How Conservatives Are Trying to Rewrite the Constitution

While Congress and the Trump administration continue to push the GOP agenda via legislation, other conservatives are trying to change the Constitution itself.
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Former Senator Jim DeMint speaks to the Conservative Political Action Conference at National Harbor, Maryland, on February 23rd, 2017.

Former Senator Jim DeMint speaks to the Conservative Political Action Conference at National Harbor, Maryland, on February 23rd, 2017.

If just four more state legislatures pass resolutions calling for a constitutional convention, the United States Constitution could change—and radically.

For years, conservatives have been trying to rally a two-thirds majority of states around a balanced budget amendment. They came close in 2014 then stalled until this spring. In March, Arizona became the seventh state to call for a constitutional convention—or maybe the ninth, depending on how you're counting. Texas was probably lucky No. 11 in May. Last week Governor Scott Walker urged Wisconsin lawmakers to bring the total to 30. We'll find out this week if he persuaded them. Just 34 states are needed.

Proponents claim that the balanced budget amendment is the only way to rein in out-of-control government spending. Opponents say that budget deficits can be beneficial and warn that such an amendment creates potential for inefficiency and political extortion. The amendment's proponents are being disingenuous, or else short-sighted; the opponents miss the real danger entirely.

At such a constitutional convention, anything could happen—from granting personhood to fetuses to rescinding birthright citizenship as a matter of constitutional law.

Once a constitutional convention has been convened, as Harvard Law Professor Lawrence Tribe has said, "the whole Constitution [is] up for grabs." While questions remain about logistics, it's certain that a convention could effect multiple, far-reaching changes. At the extreme, the far right could realize its constitutional wish list, from a same-sex marriage ban to a personhood amendment prohibiting abortion to the rescission of birthright citizenship.

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There are two routes to amend the U.S. Constitution under Article V. One requires a two-thirds majority of states to call for a constitutional convention. The other begins with a two-thirds vote of each house of Congress, followed by ratification by three-quarters of the states. The latter approach has succeeded 30 times, although an earlier balanced budget amendment effort previously reached the magic number according to some counts. (It's Congress that gets to determine when the two-thirds threshold is met, triggering a duty to call for a convention.)

The groups behind this re-energized push are a who's-who of the far right. There's the Convention of States Project, or COS, an organization dedicated to calling a convention, but also the American Legislative Exchange Council, or ALEC, an enterprise backed by the billionaire Koch brothers. While they pay lip service to the balanced budget amendment, these organizations have cited a broader goal: Reducing the power of the federal government. ALEC posted a model application for a convention. The model refers to "the solemn duty of the States to protect the liberty of our people" not through a single balanced budget amendment but "by proposing Amendments," plural. Potential ALEC add-ons could include, among others, a federal term-limit amendment and an amendment allowing states to repeal federal laws and regulations.

Mike Pence, then a Congressman from Indiana, and Jim DeMint, then a congressman from South Carolina, at a news conference at the U.S. Capitol on December 2nd, 2010.

Mike Pence, then a Congressman from Indiana, and Jim DeMint, then a congressman from South Carolina, at a news conference at the U.S. Capitol on December 2nd, 2010.

COS recently secured formerly federal leadership that could substantially aid them in persuading state legislatures to call a constitutional convention—and in getting Congress to count resolutions in their favor. When Tea Party favorite Senator Jim DeMint joined COS in early May he aligned himself even more firmly with that movement in announcing his new role.

DeMint isn't such groups' only heavy hitter. Governor John Kasich has been pushing a balanced budget amendment for decades. Now, he's on the front lines of these efforts to lobby state legislators. The Associated Press gave him credit for securing Wyoming as No. 29 in February. Next targets, after Wisconsin, include Idaho, Arizona, Kentucky, and South Carolina.

The timing favors conservatives, who have a substantial advantage in state-level governments. Republicans control both legislative chambers in 32 states while Democrats have majorities in both bodies in just California, Delaware, Hawaii, Oregon, and Rhode Island. Altogether, Republicans control 4,170 state legislative seats; Democrats, just 3,129. The GOP also holds 33 governorships, having gained two last November. Republicans hold both houses and the governor's mansion in 24 states. That said, this year, campaigns to persuade legislatures to rescind convention calls in New Mexico, Maryland, and Nevada have succeeded.

The Republican v. Democratic split isn't the only one in play. DeMint joined COS after being ousted from the Heritage Foundation following a high-profile, lengthy spat. DeMint's fall from grace at Heritage and ascension at COS may mark a schism within the conservative movement. The drama behind his departure involved a tension between the think tank's ideological origins, and DeMint's own, more activist bent. The split was hardly amicable. One opinion piece declared, "Ding-dong, DeMint is gone." If DeMint and his ilk are siding with the more radical wings of the conservative movement, they're also likely playing to them.

Trump's has been an administration of historic firsts, most of them ignoble. The possibility of a state-initiated constitutional convention marking another is real.

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