ConCon 2.0: Six Amendments That Conservatives Could Push at a Constitutional Convention

(Photo: Antenna / Getty Images)(Photo: Antenna / Getty Images)

Let’s try a thought experiment. Some 230 years after the US’s constitutional convention, a new group of patriots are assembling. Instead of Philadelphia, Pennsylvania, however, they’re gathering in Philadelphia, Mississippi. All states are invited to send representatives, but some question the convention’s legitimacy or its goals, and decline the invitation in protest. Once there, others walk out of the proceedings, also in protest. Like the Constitution’s framers, the convention’s organizers offer a pretext for coming together: They are planning to tweak an important, but flawed, charter. But their real mission is to overhaul the document, and each delegate has thoughts on the end product.

On second thought, visualizing this scenario requires little imagination because it’s essentially what a group of politicians have been working on since Arizona’s legislature passed a law for a planning convention in March. To be clear, the September 12, 2017, gathering was not itself a full-blown constitutional convention like the ones conservatives have been teeing up. Instead, the convening was a “dress rehearsal” — laying the ground for a convention — where they were to draft rules and plan other logistics.

Our Constitution can be amended in two ways. One path begins with a resolution in Congress. If two-thirds of the House and Senate vote in support of a proposal, Congress sends it to the states for ratifications. If three-quarters of the states approve, the amendment, now ratified, becomes a part of the Constitution. This method has been used successfully 27 times.

The second path starts in the state legislatures. If three-quarters of the state legislatures pass resolutions for a constitutional convention, Congress must call one. But that’s all we know, because the Constitution is silent on how an Article V convention works, an omission that led even James Madison to “remark[ ] on the vagueness” of the clause. By his own account, he posed some important questions to his fellow delegates, like “How was a Convention to be formed? By what rule [would it] decide? [And] what [would be] the force of its acts?” Notwithstanding those and the many other “difficulties that might arise,” Madison gave up on questioning the wisdom of the convention route.

Of the 500 resolutions congressional Republicans have introduced to amend the Constitution, more than 130 were for a balanced budget amendment.

There were attempts to address some of those difficulties legislatively when legislators proposed rules to govern constitutional conventions in the 1960s and 1970s, but legal scholars had divergent opinions about Congress’s authority to regulate an Article V convention. And of course, we’ve never had a convention, so the Supreme Court has never weighed in to interpret — or make up — convention rules. Therefore, in 2017, just as in 1787, we have scant guidance regarding critical issues like delegate selection and weight of their votes.

Nor do we have rules to govern what gets debated at the convention. The big question here is: What is the scope of an Article V convention? Some argue that the agenda would be strictly limited to the subject matter identified by the state legislatures. Others believe that there is no way to stop a “runaway convention,” freeing delegates to propose changes to any part of the Constitution. All legal arguments being equal, though, it is hard to imagine what would hold delegates back from the opportunity to act on a long wish list of constitutional changes.

It is virtually certain that conservatives would dominate a convention held today. With control of the White House, Congress and 32 state legislatures, they would have marked influence over the process, including rulemaking. And thanks to unprecedented political tactics, the right has retained control of the Supreme Court, which would give conservatives the upper hand in any litigation arising out of the convention. Whether the delegates run for election in heavily gerrymandered districts or are appointed by state leaders, the result would be a convention with a strong conservative bent.

So what sorts of amendments might we see at a new constitutional convention dominated by conservatives (let’s call it “ConCon 2.0”)? To get a sense of the agenda, consider what conservative activists have promoted in resolutions and amendment proposals in recent years. Having reviewed two decades of GOP suggestions for amendments — resolutions introduced in Congress and passed by states requesting a convention, as well as those included in GOP platforms and presidential debates — some noticeable patterns emerge. The following ideas would likely vie for consideration at a conservative-dominated ConCon 2.0:

Restrict the “Power of the Purse”

Article I of the Constitution gives Congress power to levy taxes and to decide how to allocate the funds for the public benefit. Congress was given explicit authority to tax incomes when the states ratified the 16th Amendment in 1913, which both negated the Supreme Court’s narrow reading of federal tax authority in an 1895 case and reaffirmed a key policy goal of the Progressive Era. Republicans want to constitutionalize economic policies that go to the heart of this power.

A federal balanced budget amendment would be the centerpiece of any convention agenda. Over the past two decades, states passed 16 resolutions for a balanced budget amendment — almost half of the 34 Article V resolutions on all topics passed during that period. (Twelve “Convention of States” applications, which call for amendments to impose “fiscal restraint” among other things, constitute the bulk of the remaining applications.) Proponents of a balanced budget amendment convention claim to have 27 applications pending before Congress, though stale applications from an earlier, failed campaign are included in the tally. Out of the approximately 500 resolutions that congressional Republicans have introduced to amend the Constitution, more than 130 were for a balanced budget amendment. In addition, the GOP has proposed one in four of its last five party platforms.

But that’s just the tip of the iceberg. J.D. Mesnard, Speaker of the Arizona House, suggested that delegates could go far beyond merely requiring a balanced budget; they could propose an amendment to require a supermajority (two-thirds) vote in Congress to raise taxes, or to mandate that the states give consent to raise the national debt limit. Likewise, conservatives left a 2016 simulated convention having proposed a repeal of the 16th Amendment.

Over the past 20 years, congressional Republicans have introduced no fewer than 55 resolutions to foist their religious convictions on the public.

There is good reason to expect that each of these radical proposals would make it onto a convention agenda. Over the last 20 years, Republicans in Congress have introduced 25 resolutions to repeal the 16th Amendment and other federal taxing authority. And eliminating the income tax has been a plank on the party platform since 2008. In the same period, they introduced 15 resolutions in favor of an amendment to require a supermajority in Congress to raise taxes generally, and 12 resolutions to raise the threshold to pay federal obligations already incurred. These ideas resonate with conservative lawmakers at the state level: Two states have applied for a convention regarding the debt limit, and the 2012 GOP party platform included enactment of the supermajority requirement for raising taxes.

Limit Federal Office Terms

Imposing term limits on elected officials is a consistently popular idea among the GOP. And despite an array of foreign objects and other waste clogging the pipes in DC, this seems like conservatives’ only plan of attack to “drain the swamp.” Congress is the most common subject by far: House and Senate Republicans have offered more than 80 such resolutions over the past two decades. Following suit, Florida has recently applied for an Article V convention to propose congressional term limits, and the Republican Party proposed them in its most recent platform.

In the prior decade, congressional Republicans also introduced joint resolutions to mandate judicial term limits, as well as retention votes in Congress for members of the federal bench (the latter of which would doubtless politicize the judiciary even further). In either case, a convention is virtually certain to consider proposals for term limits.

Outlaw Flag Burning

Conservatives have introduced an average of three joint resolutions per Congress to make desecrating Old Glory a constitutional violation. Not yet halfway through the present Congress, GOP members are on pace to best their predecessors in the 105th, who introduced five anti-flag burning resolutions. And as the president continues to invoke the US flag and inveigh against protesting athletes (a paradox given his absolution of those marching under the Confederate battle flag), conservatives may get a boost in their effort to scale back the First Amendment. An anti-flag-burning amendment was also popular during the 2000 candidate debates for the Republican Party presidential nomination, and it has been included in two of the party’s platforms since then.

Make Their Faith “Ours”

Based on years of proposals, it’s a pretty safe bet that a conservative-dominated convention would try to make church and state much less separate. Over the past 20 years, congressional Republicans have introduced no fewer than 55 resolutions to foist their religious convictions on the public. Were the delegates to follow Congress’s lead — or make good on the 2016 party platform — they would push for constitutional rights to “school choice” and school prayer. Eliminating marriage equality has been a tenet in four of the five past GOP platforms, and it accounts for one-third of the “faith-driven” resolutions introduced by members of Congress.

Additionally, if consistency is a good indicator, the “human life” amendment is conservatives’ constitutional North Star. Without fail, proposals to restrict abortion severely or outlaw it entirely have been included in Republican Party platforms from the last two decades. While no anti-choice resolutions to amend the Constitution have been introduced in the most recent Congresses, seven such resolutions were introduced in earlier ones. (Opponents of women’s choice need not worry; there has been no shortage of anti-choice legislation introduced in either Congress or the states.) Taken together with the statements of candidates for the GOP nomination, abortion seems likely to appear on any convention agenda.

Liberalize Veto Power to Undercut Federal Policymaking

GOP members of Congress have introduced 19 resolutions for constitutional line-item veto power — to authorize the president to strike any disfavored provision of bills sent to the White House. Republicans have also favored amendments that would empower states to override federal legislation and regulations, or prevent them from being enforced. In the past 10 years alone, Republicans have introduced 10 such resolutions in Congress. Alaska has applied for a convention to propose a “countermand” amendment, which would permit the states “to nullify and repeal” any federal law, including court decisions, if just 30 agreed to do so. Louisiana, meanwhile, has applied for a convention to constitutionalize the Posse Comitatus Act, a throwback to 1878, banning military enforcement of Reconstruction policies.

We cannot disregard these conservative proposals to amend the Constitution, or treat them as merely symbolic.

On a few occasions, Congress has introduced resolutions for something akin to a popular veto amendment, which, for example, would permit voters to reject federal law through referenda. Delegates could also leave the convention having proposed the so-called “Regulation Freedom Amendment,” as called for in the Republican Party platform. This amendment would give a small minority (one quarter) of Congress the power to determine the fate of any proposed regulation, over health and safety or otherwise.

Restrict Citizenship and Non-Citizens’ Rights

Immigration is also a popular topic of conservatives seeking constitutional reform. Republicans have proposed 14 resolutions to repeal birthright citizenship — a 14th Amendment guarantee that reversed the Dred Scott decision. They’ve introduced half as many resolutions to make English the official language of the US. Finally, some in Congress would like to overturn the Supreme Court’s decision in Evenwel v. Abbot by amending the Constitution to mandate that states ignore non-citizens in redistricting.

Conservative Threats Go Beyond Symbolism

Some outlier ideas, like banning courts from citing international law, and some that have received consistent but moderate support, like asserting greater rights for crime victims, might also make the agenda.

We cannot disregard these conservative proposals to amend the Constitution, or treat them as merely symbolic. History counsels otherwise. During the 104th Congress, the House passed a resolution to make flag burning unconstitutional, but it died in the Senate. With an additional two votes from that Senate, a balanced budget amendment would have been sent to the states for ratification. This is what conservatives do when they have power.

Were these conservative proposals a true reflection of our national dialogue on the Constitution, the country would be in great peril. Luckily, they are not. Fevered conversations in the right-wing echo chamber about rampant flag burning and profligate government spending do not reflect the true priorities of the nation. But the first convention under Article V might provide an ideal forum for frustrated conservatives eager to impose a reactionary constitutional agenda.

If the many legal uncertainties relating to the convention method were not unsettling enough, what the delegates could debate — and how they get to debate it — should be. Their push for another constitutional convention shows that conservatives have taken the Shakespearean adage to heart. And if what’s past is prologue, the last 20 years gives us ample reason to take them seriously.