We are six state legislatures away from triggering an Article V constitutional convention, and hardly anybody is paying attention.
For anyone who needs a refresher, Article V is as follows:
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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Congress must call a convention if the threshhold is met. Once the convention is assembled, the delegates themselves have to establish procedures. The convention is not constitutionally required to stay on topic and there is no higher authority than can intervene to mediate disputes. The proponents of the convention, a rogues’ gallery of omnicidally insane budget hawks lead by ALEC and The Convention Of States, are currently trying to introduce legislation in Congress that will bring the proposals out of congressional records and into Archives’ jurisdiction where they can be catalogued, so that the convention will be triggered promptly if or perhaps when they pass the threshhold.
The convention provision has so far never been triggered because legal scholars agree that there’s no way to control an Article V convention. This may well be what Gödel saw. The constitution is the highest authority right up until a convention is called: after that, the Framers did not see fit to give us instructions, no precedent exists, and nothing can be assumed. The last one turned out happily in the end, but we must remember that in 1787 the delegates ignored both their instructions from the state legislatures and the ratification procedures laid out in the Articles of Confederation, and we ended up with a totally new system of government. This time Hamilton, Madison, and Jay are not coming to save us.
And, of course, our present situation doesn’t resemble 1787: the early republic was only six years out from complete regime change, and the convention was called to reform an ad-hoc system that everyone knew wasn’t working, even when they didn’t agree on what should be done about it. We, on the other hand, have enjoyed a hundred and fifty-two years of a continuously functioning constitutional system, the only amendment in the national discourse is the abolition of the electoral college, and the last thing standing between us and the authoritarian populist maniac in the White House is those four pieces of parchment in a glass case down the street. The state legislatures won’t send judges and political scientists and constitutional scholars: they will send politicians. There are no rules to rein in the influence of moneyed interests. This will not go well for us.
The lack of national news coverage is troubling. It is a general truth of the internet that when people demand to know why the media aren’t talking about Thing, the media are, in fact, talking about Thing, which is why the morons demanding discussion of Thing know about Thing in the first place. That isn’t the case here. I consume a frankly unhealthy amount of news. I found out about this while following up on a debate going on at Balkinization, and went looking for reporting afterward. There’s some coverage in state-capital papers, and a single Washington Post editorial from a few weeks ago. That’s all. This advance has been going on unnoticed since 2010. If the initiative reaches the threshhold, it will blindside the American people.
Between the regime and growing polarization, I don’t think we would survive this.