A New Constitutional Convention Would Be the Death of Progress | Opinion

When things are going badly, it is entirely natural cast about for an easier way to do things. That is basic human nature, and that is the source of some of the greatest innovations in history. Indeed, that is the origin of our country: the relationship with Britain kept getting worse until people started imagining life without the king.

And these days, progressive politics in this country certainly are going badly. A far-right majority in the House of Representatives has elected a speaker who fiercely defends a man he once said was paid by Russian President Vladimir Putin. Democrats hold the Senate by the barest of margins and could easily lose that next year. The Supreme Court is tossing aside one time-honored precedent after another on the way to enacting its deeply disturbing vision for the country. Hillary Clinton got more popular votes than Donald Trump in 2016, but an absolute majority of voters that year backed hard-right candidates. And now 57 percent of the voters either support returning Trump to the White House or are sufficiently unbothered by the prospect that they are uncertain if they would vote to keep it from happening. Who wouldn't want to find a better way?

But a constitutional convention, as John Kowal suggests considering, is definitely not it. Far from an alternative path for progressive politics, it would much more likely provide for the final consolidation of the Trumpist assault on our constitutional system.

To believe that a constitutional convention would advance a progressive agenda in this country requires one to believe that the Koch brothers, the American Legislative Exchange Council, and their allies have been making an epic blunder in sinking vast sums into campaigns for just such a convention. History suggests that is exceedingly unlikely. At a minimum, a conscientious progressive should seek to identify how specifically ALEC miscalculated.

Kowal does not attempt to do that, and at this point ALEC's plan looks devastatingly effective. A recent study by the Center for Media and Democracy found that, under existing state laws, 29 of the 50 state delegations to a convention would be selected exclusively by Republicans. Nineteen would be chosen by Democrats, with only two states having split delegations. Half a century ago, significant numbers of Republicans held progressive views on civil rights, environmental protection, and even labor rights. That Republican Party, however, is long-gone. An Article V convention now would be wholly dominated by the hard right.

What would such a convention do? ALEC-backed groups want to restrict federal spending in ways that would force radical cuts in Social Security, Medicare, Medicaid, SNAP, and Unemployment Compensation. They also say they want to restrict federal power, presumably to overturn major environmental and civil rights statutes. One of the few progressive victories of the last Supreme Court term would be washed away if the Voting Rights Act was rendered unconstitutional.

But once a convention convenes, it can do anything it wants. Surely Trump would push for changes that would entrench him in office, such as authorizing the sitting vice president to throw out electoral votes at will and easing the suspension of civil liberties when people protest abuses of government power.

Kowal says he wants a constitutional convention with "protections in place," but he offers no plausible path for establishing, much less enforcing, the protections he favors. He cites the ideas of two long-dead senators but offers no reason to think that anything like his ground rules could pass today. Indeed, it is precisely because he despairs of passing meaningful reforms through Congress that he calls for a convention in the first place.

Kowal opposes the one-state-one-vote system that ALEC-backed groups propose. Of course, I agree with him intellectually, but the vast majority of the states would have less power if votes are allocated by population. It is difficult to see how such a proposal could possibly pass.

And even if, by some miracle, Congress enacted Kowal's "protections," the convention could simply disregard them. Congress has no on-going authority over the convention. Supreme Court precedent declares that these are "political questions" into which the courts may not intrude. True, this court is not shy about disregarding precedent when convenient, but it is difficult to imagine a right-wing Supreme Court disregarding precedent to rein in a right-wing constitutional convention. Justice Samuel Alito insists Congress has no power to regulate the Supreme Court despite the Constitution saying that the Court exercises appellate jurisdiction "under such Regulations as the Congress shall make." He certainly would not find Congress has the power to regulate an Article V convention with nothing in the Constitution granting such authority.

The fundamental problem with progressive politics in this country is that too few people agree with us. If we can persuade more voters of our principles so that we are no longer trying to hold on in knife's edge elections, the Trumpist threat will fade away and enacting most of our program will become relatively easy. We will not need to amend the Constitution.

But as long as our country remains so sharply divided, a constitutional convention could be the death knell to progressive politics—and to our democracy as we know it.

@DavidASuper1 is a professor at Georgetown Law.

The views expressed in this article are the writer's own.