The Intelligentsia Industrial Complex
Persons Who Divide and Profit By Sowing Fear and Distrust Rather Than Consensus
I get extremely frustrated when I see political activists needlessly creating fear and a crisis mentality. The Intelligentsia Industrial Complex (IIC) rewards purveyors of doubt, fear, and imminent danger requiring a rescue plan led by elite forces of virtue against the malevolent forces of evil. Read any essay in The Atlantic, The Bulwark, National Review, The Claremont Review of Books, American Greatness, New York Times, Washington Post, The Nation, The New Republic, The Federalist, or dozens of other periodicals or blogs, and you will seldom find a writer who doesn’t follow this template of doom and gloom.
The latest example is a new book (The Constitution In Jeopardy) co-authored by former Wisconsin Senator, Russ Feingold, and Peter Prindiville, that discusses the dangers of calling together a Convention of the States provided under Article 5 of the Constitution.
In this YouTube video they are issuing dire warnings about the activities of the Convention of States Action (COSA). COSA is a group that seeks to by-pass the traditional route of amending the Constitution through Congress, and instead go directly to the State Legislatures.
The rationale of the COSA is sound. The Framers of the Constitution anticipated that the Congress would have an institutional bias against certain Constitutional Amendments that would limit their power, and this is why the alternative method for a Constitutional Convention was created.
A classic example of this kind of conflict of interest would be term limits for Senators and Members of the House. It would be hard to imagine getting 2/3rds of both Houses passing that Amendment on to the States for ratification imposing limitations upon their Members’ careers in Congress. The State Legislatures would definitely have to take the initiative to enact term limits.
However, the COSA handbook lists other items that they would want to see on the agenda of such a Convention that look more like planks from the platforms of the Libertarian or Republican parties:
At an Article V Convention of States, delegates will have the opportunity to debate and pass amendments that could:
• Limit Supreme Court Justices to nine members.
• Prevent the addition of states without the affirmative consent of three quarters of the existing states.
• Require members of Congress to live under the same laws they pass for the rest of us.
• Impose term limits on members of Congress.
• Require a balanced federal budget.
• Impose limits on federal spending and/or taxation.
• Get the federal government out of our healthcare system.
• Get the federal government out of our education system.
• Stop unelected federal bureaucrats from imposing regulations.
• Set term limits for Supreme Court Justices.
• Set term limits for federal bureaucrats, ending the dominance of the “swamp.”
• Remove the authority of the federal government over state energy policy.
• Force the federal government to honor its commitment to return federal lands to the states.
My July 14 post about Making Amendments to the Constitution Easier shows a pathway to resolve the concerns expressed by Russ Feingold and the COSA activists.
Proposal For A Compromise
The COSA should not try to call a Convention covering a wide range of different policies. Rather, they could obtain a lot more support if they confined their Constitutional Convention to one specific matter — Amending Article 5 so that States could propose amendments without having to call a Constitutional Convention!
Instead of a general resolution for a Convention that would address a variety of topics, these activists should settle on precise language to amend Article 5 similar to what I proposed in my July 14 post. Or they could even propose a more limited amendment like the following:
A proposed Amendment to this Constitution that exceeds one-thousand eight-hundred words shall require convening of a Constitutional Convention. The Supreme Court shall have jurisdiction for ruling on a proposed Amendment’s compliance with this requirement.
The most numerous house of the Legislature of a State (hereinafter Legislature) may intiate an Amendment to this Constitution as follows:
The proposed Amendment language shall be co-sponsored by no fewer than five State Legislatures that have passed a resolution with the identical Amendment language by a four-sevenths majority and whose States contain at least one-eigth of the population of the United States according to the most recent Census. No State may propose more than one Amendment during any twelve month period.
This Proposed Amendment may be submitted to every State Legislature and to the Chief Justice who may convey the Proposed Amendment to the State Legislatures with comments.
The Proposed Amendment must be passed by a majority vote of the State Legislature within four years after it was submitted, and that State counts as an approval of the Proposed Amendment. A subsequent vote by a State Legislature to rescind approval shall only be valid prior to the Amendment’s approval by three-fifths of State Legislatures. When three-fifths of State Legislatures approve the Proposed Amendment, then the Proposed Amendment shall be submitted for Ratification by a Plebiscite at the next Federal Election no sooner than one-hundred eighty days after the approval by three-fifths of the States.
The Final Voting Date for the Plebiscite for Ratification shall be held on the first Tuesday following the First Monday of November in even numbered years during elections for Federal Offices.
In a Plebiscite for an Amendment initiated by the State Legislatures, excepting candidates for Federal Office, the ballot may only contain the Question: Shall this be approved as an Amendment to the Constitution of the United States? The choices are Yes or No. A copy of the Amendment shall be provided free of charge to all Eligible Voters. No other question may appear on the ballot, nor may Candidates or questions for elections for States and their political subdivisions.
The Electoral Votes shall be assigned according to the following formula. The choice receiving a plurality of the votes of Eligible Citizens in a district for a Member of the House shall receive one Electoral Vote. The choice receiving a plurality of the votes in the entire State shall receive one Electoral Vote. The choice receiving a plurality of the combined votes of Eligible Citizen Voters in the District of Columbia and the Territories shall receive four Electoral Votes. The New Constitution or Amendment is Ratified if seven-thirteenths of the Electoral Votes are Yes.
This proposed text would allow advocates of a Constitutional Amendment to bypass Congress without having to call a Constitutional Convention! The proponents would be forced to write out the text of the amendment the way an amendment that goes through Congress does. This way COSA could offer 13 separate amendments (taken from the list above) and have 13 separate debates and 13 separate votes rather than bundling everything up into package passed out by a Convention for ratification by 3/4 of the States.
It’s likely that most COSA activists would prefer this option because it would allay the concerns that the proceedings of a Convention could cover wide-ranging topics outside the scope of what most advocates would want to cover. Of course, there are COSA activists who would like to use a Constitutional Convention as a political weapon to achieve political dominance in one fell swoop, but only someone living in a cave could believe that 38 states would ratify such a bundle of Conservative reforms coming out of this kind of a Convention.
Fear Mongering and Obstructions to Reform
Feingold and Prindiville are keen to point out that Article V doesn’t have any language that would permit any kinds of limitations upon the activities at a Constitutional Convention. Funny how the precepts of the Living Constitution evolving to address current-day challenges are suddently forgotten when it comes to Article V.
Imagine that 34 States (2/3rds) adopt a resolution limiting the scope of the Convention to the passage of a specific text for a Congressional Term Limits Amendment. This resolution could also include procedures enumerating how the votes would be tabulated (One per State or based on the Number of House and Senate Seats per State?) and how the Convention would be conducted (naming a Presiding officer, Secretary, Roberts Rules of Order, etc.)
With that Resolution passed by 34 States, Congress then calls a Convention of the States that follows the guidelines of the Resolution. Why couldn’t the Convention be limited to the agenda where there is solely an up or down vote by each State delegation on this text? Who could challenge this arrangement? Who would have standing to bring a lawsuit before the Supreme Court that this was a violation of Article 5? Would the Supreme Court even take a case challenging the Resolution?
Feingold and Prindiville have no problem applying the Necessary and Proper Clause and the Interstate Commerce Clause to get around the enumerated powers of Article 1, Section 8 to justify an expansive role for Federal powers, but now they become Originalist sticklers about wording when it comes to Article 5? These are the scaremongering tactics of disingenuous political partisans seeking to undermine the efforts of conscientious partisan opponents in COSA.
Feingold and Prindiville are alarmed that COSA organized their own conventions with agendas, committees, and votes. COSA was engaged in a public, civic exercise to solicit support for a practical expression of their agenda, and yet, Feingold and Prindiville label this as a threat. They castigated elected represenatives like Governor DeSantis (FL), former Governor Scott Walker (WI), former Senator Rick Santorum (PA), Senator Marco Rubio (FL) as affiliated with this “far right” political project. They are most alarmed that these efforts, unlike January 6, are legal!
While Feingold and Prindiville purport to foster a conversation about amending Article 5, they start out by insulting their political opponents. Feingold even made the execrable claim that
some of these folks are perfectly comfortable that many people {i.e. Black Slaves} were excluded from that Constitution {1787 Original Constitution} ….They do have a view that they could re-do the Constitution — hardwire the Constitution — in a way that would take us back before the Civil War, more to the John C. Calhoun nullification notions; maybe even back to the Articles of Confederation. The idea of the States separately deciding all this.
Partisan Contempt
While Feingold claims that he is concerned about improving the well-being of the American political community, these words are the poisonous emanations of a political hack promoting division and fostering fear. This sordid attempt at guilt by association with the views of a tiny, fringe minority of activists, is beneath contempt.
Sanford Levinson, a Progressive Constitutional Scholar from the University of Texas, convened an assembly of Progressive Constitutional Scholars to draft a Democracy Constitution, but Feingold and Prindiville don’t express any alarm about this project. That may be because Professor Levinson’s project was an expression of a Platonic Ideal of the Progressive Vision rather than a practical endeavor to persuade others to ratify it. Nevertheless, I haven’t read about any Conservatives alleging nefarious motivations and threats to the Republic emanating from Professor Levinson’s assembly.
In the video they mention that they would like to amend Article 5 to utilize plebiscites for the amendment process. They propose to count votes from every State in a nationwide vote total to arrive at a decision for ratification. However, my January 4, 2022 post carefully explained that you could not hold a nationwide plebiscite counting all votes in a uniform fashion across the States without first creating a National Voter Registry. Feingold’s proposal for a national plebiscite is dead on arrival, and it would never get Conservative support prior to the adoption of a National Voter Registry.
Therefore, I can only conclude that Feingold and Prindiville don’t have any expectations that their proposals to amend Article 5 will go anywhere because they understand that most of what they propose would trigger Conservative hot-buttons without offering any concessions in exchange to win over Conservative support. Their book is an unconditional political surrender document presented to Conservatives under the guise of a non-partisan proposal.
Although they are tilting at windmills, the virtue of COSA is that it doesn’t hide its partisanship. The deceit of Feingold and Prindiville is that they purport to be non-partisan warriors promoting political reform. However, we won’t get genuine bi-partisan Constitutional reform until some members of the IIC reach across the aisle to candidly engage their advesaries in frank conversations with a spirit of compromise to foster a political relationship rather than political conquest.
This blog is dedicated to this mission.
David Barulich