Article V: The Plot to Change the Constitution
For months now we’ve met every move by the Trump Administration with protest and a sick stomach certainly, but also with the knowledge that so far, pretty much everything they’ve done – or can do – can be reversed the moment they leave office. From cabinet picks to Muslim bans, it’s simply a matter of turning back the clock with a clean sweep of personnel and a ceremonial bonfire of executive orders. So long as they don’t monkey too much with the electoral process, we can “vote the @#$!s out.”
This was our mindset when we received a Facebook message from someone in Texas earlier this week. It began “Hi, y’all. Just trying to make sure you are aware of this as a DEFCON 5 level issue. They caught us flat-footed over here in TX, and just wanted to make sure it doesn’t catch you as unprepared as we were.”
The “it” in question is something that sent shivers down our spine, and goes a little something like this.
1. Under Article V of the Constitution, that document can be changed by having an amendment passed by both houses of Congress with a two-thirds majority vote.
2. Under the same article, the Constitution can also be changed if the legislatures of 34 states call a convention for proposing amendments. (For reference, 30 states cast their electoral college votes for Trump in 2016.) As the aptly named “Convention of States” website explains, “After the states propose, debate, and vote upon the proposed amendments, they will be sent to the 50 states for ratification. Three-quarters of the states must agree for any of the proposed amendments to be ratified.” It looks like this option has been attempted but never successfully so.
Naturally we get our fair share of messages from Trumpian trolls, so we did a little Googling and put the word out in our local Indivisible community to see if they could shed some light on it. Turns out, our Texas friend was right.
One of the people in a local Indivisible group put it to us like this:
“I am tracking the bills on calling an Article V convention, and yes, it’s scary stuff. I have a pretty high bar for when things get bad enough here that I would pack up my family and leave the country, but my own personal bar is that we will leave if an Article V convention is called.“There are two pathways to amend the Constitution: ratification of an amendment by two-thirds of the states (currently 34) or calling a convention as laid out in Article V. That second effort is currently being financed and pushed hard by the Koch brothers. The scariest part is that, once a convention is called, there is no reining it in. Last time we called one (when the US was still under the Articles of Confederation) we ended up with a whole new Constitution. I think all of us agree that’s the last thing we need right now. I have no desire to see this country turn into the Republic of Gilead.”
What’s so insidious about the second Article V option is that it undermines the overarching purpose of our federal legislature.
Though each representative comes from the state they represent, it is thought that they will nevertheless temper their constituency’s own prejudices and provincial experiences with their own experience garnered from years of working in Washington – that they will be the “adult in the room.” (Granted we’ve seen little evidence of this in the last few months.)
The second option essentially does an end run around that approach, putting the power to start the process of changing the constitution in the hands of state legislatures instead. Not only have these local lawmakers not been exposed to the wider world professionally they, unlike their U.S. Congress counterparts, do not have the luxury of spending several head-clearing months away from their voters each year. The end result: people who are steeped in the attitudes and prejudices of their locality.
Right out of the Breitbart Playbook
So if this is actually “a thing,” how come we haven’t heard much about it until now? Good question. It appears that some conservatives have been contemplating this move since 2013. (Among its proponents: talk show host Mark Levin – the guy who started the whole “Obama tapped Trump’s phones” business.)
Mark Meckler, Tea Party Patriots co-founder and thought by many to be the architect of this movement in the 21st century, proposed the following amendments: “a prohibition of using international treaties and law to govern the domestic law of the United States” and a limit on taxes. The convention would be centered not on any one of these ideas, but “for the purpose of limiting the power and jurisdiction of the federal government.”
Even former Republican Primary Candidate John Kasich endorsed a constitutional convention to pass a balanced budget amendment. This last is often the excuse given by Republicans for employing option 2.
But credit for spreading this idea to the masses on the far right must go to Breitbart News. On Feb. 10, 2014, Meckler wrote a piece for Steve Bannon’s website that spread the good news, and ended this way:
“If you’re in Florida, Arizona, or Georgia, your self-governance moment is now. Call, fax, and email your representatives. Go to Convention of States and get the details of who is on the relevant committees so that you can reach out to the right people and tell them to vote for the Convention of States resolution.“Now you know it’s there, and now is the time. Article V of the Constitution: a solution as big as the problem.“It is our moral obligation to use it.”
Whoah, whoah, whoah – Arizona?!
Turns out our state is doing its part to bring this Breitbart fantasy to life.
The AZ House of Representatives voted in favor of an Article V bill and the Senate is considering their own right now. (Law professor David Marcus at UA explained why even a move to focus strictly on a balanced budget amendment would be a disaster.)
It’s at this point that we go back to our Texas friend’s original message: “Just trying to make sure you are aware of this as a DEFCON 5 level issue..”
DEFCON 5? As any number of political thrillers have taught us, DEFCON 5 is the least dangerous situation, with DEFCON 1 being the most severe. So why DEFCON 5?
Probably because as disastrous as this all sounds, the likelihood of successfully wrangling the necessary number of votes and ratifications seems only slightly less remote than passing amendments the old fashioned way.
As unlikely as a sexist, racist reality TV star with anger management issues becoming president.
Note: We have a stunning array of disciplines represented here at Arizonans Against Trump, but constitutional lawyers aren’t one of them. The above post has been drafted based on articles available online. If you have professional insights into this whole complicated process, please share your thoughts in the comments below. Thanks!