US Constitutional Convention: Power to people or right-wing battle tactic?

Roslyn Fuller
Dr. Roslyn Fuller is a lecturer in International Law based in Ireland. She is the author of Ireland’s leading textbook on International Law ‘Biehler on International Law: An Irish Perspective’ (Round Hall, 2013). In addition to her academic work, she has also writes for the Irish Times, The Irish Independent and The Journal on topics of law, politics and education. Roslyn has been researching democracy for over a decade and is the author of “Beasts and Gods: How Democracy Changed Its Meaning and Lost Its Way” (October 2015, Zed Books). She tweets at @roslynfuller and can be reached at
US Constitutional Convention: Power to people or right-wing battle tactic?
Once upon a time, when knickerbockers were the rage and a gentleman could not sally forth without a fashionable white wig perched upon his natural locks, something truly remarkable happened.

The leaders in 13 British colonies below the St. Lawrence Seaway decided that they’d had enough of British rule and that they were going to form their own government. And not only that – their new country was going to be so big and so rich that it would one day put Britain in the shade. But that wasn’t going to happen without central organization.

Not everyone was enamored of this plan – many of the local farmers liked to keep things more grassroots. They penned castigating letters to newspaper editors, complaining that they had left Europe for a reason and were quite satisfied with local government the way it was. Considering these differences, the people in the 13 States (so recently colonies) called a convention to sort it all out. And at that fateful convention those who favored a big country and central government stole a march on their opponents, drafted a Constitution and pushed it through at State level tout suite in circumstances that are still controversial.

That country was the United States of America, the convention was the Philadelphia Convention and the ambitious Empire-builders who made it all happen are known as the Federalists or the Founding Fathers of the American Constitution.

Article v conventions

The Founding Fathers also cleverly sealed the door behind themselves, by making it difficult for anyone to hold another such convention. According to Article V of the Constitution, only two-thirds “of the several States” may call for a convention to propose amendments to the constitution. If those amendments are then ratified by three-quarters of all states (through legislature or convention) they will become law. This kind of consensus is difficult to achieve, and so far the first constitutional convention remains the only one.

Until now.

Last month, Michigan’s legislature called for a constitutional convention under Article V, becoming the 34th State to do so. Could this trigger a convention? It would seem not quite yet. Many of the other States that have made calls for an Article V Convention have rescinded their requests, in some case decades ago. The number of States that have current requests for an Article V Convention pending is estimated at somewhere in the low to mid-20s, not nearly enough to meet the two-thirds super-majority required. Although some proponents claim that States cannot rescind a request for an Article V Convention, there is no basis for this claim other than wishful thinking. Interpreting any law involves taking its purpose into account and Article V sets the two-thirds threshold in order to ensure that two-thirds of States are willing to show up and genuinely consider altering the Constitution. After all, three-quarters of them would have to ratify any amendment in order for the convention to have any outcome at all.

That being said, American courts are famous for their literal-mindedness (meaning that they do not always give a huge amount of weight to the purpose of a law), and the Article V Convention seems to be gaining ground. It is possible that more States could make a request in the new future. And this is where things really get interesting, because the move for an Article V Convention has a fairly thin, but extremely broad, support base that represents some very different ideas of what the constitutional convention should achieve.

The national Debt Clock is seen in New York October 15, 2013. (Reuters / Andrew Kelly)

Fiscal austerity or real change?

Two of the most prominent progressive supporters of an Article V Convention are professors Lawrence Lessig and Sanford Levinson. They would like to see a convention that contemplates alterations to bring the Constitution (well over 200 years old at this point) up to date. This would transform the aged document into a legal instrument that can deal more adequately with the needs of a nation in the 21st century. Issues like regulating election campaign finance and preventing judges from serving for life on the Supreme Court are some of the issues that are important to them and their followers. Both would like to see delegates to any Article V Convention chosen randomly from the general population, as this would give a truly accurate cross-section of views. This is entirely possible, because there are not any rules that stipulate who the delegates have to be or how they are selected for service.

The other end of the spectrum is a bit darker. Article V does not say whether States need to agree on which amendments they will be contemplating at any possible convention. While there is a fair bit of consensus that there should be some agreement as to what will be discussed (in order to facilitate making the entire enterprise worthwhile, as discussed above), few experts think that there is any need to explicitly limit discussion to narrow range of possible amendments. That, however, is just what some of the strongest supporters of an Article V Convention purport to do in that they want to limit the convention to discussing amendments of a particular nature only, those that require the national budget to be balanced and other fiscally conservative and isolationist measures (tax limitations, weakening the already virtually non-existent American respect for the treaties it has signed, etc.). Supporters include such noteworthies as Glenn Beck, Rush Limbaugh, Mark Levin, and Mark Meckler, co-founder of the Tea Party Patriots and current head of Citizens for Self-Governance.

All have a history of opposing social services, such as subsidized healthcare, and while Meckler always claimed that Tea Party Patriots was a “grassroots movement” it somehow managed to received $1 million from an anonymous donor. With the kind of ‘grassroots’ friend that has $1 million burning a hole in their pocket, it’s unsurprising that Citizens for Self-Governance managed show up to a conference of nearly 100 state legislators in Mount Vernon late last year, loaded down with 24-page briefing books on draft amendments for the proposed constitutional convention (as reported in Slate). Another supporter of implementing austerity measures through an Article V Convention, the Goldwater Institute is partially financed by none other than the infamous Koch Brothers and Walton family, billionaires all.

These interests basically seek to do something as fascinating as it is horrifying. As largest state-financier and only nation able to veto International Monetary Fund decisions single-handedly, the United States was one State that would never, ever become subject to the Fund’s detested policy of loan conditionality, which it uses to enforce fiscal austerity upon nations in financial trouble. The ‘balanced budget’ movement seeks to do exactly what the Fund cannot do and impose a form of conditionality on the people of the United States by locking it into the very Constitution. And by the way, fiscal austerity in a recession is an economic tactic that has been completely and utterly discredited. It really, truly does not work, and only serves to funnel money from the poor to rich. Think of a tornado with the poor at the bottom, the rich at the top and a lot of loose dollar bills and you’ll realize why so many millionaires think it’s a fantastic idea.

Moreover, the movement for fiscal austerity through an Article V Convention fails to address why the budget is not balanced. It truly has nothing to do with subsidized healthcare (available in every other developed country in the world and responsible for eradicating such killers as smallpox and polio to the profound economic advantage of everyone on Earth), and far more to do with the US military-industrial-complex (which spends 10 times more than the next 10 States combined, yet still took 10 years to track down Bin Laden) and a complete and utter lack of regulation and accountability in finance.

Reuters / Andrew Burton

Debt is not a bad thing as long as it is incurred in a sound investment in the future. Just like average households. Do you have a mortgage? Do you have a car loan? What about student loans for your kids? Congratulations, you are investing in the future with a debt today. Without this your house would more closely resemble the kind of hut that is more in vogue in Sudan. And without the possibility of deficit spending, our economies would resemble Sudan a lot more, too.

Start making sound investments in the future by refusing to foot the bill for such specious projects as the NSA putting the entire world under surveillance, put an end to tax havens, and stop paying to imprison every teenager who’s smoked a joint and I guarantee you that your budget will balance itself. Trying those who created the false case for war against Iraq (purposely misleading your entire country for personal gain is generally considered to be rather treasonous and I believe well worth an investigation) and confiscating their property may also well create some decent windfalls.

Considering the ‘balanced budget’ movement’s backers, it’s hard to believe that these are the kind of savings measures they have in mind, and once a constitutional amendment of this sort is passed, you can rest assured that they will lobby Congress hard for the type of savings that are entirely in their favor.

Any convention has to be open to addressing the underlying reasons as to why the United States went from a budget surplus to near bankruptcy in the space of only 10 years. It wasn’t some kind of black magic beyond the comprehension of mortal man, but rather the entirely foreseeable consequences of bad policy decisions. If that can be done, an Article V Convention will be an enormous step forward for democracy, for the American people and for the world. If it is limited to only those amendments backed and organized by the super-rich in an attempt to load discredited fiscal austerity measures onto the backs of America’s working class, it will be one more disaster in a society that can afford them less and less.

The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of RT.