As the country reckons with a post-Roe landscape, further attacks on fundamental rights may be on the horizon by way of a constitutional convention.
In June 2022, Americans saw the overturning of Roe v. Wade, which ended the constitutional right to abortion and marked the first time in history the Supreme Court has taken away a fundamental right. But around the country, a more determined far-right movement is building—with the potential to tumble broader rights through a constitutional convention.
A constitutional convention could produce a countless number of harmful amendments—including one that bans abortion nationally, or that ends the funding of Medicaid. Another could repeal our right to vote, or end birthright citizenship and the popular election of senators.
A convention has the potential to dismantle any protection made at the federal level, from Congress to the Supreme Court and even the executive branch. New amendments can repeal current amendments, too: The 21st Amendment repealed the 18th Amendment.
In the current U.S. Constitution, Article V provides a mechanism for states to be part of the amendment-making process:
“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on 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 ratified by the legislatures of three fourths of the several states, or by 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.“
The two-thirds threshold, or 34 states needed to call a convention, may seem like a safeguard.
Still, in the last decade, the Convention of State Action (COSA) has become the fastest-growing Article V organization.
Since 2014, COSA has gathered 19 states; four of those states—Nebraska, Wisconsin, West Virginia and South Carolina—were collected in 2022.
Advocates are not giving up and will attempt to force Congress to call a convention through the courts.
Led by Mark Meckler, the co-founder of the 2009 Tea Party Patriots, the Convention of States Action is looking to drastically change the fabric of the U.S. Constitution under three categories:
- Restricting the spending and budget of the federal government.
- Limiting the powers and areas of authority of the federal government.
- Establishing term limits on its officials and members of Congress.
Who Is Involved?
In 2023, the organization did not pass any resolutions calling for a convention in statehouses. Still, it did pick up important endorsements from prominent conservatives.
- Last January, Meckler sat down with Tucker Carlson, who eventually spoke in support of the convention.
- In November, Dr. Kevin Roberts, president of the Heritage Foundation, the organization behind Project 2025, endorsed COSA.
- In October, COSA received a major boost when Rep. Mike Johnson (La.) was sworn in as the new speaker of the House of Representatives. Johnson’s new promotion signaled a major shift within the Republican party in Congress and a boost for the far-right movement. While working as a state representative in Louisiana, Johnson spoke in support and voted to pass a resolution calling for a constitutional convention. Johnson, a Christian nationalist, told Fox News that if someone wanted to learn about his views, they should “pick up a Bible.”
In 2003, the Supreme Court struck down Texas sodomy laws in Lawrence v. Texas, which criminalized same-sex relations between consenting adults. At the time, Johnson was an attorney for the Alliance Defending Freedom (ADF), a right-wing legal organization that often sues for religious freedom to discriminate against the LGBT community and, more recently, helped overturn Roe in the Dobbs case.
In the Texas case, the ADF submitted an amicus brief supporting the harmful law. After the Supreme Court struck down the law, Johnson wrote an op-ed arguing that states had the right to “proscribe” or forbid same-sex sexual acts.
The following year, Johnson wrote another op-ed where he grossly likened homosexuality to pedophilia.
As speaker of the House, Johnson can set the agenda and determine what legislation meets the floor. As an advocate who supports forced birth, criminalizing same-sex relationships, and supports a movement with the power to strip away fundamental rights, the threat becomes ever more clear.
Johnson’s new promotion signaled a major shift within the Republican party in Congress and a boost for the far-right movement.
Other COSA endorsements include Florida Gov. Ron DeSantis, Texas Gov. Greg Abbott and Rep. Chip Roy (R-Texas). Endorsements from people involved in the Jan. 6 attack include Sen. Lindsay Graham (R-S.C.), former President Trump’s chief-of-staff Mark Meadows and conservative broadcast host and writer Sean Hannity.
Another key figure involved in the attack was John Eastman, who is on the board of COSA.
More recently, this organization held another mock convention last August to rehearse for the real one. In September 2016, COSA organized its first privately held constitutional convention. Both mock conventions were attended by current state lawmakers from around the country, as well as private employees of NGOs.
One organization represented was a right-wing think tank called the Heritage Foundation. Mock state delegates or commissioners descended to Colonial Williamsburg, Va. Michael Farris, a co-founder and member of the legal board, who was also an attorney for the ADF, said on a podcast episode that the convention will be “like the shot heard around the world,” directly referencing the Battle of Lexington and Concord and the start of the American Revolution.
At the rehearsal, Farris told the audience they would be seen as the Annapolis convention. The Annapolis convention preceded the Philadelphia convention, where the Constitution was written. If the imagery was not enough, organizers comparing themselves to the American Revolutionary period and the creation of the Constitution should be a concern.
Proposed Amendments
During COSA’s mock convention, organizers put attendees into three committees. In their committee meeting, the commissioners introduced amendments that showcased the broad intention to dismantle the federal government, essential institutions and entrusted protections. By the end of the rehearsal, six amendments passed that would theoretically go to the states to ratify. Four of the proposed amendments pose a great risk.
Supreme Court and State Standing
One proposed amendment limits the number of justices to nine and gives states standing to challenge the constitutionality of any action taken by Congress or the executive branch.
In 2016, the Supreme Court tightened who has standing to sue in federal courts. Now, the Court uses a formula to determine if the petitioner has standing to sue. In this formula, “there must have been a genuine injury to that person or organization, it must have resulted from government action being challenged in the lawsuit, and the courts must be able to fashion a remedy for the claimed injury. If a lawsuit fails any of those tests, it cannot go forward in a federal court,” according to the Constitution Center, an organization dedicated to developing educational programs about the U.S. Constitution.
Challenging the Executive Branch and Congress
Challenges against the executive branch through Article III began under former President Obama’s administration. However, at this time, states do not have immediate standing to challenge the constitutionality of any action of the executive branch or Congress.
Republican-controlled states attempted to block congressional and presidential reforms to immigration and healthcare. Reserving the right for states to have standing ensures state officials can attempt to block codifying abortion rights, ratifying the 28th Amendment, and even strengthening labor rights.
During the COVID pandemic many women were forced to quit their jobs due to childcare concerns. In response, Congress passed legislation that provided Americans with stimulus checks and increased budgeting allowed to childcare and healthcare. If COSA’s proposed Amendments were ratified, states could have blocked the legislation. The safety nets built would have halted until a higher court could rule on whether it was constitutional.
An amendment like this opens the door to broader challenges under the guise of potential bipartisan support. The power to alter what is constitutional by bringing up federal lawsuits can lead to the tumbling of rights and devastate the lives of millions.
The 17th Amendment, which is how we elect senators via popular vote, and the 14th Amendment, which gave us birthright citizenship, could very well be on the chopping block.
Congress passed the Safer Communities Act to tighten gun laws nationwide in 2022. From Buffalo to Uvalde, gun violence has reached every corner of the country. In intimate partner violence cases, when abusers have access to firearms, the risk of homicide is increased by 500 percent. Women are 21 times more likely to die by gun violence.
Red flag laws block people who pose a risk to others from having access to firearms. Closing the “boyfriend loophole” blocks non-spouses from accessing firearms if they pose a risk to their partners. If states have immediate standing to challenge the constitutionality of any enactments by Congress and the executive branch, the lives of women would be at risk, and efforts taken to tighten gun laws would unravel. What is deemed constitutional will depend on who is sitting on the bench.
Such an amendment would uproot the rule of law. Americans could see more Supreme Court cases determining how the federal government and the Constitution can protect them. With an (unelected) 6-3 conservative majority on the bench, conservatives wield the power to dismantle federal institutions and protections.
Federal Budget and Government Spending
Another amendment proposed at this mock convention suggests limiting the federal budget and restricting government spending.
The proposal would require the budget not to exceed yearly revenue. However, it would also need the new budgets to include debts the country owes. To undo investments in social services, the amendment would require any leftover funds to go toward paying off the national debt.
Republicans have long been attacking programs like WIC, SNAP and Medicaid. However, these programs are essential to many American families.
- WIC was responsible for serving about 6.3 million people a month in 2022 and is dedicated to serving women, infants and young children below the poverty line.
- In 2022, SNAP served roughly 41.1 million people; in 2019, children accounted for 41 percent of recipients.
- Medicaid provides health insurance for low-income recipients and covers 88.4 million people.
- The CHIP program provides coverage for seven million children.
A federal budget including debts and requiring that any leftover money immediately goes to paying them off will allow Republicans to use programs as a bargaining chip to cut spending. The programs and benefits families depend on would be on the chopping block, and likely would not return.
Federal Regulation Agencies and Commerce Clause
Conservatives in the Article V movement are coming for it all, including federal agencies that protect and regulate what we consume.
State officials at the mock convention showed that they wanted the ability to decide what goods could be bought, sold or transported across state lines. During the mock convention, one proposed amendment would establish a commerce clause outside the scope of the federal government and executive agencies.
Implications with Abortion Medication
In the current term, the Supreme Court decided to take on a case from Texas dealing with mifepristone, which is one of a two-part medication needed to end a pregnancy and bring on a period if you’re late. For the last 20 years, mifepristone has had approval by the Food and Drug Administration (FDA). Still, the Texas case, the first abortion case since Dobbs, will challenge the FDA’s green light.
Since the overturning of Roe:
- Fourteen states have implemented a near-total ban on abortion, which has resulted in over 64,000 pregnancies from rape. This proposed amendment would remove Congress from delegating regulating powers to any executive official or agency.
- People in restrictive states have been able to access medication abortion via mail. However, writers made sure to nullify regulations that conflicted with the amendment.
Under this proposal, agencies like the FDA would likely not exist at all or not function in the same way they do now. States would have the power to nullify the FDA’s authority to approve medicine like mifepristone. Access to abortion options would completely cease in restrictive regions because the medication would not be allowed in the state
A partisan political crisis will arise in the voting and ratification process of the proposed constitutional amendments.
Attacks on LGBTQ+ Rights
As conservatives continue their attack on the LGBTQ+ community, the next step will be medication used to protect individuals. One important medication is PrEp, which is taken to prevent HIV from sex or injection drugs for people who may be at risk.
PrEP was approved by the FDA in 2012, and 30 percent of people could benefit from using the medication. However, full coverage has not been met due to a lack of education and access. Rates of new HIV infections occur disproportionately in Black and Hispanic communities and southern red states. There would be nothing stopping states from restricting the flow of HIV-prevention drugs if conservatives are successful.
It would not end there; states could restrict gender-affirming care by using their power to decide what medication is allowed in its borders.
In a country where 25 million women now live in states with abortion bans or restrictions, where millions of queer communities are under attack, bodily autonomy is ever more important.
Any limitation to access to life-saving medicine must be protected. National regulations create a standard or baseline that protects people from harm; if states had the power to decide what care any American could receive for simply living within its border, it would set a dangerous and unequal future.
State Revoking Powers
State officials proposed an amendment allowing them to revoke any action of Congress, the president or administrative agencies. This amendment does make an exception for the presidential power to lead the armed forces. However, this amendment would allow states to repeal statute, decree, order, regulation, rule, opinion, decision or others by a majority of state legislatures.
In addition, the proposal does not grandfather existing federal law. Makers of the proposed amendment ensured the language was clear; state revoking authority can apply to any existing federal laws at the time of ratification. Also, state executives and judicial branches would have no authority or involvement in this process. No government entity or official can attempt to enforce a law once the states abolish it.
If an amendment allows states to revoke laws, it would set the stage for a constitutional showdown. In 2022, the Electoral Count Reform Act (ECRA) was signed into law. The ECRA intends to prevent another Jan. 6 by clarifying that the vice president cannot discount electoral votes.
Spouses in same-sex marriages won a lawsuit in 2021 after being barred from receiving Social Security survivor benefits. In 2017, the Supreme Court let a lower court decision stand that allowed Texas to take away spousal benefits from married same-sex couples. If states can revoke this law, couples could face denials.
In 2022, Respect for Marriage Act was passed:
- The act requires the federal government to recognize same-sex marriages and ensure they receive full benefits.
- Although the law does not require the states to perform marriages against state law, it does require states to give full benefits to couples if they were married in a different state. A state repealing authority would allow a simple majority to repeal this protective measure. As many states test the limit of how far their anti-LGBTQ+ laws will go, a constitutional power such as state revoking authority would be devastating.
Writers of these proposed amendments want the power to challenge and repeal any action they politically disagree with and hold control of the rights, if any, people will have in their state and around the country.
The 19th Amendment, the suffrage amendment, would not be safe. The amendment was officially part of the Constitution when it was certified by the secretary of state, an administrative agency. Since the certification is a proclamation or decree and part of existing federal law, nothing stops it from being repealed through a simple majority of states under this proposed amendment.
The 17th Amendment, which is how we elect senators via popular vote, and the 14th Amendment, which gave us birthright citizenship, could very well be on the chopping block.
According to the National Conference of State Legislatures, an organization representing state lawmakers, Republicans hold over a majority of the state houses, 28 states. Of the state-controlled breakdown, as one party holds both the state chambers and governor’s seat, Republicans hold 23 states. A simple majority of states could dismantle progress and so much more.
Next Steps
A constitutional convention is approaching. In both 2022 and 2023, Rep. Jodey Arrington (R-Texas) introduced a resolution calling for a convention because over 34 states have passed calls throughout U.S. history.
In 2022, we saw the first lawsuit attempting to force Congress to call for a convention. Texas resident Brian Matthew McCall and Texas state Rep. Kyle Biedermann filed a lawsuit in the Western District of Texas, which feeds into the Fifth Circuit, arguing that Congress has failed to uphold its duty and must call a convention. Although their case was dismissed for lack of standing, advocates are not done. In September, the House Judiciary Subcommittee on the Constitution and Limited Government held a hearing about Article V.
At the American Exchange Legislative Council’s (ALEC) policy summit, supporters have called on state governors and attorney generals to sign on to a lawsuit in hopes of forcing Congress to call a convention. Advocates are not giving up and will attempt to force Congress to call a convention through the courts.
In 2015, former Rep. Steve Stivers (R-Ohio) introduced a change to the House rules, which created a system under the House of Representatives to track, document, record and make public Article V applications states have passed. Applications currently being tracked go back to the 1960s and the end of racial segregation. Although the U.S. archivist has yet to certify the applications, only time will tell if their efforts are successful. However, numbers are on their side with a 6-3 conservative majority on the Supreme Court bench.
In the meantime, a handful of states around the country have already started preparing for a convention by passing legislation dealing with how many delegates or commissioners will be selected, what powers they have, and early instructions for voting.
In these selection bills, most state officials have outlined the following:
- The legislature will appoint at least five to seven delegates, not voters.
- Delegates must follow any instructions the state gives them, and the only voting process they can approve is a ‘one state, one vote,’ therefore, ensuring that states like Wyoming, with a population of just over half a million, will have the same voting power as California, a state with 67 times the population.
Future of the Union
No one knows how the real convention could go because it has never been done before.
One can assume it would be similar to a state legislative session. Still, until the rules and procedures are written, we can’t know. The only people who have experience and practice at a convention are the far-right movement. The broad application gives officials the authority to cover all areas of the Constitution.
Advocates attempt to reassure people that this process is safe, especially regarding ratifying any proposed amendments, but it may not be. Any amendment proposed by the convention would need to be ratified by three-fourths, or 38 states.
However, there are ways to approve amendments other than through the state legislature.
Amendments can be approved state ratifying conventions, which is how the 21st Amendment was ratified. State ratifying conventions allow for an even smaller and likely unelectable number of people to decide the future of this country.
Surely, a partisan political crisis will arise in the voting and ratification process of the proposed constitutional amendments.
During the Philadelphia Convention, Rhode Island was the only state not to attend. Rhode Island was also the last state to ratify the Constitution due to fear of political backlash. The small northeast state faced an ultimatum: Ratify the Constitution or become a foreign country. Could history repeat itself? If a state does not attend the convention, or refuses to ratify amendments, would its statehood come into question? Only time will tell.
Up next:
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