Ruling the US supreme court isn’t enough. The right wants to amend the constitution

‘This plan by the far right could send this country into a constitutional crisis much more damaging and far-reaching than January 6.’ Photograph: José Luis Magaña/AP


President Joe Biden recently used the phrase "the soul of the nation" in a primetime speech in which he denounced right-wing organizations for their persistent attempts to erode, if not topple, our democracy. In many respects, Biden's statement was prophetic. There is a conservative movement going to fundamentally alter the US constitution, in addition to numerous Republicans spreading the "big lie" that the 2020 election was rigged and attempting to fill elected seats with persons prepared to overthrow the will of the people.


With rulings from Dobbs to Bruen that fundamentally redefine the constitution in violation of tradition and reasonable legal reasoning, the right has already stacked the supreme court and is now reaping the benefits. However, some conservative groups are not content to just wait for the court to rewrite the constitution. Instead, they are intent on rewriting our founding text in its entirety.


When you can alter the wording of the Constitution, why bother with constitutional interpretation? Right-wing forces' tactics might have a far greater negative impact on our nation and our democracy than even their attempts to crowd the court or storm the Capitol on January 6.


The constitution was not seen as being set in stone by our founding fathers; they anticipated that it would undergo amendments and thought that doing so would make the text more enduring. As a result, they added two distinct processes for amending the wording to Article V of the constitution.


Only one of those mechanisms—having a constitutional amendment proposed by two-thirds of each chamber of Congress and passed by three-quarters of state legislatures—has been used to pass all 27 changes to the constitution.


However, there is a second mechanism. The second alternative is for two-thirds of state legislatures (34 states or more) to ask for a constitutional convention, and any changes that are recommended by the convention must be ratified by three-quarters of state legislatures or state ratifying conventions.


To be clear, there has never been a constitutional convention under Article V. Furthermore, the constitution makes no provisions for the actual procedures that would govern a constitutional convention. The constitution makes no mention of how delegates would be chosen, distributed, or how revisions would be put up or accepted by delegates. Furthermore, there isn't any relevant historical precedent that can provide light on these crucial issues. This gives delegates great authority to participate in political and constitutional redrafting since it means that almost any change might be submitted at such a conference.


It would be a turning point in American history if there were a convention. And right-leaning groups are really betting on this. They view the constitution's ambiguity about the conduct of a convention as an opportunity to advance novel views of constitutional authority and change rather than as a hindrance.


The American Legislative Exchange Council (Alec), the Convention of States Project, and other right-wing organizations have spent more than ten years trying to convince state legislators to approve petitions for an Article V convention. John Eastman and Jenna Ellis, two prominent members of the far-right, have recently backed this cause, and wealthy conservative megadonors have also contributed to it.


Parts on the right see a more likely and maybe immediate road to obtaining the 34 applications required to hold a convention as state legislatures continue to lean conservative, in large part as a result of political and racial gerrymandering. Some congressmen have even asserted recently that Congress must call a convention since the constitutional requirement has been met. Although their counting is questionable, the momentum they might nonetheless build is quite unsettling.


To dismantle modern government and the century-old New Deal consensus and restore the nation to the unsettling, shattered past when the federal government could do nothing to support national welfare or defense, are the extreme goals of those involved in this project.


A convention would give the right the chance to attempt and outlaw abortion in our nation, restrict voting rights even more, and cement their view of the second amendment. Simply said, given the utter absence of restrictions the constitution imposes on an Article V conference, the possibilities for radical rewriting might be almost limitless.


Far-right extremists are pushing forward into this enormous constitutional uncharted territory, much as previous attempts to rig the 2020 election using anti-democratic beliefs. They already host dummy conventions with the intention of dictating the course and result should a real conference take place.


The US constitution is far from flawless. Even the founders anticipated changes, as seen by the presence of Article V. George Washington is credited with saying that although the constitution was not "free from flaws," those flaws might be fixed with time, therefore he urged his fellow citizens to ratify the text.


The basic flaws of the constitution might be addressed legitimately by constitutional amendment. Having said that, any discussion on how to alter the constitution must be open, inclusive, and informed. Right-wing groups are pursuing something very different. They have made an attempt to maintain their activities' secrecy and are only interested in political outcomes. They don't appear to be interested in a democratic, representational process.


Biden was accurate. Our country's soul is in danger. This far-right strategy might plunge this nation into a constitutional crisis that is even more severe and pervasive than the one that began on January 6. Citizens who are concerned should speak out against this extreme endeavor from all ideological perspectives. The extreme right has profited from keeping its activities primarily hidden. That needs to alter. These initiatives need to be exposed in order to be thwarted and our constitutional democracy to be maintained.


Russ Feingold served nearly two decades in the United States Senate and is president of the American Constitution Society


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