Defending the Constitution from imminent attack

In “The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It,” (Hachette Book Group 2022) former Wisconsin U.S. Sen. and current president of the American Constitution Society Russ Feingold and Stanford law fellow Peter Prindiville raise the alarm about a constitutional convention that could be called by conservative activists to rewrite the U.S. Constitution. 

Once dismissed as a fringe idea (the Huffington Post mocked a 2016 dry-run convention of more than 100 state legislators in Williamsburg as “a week of Founding Fathers cosplay”), a plan to call the first-ever convention under Article V, the Constitution’s amendment mechanism, could transform the tax code, abolish civil rights protections, and wreak havoc with the basic structure of U.S. government, Feingold and Prindiville warn.

And such a convention could be right around the corner.

In fact, in July 2020, former Wisconisn Gov. Scott Walker told a group of convention activists that the required 34 states’ applications for a successful call under Article Vl had already been filed. The next step, Walker told the American Legislative Exchange Council (ALEC) during the group’s annual meeting of Republican legislators and corporate lobbyists, was for Congress to issue the call — or for a court to force Congress to do so. 

“This concept is almost like a Lord of the Rings movie,” enthused Ohio Senate Majority Leader Matt Huffman, “where some ancient giant beast or some sort of secret is unlocked and suddenly it’s the greatest power, but nobody knew about it or it was lost for a long time.”

But there was something off about Walker’s announcement. Why was it made to a right-wing lobby group, not from the floors of Congress, Feingold and Prindiville ask. Why was there no mainstream news coverage? “Was Walker’s count even right?”

The authors go on to poke holes in Walker’s pronouncement. Two of the applications Walker relied on were filed by Illinois and Kentucky to avert the Civil War. In Illinois’ case, that 19th century application plainly states, “the people of the State of Illinois do not desire any change in our Federal constitution.” Another application was filed by New York in 1789, calling for a second convention to draft the Bill of Rights.

Modern Article V convention proponents “have not been able to secure the requisite number of applications themselves, so they must seek historical companions to help from beyond the grave,” Feingold and Prindiville write.

Still, such efforts must be taken seriously. Congress, not a court of law, will decide whether convention advocates have the right number of applications. If they are persuaded by the dubious calculations of  Walker, ALEC, the Koch brothers and other powerful right-wing interest groups, a convention could be off and running — and could revise absolutely any aspect of the country’s founding legal document.

The book is a wake-up call. At a convention, once it meets, a mere majority of state delegates could control the rules and agenda. Thus, “those representing a minority of the country could take the majority on a constitutional ride against their will.” 

As alarming as it is to confront the prospect of a runaway convention orchestrated by right-wing billionaires and gerrymandered Republican-dominated state legislatures rewriting the U.S. Constitution from top to bottom, the authors’ purpose is not just to ward that off.  . Instead, they argue that it’s high time to reform Article V, and to foster new amendments driven by genuine representatives of the people.

The People, the authors argue, need to take back “their inherent constitutional authority.”

I spoke with Feingold and Prindiville during their book tour stop in Madison on Sept. 30. The following interview has been edited slightly for clarity and conciseness.

Q: How close are we to an Article V convention?

Feingold: Rep. Jodey Arrington, a Republican from Texas, very conservative, introduced a resolution a few weeks ago in the House that said, basically, there are enough applications. In fact, he claims there have been enough applications for a long time and Congress has been derelict in its duty for not calling a constitutional convention already.

There’s every reason to believe this is either imminent or something that could be attempted in a serious way in the next year or two or next few years. Maybe even sooner.

Prindiville: The vast uncertainty about how one actually does the counting is itself cause for alarm. People often think that this kind of math is a hard science, that when somebody says, “How close are we?” we can give a certain answer. The reality is you just can’t. It’s reason to be watching this issue carefully, and to be contending with all these troubling legal theories that are being proposed now rather than later.

Feingold: The Walker approach is, basically these guys will take a term-limit application here, a balanced budget amendment there, a convention of the states one there, even, as we wrote in the book, they’ll take pre-Civil War ones that had to do with slavery, and put them into the mix. So there’s all kinds of ways they play this game.

Q: Is that what you call the dangerously wonky approach? That’s the term you use to describe the disinformation coming out of ALEC minimizing the threat of a constitutional convention.

Prindiville: This is one of the deepest concerns. This Article V mechanism is wonky. And for a long time it has not been a topic of political or legal debate. And so when ALEC and these other groups go to state legislators, they provide these materials that are just riddled with legal error. And state legislators take it to be true. 

There is such a void of settled law and settled theory about this provision. And so, as we argue in the book, there’s something even deeper to this. They have attempted to reimagine the amendment mechanism and thus the Constitution itself as not a document that finds its authority in the famed invocation, “We the People.” They’re attempting to reimagine the document in the lens of the Articles of Confederation — that the states constituted the government, not the people. And that’s not just a legal problem. It cuts right to the core of who we are as a people and as a democratic, self-governing constitutional society. 

Feingold: You’re also onto the right thing here in terms of their attempt to reassure by being wonky. We write about this at some length — that they are not going to be brazen in the way they talk about it. In fact, they claim it’s just going to be for a few things — term limits, a balanced budget amendment and some language. They claim, “Well, you know, we just want to limit the federal government.” But essentially the language they use would allow them to do anything. They could cripple the federal government completely. But they use this language suggesting that those of us who are raising concerns are just being nervous and dishonest. And they also suggest that there wouldn’t be a runaway convention which, as we point out, has been a concern for over 100 years.

Q: You point out it fits into this sort of fashionable right-wing view that we don’t actually live in a democracy and also that fundamental rights, including reproductive rights, should be handled by the states. Can you talk more about that?

Feingold: Well, the first thing is to reject this idea that I especially noticed during the Ketanji Brown Jackson hearings led by Sen. John Kennedy of Louisiana. He kept saying, “Look, don’t you think that people should just decide in the states whether people should have this right or that right?” Which of course goes completely contrary to the whole idea of rights and constitutionalism. Constitutionalism is not a majority vote thing. It’s fundamental law. 

And even though we propose reforms that would make it easier and much more rule-based to have an amendment, to have a different Article V, we do not believe that each state should just decide what rights people have in that state. That is completely contrary to the words of the Declaration of Independence and to the preamble of the U.S. Constitution.

Prindiville: There are all of these different efforts today to attempt to kind of reimagine our body politic. You can see this case before the Supreme Court in the upcoming term about the independent state legislature theory. There are different efforts to place the ultimate governing power in the hands not of the voters but of state legislatures, which in many states — including Wisconsin and Illinois, where I live — are influenced by partisan gerrymandering. They are in some ways insulated from the popular will. It is troubling.

We were on Texas Public Radio, and someone called in and said, “You keep talking about democracy; we don’t live in a democracy.” And they said, “We live in a republic.” But a republic is a form of democracy. He said, “You need to learn your history. You know, Athens failed.” Well, we’re not proposing a direct democracy where the people are going to the ballot box every 15 seconds voting on whether or not the government should issue a check. Of course, we live in a representative democracy. But the notion that constitutional power is not grounded in the people themselves is really anathema to our founding beliefs. I mean, we live in a country that made a bold claim. The revolution was about a bold claim: that the people constitute their government directly, and that the people are empowered to change that government directly. That’s democracy. And the contrary claim is just wrong. We do live in a democracy.

Q: Is this a real belief system or is it just P.R. — and part of a plan, along with gerrymandering and seizing control of state legislatures and crippling the federal government, to take power?

Feingold: I’m gonna say it is a belief system. But it’s a reaction to the demographics of this country. The people behind all of these things, and all of these things are connected, don’t like the fact that we have a majority diverse nation. And under our current constitution, that will lead them to perhaps have less power, because it is a democracy. It’s not a direct democracy. But they know that unless they basically undo the Constitution as it is and send us back to a state-based system of the Articles of Confederation, they are going to have some political problems. So that’s what’s driving it. They don’t want other people to be in the driver’s seat.

Q: Who are “they”?

Feingold: We know who they are. We can see who was active in the convention of the states. We can see the funding from the Mercer family and from the Koch brothers, who of course have helped finance everything from the attack on the federal judiciary and what’s happened with the United States Supreme Court to things like this independent state legislature theory to the people that were involved in Jan. 6. John Eastman is involved in this movement and, as well, he was the theoretician behind Jan. 6. 

There is this constellation of far-right activists, funded by big money, who don’t like the dynamic way democracy is heading in the 21st century.

This is not the We the People of 1787. Nor is it a situation where it can be tolerable that these constitutional decisions are made in a room with only white, propertied men and no African Americans and no women and no Native Americans. But their fantasy is somehow to lock us into a situation that pretends that somehow we’re in that time again. We’re not. George Washington himself repeatedly indicated that future generations should have a role and opportunity to change the Constitution according to the time that they are in.

And that’s exactly why we’ve written a book not only about this threat, but also about the need to make it a better provision to allow the people to have their voice.

Q: It’s interesting that even as you lay out this very scary threat of an anti-democratic Article V convention, you also talk about the need for a popular movement to engage with and update the Constitution. How could there be an Article V convention that isn’t such a scary prospect?

Prindiville: Part of what makes a convention in this current environment so troubling is that we don’t actually know how it would function. And into that void — what James Madison called “the lack of constitutional regulations” dictating how the procedure works — have rushed all these theories, one of them being that the Article V mechanism contemplates a convention of states, not of people. And so that’s a procedural problem. We need to fix that procedure.

Feingold: It’s just so important to realize that the second jeopardy has to do with the fact that we can’t change the Constitution in a reasonable way, under the current rules. So we write extensively about the obsession with the U.S. Supreme Court. It has a power that was never intended. And as a result, the money and the politicization that follows it have lled to the capture of the Supreme Court by political ideologues. That’s completely contrary to what many of us understood to be the purpose of the Supreme Court.

Q: It seems hopeful, but also scary to think about a popular rewrite of the Constitution. I can see why people would take a defensive posture and say let’s just leave it alone.

Feingold: Clearly, we believe that you have to stop this extreme movement from being able to pull a convention under the terms and the rules they want. But somehow, at some point, it’s not going to be easy, you do have to figure out a way to at least change the rules.

Some of our proposals have to do with changing some of the rules for how amendments offered by Congress are done.

But we feel very strongly that there are going to have to be changes in our Constitution. How can a nation like this — the first one to have a national constitution, the first one to have a national amendment process — how can it be that it can only change its constitution 17 times since the Bill of Rights in our entire history?

On things like the Electoral College, the fact that there’s no right to vote in the Constitution, there’s no reference to climate change — I don’t think it’s sustainable to not figure out a way to be able to peacefully and reasonably change the Constitution.

In the book we talk about Chile, which was not a perfect process, but a fascinating process where they had a popular election for these delegates. The people there said, “We’re not going to vote for anybody in any current political parties. We’re gonna elect a bunch of people that are just like regular people, indigenous people, many women and school teachers.” And they went and they had a constitutional convention and they came up with a document. It didn’t pass this time. But it led to a really constructive national debate about what “We, the People of Chile” want, to get away from the Pinochet era. That is a model of what we’re talking about.

We’re certainly not reckless on this. We don’t believe it should just be done by popular vote or anything like that. But we just can’t understand how a country like ours can go on with never being able to alter certain things that don’t make sense anymore.

Q: Where does this fit on a list of priorities in this urgent political moment as we approach the midterms. Trump may run for president again?

Feingold: We have to deal with the other things, obviously — Jan. 6 and what’s happened to the Court and the independent state legislature theory, the election subversion that’s going on in the states. And you know, frankly, my group, the American Constitution Society is deeply involved in all of these things. 

So instead of seeing this as a call to a different strategy or to do something entirely different, we just see this as all part of the same thing. These things are interrelated. So people that want to fight back need to see the whole. And we’re trying to fill in a piece of that that most people don’t know about.

Prindiville: I would just say, it’s important for citizens to make it known that they are not in favor of these applications. I would also encourage citizens to engage their legislators and ask them directly: “On what legal authority are you basing your claims that you can control this convening?” And ask them to show you, because there is no legal authority. They might point you to ALEC publications, but a publication from a political action group is not law. And so I would just encourage citizens to engage these legal questions.

Feingold: Also, these applications can be rescinded. And they have been. Peter talks extensively about the fact that Illinois decided to rescind all the ones they’ve done in the past. Ratification is a different story. But it’s not impossible. And as we write in the book, it was not a completely partisan vote in Montana. When they defeated the application initially, there were Republicans that voted no. Some of them are affiliated with very hard right groups like the John Birch Society. But it is not inconceivable that even in a majority Republican Wisconsin Legislature, a majority of legislators might vote to rescind those. So that’s something citizens can implore their elected representatives to do.