On Monday, former Democratic U.S. Sen. Russ Feingold wrote in an op-ed at The Guardian that Article 5 of the U.S. Constitution allows the document to be amended, either with amendments being proposed by two-thirds of Congress and ratified by three-quarters of the states, or through a method that has never been tested: the establishment of a new constitutional convention.
To hold a new convention, two-thirds of all state legislatures--34 total--must apply to hold the gathering, where lawmakers would have broad freedom to change the Constitution however they saw fit. Three-quarters of states would have to ratify their proposed amendments.
"The right has already packed the Supreme Court and is reaping the rewards, with decisions from Dobbs to Bruen that radically reinterpret the Constitution in defiance of precedent and sound legal reasoning," wrote Feingold, referencing recent rulings on abortion rights and gun control. "But factions of the right are not satisfied to wait for the court to reinterpret the constitution. Instead, they have set their sights on literally rewriting our foundational document."
Feingold--now president of the American Constitution Society--is among those warning that a new constitutional convention is "closer to reality than most people realize," as The New York Times reported earlier this month.
As the Democratic Party expended considerable effort on passing federal legislation during the Obama administration, ACLU communications strategist Rotimi Adeoye wrote at The Daily Beast last month, Republicans focused on taking control at the state and local level, with Democrats losing 13 governorships and 816 legislative seats between 2008 and 2016.
As a result, Republicans now just need control of four more states to reach the threshold needed to call a second constitutional convention.
Feingold noted that if right-wing advocates for a new convention like the Convention of States Project and the American Legislative Exchange Council (ALEC) get their way, there would be few limits on how Republicans could change the constitution:
There is nothing in the Constitution about how delegates would be selected, how they would be apportioned, or how amendments would be proposed or agreed to by delegates. And there is little useful historical precedent that lends insight to these important questions. This means that nearly any amendment could be proposed at such a convention, giving delegates enormous power to engage in political and constitutional redrafting.
"The framers left no rules," wrote Feingold in his new book, The Constitution in Jeopardy. "In this uncertainty lies great danger and, possibly, great power."
The former Wisconsin senator wrote at The Guardian that Republicans could use a new convention to craft an amendment banning abortion care, strip Americans of voting rights, gut federal anti-poverty programs, and further threaten people's right to be safe from gun violence by enshrining "their interpretation of the Second Amendment."
On Sunday, Common Cause president Karen Hobert Flynn told MSNBC that in the hands of Republicans, a second constitutional convention could "put all of our constitutional rights up for grabs."
Feingold noted that a national policy discussion regarding the "founding failures of the Constitution" is warranted.
"That said, any conversation about how to go about amending the Constitution needs to be transparent, inclusive, and informed," he wrote at The Guardian. "What factions of the right are pursuing is anything but. They are pursuing exclusively partisan outcomes and have sought to keep their efforts opaque. They do not seem interested in a representative, democratic process."
The Convention of States Project has received millions of dollars from the right-wing Donors Capital Fund and has been endorsed by Republican Govs. Ron DeSantis of Florida and Greg Abbott of Texas, Sens. Rand Paul (R-Ky.) and Marco Rubio (R-Fla.), and influential conservative commentators Sean Hannity and Ben Shapiro.
Rep. Jodey Arrington (R-Texas), a strong proponent of a new constitutional convention, recently proposed legislation to direct the National Archives to conduct an official count of all the states that have called for a convention at various times.
"Democrats should take the threat seriously," Amanda Litman, co-founder of progressive group Run for Something, told The Daily Beast. "Republicans always tell us what they want to do. We should believe them and think broadly and in the long term of where we should be working to stop this from happening."
With the midterm elections fast approaching, wrote Adeoye, "Democrats must emphasize to voters that Republicans still control most state legislatures, and if they remain in power, they can drastically change the Constitution."
