Were New Mexico Representative John Block and Yvette Herrell Practicing to Rewrite the Constitution?

Photo byConvention of States Photo

New Mexico Representative District 51 John Block attended the Simulated Convention of States along with former New Mexico Congressional Representative Yvette Herrell.

What is the Simulated Convention of States? Per their website, “the Simulated Convention is designed to show the country that the Founders' solution is ready to be deployed in order to rein in the out-of-control federal government.”

A convention to propose amendments to the United States Constitution, also referred to as an Article V Convention or amendatory convention, is one of two methods authorized by Article Five of the United States Constitutionwhereby amendments to the United States Constitution may be proposed: two thirds of the State legislatures (that is, 34 of the 50) may call a convention to propose amendments, which become law only after ratification by three-fourths of the states (38 of the 50). The Article V convention method has never been used; but 33 amendments have been proposed by the other method, a two-thirds vote in both houses of Congress; and 27 of these have been ratified by three-fourths of the States.[1] Although there has never been a federal constitutional convention since the original one, at the state level more than 230 constitutional conventions have assembled in the United States.

While there have been calls for an Article V Convention based on a single issue such as the balanced budget amendment, it is not clear whether a convention summoned in this way would be legally bound to limit discussion to a single issue; law professor Michael Stokes Paulsen has suggested that such a convention would have the "power to propose anything it sees fit", whereas law professor Michael Rappaport and attorney-at-law Robert Kelly believe that a limited convention is possible.

In recent years, some have argued that state governments should call for such a convention. They include Michael Farris, Lawrence Lessig, Sanford Levinson, Larry Sabato, Jonathan Turley, Mark Levin, Ben Shapiro, and Greg Abbott.

 In 2015, Citizens for Self-Governance launched a nationwide effort to require Congress to call an Article V Convention, through a project called Convention of the States, in a bid to "rein in the federal government".

As of 2023, CSG's resolution has passed in 19 states. Similarly, the group Wolf-PAC chose this method to promote its cause, which is to overturn the U.S. Supreme Court's decision in Citizens United v. FEC. Their resolution has passed in five states. 

Organizations opposed to an Article V convention include the John Birch Society, the Center on Budget and Policy Priorities, Eagle Forum, Common Cause, Cato Institute, and the Ron Paul Institute for Peace and Prosperity, while conservative The Heritage Foundation has also cautioned against a convention.

Russ Feingold served as a senator from Wisconsin from 1993 to 2011 and is currently president of the American Constitution Society he submitted a commentary to “The Nation” warning of the risks of this “simulated convention” and what the goal of these simulations are. 

Mr. Block was very proud of his attendance posting on social media his participation…

Photo byJohn Block

Per Russ Feingold; ”If the adage “practice makes perfect” has merit, be afraid—be very afraid. This August, a far-right group is convening its third-known practice session on how to rewrite the Constitution to advance partisan goals. The organization, Convention of States, is not only rehearsing how to amend the Constitution; it is also promoting a highly undemocratic method of doing so. If Convention of States gets its way, our country will be thrown into a constitutional crisis with no guarantee that our democracy survives.”

Feingold continues: “A  constitutional convention may sound democratic at first blush. It is easy to envision a utopian version wherein thousands of Americans, representing the diversity of this country in all its forms, are present and utilize representative, democratic methods to propose and approve constitutional amendments. This is not, however, what Convention of States has in mind.”

“On its website, Convention of States includes a video that claims to explain how Article V works. The video is patently wrong in several regards, most worryingly in its claim that at a convention, each state would get one vote. There is a reason Convention of States is planning for and promoting this highly unrepresentative, undemocratic method of amendment: It would enable a minority of Americans to amend our Constitution. Specifically, a white minority.

A “one state, one vote” process would give Wyoming’s overwhelmingly white population of 576,000 the same voting power as California’s diverse 39.5 million people. North Dakota’s overwhelmingly white population of 779,000 would have the same voting power as New York’s diverse 19.7 million people. This disproportionate power structure is alarming in the US Senate; it would be even more alarming as the structure by which the US Constitution is amended.

And yet, the Constitution does not require that an Article V convention be representative. It does not require that democratic procedures be used to ensure inclusive consultation and genuine majority decisions. This ambiguity would certainly allow for a representative, democratic process, but it also would allow for an undemocratic “one state, one vote” procedure. It is in this ambiguity that Convention of States sees opportunity, and why more people need to be paying attention to this run at our Constitution.

On its website, Convention of States asks, “Why call an Article V Convention?” and answers by stating, “Simple: to bring power back to the states and the people, where it belongs.” A “one state, one vote” procedure would not bring power back to the people, however, at least not all the people. It would perpetuate the political dominance of white people, who make up a declining percentage of this country’s population.

Convention of States further misinforms the public by claiming that delegates to a convention would be selected by state legislatures. There is nothing in Article V that specifies how delegates would be chosen or how amendments would get proposed. But again, in the absence of a nationwide conversation about constitutional amendment, Convention of States sees opportunity to advance its desired undemocratic plan without organized opposition or pushback.”

Feingold concludes his analysis of the risks of this project and to be wary of participants motives; he states; “The Convention of States is doing more than holding mock simulations. It is lobbying inside state capitols for state legislatures to apply for a constitutional convention. And here is perhaps the scariest part of all this: The Constitution does not give Congress discretion on whether to call a convention. Article V is clear in this respect. It states that Congress “shall” call a convention if two-thirds of state legislatures apply for one. To stop the right’s sought-after capture of our Constitution, it must be stopped at the state level.

There are already proposals in Congress regarding an Article V convention. While the accuracy of the state count in these proposals and by Convention of States is dubious, the mere existence of these proposals is deeply concerning. On an encouraging front, Oregon recently withdrew its application for a constitutional convention. More states should consider doing the same.

In sum, Convention of States is charting a course for a constitutional crisis, and too few people are paying attention. This threatens all of us, and we need to be collectively engaged in sounding the alarm. If we wait until Congress is compelled to call a convention, it’ll be too late.”

Russ Feingold is not some propagandist but a respected constitutional scholar. With John McCain, Feingold received the 1999 John F. Kennedy Profile in Courage Award. He and McCain cosponsored the Bipartisan Campaign Reform Act of 2002 (McCain–Feingold Act), a major piece of campaign finance reformlegislation. He was the only senator to vote against the Patriot Act during the first vote on the legislation concerned with its constitutional implications. Most of the sections of his concern have since been repealed and constitutional scholars admitted there was overreach. Thus when a scholar of his credentials raises a concern about constitutional order then we as citizens should be diligent and ask questions.

Thus, to Mr Block and Ms Herrell what was your goal in attending this simulation? What did you hope to accomplish? What is your longer term goals from participating? The citizens of New Mexico await your response.

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