This is the text of Article V of the US Consitution:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. [my emphasis]Bob Reich one of my favorite economists and political commenators. Democrats were talking this way about an Article V convention in the early 1970s. But on this issue, he seems to be continuing the hiding-under-the-bed position that the Democrats have been taking for decades. The leading concern then was fear that the pro-civil rights and pro-individual freedom rulings of the Warren Court would be overturned. With the federal judiciary now dominated by Republicans, that particular concern is not one that I'd like to see Democrats cling to.
And on this issue in 2018, that Democratic attitude sounds uncomfortably like a declaration of preemptive surrender before an Article V convention is even convened. Some states have called for an Article V convention specifically on the issue of overturning Citizens United. In January 2010, in his weekly address the weekend after the Supreme Court issued that decision, Obama said, "This ruling strikes at our democracy itself. ... I can’t think of anything more devastating to the public interest." He was dead right. If the Democrats aren't even willing to use the option of pushing for an Article 5 convention over that, they are ceding a huge Constitutional option to the Republicans.
A central question is whether Congress can limit the scope of issues which an Article V convention covers. Since we've never had one, there are clear precedents based on case law on whether that is the case or not. Sara Ellis at al summarized the scholarship on the issue in "Article V Constitutional Conventions: A Primer" 78 Tennessee Law Review 663 (2011). It seems to me pretty obvious that Congress could restrict the scope of the convention.
The Democrats' expressed fear over the decades that a convention called for, say, a balanced-budget amendment (a horrible idea in itself), could rewrite any of the Constitution it chose and present those changes to be ratified. The explicit fear by the Democrats, and from liberal Republicans in the days that extinct species still existed, was that things like freedom of speech and equal voting rights were so unpopular that they would be swept away in the ratification process.
The decades-old Democratic panic over the very idea of an Article V convention ususally obscures two important features. If a convention is set up, the Democrats can play the admittedly unfamiliar politics of the convention as well or better than the Republicans can. The fight would begin with efforts in Congress to define the scope of the convention. The huge qualification is that the Dems would actually have to fight for their positions, which they have a notoriously hard time doing. Like with Obama on Citizens United.
Reich's presentation here seems to assume that an Article V convention could just set completely new rules for ratification. Amending the Constitution has to be done through the Constitutional procedures, Article V convention changes included. If an Article V convention wrote a new Consitution with a provision that it takes full effect as soon as the legislatures of, say, 11 states ratify it, there is an important historical prededent for that kind of action known as the Civil War. Though in this case the title War of the Rebellion is probably more apt.
The argument he makes seems to treat an Article V convention like ae revolutionary tool known as a Constituent Assembly. Or in this case "counter-revolutionary" for those of us who still think the American Revolution and the Delaration of Independence are fundamentally important things. Venezuela held a Constituent Assembly in 2017 that officially established a new government that the opposition and the US government refused to recognized as legitimate. Although Veneuela's arguably had far more democratic legitimation that a neo-secessionist rogue Article V convention would in the US.
That also assumes that Congress cannot or will not restrict the scope of the convention's competeence.
A rogue Article V convention rolling over the ratification procedures of the Constitution really would be a re-run of Confederate secession, as I see it. If the Trumpized Republican Party decides to give that idea a whirl, Democrats and pro-democracy Republicans - if that species hasn't followed the "moderate Republicans" into extinction - will have to fight it, of course.
But in 2018, I don't want to see the Democrats completely surrender the Article V option to the Republicans any more than they should avoid impeaching Trump because of, well, fill in the usual Democratic excuses for not fighting for their own side.
No comments:
Post a Comment