Donald Trump’s recent rant that the U.S. Constitution should be “terminated” so that he can be installed as president for life merits no response, given the Orange one-man crime wave’s tenuous connection to reality. Laughter is the appropriate riposte as Trump’s futile attempts at becoming the fascist dictator he clearly aspires to be become ever more futile.
But is his latest childish tantrum really something to be laughed off? Having skipped the “tragedy” phase and gone straight to “farce,” Trump is facing what is likely to become a politically terminal case of irrelevancy as new contenders for Mussolini’s crown, most notably but not only Ron DeSantis, emerge. The nascent fascist movement that has coalesced around Trump, and the varieties of extreme right menace that shade into it that are now expressed through the Republican Party, are no laughing matter. And while embarrassed silence or a quick change of subject might be Republicans’ default position when asked to comment on Trump’s increasing irrationality due to their fear of the Frankenstein monster they have let loose, eviscerating the Constitution is actually on their agenda.
Let us have no illusions about the U.S. Constitution, the world’s oldest. Hopelessly archaic and undemocratic, it is a document that was designed to keep the country’s slave owners and commercial bourgeoisie firmly in power — going so far as to enshrine slavery in its text — through setting up institutions like the Electoral College and the Senate (the world’s most undemocratic legislative body) to ensure that power could never be extracted from the hands of the commercial and plantation elite. Ambiguously written to exclude women, Blacks, Indigenous peoples and the poor, its stilted language is open to interpretation by judges who see protection of the most powerful and wealthy capitalists, and the maintenance of inequality, as their holy mission.
This mission has reached such proportions that the absurd doctrine of “originalism” is not only proclaimed with straight faces, but judges on courts up to the Supreme Court rely on it to impose their hard right political agendas. “Originalism” is the farce of an idea that asserts only those rights explicitly mentioned in the Constitution exist, and that any interpretation of its text has to be based on what the writers of the Constitution — the “Framers” as they are usually called in legal circles — intended. In other words, judges must read the minds of people dead for more than 200 years to decide cases. By a remarkable coincidence, those long-dead minds are opposed to all social progress.
It must be difficult for the rest of the world to imagine such laughably transparent silliness being offered as legitimate legal theory, but such is the state of politics in the global hegemon. We might go so far as to suggest U.S. politicians will do anything for a laugh, but as the Supreme Court erases one right after another, there is nothing funny going on here.
What is certainly not funny is the quite serious, albeit quiet, movement by the hard right to put an end to constitutional rights through wholesale changes to the Constitution. Their chosen route to do this is the convening of a constitutional convention, and this movement has moved forward by a frightening amount.
Massive corporate funding behind convention agitation
Among the leading voices for a new constitutional convention — one that would have few if any limitations on its power — is none other than the American Legislative Exchange Council (ALEC). Lavishly funded with undocumented millions of dollars, ALEC is a secretive group that writes “model legislation” for state legislatures across the United States that benefits corporate interests. The watchdog group Center for Media and Democracy’s ALEC Exposed website calls ALEC “much more powerful” than a typical lobbyist or front group. “ALEC is a pay-to-play operation where corporations buy a seat and a vote on ‘task forces’ to advance their legislative wish lists and can get a tax break for donations, effectively passing these lobbying costs on to taxpayers,” ALEC Exposed reports.
What do legislators who work with, or are members of, ALEC do with the organization’s “model” bills? According to ALEC Exposed:
“Participating legislators, overwhelmingly conservative Republicans, then bring those proposals home and introduce them in statehouses across the land as their own brilliant ideas and important public policy innovations—without disclosing that corporations crafted and voted on the bills. ALEC boasts that it has over 1,000 of these bills introduced by legislative members every year, with one in every five of them enacted into law. ALEC describes itself as a ‘unique,’ ‘unparalleled’ and ‘unmatched’ organization. We agree. It is as if a state legislature had been reconstituted, yet corporations had pushed the people out the door.”
Extreme-right state legislators met at an ALEC conference in late 2021, vowing to push for a constitutional convention. The ALEC proposal calls for a balanced-budget amendment and term limits for political office holders. The first is dangerous enough, given that forcing the federal government to balance its budget every year would mean permanent austerity would be imposed; working people would be hit hard by any such limitations on government spending. Not only would the government be unable to respond to a recession, basic programs like Social Security would be put at risk. Medicare and government pensions would also be subject to budgetary axes. That outcome is of course very much intended. But any constitutional convention would not have to limit itself to a finite set of topics. Because there are no rules or laws governing what a convention could do, a seated convention could easily become a runaway body, imposing a full set of far-right and corporate wish lists. Calls for retrogressive legislation, including bans on abortion, are routinely called for by proponents of seating a convention.
The far right drive for a convention to wipe out as many gains achieved by social movements as possible has been quietly going on for years. In 2017, for example, Truthout reported on an effort by state legislators affiliated with ALEC and promoted by another shadowy group, Citizens for Self Governance, whose co-leaders have strong ties to the Koch Brothers and who routinely label Black Lives Matter and other Left groups as “thugs” and “criminals.” A year earlier, the group practiced for a constitutional convention by holding a mock convention in which it passed a far-right wish list that included making it easier to repeal federal regulations, requiring a supermajority to impose federal taxes and eliminating federal taxation by repealing the 16th amendment.
To help guarantee the far-right outcome desired, this initiative would “appoint seven delegates to the convention, and attempts to provide for the replacement of delegates if they go off-script,” Truthout reported. The intended script could be very dangerous. “[A]ny convention call, no matter how narrowly written, could result in a ‘runaway’ convention,” the report said. “Why? Because the Constitution doesn’t provide any guidance or constraints on how a convention would operate once called. State politicians or Congress could write their own agenda and rules about the way delegates are chosen, the number of delegates allowed from each state, and whether or not a supermajority is required to approve amendments. Once in the room, delegates to a convention can ignore [any] limits.”
As recently as last month, an ALEC conference in Washington was attended by some of the most notorious extreme-right mouth-frothers, including former House of Representatives Speaker Newt Gingrich and several current members of Congress. A rouges’ gallery of far-right pressure groups, including some who agitate for a total ban on abortion. Among the offensives endorsed at this conference were to fight “woke capitalism” (what this chimera might be was not specified) and a bill that would “bar companies with 10 or more employees from receiving state contracts if they take into account any ‘social, political, or ideological interests’ to limit their commercial relationships with fossil fuel, logging, mining, or agriculture businesses—and that instructs legislatures to ‘insert additional industries if needed.’ ” In other words, promotion of fossil fuels would become mandatory. Another ALEC “model bill” promoted at the conference was legislation intended to enforce right-wing censorship in public universities.
How close is the United States to a convention?
To seat a constitutional convention, two-thirds of the states (34) would need to ratify a resolution. Although current constitutional law mandates that three-quarters of the states (38) would then have to approve, a convention could change the ratification requirements to whatever it wanted, with no constraints. There is precedence for this — the only constitutional convention in U.S. history, in 1787, “went far beyond its mandate,” the Center on Budget and Policy Priorities (CBPP) wrote. “Charged with amending the Articles of Confederation to promote trade among the states, the convention instead wrote an entirely new governing document” and drastically altered the approval process.
How many states have ratified? Convention proponents claim that 28 states have already passed resolutions. The CBPP, by contrast, reports that since ALEC released “a handbook for state legislators that includes model state legislation calling for a constitutional convention” in 2010, only 12 states have adopted it. ALEC gets to 28 states by counting any state that has ever passed any resolution calling for a convention, no matter different wording nor that some of these resolutions are more than three decades old. “Whether Congress would agree to count all such other state resolutions is unknown” the CBPP wrote. “The question is important, because the Constitution grants solely to Congress the power to determine whether the 34-state threshold has been met.”
Alternate counts include the 19 states claimed by a pro-convention group calling itself “Convention of States Project” that avoids any mention of who or what might be behind the group but quotes Ron DeSantis and Sean Hannity among a host of far-right extremists. Another shadowy group that fails to mention its backers, “US Term Limits,” admits that only five states have ratified its favored version but claims that if other versions are included, the total reaches 19. The right-wing news magazine Newsweek claims 17 states have ratified. The liberal citizens’ group Common Cause writes that “more than a dozen state legislatures” have passed balanced-budget convention resolutions since 2011, while five states have rescinded resolutions since 2016. Fortunately, the far-right drive to re-write the Constitution has not been well organized, although there is significant danger that the backing of ALEC will likely put this retrograde movement on firmer footing.
None of the above is in any way intended to deny that the U.S. Constitution is badly out of date. A better world for United Statesians certainly would mean a far more progressive constitution, one guaranteeing democratic rights and expanding the concept of rights to economic questions, and creating new legislative bodies based on democratic outcomes. Such a document would be much different than the current Constitution. Although it would be natural for the Left to be tempted to support a convention to advance progressive reforms, the current balance of social forces quickly puts a kibosh on such ideas. Given the vast power that the corporate mass media holds, the relentless promotion of right-wing talking points as “news,” and the hold the Republican Party has on state legislatures across the country, the time for a convention is nowhere near.
The Democratic Party certainly isn’t going to be of any help, given the intellectual dead end of liberalism that it exemplifies and the austerity it has embraced, as this month’s vote to force a bad contract on rail workers was the latest demonstration in an endless series of capitulations to capitalists.
Any move for a convention needs to wait until the balance of forces is tilted in favor of the Left, and that can only come about through a sustained mass movement sure of its goals. In such a scenario, movements would likely be aiming much higher than a constitutional convention — a better world necessitates drastically different ways of organizing politics and the economy than what currently exists. There would be no need to tinker with an archaic document long overdue for replacement; it would be necessary to re-imagine what a constitution should be. For now, we are in the world we are in, and while we remain on the defensive, any convention would be for the worse. Capitalist formal democracy is already farcical. The current backsliding toward a harder right-wing domination doesn’t need yet more impetus.