The Ticking Time Bomb in our Constitution
(I wrote this op-ed more than a year ago for the Columbia MO Tribune)
Every so often we read about someone being killed or injured by a mine laid down during World War II—a tragedy initiated by a well-intentioned soldier long since dead reaching from beyond the grave to harm an innocent born years after the war ended.
A ticking time bomb lies embedded in Article V of our National Constitution, placed there by our founding fathers in the eighteenth century with the best of intentions, equally capable of spawning tragedy of immense consequence to our lives, our liberties, and indeed to the future of democratic government as we know it in the twenty-first century and beyond.
Article V provides for procedures to enact Amendments to the Constitution. And twenty-seven times have such amendments been approved by two-thirds vote of both houses of Congress, then ratified by three fourths of the state legislatures. This is the time-honored way we approved the first ten amendments that constitute the “Bill of Rights”; the post-Civil War amendments that were intended to actualize rights fought for during the war; the amendment that provided for an income tax; the amendment that provided for the direct election of senators; and the amendment that allowed women to vote. All these and more were achieved by the approval of two-thirds vote of the House and Senate and then ratified by three-fourths of the states.
But Article V also provides for an alternative way to amend the Constitution. And it is a mischief-makers delight. “Congress shall call a Convention to adopt Amendments to the Constitution when two-thirds of the State Legislatures petition it to do so” it says. Republicans may want to enact a balanced budget amendment, or Democrats to erase the Supreme Court decision in “Citizens United”, but there is no guarantee that either would be of importance to the delegates who might constitute the Convention itself.
Into this prospective maelstrom has stepped ALEC (The American Legislative Exchange Council), a notorious behemoth funded by the Koch Brothers and other like minded corporate interests and responsible for introducing hundreds of cookie-cutter bills favored by business interests and social conservatives in state legislatures around the country in recent years. An ALEC-inspired group called “The Assembly of State Legislatures” is already busy writing the rules for a second Constitutional Convention. And make no mistake about this: ALEC has goals that you may not like. And they are dangerously close to making it happen.
Article V provides that if two-thirds (thirty-four) of the state legislatures call for a Constitutional Convention, Congress must convene one. Already by one count, twenty-seven states including Missouri have called for a Convention to adopt a Balanced Budget Amendment, although sixteen of those requests date from the Nineteen-Eighties. ALEC and its allies have targeted nine additional states with majority-Republican Legislatures.
A Convention might be called for the purpose of passing a Balanced Budget Amendment, but once convened, the prospect for a “runaway convention” is more likely than not. Indeed, the original Constitutional Convention in 1787 went far beyond its mandate to amend the Articles of Confederation yet emerged with the governmental infrastructure that still defines our nation today.
But don’t expect a second coming of the Founding Fathers this time. Chances are that those who would be entrusted to effectively write a new Constitution for our country would be chosen by part-time state legislators of an ideological persuasion far to the right of mainstream America. Article V provides no rules about how delegates to such a Convention might be selected. Nowhere does it say “by vote of the people”.
Republicans especially will face a moral dilemma. How sacred is our Constitution? Can demographically-challenged conservatives resist the temptation to “constitutionalize” public policy objectives that now seem difficult to sustain—like limiting federal control over the states, banning abortions, neutralizing the Supreme Court, muzzling the EPA, ending same sex marriage, denying citizenship to the undocumented, or making it more difficult for minorities to vote?
These “reformers” may come wrapped in the flag but they could be after everything you hold dear. When they’ve finished the document that would re-shape America beyond recognition, thirty-eight state legislatures will be required to ratify it. But don’t be too sanguine about that my friend, the failure of liberals and moderates to show up at the polls in recent years has placed ratification within reach as well. The language and the image will seem non-threatening, perhaps even appealing—“End the gridlock in Washington!” A massive public relations campaign of immense proportions might be created and funded to pacify the public while the right wing is quietly force-feeding a tiny group of state legislators who actually would have the power to ratify. Can we really expect right wing billionaires like the Koch brothers to be able to resist the opportunity to change America into a nation more to their liking?