Notes From Underground (#8)
Beware the Article V Convention
When should we declare democracy dead?
Is it when members of the opposition get murdered in the streets? Or when the leader of the nation can arrest and imprison his political rivals? Or is it when the government creates a surveillance state à la 1984 (“Big Brother Is Watching You”)?
It can be, but it certainly doesn’t have to be. In fact, most dictators prefer to keep up the illusion that their people are living in a real democracy. Look at Russia. It still has its Duma (i.e., the Russian version of a parliament)—it’s just that the Duma is a rubber stamp for Putin. Same with China; it has a Politburo, except that too is nothing more than a rubber stamp of “President” Xi Jinping—of the “People’s Republic of China.” Even Kim Jong-Un and North Korea have elections—only problem is that 99% of the people back the ruling party’s candidates. And that’s in a bad election cycle.
Other nations are even more careful about preserving the mirage of representative government. Look at Hungary, a model of what has been called “competitive autocracy.” How did Orban secure once-and-for-all his grip on power? Simple. He changed his country’s constitution. Why stop playing the game of democracy when it is so much easier to rig the game’s rules in your favor?
Which brings me to America. To be sure, we have seen many attacks on the rule of law and on the institutions that our democracy depends on. Attacks on judges and ignoring court orders, arresting congressional Democrats and mayors in New Jersey for solely political purposes, suing the press, targeting law firms and universities for crossing Trump and his agenda, and sending gay hairdressers to El Salvadoran prisons.
Yet we should not forget the often-overlooked way Trump Republicans can remake America in Hungary’s mold.
Article V of the original 1787 U.S. Constitution, as Lori Corbet Mann writes, “outlines two ways to amend the Constitution.” One involves the process we all know at least a little bit about: Congress proposes an amendment, and the states then ratify it. All of the amendments currently in our Constitution have been created in this manner.
But there is another way. If 34 states force Congress’s hand via their state legislatures, Congress must call together a “convention of the states” to revise the Constitution.
Now you may be wondering: how do states call for such a convention? Do they do so merely by proposing an amendment—any amendment—to the Constitution? Could, for example, 17 states call for an amendment banning assault weapons, and another 17 states call for an amendment giving every American the right to a rocket launcher, and could that be enough to force a convention of the states? Well, Article V really doesn’t say (don’t believe me? Read it for yourself).
Or you may be wondering: what if states tried to call for such a convention a long time ago, and forgot to take their old applications to Congress off the books? Well, again, Article V really doesn’t say. That’s why New York's state legislature revoked its application from 1789 just this last year. Regardless, even with New York’s recent move, most states still have long-forgotten requests like these that could (technically?) be enough to trigger a constitutional convention already.
Still, that’s not even the worst of it. Who will write the rules of such a convention if it is put together? “The states? Congress? Private actors? A pre-convention committee?” Article V offers us no guidance here.
Who chooses the delegates of such a convention? The voters, the (often-gerrymandered) state legislatures? Article V provides us no answers here.
Who can represent their state at such a convention? Can lobbyists be delegates? Can sitting officials be delegates? Article V gives us no clarity here.
Will each state get one vote in a convention of the states? Two votes? Or will representation be based on that state’s population?
Who sets the agenda and the rules of the entire event, and how easily can those rules about debate, voting, and/or amendment approval be changed on a whim? Who is the chair of the official proceeding? What happens if two states send conflicting groups of delegates? What are the limits in place to stop big money and big corporations from using their influence to shape the delegate’s agenda?
Can a state recall its delegates if they overstep their bounds? And if a state doesn’t act to recall its delegates, will the public at least be able to see or have a record of the official proceeding?
Article V couldn’t tell you. And that’s not even all the problems that Article V leaves unaddressed about this whole mess.
So there you have it. One big black hole of a loophole right at the heart of the Constitution, waiting for bad actors to take advantage of it. But it’s worse than that. For 40 years, going back to the Reagan era, Republicans have been organizing in favor of a “convention of the states.” At first, it was about “balanced budget amendments,” “pro-life amendments,” and many other pet projects of the American conservative movement.
In other words, even before Trump gave the Republican Party a unique opportunity to reach the heights of power without consequences, they have been working to set this dangerous plan into motion.
Thanks to their highly-organized movement, at least 28 state legislatures have actively called for an Article V Convention, on the basis/pretext of a balanced budget amendment. Again, what if just 6 more states make a similar application? Who knows. I repeat, there are no real rules to a convention of the states.
Which is perhaps why the current Republican/Trump Republican movement likes the idea so much. I mean, just think of the possibilities. To serve the rich billionaire owners of their party by abolishing the income tax and replacing it with tariffs that working people would bear the brunt of. To allow Republican state legislatures to limit the voting rights of their constituents and remake their districts to prevent voters from holding them accountable. And so on and so forth.
Indeed, the Trump Administration could go even further. Given the Administration’s rhetoric around habeas corpus (i.e., the right of a person in prison to appear in court and have a judge investigate whether the government imprisoned them wrongfully or not), due process, and the right of university students to peacefully protest their government’s policies, perhaps we are not being imaginative enough about what could be proposed at an Article V Convention.
Do not let the billionaire class buy themselves a new Constitution. Do not let the Republican Party—with Donald Trump at the helm—rip up the rights your fathers and grandfathers and their grandfathers have had for these past 250 years.
Do not let the Republican political elite that screwed you these past 4 decades rewrite the rules so that they can reap all the benefits permanently.
Instead, let’s work together to retake our government from the special interests that drown out the voices of working people.
Before we reach the point of no return.
I think they are too stupid to achieve it