How the GOP Could Rewrite the Constitution

Republican hegemony, what could go wrong? Photo credit: DonkeyHotey / WhoWhatWhy (CC BY-SA 2.0) See complete attribution below.

While controlling the White House and both chambers of Congress is nice, the Holy Grail of politics for many conservatives would be to assemble a constitutional convention — and now they are really close.

After all, any laws the GOP-dominated Congress passes next year and sends to President Donald Trump for his signature would still have to overcome pesky problems such as procedural hurdles in the Senate and a constitutional review by the courts. So wouldn’t it be nice to be able to skip that step and amend the Constitution directly without involving Washington politicians?

That dream is now within reach. When the state legislatures elected last week will convene, Republicans will control 33 of them. According to Article V of the Constitution, they only need one more to call for a constitutional convention.

While proponents of such a gathering proclaim that its scope could be limited to, for example, a balanced budget amendment or congressional term limits, nobody is actually sure how such a convention would work and what would happen.

And that should frighten Americans.

Earlier this year, Texas Gov. Greg Abbott proposed nine amendments he would like to introduce at a constitutional convention. For example, he wants a two-thirds majority of the states to override a Supreme Court decision or any federal law or regulation. Abbott also proposes that a seven-justice supermajority is required for Supreme Court decisions “that invalidate a democratically elected law.”

But what does all of that mean? Could states bring back segregation? What if a federal law only affects a handful of states? And what if the Supreme Court is missing a justice, as it has for nearly a year? Then any crazy state law would need to be unanimously rejected to be overturned.

Speaking of that Supreme Court vacancy, the late Antonin Scalia, certainly no fan of giving the federal government too much power, said this about a constitutional convention in 2014: “I certainly would not want a constitutional convention. I mean whoa. Who knows what would come out of that?”

It should be noted that such a convention would only be the first step. Any amendments approved there would still have to be ratified by three-fourths of the states. While that sounds like a lot more, it is not. To reach that magical number, Republicans only need to win five more. And, in light of their proven ability to gerrymander and suppress the vote, it’s certainly not outside the realm of possibility for them to get there.

If they do, then the party of constitutional constructionists would find themselves in a position to tear up the old Constitution and write themselves a new one.

The cartoon above was created by DonkeyHotey for WhoWhatWhy from these images: Elephant (Alex Krasavtsev / Flickr – CC BY 2.0), FDR Bust (Mark Goebel / Flickr – CC BY 2.0), Capitol (Library of Congress), Supreme Court (Library of Congress), White House (Department of Defense), Porcelain (Jorge Royan / Wikimedia – CC BY-SA 3.0), China cabinets (jarmoluk / Pixabay), Porcellana di wedgwood (Sailko / Wikimedia – CC BY 3.0), Darts (Mesut Sahin / Flickr – CC BY-SA 2.0), US Map (Dave Winer / Flickr – CC BY-SA 2.0), Benjamin Franklin (National Portrait Gallery / Wikimedia), Thomas Jefferson (White House Historical Association / Wikimedia), George Washington (link / Wikimedia) and Alexander Hamilton (Museum of Fine Arts / Wikimedia).

Related front page panorama photo credit: Adapted by WhoWhatWhy from George Washington (link / Wikimedia)

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  • billwalker

    I’ve always noticed on the Internet that the bigger the lie the more likely those writing it (1) do not use their real names and (2) never post an email address where they can be contacted. That said, to the “substance” of the article.

    The facts are:
    (1) Congress is currently counting the applications. They have reached 35 based on applications made long before the “scary” 33 state legislatures existed.
    (2) The states have satisfied the two thirds mark on 11 different occasions again long before the 33 state legislatures existed. In other words regardless of party states have been demanding a convention since 1910.

    • David S

      That would coincide with the horrible and destructive Progressive Era of American politics. As if those folks didn’t do enough damage with the income tax, the Federal Reserve, the direct election of US Senators, and alcohol prohibition (and so much more).

      • Michael Alexander

        So, David… if you don’t like it, amend it.

        Good thing that neither you nor the stealth “author” or this “article” (scare quotes intended) weren’t around when the Bill of Rights was being debated.

        Just as the Second Amendment secures the right of the individual to defend himself against an intruder, so does Article V secure the right of society to defend itself against an intrusive government.

        • uncommon sense

          I guess you’ve never heard of the 9th and 10th amendments, huh?

          That’s because you are really a big government hack.

    • Holly Anderson

      A lie can travel around the world while the truth is still lacing its shoes.

  • beauwillie

    The writer of the above commentary is either deliberately misleading the readers or Is obviously historically illiterate. If he wished to gain an acquaintance with the truth and do his homework, he would learn that the Scalia view he cites was in reference to a plenipotentiary convention, not an Article V amending convention (See Black’s law dictionary for distinctions). As to an Article V
    amending convention, Scalia said, “The Founders inserted this alternative method of obtaining constitutional amendments because they knew the Congress would be unwilling to give attention to many issues the people are concerned. I would like to see that amendment process used.” – Antonin Scalia, 5.23.1979, AEI

    • msdangermousse

      Details differ. But the facts are that such a thing is within the realm of possibility. I only bet on the ponies though so I’m not making any bets. Kudos to you though, reading Black’s Law.

      • beauwillie

        Pliable and wishful thinking cannot alter the reality of stubborn facts.

      • Michael Alexander

        No, mouse… the details are the same… it’s the interpretations that differ.

        Just as the Second Amendment secures the right of the individual to defend himself against an intruder, so does Article V secure the right of society to defend itself against an intrusive government.

        • msdangermousse

          Read my profile, did you?

          • Michael Alexander


  • Diana Lee

    Esquire has published a similar article. If GOP leaders are considering a constitutional convention to “rewrite” the constitution, it could match the goals of activists called dominionists and reconstructionists that have arisen from within evangelical fundamentalism and the far right GOP. They are politically very powerful and have unlimited financial resources. Their goal is to rewrite the constitution to conform with Old Testament law. [patriarchy, anti-gay, violent, controlling, sociopathic]

    • Michael Alexander

      Nope… different group.

    • Holly Anderson

      Yes, they scream about Sharia law and they wish to use the convention, if it occurs, to make the US into a Christian state, officially.

  • Joel Turrentine

    I guess I’d like to get more details in this article. What is your typical reader like here? I wouldn’t mind a little more explanation for these changes. Is it simply to fight current laws? Which specifically? The paragraph mentioning Texas Gov. Abbott is helpful to an extent, but there needs to be more clarity on the agenda.

    • Michael Alexander

      I’m with you, Joel… luckily, there are two sides to every story.

  • David Macko

    Except for repeal of the 16th and 17th amendments, abolition of the Federal Reserve System and restriction of Congress to issuing only gold or silver or platinum money, modification of the Electoral College to vote by Congressional districts and establishment of instant runoff voting and paper ballots, the Constitution is not the problem. What we need to do is start enforcing it again. Even with the improvement in our situation, a Constitutional Convention is still extremely dangerous. We don’t want to lose the many good parts.

    • beauwillie

      I encourage you to do a bit of research. Technically, and for the most part, the
      Constitution is being enforced. You probably think the Constitution is the four page broadsheet document that came out of the Constitutional Convention of 1787 (supplemented a bit later with the Bill of Rights). But that is no longer the case. The Constitution has become whatever the SCOTUS says it is and currently their view is documented in a 3000+ page document published by the Government Printing Office entitled “The Constitution of the United States Annotated.” The only rational way to restore the Constitution and our freedom to a semblance of what the Founders intended is through am Article V amending convention that can reverse the damage that over a century of progressive activism has garnered. The needed amendments will never come from the Washington political establishment

    • Michael Alexander

      That’s what this is all about, David… mandatory enforcement. And that would apply to the Executive, to Congress, and to the worst violator of them all, the Supreme Court, who not only amends the Constitution every session, it does so outside the purview of the amendment process as defined in Article V.

      Now, THAT’S dangerous!

  • mcsandberg

    A constitutional convention isn’t dangerous at all. Anything that comes out of it still has to be ratified by three fourths of the states. That’s a mighty high barrier!

    I would like to see Judge Narragansett’s amendment “Congress shall make no law abridging the freedom of production and trade.”

    • Holly Anderson

      It would be a high barrier if they were ‘states’ but they are not, they are colonies of the US. And this means that whoever leads them will make the decisions for the corporate powers.

      • mcsandberg

        The States haven’t been reduced to mere administrative units of the federal government yet. Look at how many states have nullified federal drug laws. It won’t be long before an oil producing state simply ignores the EPA’s nonsense, assuming Trump leaves much of it….

  • David S

    The first Constitutional Convention was simply supposed to be a gathering to address the supposed problems with the Articles of Confederation. What came out of it was the foundation for the powerful and destructive central government we now suffer under today. Be careful what you wish for. Freedom lovers will NOT be invited to the convention. Despite Trump’s win, 90+% of incumbents at the federal, state, and local levels won re-election – and THEY are the swamp that needs draining. They are the ones who are owned and controlled by the big business crony-capitalists that have mutated this country and its laws in their favor. They own both major political parties and nearly all the elected folks in them. THEY will be the ones going to the convention. Liberty lovers will be restricted to “free speech zones” miles away from the gathering and the military will happily enforce the freedom-free zone around the site. What we are plagued with is a national and global disgrace, but at least some procedural hurdles pretend to stand in the way of 100% tyranny. We the people need to withdraw our support and consent to be governed by the system we now have in place. Until WE change our perspective on the two-party oligarchy, nothing will ever change.

    • Michael Alexander

      Simply a gathering, huh? You must be one of those Common Core history teachers. If there’s a danger to the Republic, it’s people who use their own ignorance to manipulate the reason of others.

      • Holly Anderson

        America is on the road now to extinction. A Brexit will come out of all of this malarky in the US. States will want to break from the US. Many people, as in the Soviet Union, could wake up in the US and be told by their ‘box’ that the country is now over.

        • Michael Alexander

          I don’t think so, Holly… we are a stronger nation than that, and we’ve survived a lot worse. The rabble-rousers will get over it, or they won’t… and if they don’t, may God have mercy on their souls. Back in 18-whatever when Texas tried to secede from the Union, the Court ruled then and it still stands today that there are only two ways for a state to unilaterally secede… one is with the consent of all the other states, and the other is by violent revolution. Unanimous consent is a theoretical fantasy, and revolution only works if you win.

    • billwalker

      Just for historic reference: There were four things the confederation was supposed to do and everyone living at that time agreed it was capable of doing none of them. As to being “invited” federal law mandates delegates be elected. You want to be “invited?” Run for office.

      • David S

        And how are freedom loving small government power-supporting, liberty supporting, states-rights supporting candidates doing in elections these days? Yeah, exactly. I would rather see the federal government come to an end completely rather than allow Pandora’s Box to be opened by the current crop of criminals in power nationwide.

        • billwalker

          Given the fact that we’ve never operated under the United States Constitution, THE FULL CONSTITUTION which includes conventions called when mandated, in the entire history of our nation, I would say such candidates are doing just fine. They have managed to enact 11 sets of applications, meaning 11 conventions. Plenty of time to revise the nation other than by your proposal of civil war which is, whether you intend it or meant it, what you propose. As to those people being criminals, please provide actual proof, i.e., evidence. You are aware of the fact that under the law you have a right to present such evidence directly to a grand jury (federal or state) correct? So if you have proof why haven’t you stepped up to the plate and presented it and have them thrown in jail?

  • ClymerCliff

    What a farce. Article V is a very well protected technique for state legislatures to balance the power now monopolized in DC. This was the last action taken by the Constitutional Congress and passed unanimously. Over 400 of these applications have been passed in our history including the first two by Virginia and New York requiring the Bill of Rights. State conventions were very common in colonial days and still take place today.

    This convention has NO power. It can only pass PROPOSALS. After the convention these passed proposals are sent back to all 50 states for ratification. No state legislature is required to take action on any of these proposals. If 38 states (75 out of 99 state houses) of these do ratify any of these proposals then it would become an amendment. Inversely if 13 (out of 99) state houses don’t even debate or call for a vote the item does not ratify.

    Bring the power back to your state, community, and We the People. DC will never fix itself.
    Check out the convention of states website to encourage your state legislator to support this process.

    Resolution includes:
    (a) Impose fiscal restraints on the Federal Government.
    (b) Limit the power and jurisdiction of the Federal Government.
    (c) Limit the terms of office for federal officials and members of Congress.

  • Paul Raymond

    The Article V convention calls that we are after do NOT attack any powers of any state, even deep blue ones. What we are aiming for is to limit the power of the federal government.

    • David S

      And what makes you think that anyone who will organize and oversee such a convention will give a damn what you want or what “we are aiming for?” Not to be mean or anything, but YOU and I are NOT represented by anyone in government. Big business interests are represented, along with the interests of the ruling global elites, their bankster friends, and the cartels that make money from death and destruction. The first Constitutional Convention destroyed the power of the states over what they had under the Articles of Confederation and another such gathering will consolidate power further, with new wording that will present little to no recourse for us peons. And why would the state legislatures pass such legislation? Because they are owned by the same people and nearly all aspire to federal power positions.

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