THE CONS IN THE CONSTITUTION

Happy Fourth of July!  This is a good day for an explosive display of a couple of cons in the U.S. Constitution.  I am indebted to an essay by Jill Lepore in The New Yorker for the fireworks.

CON No. 1.  Contrary to what we may have thought, a constitution is not a bottom-up insurgents’ document that springs from the cri de coeur of men yearning to be free.  As British historian Linda Colley puts it in The Gun, the Ship, and the Pen:  Warfare, Constitutions, and the Making of the Modern World:  States make wars, and wars make states make constitutions.  In other words, follow the violence.  From The New Yorker:

During the brutal world wars of the eighteenth century, millions of men carried millions of weapons, sailed hundreds of thousands of ships, and marched with thousands of armies. If most of those men demanded political rights, and political equality, in exchange for their sacrifices, they didn’t always get them. Some constitutions written in the great age of constitution-writing were, like many constitutions written more recently, instruments of tyranny. But, when constitutions did grant rights, it was because people, in wartime, had their governments by the throat.

As Colley concluded from her extensive research in constitutions from around the world, wide-ranging wars of the type waged during the 18^th century, the golden age of constitutions, cost a boatload of blood and treasure.  If you’re a monarch and you want your people (that would be your male people) to put their lives and their money (that would be taxes) on the line for you, you might have to grant them a few political rights in return.

Note that we’re talking about men here, and specifically free men.  Women in the 18^th century did not go to war or own property and their sacrifices were not rewarded with political freedoms.

[C]onstitutions, Colley says, have nearly always made things worse for women. Before constitutions were written, women had informal rights in all sorts of places; constitutions explicitly excluded them, not least because a constitution, in Colley’s formulation, is a bargain struck between a state and its men, who made sacrifices to the state as taxpayers and soldiers, which were different from the sacrifices women made in wartime.   

Slaves, Native Americans, and immigrants in the United States found themselves behind a similar constitutional Eight Ball:

The U.S. Constitution denied political rights to indigenous and enslaved people. And state constitutions adopted in the nineteenth century declared sovereignty over native lands and barred women, Black people, and Chinese immigrants from voting, making it all but impossible for any of these people to use the usual mechanisms of electoral politics to change their status.

And, as we know, freed slaves didn’t get the right to vote (on constitutional paper) until 1865; women were even later to the party, sitting on the sidelines like disenfranchised wallflowers until 1920.  Oooops!   I just indulged in a little critical race/critical feminism theory there.  Sorry for being factual.  My bad!  But on to the next con.

CON No. 2.  This explosive con is thought to have been discovered by Kurt Gödel, an émigré from the Austrian version of national socialism.  He was a mathematician and a colleague of Albert Einstein at Princeton; Lepore describes Gödel as the greatest logician since Aristotle.  To prepare for his U.S. citizenship test, Gödel studied the U.S. Constitution closely and thought he’d found a flaw in Article V, the amendment clause, which could lead the United States into a dictatorship like the one he’d escaped.  Article V reads:

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.

Seems harmless enough, but as Gödel is believed to have noticed, there was nothing in the Constitution that prohibited an amendment of Article V itself.  And here’s where the con gets explosive.  Again from The New Yorker:

In what amounts to a genuine oversight, Article V, the amendment provision, does not prohibit amending Article V. It’s very hard to ratify a constitutional amendment, but if a President could amass enough power and accrue enough blindly loyal followers he could get an amendment ratified that revised the mechanism of amendment itself. If a revised Article V made it possible for a President to amend the Constitution by fiat (e.g., “The President, whenever he shall deem it necessary, shall make amendments to this Constitution, which shall be valid to all intents and purposes, as part of this Constitution”), he could turn a democracy into a dictatorship without ever having done anything unconstitutional.

Sound like any wannabe dictator we know?  Someone who might try to put his own branded con in the Constitution?  Or how about something a little subtler, like a retreat to the pre-Civil War days with an amendment that restricts voting rights to white male property owners?

Getting two-thirds of both houses of Congress to propose an amendment under Article V might be a heavy lift, but how about a constitutional convention? Could a constitutional convention pull off that kind of an amendment con?  Let’s play Gödel and do the math.

There are 50 state legislatures, so 34 would make the two-thirds necessary to call for the convention.  You need three-fourths of those legislatures to affirm an amendment, which means 38.  As of May 2021, Republicans control both houses of 30 state legislatures (Nebraska’s legislature is unicameral, but it’s a solidly Republican state, so I will add their legislative vote to the Republican side of the ledger, making 31 Republican-controlled state legislatures. The Democrats currently control 18 state legislatures.

According to state legislature elections, two states will vote for legislators this year--New Jersey (D), and Virginia (D). Two will vote in 2023 (Mississippi (R) and Louisiana (R)).  The other 46 states vote for legislators in 2022.  Given that there will be redistricting because of the 2020 census, I would hazard that Virginia is in play this year.  Should Virginia turn red, that would make 32 Republican-controlled legislatures and leave 2 to go for the convention. 

Of the 16 remaining Democratically-controlled state legislatures up for a vote in 2022 (18-2), only 2 need to be added to the Republican column to make 34 state legislatures under Republican control.  If you look at those 16 states, there are some interesting possibilities for a flip. How about Maine, Vermont, Minnesota, Maryland, New Mexico, Colorado, or Nevada?   

While two of those would get you the 34 states you need to call for a constitutional convention, it still leaves you with the ¾ threshold necessary to confirm a constitutional amendment—38 state legislatures.  That’s four additional Republican-controlled state legislatures and seems like a pretty high bar today, but given the gerrymandered redistricting being undertaken, the recent restrictions on voting rights passed or proposed by some 43 state legislatures, the reticence of some Democratic Senators to carve out an exception to the filibuster for federal voting rights legislation, and the Supreme Court’s refusal to step in without such federal legislation, who knows whether the con Gödel found in Article V might just blow up the U.S. Constitution in a spectacular display of constitutional fireworks.

BOOM!  Happy Fourth of July!

Keep it real!  And wear your damn mask if you’re not fully-vaccinated.

Marilyn