By Lambert Strether of Corrente.

Let’s start with Article V of the United States Constitution:

The Congress, whenever [A] two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on [B] the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when [C] ratified by the legislatures of three fourths of the several states, or by [D] conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

(This language — “The first and fourth clauses in the ninth section of the first article” — protects the slave trade.[1]) So amending the Constitution is not easy, and by design. Federalist Papers 39 (which, honestly, reads like a Vox explainer tap-dancing through a heavily contested policy issue, except in 18th Century prose), ALL CAPS as in the original:

The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities…. But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers. ….

(The “EXTENT” of the government’s powers being indeed the key issue, as we shall see.)

If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme and ultimate authority would reside in the MAJORITY of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and principles. In requiring more than a majority, and particularly in computing the proportion by STATES, not by CITIZENS, it departs from the NATIONAL and advances towards the FEDERAL character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the FEDERAL and partakes of the NATIONAL character. The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

I’m glad that’s sorted. Suffice to say that Amendments are hard.[2] If we return to the text of Article V, we see two modes for proposing Amendments (at [A] and [B]) and two modes for ratifying them ([C] and [D]). All amendments, so far, have taken the path from [A] through [C]: Proposed by both houses of Congress; ratified by state legislatures (except for the Twenty First Amendment, abolishing Prohibition, which was passed by state conventions). However, given the current composition and polarization of Congress, it’s very hard to see how path [A], proposal through Congress, can be followed by either party. There remains path [B], “the application of the legislatures of two thirds of the several states,” followed by whichever of the two ratification modes[3]. The magic number for an “Amending Convention” is 34 (two-thirds of 50) and until very recently I would have thought that path to a Constitutional convention implausible, too. As indeed it has been: “There have been hundreds of applications for an amending convention over the years from virtually every state [but] no amending convention has ever occurred.” But then I see maps like this:

Figure 1: “Blue vs. Gray”

Regardless of what the characters at the “FEDERAL” level (Madison’s caps) might want, it’s clear, structurally, that characters at the “NATIONAL” level (Madison’s caps) — that is, the political establishments in every state not colored blue, above — not only might want something different, they might gain the power to impose their will. (Note that the story from which the above map comes was triggered by the defection of a Democrat governor to the Republicans.)

Here’s a slightly less dire map. I hate to quote a venue like Kos, but needs must:

Figure 2: “The Balance of Power for State Legislatures”

And summarizing:

The above map illustrates the balance of legislative power in state legislatures nationwide. Republicans control both chambers in 32 states , including 17 with veto-proof majorities. Those 32 states cover 61 percent of the U.S. population. Democrats, meanwhile, control the legislature in just 13 states, amounting to 28 percent of the country’s population; only five of those chambers have veto-proof majorities.

(Return to Article V: “the application of the legislatures of two thirds of the several states.” In other words, a governor can’t veto the application. So state “trifectas,” where one party controls the legislative[4] and executive branches, aren’t relevent to an Amending Convention.)

32 is uncomfortably close to 34, isn’t it?[5]

* * *

As a sidebar, I’m guessing the typical liberal Democrat partisan would react instantly to Figure 1: “ZOMG!!! We’ve got to elect moar Democrats!!!!!!” followed by fuel for the outrage machine, and very shortly funding for the usual Democratic strategists. I’m hoping — I, personally, don’t think a Constitutional Convention would be the best idea right now, for reasons I’ll get to shortly — that more sober analysts, if any exist, will focus on the map in Figure 2, take a careful look at the pathways to misfortune for both the 2016 Clinton campaign and the Republican failure to repeal and replace ObamaCare, remember that all politics is local, and take action accordingly. Figure out how to hold the line at 32. For example, make sure that “renegade Democrats” in NY and WA defect back from the Republicans on the Amending Convention issue, whatever they do on anything else. A second example: The Maine Senate is 18/17 Republican, and the Maine House is 77/72 Democrat. It might not be that hard for Republican forces to swing the House — the Maine House is a “battleground chamber” — and turn Maine into a trifecta state if Susan Collins ran for Governor after establishing her moderate cred by nobbling TrumpCare.

So if there’s an “Amending Convention” desk at the DNC, they might want to be figuring out a way to prevent more state legislatures from flipping. Like, now. One way of doing that would be to take advantage of factional infighting among Republicans, not to mention their policy failures. From West Virginia’s public radio station, commenting on Governor Jim Justice’s defection from the Democrats to the Republicans:

Years in power have also created problems for state-level Republicans. In Kansas, an overly ambitious plan to cut taxes orchestrated by Gov. Sam Brownback (who’s been nominated to a State Department post in the Trump administration) starved the state of funds for its schools and other services. Kansas Republicans wound up bitterly divided over the issue and earlier this year, a moderate faction sided with Democrats to override Brownback’s veto and rescind the tax cuts. Similarly, a series of tax cuts in oil-dependent Oklahoma left the state poorly prepared for a downturn in energy prices. Republican lawmakers were forced to swallow their opposition and vote for tax hikes in order to keep the state solvent. With Democrats all but vanquished in several Republican-dominated states, intra-Republican disputes have taken center stage. In Texas, Republicans are divided between a business-friendly faction that prioritizes low taxes and less regulation and social conservatives eager to pass the most conservative legislation possible, such as a bill limiting transgender access to bathrooms. Earlier this year, Florida Gov. Rick Scott was running campaign-style ads against fellow Republicans in the legislature over a dispute about economic development funds. A combination of voters unhappy with the governing party’s track record and internal party rifts that will play out in primary elections, sometimes leading to extreme or unqualified candidates, could weigh down Republican candidates up and down the ballot over the next year.

Whistling in the dark? Maybe. (If you read the whole article, you’ll see it focuses mostly on Republican governors, who, as we have seen, aren’t relevant to initiating an Amending Convention. You’ll also see the idea that nationalizing the election will benefit Democrat candidates. But that strategy didn’t work for Jon Ossoff, and if it didn’t work for the United States House, is it really going to work for a seat in the state legislature? I doubt it.)

* * *

Returning once more to the text of Article V, and how political forces at the “NATIONAL” level might seek to apply it:

… the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments …

The key point here is that the “application” for an Amending Convention need not take the form of an application for a particular amendment. The Heritage Foundation urges, I think correctly, that:

an important question is whether such a convention can be limited in scope, either to a particular proposal or within a particular subject. While most calls for amending conventions in the nineteenth century were general, the modern trend is to call (and thus count applications) for conventions limited to considering a single, specific amendment. Some scholars maintain that such attempts violate the very mechanism created by Article V: the text says that upon application of the states Congress “shall call a Convention for proposing Amendments,” not for confirming a particular amendment already written, approved, and proposed by state legislatures (which would effectively turn the convention for proposing amendments into a ratifying convention).

In other words, the scope (“EXTENT”) of an Amending Convention cannot be known in advance. The Times writes:

Taking advantage of almost a decade of political victories in state legislatures across the country, conservative advocacy groups are quietly marshaling support for an event unprecedented in the nation’s history: a convention of the 50 states, summoned to consider amending the Constitution. The groups are an amalgam of free-market, low-tax and small-government proponents, often funded by corporations and deeply conservative supporters like the billionaire Koch brothers and Donors Trust, whose contributors are mostly anonymous. They want an amendment to require a balanced federal budget, an idea many conservatives have embraced, many economists disdain and Congress has failed to endorse for decades. But as the groups near their goal, critics and some skeptical constitutional scholars are warning that holding an amendment-writing meeting with no historical parallel and no written rules could open a Pandora’s box of constitutional mischief.

It is true, as the Times writes, that the policy focus of most Amending Convention advocacy has austerity in the form of balanced budget amendment [6]. It’s also true that austerity in practice has turned out to be a bad idea, as even some conservatives admit:

Because extreme Republican fiscal austerity advocates have not been able to get a “balanced budget” amendment through Congress, they have been pursuing the state-based avenue for several decades, with little success. Right-wing convention backers mounted a strong push in this year’s legislative season, but came up empty-handed in several of their target states and lost momentum when three states (Maryland, New Mexico and Nevada) voted to rescind their balanced budget amendment convention calls.

However, just because the balanced budget amendment — which is a “FEDERAL” concern — seems to be stalling, doesn’t mean that “NATIONAL” actors might not have other concerns of their own; and an Amending Convention itself determines its own scope, which is not limited to any one amendment. I wouldn’t say that Figures 1 and 2 show that “power is lying in the street,” exactly, but it’s certainly lying where “NATIONAL” actors, if co-ordinated — especially in the face of a triggering event in the form of a national catastrophe of some kind — could pick it up. Let’s remember that the 2016 election was, among other things, about volatility (or, as the cliche goes, “change versus more of the same”). Some might regard the volatility of “open[ing] a Pandora’s box of constitutional mischief” as just the ticket, and given the performance of “FEDERAL” elites over the last forty years, it would be hard to blame them.

NOTES

[1] An Act Prohibiting Importatation of Slaves was passed in 1807 and took effect in 1808. Slavery itself was abolished by the Thirteenth Amendment in 1865 (with some important exceptions).

[2] Madison’s prose was so funny and delicious I had to quote it; but the Heritage Foundation summarizes the issues in a less funny but more readable form:

More significantly, the double supermajority requirements—two-thirds of both Houses of Congress and three-quarters of the states—create extensive deliberation and stability in the amendment process and restrain factions and special interests. It helps keep the Constitution as a “constitution,” and not an assemblage of legislative enactments. Most importantly, it also roots the amending process in the Founders’ unique concept of structural federalism based on the dual sovereignty of the state and national governments.

(I have the nasty feeling that “dual sovereignty” is some sort of right-wing talking point or dogwhistle, but let that pass.)

[3] I’m going to ignore the modes of ratification from here on in. It seems to me that the successful initiation of a Constitutional Convention would so upset the apple cart that there’s no point worrying about subsequent events. The Archdruid, when his “Report” was still up, had a fine future history with a triggering event for a Constitutional Convention: “We” lost first an aircraft carrier and then a war to the Chinese. That convention culminated in the breakup of the United States.

[4] Unicameral legislatures apparently get a count of two.

[5] I deprecate the demonizing “ZOMG!!! The Koch Brothers!!!!!!” because I reject the liberal Democrat framing that good billionaires are Democrat donors, and bad billionaires are not.

[6] Which any MMT advocate would regard, correctly in my view, as demented.