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Time to wake up, people. It's no longer just a dream—but a nightmare one step closer to happening.
One of the right’s favorite fever dreams over the years has been to gut the US Constitution of many of its checks and balances and officially turn America into a legal oligarchy with a strongman presidency, nearly bulletproof legal immunity for the morbidly rich, and full personhood for corporations.
As of this month, it’s no longer just a dream.
The American Legislative Exchange Council (ALEC) completed their winter “National Policy Summit” get-together in Scottsdale, Arizona last week with Speaker Mike Johnson as its keynote speaker. This is the group that’s brought “Stand Your Ground” and voter suppression “model legislation” to Red states across America and, for fifty years now, has been bringing together corporate lobbyists and Republican state-level politicians to make state after state more corporate- and billionaire-friendly.
If their plan works, these Republican toadies of the billionaires who fund and own them will rewrite our Constitution and state governors, the US Congress, and the President will have no say whatsoever in the process.
At this recent meeting they rolled out a new strategy to convene a Constitutional Convention, so they can finally remake America in their own image: they’re going to try to get the six corrupt Republicans on the Supreme Court — who all have direct or indirect ties back to ALEC, its related/affiliated organizations, and/or its funders — to go along with it.
Former Wisconsin Senator Russ Feingold (now a professor of law and president of the American Constitution Society) is not prone to hyperbole; he’s always been a thoughtful and measured speaker and writer. So, it’s worth taking him seriously when he recently said of MAGA Mike Johnson:
“It is alarming to have a speaker of the House who supports the extremist Convention of States movement, which is striving to radically rewrite the U.S. Constitution.”
Please consider the horrifying possibilities.
Morbidly rich billionaires and the groups they fund are working to rewrite our Constitution to do all this and more.
They want to provide corporations and the rich with more and more protections and benefits while chopping away at anything smelling of “socialism” like Social Security, child labor laws, or inheritance, income, and wealth taxes.
The Constitution provides for three ways to change or amend itself. The first is that Congress can propose a constitutional amendment, pass it with a supermajority in both houses, and have three-quarters of the states ratify it. This is the way it’s been done for every one of the existing 27 amendments.
The second strategy is done by using Article V of the Constitution and driving the process up from the states. The easiest way to do this is for three-quarters of the states to legislatively approve (with simple majority votes in the legislatures of each state) an amendment, in which case Congress is unnecessary and upon ratification by the 38th state, it becomes a permanent amendment to the Constitution.
While this strategy has never been used, it’s one process many of the good-government groups like Move To Amend and Public Citizen are pushing for a “Corporations are not people, and money is not speech” amendment to reverse Citizens United.
The third — and incredibly dangerous — strategy to amend the Constitution is to simply call a “Convention of the States,” again using Article V, and open the entire document itself up to rewriting and tinkering.
This third strategy is the one ALEC was pushing this month. If they can pull it off in the states (where it’s cheaper to buy politicians), then Congress, state governors, the president, and even the courts would have no say over it. And ALEC has spent the past 50 years becoming a major — some would say controlling — factor in Republican-controlled state legislatures.
Their barrier has been that it takes 34 states to call for a convention, and there have never been that many states calling call for one at the same time since the founding of our republic. However, as was pointed out at ALEC last week, every state except Hawaii has — at one time or another, starting with Virginia in 1788 — passed a resolution proposing a constitutional convention (there have been 400 such resolutions since the founding of our nation).
While most of history’s resolutions for a convention have been specific to one issue or another (New York’s 1789 resolution called for a Bill of Rights to be added to the Constitution, for example, something that Congress and the states did in 1791), a half-dozen were simply calls for a convention without specifics. These are sometimes referred to as “generic” convention resolutions.
The theory pushed at ALEC, first rolled out three years ago at an ALEC workshop by conservative activist David Biddulph but now apparently fully endorsed, is to combine the existing 28 Red state resolutions along with the six “generic” ones (going all the way back to 1789) to hit the magic number of 34 states to open the convention.
The key to the strategy is to get it before the Supreme Court and let the billionaire-owned Republican justices do ALEC’s work for it by ruling that those old resolutions are still valid, even though the people who proposed and passed them are all long dead.
Utah Republican State Rep. Ken Ivory told ALEC lawmakers it was imperative to get the issue before the Supreme Court:
“Please join us in the state of Utah as we look into the legal mechanisms that we have under the Constitution… to [get the Court to] declare that Congress must count the [old] applications. … And if, as we believe, we’ve already achieved 34 applications to Congress for a fiscal responsibility convention, call [it]… and hold a Convention of States.”
If their plan works, these Republican toadies of the billionaires who fund and own them will rewrite our Constitution and state governors, the US Congress, and the President will have no say whatsoever in the process. Only state legislatures are necessary for rewriting the Constitution and then ratifying their own work, according to Article V of the Constitution, and governors can’t veto their actions.
Much like the many cases that have suddenly burst onto the scene and then been used by the six corrupt Republicans on the Court to alter American law and take away citizens’ rights, this one could move quickly. Now that the ALEC meeting is over, expect to see states begin putting together the lawsuits or other legal actions necessary to get this proposal before the Court.
Alexander Hamilton was prescient: in the last sentence of Federalist 85, he warns us of efforts to re-write or replace our Constitution:
“I dread the more the consequences of new attempts, because I know that powerful individuals, in this and in other States, are enemies to a general national government in every possible shape.”
Common Cause and the Center for Media and Democracy have been at the forefront of sounding the alarm and I’ve hot-linked their names to their most recent articles about the work they’re doing to try to stop the billionaire machine devoted to rewriting our Constitution.
Please check them out, get on their mailing lists, and spread the word. This is one of those things that Republicans on the Court could use to seemingly spring out of nowhere and bring down our democracy once and for all.
About two weeks after the tragedy at Marjory Stoneman Douglas High School, I appeared on AtlanticLive's "Schools Across America: a Miami Town Hall," produced by Atlantic Magazine. It was planned well before a troubled teen with a legally purchased weapon of war killed a football coach, athletic director, a geography teacher and 14 students at his former high school.
When asked about Parkland, I responded that, "The gun laws we have in our state and country are deplorable. We are one of two countries that constitutionally have a right to bear arms, it's prehistoric. Personally, it motivates me to think more about what it takes to do a constitutional amendment, and maybe we need to think about that because that's what needs to be done."
Gun control will never get around the Second Amendment. We can dance around it like Muhammad Ali, perhaps jab at it with policy like Sugar Ray. But we will never Tyson TKO gun control without amending -- or completely repealing the Second Amendment so that individual states can determine for themselves how to regulate personal gun use.
Retired Supreme Court Justice John Paul Stevens agrees. He recently challenged young activists to take it a step further and, "Seek more effective and more lasting reform ... demand a repeal of the Second Amendment."
In 1789, the population of America was approximately 4 million, half of which were women, and 800,000 were African slaves -- two groups to whom the Constitution did not apply equally.
To even discuss in public the idea of a constitutional convention or congressional approval for three-quarters of the states' legislatures (38) to ratify a constitutional amendment, draws the ire of Democrats and Republicans alike. Do we honestly think that the 39 men that signed the U.S. Constitution 230 years ago, are some sort of deified superheroes who cannot be questioned by mere mortals in 2018? In 1789, the population of America was approximately 4 million, half of which were women, and 800,000 were African slaves -- two groups to whom the Constitution did not apply equally.
Supreme Court Justice Thurgood Marshall said during a speech to lawyers and jurists that he would not accept offers to speak at constitutional bicentennial celebrations in 1987 -- "For I do not believe," he said, "that the meaning of the Constitution was forever 'fixed' at the Philadelphia Convention. Nor do I find the wisdom, foresight and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today."
Imagine a sitting U.S. Supreme Court justice saying that to a crowd of legal minds. Let that sink in.
Florida should be leading the charge, we have more ways to amend our Florida Constitution than any other state. Florida today is in the midst of a mandatory revision process as the Constitutional Revision Commission meets every 20 years by law. The revision-commission process is entirely unique to Florida. I usually don't agree with many of the amendments proposed, but appreciate living in a state that seriously considers amendments through a customary practice that acknowledges change in our country.
Of all firearm homicides in the world, 82 percent occur in the United States.
We have regular constitutional change in Florida. What are we afraid of at the federal level? America has not witnessed a constitutional amendment since 1971 (26th Amendment) when the right to vote was lowered to the age of 18. (I'm intentionally omitting the 27th Amendment regarding compensation for congressional lawmakers. It was introduced in 1789 and passed 203 years later). I wasn't on this Earth in 1971 and neither were 63 percent of Americans today. Only 6 percent of Americans were adults in the 1960s when three constitutional amendments were passed. American seniors might view a constitutional convention a little differently, and that is a key voter constituency along with the youth leading a new movement in America for gun gontrol.
We've never held an Article V Constitution Convention. Why not a Constitutional Convention to discuss gun control among other proposed changes? I think individual states in today's world should decide this issues. Shootings kill more than 36,000 Americans each year; every day, there is a average of 96 deaths and 222 injuries by gun violence. Of all firearm homicides in the world, 82 percent occur in the United States. African-American children have the highest rates of firearm mortality overall; they are 10 times more likely to be killed by guns in a country where African-Americans make up 14 percent of the population.
Florida should be leading an effort for a U.S. Constitutional Convention. The country is under assault because Democrats and reasonable Republicans will not address racially charged appeals with big ideas that bring people together. But big ideas win elections.
Right-wing resistance to meaningful gun control is driven, in part, by a false notion that America's Founders adopted the Second Amendment because they wanted an armed population that could battle the U.S. government. The opposite is the truth, but many Americans seem to have embraced this absurd, anti-historical narrative.
The men who gathered in Philadelphia in 1787 weren't precursors to France's Robespierre or Russia's Leon Trotsky, believers in perpetual revolutions. In fact, their work on the Constitution was influenced by the experience of Shays' Rebellion in western Massachusetts in 1786, a populist uprising that the weak federal government, under the Articles of Confederation, lacked an army to defeat.
Daniel Shays, the leader of the revolt, was a former Continental Army captain who joined with other veterans and farmers to take up arms against the government for failing to address their economic grievances.
The rebellion alarmed retired Gen. George Washington who received reports on the developments from old Revolutionary War associates in Massachusetts, such as Gen. Henry Knox and Gen. Benjamin Lincoln. Washington was particularly concerned that the disorder might serve the interests of the British, who had only recently accepted the existence of the United States.
On Oct. 22, 1786, in a letter seeking more information from a friend in Connecticut, Washington wrote: "I am mortified beyond expression that in the moment of our acknowledged independence we should by our conduct verify the predictions of our transatlantic foe, and render ourselves ridiculous and contemptible in the eyes of all Europe."
In another letter on Nov. 7, 1786, Washington questioned Gen. Lincoln about the spreading unrest. "What is the cause of all these commotions? When and how will they end?" Lincoln responded: "Many of them appear to be absolutely so [mad] if an attempt to annihilate our present constitution and dissolve the present government can be considered as evidence of insanity."
However, the U.S. government lacked the means to restore order, so wealthy Bostonians financed their own force under Gen. Lincoln to crush the uprising in February 1787. Afterwards, Washington expressed satisfaction at the outcome but remained concerned the rebellion might be a sign that European predictions about American chaos were coming true.
"If three years ago [at the end of the American Revolution] any person had told me that at this day, I should see such a formidable rebellion against the laws & constitutions of our own making as now appears I should have thought him a bedlamite - a fit subject for a mad house," Washington wrote to Knox on Feb. 3, 1787, adding that if the government "shrinks, or is unable to enforce its laws ... anarchy & confusion must prevail."
Washington's alarm about Shays' Rebellion was a key factor in his decision to take part in - and preside over - the Constitutional Convention, which was supposed to offer revisions to the Articles of Confederation but instead threw out the old structure entirely and replaced it with the U.S. Constitution, which shifted national sovereignty from the 13 states to "We the People" and dramatically enhanced the power of the central government.
A central point of the Constitution was to create a peaceful means for the United States to implement policies favored by the people but within a structure of checks and balances to prevent radical changes deemed too disruptive to the established society. For instance, the two-year terms of the House of Representatives were meant to reflect the popular will but the six-year terms of the Senate were designed to temper the passions of the moment.
Within this framework of a democratic Republic, the Framers criminalized taking up arms against the government. Article IV, Section 4 committed the federal government to protect each state from not only invasion but "domestic Violence," and treason is one of the few crimes defined in the Constitution as "levying war against" the United States as well as giving "Aid and Comfort" to the enemy (Article III, Section 3).
But it was the Constitution's drastic expansion of federal power that prompted strong opposition from some Revolutionary War figures, such as Virginia's Patrick Henry who denounced the Constitution and rallied a movement known as the Anti-Federalists. Prospects for the Constitution's ratification were in such doubt that its principal architect James Madison joined in a sales campaign known as the Federalist Papers in which he tried to play down how radical his changes actually were.
To win over other skeptics, Madison agreed to support a Bill of Rights, which would be proposed as the first ten amendments to the Constitution. Madison's political maneuvering succeeded as the Constitution narrowly won approval in key states, such as Virginia, New York and Massachusetts. The First Congress then approved the Bill of Rights which were ratified in 1791. [For details, see Robert Parry's America's Stolen Narrative.]
Behind the Second Amendment
The Second Amendment dealt with concerns about "security" and the need for trained militias to ensure what the Constitution called "domestic Tranquility." There was also hesitancy among many Framers about the costs and risks from a large standing army, thus making militias composed of citizens an attractive alternative.
So, the Second Amendment read: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Contrary to some current right-wing fantasies about the Framers wanting to encourage popular uprisings over grievances, the language of the amendment is clearly aimed at maintaining order within the country.
That point was driven home by the actions of the Second Congress amid another uprising which erupted in 1791 in western Pennsylvania. This anti-tax revolt, known as the Whiskey Rebellion, prompted Congress in 1792 to expand on the idea of "a well-regulated militia" by passing the Militia Acts which required all military-age white males to obtain their own muskets and equipment for service in militias.
In 1794, President Washington, who was determined to demonstrate the young government's resolve, led a combined force of state militias against the Whiskey rebels. Their revolt soon collapsed and order was restored, demonstrating how the Second Amendment helped serve the government in maintaining "security," as the Amendment says.
Beyond this clear historical record - that the Framers' intent was to create security for the new Republic, not promote armed rebellions - there is also the simple logic that the Framers represented the young nation's aristocracy. Many, like Washington, owned vast tracts of land. They recognized that a strong central government and domestic tranquility were in their economic interests.
So, it would be counterintuitive - as well as anti-historical - to believe that Madison and Washington wanted to arm the population so the discontented could resist the constitutionally elected government. In reality, the Framers wanted to arm the people - at least the white males - so uprisings, whether economic clashes like Shays' Rebellion, anti-tax protests like the Whiskey Rebellion, attacks by Native Americans or slave revolts, could be repulsed.
However, the Right has invested heavily during the last several decades in fabricating a different national narrative, one that ignores both logic and the historical record. In this right-wing fantasy, the Framers wanted everyone to have a gun so they could violently resist their own government. To that end, a few incendiary quotes are cherry-picked or taken out of context.
This "history" has then been amplified through the Right's powerful propaganda apparatus - Fox News, talk radio, the Internet and ideological publications - to persuade millions of Americans that their possession of semi-automatic assault rifles and other powerful firearms is what the Framers intended, that today's gun-owners are fulfilling some centuries-old American duty.
The mythology about the Framers and the Second Amendment is, of course, only part of the fake history that the Right has created to persuade ill-informed Tea Partiers that they should dress up in Revolutionary War costumes and channel the spirits of men like Washington and Madison.
But this gun fable is particularly insidious because it obstructs efforts by today's government to enact commonsense gun-control laws and thus the false narrative makes possible the kinds of slaughters that erupt periodically across the United States, most recently in Newtown, Connecticut, where 20 schoolchildren and six teachers were murdered in minutes by an unstable young man with a civilian version of the M-16 combat rifle.
While it's absurd to think that the Founders could have even contemplated such an act - in their 18th Century world of single-fire muskets that required time-consuming reloading - right-wing gun advocates have evaded that obvious reality by postulating that Washington, Madison and other Framers would have wanted a highly armed population to commit what the Constitution defined as treason against the United States.
Today's American Right is drunk on some very bad history, which is as dangerous as it is false.