Rewriting America: The Constitution under siege

Yahoo

21-05-2025

Stock photo from Getty Images.
The original U. S. Constitution — where did it go? Did it disappear or was it just tossed into the trash can of history?
We all might be asking these questions if a current ultra-right-wing movement to call a National Constitutional Convention succeeds.
A movement is afoot by organizations like the American Legislative Exchange Council (ALEC), the Convention of States and the Heritage Foundation — author of Project 2025, a sweeping proposal to remake the U.S. government in support of right-wing beliefs.
The concept is simple and scary. President Donald Trump and ultraconservative brain trusts want all of Project 2025 enacted into law or embedded in the U.S. Constitution. Whatever can't be delivered by Trump, Congress or the U. S. Supreme Court, they believe, should be added to the constitution by a convention of the states dominated by MAGA delegates.
We have not had a constitutional convention since the original group met in 1787, but convention proponents say a new convention is long overdue.
Let's say this is a back-up position for ultraconservatives if Trump doesn't succeed, but a real possibility nonetheless.
The process to call a constitutional convention is outlined in Article V of the U.S. Constitution. It says that if two-thirds of the state legislatures request a convention Congress must create one. That means that 34 states must request the convention.
However, Article V does not specifically outline how a convention would work and what, if any limits, are placed on a convention once it begins. This means that there is potential for a convention to rewrite the whole constitution and to toss out current amendments that delegates may find repugnant — such as the First Amendment freedoms of speech, press, assembly, and religion.
The Fourth Amendment prohibition against unlawful search and seizure may also be on the chopping block along with Fifth Amendment rights against self-incrimination and due process, Sixth Amendment rights to a fair and public trial with a right to counsel, and Fourteenth Amendment rights to due process and equal protection under the law.
Strengthening presidential powers certainly would be a convention agenda item.
Many states are calling for a convention limited to certain issues like placing fiscal restraints on the federal government, limiting the powers and jurisdiction of the federal government, and imposing term limits on certain government officials and members of Congress.
Florida Gov. Ron DeSantis visits Ohio in support of congressional term limits
However, constitutional experts say that once a convention is called, all bets are off. Delegates would not be limited to specific issues — the delegates could do whatever they wish and create whatever kind of constitution they desire.
Any new constitution or amendment would then need to be approved by three-quarters of the states, or 38.
Does all this sound farfetched and like the rantings of an alarmist?
It's not.
Some 28 state legislatures are currently controlled by Republicans, 18 are headed by Democrats and four are split, according to the New York Times. In the 2024 presidential election, Trump won the popular vote in 31 states compared to 19 by Harris. That means more Republican state legislatures following the presidential vote.
'In all, Republicans have proven much more adept than Democrats at leveraging presidential vote patterns into even larger majorities in state legislative chambers. The GOP has achieved significant levels of excess seats in about three times as many states as the Democrats have,' according to a study by the Center for Politics at the University of Virginia.
So far, 19 states have called for a constitutional convention: Georgia, Alaska, Florida, Alabama, Tennessee, Indiana, Oklahoma, Louisiana, Arizona, North Dakota, Texas, Missouri, Arkansas, Utah, Mississippi, Wisconsin, Nebraska, West Virginia, and South Carolina.
Ohio is attempting to add to that total. In February 2025, joint resolution bills were introduced in both the Ohio House and the Ohio Senate calling for a national constitutional convention.
Ohio House Joint Resolution 2 is sponsored by state Reps. Riordan McClain, R-Upper Sandusky, and Bernie Willis, R-Springfield. The bill has been assigned to the House Government Oversight Committee and the Committee has already heard testimony from the resolution's sponsors.
An accompanying bill, House Bill 67 also has been introduced setting the parameters of Ohio delegate actions at such a convention. If passed, the effectiveness of this bill would be questionable, given Article V's open-ended approach to a convention.
Ohio Senate Joint Resolution 3 is sponsored by state Sens. Michele Reynolds, R-3, and George Lang, R-4, and has been assigned to the Senate General Government Committee.
To date, the committee has had two hearings: one for the sponsors and one for 11 proponents of the resolution. Many were from the Convention of States, including former Pennsylvania senator and presidential candidate Rick Santorum.
Sens. Theresa Gavarone, R–2, and Jane Timken, R–29, introduced Senate Joint Resolution 6, which restricts the call for a convention to discussion of term limits. That resolution also is assigned to the Senate's General Government Committee.
The activist group Common Cause in Ohio is actively opposing the pending legislation.
'Delegates to the proposed Constitutional Convention will be approved by concurrent resolution of the state legislature or by a majority of those present and voting in a joint session of the Ohio General Assembly. Since the GOP has a supermajority in the state legislature, that means delegates would be chosen and approved by this single party,' Common Cause writes.
In a call to action, Common Cause warned: 'If a Constitutional Convention were convened, unelected and unaccountable delegates would have the power to rewrite the U.S. Constitution with no checks or balances. This is an unprecedented risky endeavor that puts our democratic principles at great risk.'
However, another line of thinking is that this kerfuffle over 34 states asking for a convention won't be necessary.
In March, ProPublica's Local Reporting Network teamed with Wisconsin Watch to uncover a 'behind-the-scenes legal effort' to force Congress to call for a constitutional convention now, without further state action.
A draft lawsuit, being circulated among certain friendly state attorneys general, claims the 34-state threshold was, in fact, reached in 1979 and therefore, Congress must call for a convention.
The litigation proponents total state 'calls for a convention' from before the Bill of Rights was passed to the present. They have stacked them all together and say that the magic number of 34 was reached 45 years ago.
The pro-litigants claim that once a state asks for a convention it cannot repeal the request. Several states have tried but not successfully, according to the proponents.
'The draft lawsuit says those actions don't count because once the Article V bell has been rung, it cannot be unrung,' says the ProPublica article.
The Federal Fiscal Sustainability Foundation and ALEC support the draft litigation that is signed by Charles 'Chuck' Cooper, a high-powered conservative attorney.
The lawsuit is being circulated among conservative state attorneys general; proponents hope that the litigation will be filed within a few months.
Meanwhile, other constitutional convention advocates are hoping the Trump and GOP congressional leaders will agree to call a constitutional convention without the litigation to promote Trump's 'Make America Great' agenda even further.
None of this will happen overnight, but the movement for a national constitutional convention is advancing in state legislatures (like Ohio's) with advocacy groups, and with far-right litigators at a speed greater than ever before.
It is worth understanding, watching, and monitoring.
Now is the perfect-storm moment for a convention, with Trump in the White House, a super-conservative majority on the U. S. Supreme Court, GOP in control of both houses of Congress and most state legislatures.
A convention is the backup plan for getting all of Project 2025 enacted and entrenched into the 'new' constitution — but don't believe for a second that the concept is on the back burner.
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