PUBLISHED: 13:00 26 April 2018
A fixation on Donald Trump means we're overlooking an even more profound threat facing the United States. In an epic essay ALBERT SCARDINO explains how this has come to pass
Forget for a moment, if you can, Donald Trump and his latest legal imbroglios. Forget about the surprise early retirement of Paul Ryan, the speaker of the House of Representatives. Ignore talk of impeachment. This Republican administration may fall, perhaps sooner than expected, but that won’t threaten the republic.
Such a threat is real enough though.
It is no exaggeration to say that the United States may be about to write itself out of existence, after its November midterm elections. The mechanism for such a revolutionary act is a never-before-used clause in the country’s constitution – Article V – which could result in a radical revisal of the constitution itself and a fundamental reshaping of the nation. It would be an American Brexit, every bit as shattering to the country’s liberal tendency as the British version has been.
The backdrop to such a seismic shift is the long-running debate over the country’s budget deficit. For decades, an amorphous coalition of fiscal conservatives, corporate anti-tax campaigners and anti-federal, states’ rights activists have worked to stop the growth of the deficit. Among those behind this campaign are the billionaire brothers Charles and David Koch, who run one of the world’s largest privately-owned companies, with interests ranging from pipelines to paper towels, and have long championed economically conservative and libertarian candidates and causes. Support also comes via Donors Trust, a fund which allows contributors to channel resources to conservative causes anonymously.
In the view of this coalition, Congress has failed to rein in spending but has cut taxes again and again, leading to a mountainous national debt. To start to chisel it down, the coalition wants a balanced budget, ensured by a constitutional amendment.
Article V may give them a chance to achieve their goal, since it allows the states to call for a new convention to consider revisions to the constitution. The fear, though, is that such a convention would open a Pandora’s box, unleashing forces and precipitating a fast-moving chain of events which would transform the country beyond recognition. Supreme Court justices and constitutional scholars from the right and the left warn that the first-ever such convention could bring chaos, rather than a simple amendment.
Such a constitution need not restrict itself to fiscal matters. It could adopt itself any amendments it chose – one to ban abortion, for instance, a declaration that Christianity be the national religion, or one outlawing Islam. All would depend on the delegates and the rules they adopt. Politics and politics alone would determine the outcome. And there is no shortage of radical politics in the United States at the moment.
It is not hard to imagine the uncertainty inspired by a such an unprecedented event triggering an international financial panic, far more damaging than the banking collapse of 2008. The same dynamics that led a decade ago to the rescue of banks but no relief for debtors might lead the delegates to eliminate the income tax to save businesses. Those suffering under heavy personal debt might want rescuing too, or follow a politician who promised to do it for them. There would be cries to cancel more free trade agreements to protect domestic workers. Germany in the 1930s comes to mind. All that would be missing to trigger mass hysteria would be a Reichstag fire. That and a depraved, media-savvy leader backed by a gang of armed thugs.
The scenario is closer than many Americans – and those further afield – seem to appreciate. If two-thirds of the states, through their legislatures, call for a convention, Congress has no choice but to assemble one to consider their proposals – or any other issues they choose to introduce. The situation is fluid. According to the Capitol Hill newspaper Roll Call, 31 states with Republican legislatures have already voted in favour of an Article V convention. In three of those, Democrats have recently regained control and have repealed their resolutions. That leaves 28 active. In five more a Republican majority seems poised to support a convention.
The presidency is not up for grabs in the elections this November, but 6,000 of the 7,383 state legislative seats are. Article V campaigners have targeted seven states where Republicans might gain a majority in both houses of the state legislature. If they win just one of the seven, and hold the 33 they now control, the door to a new convention would fly open. It would not matter who was in charge of the US Congress or the presidency, Republican or Democrat. The convention would be called. The constitution would be up for grabs. And the coalition of anti-establishment forces on the right who have campaigned to bring this about would be best placed to take advantage.
There are only two ways that the nation’s basic law can be amended. The only one used so far in its history requires that any proposal first be approved by a supermajority in congress. The legislatures in three-fourths of the states (38 out of 50), must then ratify the amendment before it becomes law. It is cumbersome, but all 27 amendments since the nation’s founding have followed this route. More than 11,000 other proposals have died before being ratified. Many never made it out of committee even to be debated, including dozens calling for a balanced budget.
While this method for amending the constitution has a long and established precedent, which has been used through the centuries, there is none for a convention, except for that first convention, in 1787, from which the constitution emerged. No rules exist for organising an ‘Article V’ convention and its delegates could determine its scope and duration.
Just how radical the convention could become is evident from the original one when the Founding Fathers assembled in Philadelphia. Ostensibly, they came together to consider amendments to the earlier, ineffectual Articles of Confederation, which held the 13 colonies together sufficiently – just – long enough to defeat the British. In their enthusiasm to form “a more perfect union”, as the preamble to the new constitution declared, the first delegates created an entirely new governmental structure.
No one even knows how each state would chose its delegates for the new convention, or what authority the delegates might have. No one knows how the convention would go about its business or how binding its decisions would be on the national government – or even if there would be a national government in the end.
Would the delegates stop with a simple provision to prevent the national government from going into debt, a balanced budget amendment? Or would they succumb to the temptation to produce a more revolutionary charter, to create a Second American Republic?
To conform to the existing constitution, any proposals would need ratification of three out of four of the states, or 38 out of 50, in order to become law. Yet in such a revolutionary atmosphere, who’s to say that a radical right wing majority might not just declare victory and adjourn after achieving a simple majority. Would that equate to ‘democracy rules’?
Would they divide the country along geographical lines as if the Union had fought the Confederacy to a draw in the Civil War, lines similar to those that defined the divide over Donald Trump in the 2016 election?
Would they return to a loosely affiliated confederation similar to the one the colonies had formed to revolt against Britain? The convention might substitute a trading union of the states, a free trade zone, to replace the current republic. They might simply vote to make each state sovereign in its own right, free to form bilateral relations with other states and other countries, an American version of a hard Brexit.
Would they require that their new constitution be adopted by two-thirds of the states to take effect, as the current constitution did, or would they settle for a simple majority, 26, and allow others to join them once they had ratified? Maybe the 26 would go their own way and leave the 24 others to operate under the old rules. There is no convention for a constitutional convention, just as there was no guide for the Founding Fathers.
The 55 delegates who came together in May 1787 at the original constitutional convention had a head start on their work. Most of them knew each other well from years of revolutionary struggle. Many were farmers, others merchants. More than half of them were lawyers, schooled in British jurisprudence and in international laws of trade and war. They had served in colonial government and in the many sessions of assemblies and conventions brought into being by the Articles of Confederation. They were all British before the War for Independence began.
They were drawn from a tiny slice of their populations: all male, all white, all over the age of 25, all men of property else they would not have been eligible to vote at home. Most importantly, they also were all products of the Enlightenment, the extraordinary eruption and dissemination of knowledge in the Britain of the 17th and 18th centuries.
Some came from the tiny states of Delaware and Rhode Island, worried that such giants as New York and Virginia would seek to dominate them in any new union. Many of them owned slaves, while others found slavery repugnant.
On spiritual matters, there was no agreement, but no disagreement either. Some came from colonies that had outlawed Roman Catholics, others from a colony founded for them. They all appear to have had faith in the existence of God, or a god, but no great public or governmental devotion to religion or any particular religious sect. They all considered religion to be a private matter that had no place in affairs of state. If they shared any particular spiritual orientation, it was to liberal Humanism, the dominant movement of their personal experience. That, and the written word.
They read voraciously and wrote copiously. One, Benjamin Franklin, published a weekly newspaper. Some, like Franklin and Alexander Hamilton, came from impoverished backgrounds but made their way into political aristocracy. Others were more like George Washington, who turned his career as a military officer and government land surveyor into one of Virginia’s most significant fortunes. They all accumulated libraries.
Each of them took pages and pages of notes, compiled detailed diaries, wrote letters by the volume. They seem to have saved every scrap of paper with every drop of ink their quills ever held. There is little mystery about what the Founding Fathers would have said, or did say, though any effort to understand their intent requires placing what they verbalised in the context of their times.
James Madison, a Virginia lawyer, arrived in Philadelphia in early May 1787, three weeks ahead of the 54 other delegates who would take part. He took the quiet time to produce a framework of political order for a new nation. Once the delegates had assembled, his outline became the agenda. They elected George Washington to preside, then nailed the windows of the meeting hall shut despite the stifling summer heat to prevent news of the debates from leaking out. They kept no minutes of their discussions over the next four months and allowed no transcripts of speeches or arguments to be disseminated. We have only the notes of some participants to reconstruct the debates.
Delegates argued about direct election of members of congress, finally settling on two houses for the legislature. Seats in the lower house would be apportioned according to population of the various states (to be determined every 10 years by census and adjusted accordingly). The House would hold power of the purse.
To protect the smaller states, the upper house would be composed of two senators from each state, regardless of population or wealth. Senators would be appointed by their legislatures and governors rather than being directly elected. By serving longer terms, they would avoid the more populist sentiments that could rile the voters from year to year.
Likewise, to protect the president from the tempers of the masses, he would be selected by an Electoral College, a group of delegates pledged to reflect the popular vote in their home states. The number of delegates from each state equated to the number of house and senate members from that state. Since each state had two senators, this mechanism levelled the field somewhat to give the less populace states a small corrective over those with more voters and thus larger house delegations.
A complex set of compromises led to a system of checks and balances. These mechanisms assured that the three equal branches of government – executive, legislative and judiciary – oversaw each other in one way or another while simultaneously remaining independent of one another.
Calls for amendments began almost immediately. Those who feared the ability of a government to turn against its own citizens demanded an enumeration of individual rights and liberties. Any powers not granted specifically to the central government would be reserved to the people or to the states.
These first 10 amendments, a bill of rights, prohibited the federal government from passing any law that abridged freedom of religion or of speech or of the press. They protected against cruel and unusual punishment, against seizure of people or property without due legal process and provided for the right of an accused to trial by jury. Over the next 225 years, only 17 more amendments made it through ratification. Three dealt with making former slaves full, free citizens. Two dealt with whiskey, one prohibiting it, one rescinding the prohibition. One allowed the creation of an income tax, providing the federal government with an ability to tax individuals different amounts. Another granted women the right to vote.
Across two centuries, with the exception of the Civil War, power usually changed hands peaceably, if in fits and starts, both in Washington and in state capitals. Wars, economic calamities and charismatic personalities could start or reverse political trends, but fundamental shifts in party alignment came slowly, across generations. Eight years ago, the ground shifted with a single Supreme Court decision. By a single vote, the court abolished limitations on corporate spending in political races. In a surprise decision known as Citizens United, the 5-4 majority found that corporations were entitled to freedom of speech and that spending money to influence both elections and people in office could not be restricted.
For generations, Washington had been home to organisations and professional lobbyists seeking to influence legislation. They came from labour unions and trade associations, from religious sects and local governments, from environmental activists and civil rights organisations. They advocated for higher military spending or laxer gun laws, for tax exemption for charitable organisations and for more federal spending on highways. They all were replicated at the state and local levels. Any place government spent money or regulated how others spent it, lobbyists offered to help them do it.
Some of them had laboured for decades to advance what seemed to be idiosyncratic political or philosophical causes using improbable tactics – removing Fidel Castro from power, withdrawing the US from the UN, calling a constitutional convention to prohibit deficit spending. The anti-deficit brigade had failed repeatedly to convince both Republican and Democratic majorities in congress to initiate what they called a Balanced Budget amendment. They kept their hopes alive by lobbying at the state level to accumulate enough demand for a constitutional convention, a feat never yet accomplished in the history of the country. Then along came Citizens United.
Republican Party strategists and corporate foes of big government and big tax recognised an opportunity within days. The year 2010 marked a decennial census. Every legislative district line in the country, local, state and national, would be redrawn on the basis of census data to ensure as closely as possible that every citizen’s vote carried equal weight.
The shape of those districts, both for the federal congress and the state legislatures, would be determined by state officials who held office in the following year, 2011. Their governors would have to approve the maps they created, but the legislators themselves would have an opportunity to shape party politics at home and in Washington for at least 10 years to come. Mass data, social media and unlimited funding provided the three ingredients they needed to launch a surprise attack on Democrats.
As the 2010 campaign season began, Democrats held an 11-point majority of the 7,382 seats in the 50 state legislatures, 54.7% to 43.9%. In 16 states, they controlled the governor’s office and both houses of the legislature, compared to Republican control in nine.
That year, Republican donors committed $25 million of new money to fight state legislative races. In earlier elections, candidates in these races seldom spent more than $10,000. There might be a few radio spots, but often the advertising budget went into printing posters to be stapled to stakes and driven into a supporter’s front lawn.
In 2010, the national party shared with their state counterparts campaign themes that worked with focus groups, themes designed to instil fear – violent crime is rising, immigrants are stealing our jobs, banks are taking our homes. They used data from Facebook, credit card companies, poll records to target voters vulnerable to switching parties or to motivate their own voters to turn out.
The blitzkrieg worked. Democrats sat at their Maginot Line while Republicans swept around them. By the time legislatures convened in January 2011 to consider reapportioning districts, Republicans had overturned the table. They held complete control of 20 state governments, Democrats 11. They occupied 53.6% of the legislative seats across the country, up nearly 10 points. It was the biggest swing since 1938, according to the Washington Post.
The scale of the defeat, only two years after the election of Obama as president, shocked Democrats, but it would only grow worse. In a coordinated campaign, Republicans worked to drive down voting participation among Democrats.
Through introduction of new requirements for voter identification documents, reduction in polling places in poorer neighbourhoods and elimination of early voting opportunities, they reduced Democratic power. By devising districts that packed Democrats together but spread Republicans around, they expanded the number of seats they were likely to win. Going into the 2018 elections, Republicans command a majority in 36 state senates and 31 state houses. In 32 states, they control both the legislature and the governor’s office.
Donors looking for a permanent constitutional change have pledged to increase their support fourfold, to $125 million, to fight the election this November. Democrats are struggling to keep up.
After a generation of concentrating on the presidency and hoping for the best down ballot, Democrats have awakened to the danger for their party and for the constitution. They have worked hard to recruit candidates in key states. The national party is sharing campaign tools with local candidates, raising small donations from grassroots donors, coordinating volunteers from nearby states for door-stepping.
Instead of arguing about which public washrooms transgender people should use, the Democratic candidates are campaigning for better roads, easier access to health care, improved funding for schools. They are winning by-elections with huge swings, but the number of seats flipped so far – 39 – hardly reverses Republican gains in the last election, much less for the last eight years. A constitutional convention may still be only one state away.
The states would choose their delegates for a new convention. They would come from a different pool of candidates than the original framers. After 50 years of campaigning, Republican propagandists have succeeded in changing the definition of liberal Humanism.
In the minds of many American voters, liberals support mixing of races, casual abortion, seizure of private wealth through high taxes, release of violent criminals from prison, free health care that the country can’t afford, promiscuous sex, a weak military. In a country where millions of voters profess loudly that the second coming of Christ is imminent, that Jonah lived in a whale, that God will provide, Humanists are atheists, just like Godless Communists. Their failure to profess faith marks them as anti-Christian. Humanists want to enslave us all to Satan.
Like the Founding Fathers, we live in a communications revolution. Our era values conspiracies rather than dismissing them with history. Where they valued books and pamphlets as companions to constant debate, we amuse ourselves with talk radio, reality television and Facebook.
The composition of the Republican Party at the state level has changed in recent decades. The number of small farmers in elected office has declined sharply, as has the number of small farms. The number of insurance agents, medical doctors and part-time preachers has risen. Experience in law or public administration, international travel and reading are no longer required or even desired, as they may have been in the 18th century. They spurn those who disagree with them rather than seeking them out for discussion or debate. Ad hominem assault begins the day an opponent declares his candidacy and continues even beyond the grave. These legislators would choose the delegates to a new constitutional convention. These same legislators would vote on the constitutional proposals that emerged.
Albert Scardino, a Pulitzer Prize winner, is a freelance commentator on American affairs, living in London