an amendment process fit for a modern, democratic society.”

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