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The Conservative Plan to Rewrite the Constitution, and Yes, It’s a Thing

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This article originally appeared in the Daily Beast on August 21, 2017

It takes two-thirds of state legislatures to approve a constitutional convention. That’s 34. The GOP controls 32. Yes—worry.

As the country reels to understand the conservative party’s affiliation with the alt-right and white supremacists, it may be worth noting some disturbing mainstream conservative efforts that create fertile ground for these groups to take root. For example, conservatives have longed attempted to convert our form of federal government into a confederation of supreme states. This is how they intend to do it.

In his new book Smashing the D.C. Monopoly, former Republican Oklahoma Senator Tom Coburn urges the Republican legislatures across the country to invoke Article V of the U.S. Constitution to convene a constitutional convention to bring our founding document more in line with conservative governing principles. Two-thirds of federal legislators may begin the constitutional amendment process, but that option has evaded Coburn and other conservatives over the years since they don’t have the numbers.

The other path to constitutional amendment is for two-thirds of the states’ legislatures – that’s 34 states – to call for a constitutional convention where all sorts of amendments might be considered. As Republican majorities have swept state legislatures, this path is now viable. Presently, there are 32 state legislatures controlled by Republicans and 34 Republican governorships – thanks to the recent Republican conversion of West Virginia Governor Jim Justice. Coburn and his cohorts are knocking at the door of a constitutional convention.

Through the convention process, Coburn seeks to “limit the power and jurisdiction of the federal government” in favor of states’ supremacy. He is particularly put out by some “two hundred thousand armed federal workers” in agencies such as the ATF, FBI, DEA, U.S. Marshals and Federal Prison System, which he sees as usurping state and local power. Suddenly, the chants to “drain the swamp” or “smash” D.C. take on a disturbing secessionist tone.

And this is not just some idle pipe-dream of a few people with nothing better to do. They’re really trying to do it. Coburn works with the Convention of States Project to encourage state legislatures to petition for such an amendments convention. Over 40 states either have a request for a constitutional convention or are currently seen as amenable to passing such a request. Some vigilant non-conservative stakeholders begun this spring to try and stop the convention effort by having Democrat-held state legislatures – such as New Mexico and Maryland – rescind convention petitions passed years ago.

So yes, this ill-footed conservative movement is serious. And its genesis dates back hundreds of years; two-hundred-plus years, anyway. Since the very beginning of our republic, there have been those who have wanted states’ rights supremacy. They have lost out – over and over again. The notion that states are supreme and the federal government is nothing more than an impotent, functionless overlay is based on the rejected and repealed Articles of Confederation and Perpetual Union of the States. That document set up a confederation government and therein preserved preeminent state independence, while providing for a very limited central government. It was a functional disaster that put the sustainability of our fledging country in peril.

The United States Constitution replaced the failed Articles of Confederation in 1789. The Constitution provided for a federation government with federal exclusive and concurrent powers making for a stronger central government, which was checked by co-equal federal branches—not the states. The Constitution balanced a division of power between two levels of government – federal and state.

Interestingly, the Articles of Confederation failed for the precise reason conservatives oddly continue to tout its relevance – the desire for state supremacy over federal government interference. For instance, the federal congress could pass laws, but not enforce them. States were allowed to reject any law with which they did not agree. The congress had no power to levy taxes or to regulate trade. The states had that sole authority. And, importantly, the Articles of Confederation did not allow for a federal court system.

Confederates of the South refused to accept our constitutional federation, opting instead for the defunct concepts of the Articles of Confederation that would have allowed nullification of federal laws, secession, and continued slavery. They called their proposed form of government the Confederate States of America; a confederation.

We fought a long, bloody war over this, and the Confederates lost, confirming their profound misunderstanding of states’ rights. We then ratified the Fourteenth Amendment, lest there be any continuing confusion that no state’s interest could thwart protections guaranteed by the federal Constitution.

Yet again, during the civil rights era, civic slow learners invoked concepts of the Articles of Confederation and so-called states’ rights that would have tolerated state Jim Crow laws regardless of federal constitutional directives. The Supreme Court and U.S. marshals reminded them otherwise. Desegregation would have been impossible under the Articles of Confederation because of the absence of the federal courts and armed federal employees, like the U.S. marshals with which Tom Coburn takes such exception, to enforce the federal constitutional rights of minorities in the old South.

Certainly, states and states’ rights are a centerpiece of our form of government: they are not, however, the predominant force. The misunderstanding of that simple fact is the basis for a great deal of our current political discord and is the motivating force behind Coburn’s call for a constitutional convention.

The movement for a constitutional convention has been the darling of many Republican governors. Texas governor Greg Abbott wishes to “restore the rule of law foundation on which this country was built.” He seeks to amend the Constitution to allow states to override Supreme Court opinions that declare state laws unconstitutional – such as a state’s anti-gay marriage law. Other governors, such as Oklahoma governor Mary Fallin and her Republican colleagues at the National Governors Association think a constitutional convention is a swell idea. Even former Florida governor Jeb Bush has jumped on the bandwagon with a November 2016 Wall Street Journal op-ed supporting the effort. Bush and others cite the need to amend the Constitution so as to remove the application to the states of the federal Commerce Clause, not mentioning that it is the Commerce Clause that allowed federal courts to overrule on federal constitutional grounds state laws that prohibited minorities from renting hotel rooms and eating in restaurants under Jim Crow. The Commerce Clause has again raised the ire of conservatives due to its probable application to the purchase of wedding cakes by gay couples.

The conservative ideological drive for a confederation, as opposed to a federation, explains so much. From an ideological perspective, conservatives oppose federal domestic policies regardless of the resulting synergies, protections, or shared cost. Conservatives do not want national economic infrastructure such as Medicaid, Medicare, or Social Security, because those policies acknowledge the functional role and broad protection of a centralized federation in partnership with the states. They also want the opportunity to discriminate against certain citizens in the name of “religious freedom.” Conservatives simply cannot and will not give up the ghost of the confederation. It is truly the Freddy Krueger of conservative thought.

It is time for a national awakening on a few basic facts. We are not a confederation. Confederations have questionable functionality and result in dangerous rivalry, inequity and instability. Conservative ideology based on extreme states’ rights philosophy is the antithesis of our nation’s founding document.

We need not waste a day in exposing this effort for what it is: an attempt at unchecked state power and discrimination. This constitutional amendment effort begs for a governing structure that has been historically appealing to intolerant extremist. If we are to reach viable solutions to the national challenges we face, we must first acknowledge the type of government we actually have – a federation – and how we might use it as a tool for policy that positively affects the lives of our citizens.

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