Feingold on a Possible US Constitutional Convention: “You’d Better Worry About It”

Posted on Categories Constitutional Law, Public, Speakers at Marquette

A national constitutional convention? An overhaul of American government that would bar the federal government from involvement in many issues, such as civil rights and environment? Might seem far-fetched.

“It’s not far-fetched,” Russ Feingold, a former Democratic US senator from Wisconsin, said Tuesday, August 30, 2022, during an “On the Issues with Mike Gousha” program in the Lubar Center at Eckstein Hall. There are groups working hard to make such a convention come to pass and to gut the federal government as we know it, Feingold said.

Feingold, now president of the American Constitution Society, and Peter Prindiville, a non-resident fellow at the Stanford Constitutional Law Center and an attorney in Washington, D.C., have co-authored a book, officially released the day of the program, titled, The Constitution in Jeopardy:  An Unprecedented Effort to Rewrite our Fundamental Law and What We Can Do About It.

“We’re here to say it’s happening and you’d better worry about it,” Feingold said. “This isn’t January 6. This is legal.”

Prindiville said, “We should be discussing constitutional change as a first-order question.”

Feingold said, “This is a coalition of people that are operating with huge funding to do everything, from creating this ‘independent state legislature’ philosophy that the Supreme Court is going to consider where even if the Wisconsin Supreme Court said Joe Biden won the election, the Legislature could vote and say no. . . . (These are) the people behind January 6, the people behind what’s happened with the Supreme Court. For people to say, ‘That’s not going to happen,’ they’re not learning the lessons of what is going on in this country. Quite disturbing.”

Feingold and Prindiville focused in both their book and in the Law School program on Article V of the US Constitution, which deals with making changes in the Constitution, either though an amendment process or through a constitutional convention. Since the Constitution was created, there has not been a constitutional convention and since the Bill of Rights was approved, there have been only 17 amendments to the Constitution.

Feingold said there has been “an ossification” of the processes of changing the Constitution and the provisions of Article V do need to be updated. But he and Prindiville favor doing this in a careful way. They warned strongly about what many of the people behind the current drive for a constitutional convention might do.

Article V leaves many questions unanswered. That includes what the rules are for counting the number of states seeking such a convention. The number is 34. But determining what states to count is unclear. What happens if different states approve somewhat different resolutions? That’s one of many unclear answers—and there isn’t a clear process for answering the many questions. Prindiville said the rules of a constitutional convention would be “incredibly important.” Feingold said one fear is that there could be “a runaway convention” that could take up almost any subject related to the federal government.

During the program, Feingold quoted from a letter from Marquette Law School Dean Joseph D. Kearney that summed up in one word Kearney’s reaction to the possibility of an Article V convention: “Yikes.” (Feingold also thanked the Law School for allowing some of the research for the book to be done using the Eckstein Hall library.)

Gousha, the senior advisor in law and public policy at the Law School, asked Feingold what his reading is of the current state of American democracy. Feingold called it “deeply depressing.” He said, “It begins with a grass roots effort to destroy the fabric of respect for our democracy . . . . It is a very deep, very serious, dangerous moment for our Constitution and our democracy. I’m sort of a glass half-full guy but it’s tough on this subject right now.”

A video recording of the 45-minute program may be watched by clicking here.

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