Opinion | A constitutional convention would be a nightmare. And very revealing.
Before you panic, understand that it takes two-thirds of the states to hold a convention and any amendment would still need to be ratified by three-fourths of the states. Nevertheless, considering what each party would seek from such an exercise is enlightening. One would seek to inject more democracy into the system; the other would seek a reactionary, authoritarian agenda.
We know this because the MAGA right has told us what it wants. In addition to an electoral system that could have stolen the 2020 election in contravention of the wishes of the American people, the right wants to obliterate the federal regulatory state; to ban abortion nationwide; to wipe away substantive due process (e.g., no protections for abortion, contraception, gay marriage); to enshrine school prayer and other aspects of state-established religion; to do away with limits on gun ownership; and to require balanced federal budgets, which would drastically cut government spending and/or raise taxes. Republican Sens. Rick Scott (Fla.) and Ron Johnson (Wis.) have suggested sunsetting entitlements, including Social Security. Birthright citizenship would likely go by the wayside.
In short, Republicans would seek the fantasy of White, Christian nationalists in which the federal government enforces their values but has little, if any, power to address issues such as climate change, poverty, income inequality, educational disparities or lack of access to health care. This MAGA paradise would bear some resemblance to Robert Bork’s America, as described by Sen. Edward M. Kennedy (D-Mass.) during the Supreme Court nominee’s confirmation process in 1987:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution. Writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is, and is often, the only protector of the individual rights that are the heart of our democracy.
What about Democrats? They might seek to reaffirm rights once thought to be inviolate precedent (e.g., right to abortion, gay marriage); to broaden protection for voting rights, including statehood for the District of Columbia; and to reaffirm the pre-MAGA-dominated Supreme Court’s rulings on religious establishment, the regulatory state and affirmative action (i.e., race can be used as one of many factors). Not very radical.
Certainly, the left would want constitutional guarantees for all sorts of things — from housing to education to health care — and it would be hard to constitutionally define what such rights mean. (Could you sue to get an apartment in San Francisco? A Harvard education?) But if Democrats act on their conviction that we suffer from insufficient majoritarianism, they would pursue these sorts of items: popular election of the president; removal of the filibuster; limited terms for Supreme Court justices (and mandatory ethics rules); a larger House of Representatives; ranked-choice voting; limits on, and full disclosure of, campaign donations; nonpartisan redistricting; automatic voter registration; and a federal holiday for elections.
The ideal outcomes for each side underscore how different, and in some sense, incompatible the MAGA right and the more-democracy Democrats have become in terms of their visions for the country. We can clearly see that the MAGA right pines for a White-dominated theocracy and how strenuously it resists democracy in a pluralistic society that rejects its views.
As attractive as the Democrats’ vision might be, the risk that a constitutional convention might result in a dystopian nightmare is profound. That should confirm Feingold’s warning: A convention is a horrible idea. Things are bad enough as they are.
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