I. The Perilous State of the U.S. Constitution and Democracy

Dr. Patricia Lynott, President of Rockford University, opened the discussion by highlighting several moments in American history where the U.S. Constitution and American democracy felt "in serious Peril." She cited personal experiences and historical events, including:

• McCarthy Era Red Scare (1950s): The destruction of careers, like that of her great aunt Irene Wicker, due to accusations of un-American activities, despite later exoneration. This era instilled a sense that "something with our government had to be protected and that Constitution was the thing that was going to protect us."

• Civil Rights Movement (1960s): Government resistance and events like Selma were "testing our constitution."

• Watergate (1970s): This period "really tested the boundaries of executive branch power... and it took the a Supreme Court ruling the judicial branch right to help kind of set that right."

• Iran-Contra (mid-1980s): Raised "serious concerns about the executive branch perhaps overreaching."

• Bush v. Gore (2000): Many believed "the judicial branch overreached and undermined the Dem the Democratic process."

• The Patriot Act (post-9/11): Concerns arose about potentially "trample[ing] on some civil rights" in the name of national security.

Dr. Lynott emphasized that "today in 2025 in an era of unprecedented divisions, it feels like the principles enshrined in our Constitution are more at risk than ever before at least in my lifetime." This sentiment underscores the urgency and importance of the discussion.

II. Article V and the Constitutional Convention: A "Grenade”

The central theme of the discussion, particularly as articulated by Senator Russ Feingold, is the significant risk posed by a potential constitutional convention called by states under Article V.

A. Mechanisms for Amendment (Article V): Professor Ron Lee provided a concise overview of Article V:

• An amendment can be proposed by Congress with a two-thirds majority vote in both the House and Senate.

• An amendment can be proposed by a constitutional convention called for by two-thirds of the state legislatures.

• Proposed amendments become part of the Constitution when ratified by three-fourths of the states (38 of 50), either by state legislatures or by conventions.

Historically, "none of the 27 amendments to the Constitution have been proposed by Constitutional Convention."

B. The "Twin Jeopardies" of Amendment: Senator Feingold, co-author of "The Constitution and Jeopardy," outlined two major concerns:

1. Risk of a "Haywire" Convention: "this Constitutional Convention could go haywire and really do something bad to the Constitution."

2. Difficulty of Amendment: "it's the hardest constitution in the world to amend. It's almost impossible to do it through the Congressional especially in polarized times." This creates a dilemma of potential uncontrolled change versus inability to adapt.

C. Historical Context and Intent:

• The framers, particularly George Washington, included an amending provision because they believed future generations might need to amend the Constitution. Washington stated, "I do not think we are more inspired have more wisdom or possess more virtue than those who will come after us."

• The idea of a state-called convention was added late in the Philadelphia Convention, largely due to George Mason's insistence on a mechanism outside of congressional approval.

• James Madison noted a lack of "rules or Provisions or any information at all about how or it should be done."

D. The Modern Movement and its Dangers:

• A group, often called the "Convention of the States," backed by wealthy individuals, has been actively pushing for a convention since 2013. They train conservative legislators and hold "mock conventions."

• Feingold refers to Senator Rick Santorum's statement about this movement: "we're planning on putting resources people in place to get us where the safety's off and we have a live weapon in our hands." This implies a desire to "undo the Constitution."

• Lack of Rules: A major concern is that "there are simply no rules about how this thing should be set up."

• Voting Structure: At mock conventions, voting is "one vote per state," not based on population or delegate numbers. This exacerbates concerns about disproportionate representation, similar to the Electoral College.

• Potential Outcomes (Conservative Agenda): Feingold warned of outcomes such as:

• Overturning congressional action by a majority of state legislatures (reminiscent of John C. Calhoun's nullification doctrine).

• Taking away the limitation on presidential terms.

• Banning all abortions.

• Eliminating Birthright citizenship.

• Limits on the jurisdiction of federal branches.

• Potential Outcomes (Progressive Agenda - also problematic): While not as well-financed, some on the left also seek a convention to:

• Overturn Citizens United.

• Guarantee abortion rights.

• Eliminate the Electoral College.

• Achieve D.C. statehood.

• Limit the pardon power.

• "Yikes" Factor: Dean Joe Kearney of Marquette University Law School famously reacted to the idea of an Article V convention with "yikes," a sentiment he reiterated, acknowledging the "alarming Prospect."

E. The Counting Controversy:

• The process of counting how many states have submitted petitions is "very complicated." There's disagreement on whether petitions for different topics (e.g., balanced budget amendment vs. term limits) can be aggregated to reach the 34-state threshold.

• Some proponents claim that "any petition can be counted," even those from before the Civil War.

• States are also actively repealing previously submitted petitions, creating a "weird numbers game."

F. Ratification as a Safety Valve:

• Dean Kearney acknowledged the "backend mechanism" that "3/4 of the states would then have to approve the new document." However, he noted that "it's one thing in advance to want something that exists only in your mind's eye... and it's quite another to have the actual document."

• Feingold agreed, but cautioned that with 34 states already calling for a convention, only four more are needed for ratification, suggesting a potential "momentum element."

III. Deep-Seated Problems in the Constitutional Order

Professor Evan Bernick offered a more critical perspective on the underlying issues that lead to concerns about an Article V convention.

A. Oligarchical Capture and Undemocratic Structures:

• Bernick argued that the worry about "capture about special interests with agendas adverse to those of the community of a whole taking over a constitutional process and effectively acting as an oligarchy" points to deeper flaws.

• He believes the Constitution, "not just in Article 5 but in many of the structure which it sets up, imposes limits on how we can govern ourselves that represent something of an overcorrection Visa the founding Baseline."

• The framers were more concerned about "rampant majorities" (e.g., Shay's Rebellion, Rhode Island's actions) than oligarchy, leading to a system that "insulated the operations of government far too much from direct popular control."

• The Senate's equal state representation, unamendable without all states' consent, is "weird from a political theoretical perspective in which we the people delegate power to our representatives to act on our behalf."

B. "Bloodless Revolution" and Adaptation:

• Bernick discussed the concept of Article V as a "bloodless Revolution," noting that historically, "revolution" meant restoration, but modernly implies creating new things, often violently. Article V attempts to balance these.

• He cited the 14th Amendment's ratification, which occurred "only by threatening southern states with continued expulsion unless they accepted it," as an example of significant "transformative constitutional change" happening "through an end around Article 5."

• Bernick asserted that "something has gone awry with our system of government and we shouldn't feel too comfortable about it."

C. Constitutional Veneration vs. Practicality:

• Professor Lee questioned when "we started to stop venerating the Constitution." Feingold suggested this "General negativity toward the Constitution... began about started around with this movement about 2010."

• Bernick cited Aziz Rana's work on the "rise of the Constitution," suggesting veneration is a more recent phenomenon (mid-19th century) linked to nation-building after the Civil War.

• He noted that while people formally pay "lip service" to the Constitution, "the more that you talk to people the less they can actually be very specific about what they like about the form of government that we have." Even those advocating for a convention claim to want to "restore the original Constitution," often meaning "the constitution of the antibellum period."

D. Frustration with Congress and Gerrymandering:

• Former Congressman Don Manzullo pointed to widespread public "fed up[ness] with Congress," citing issues like chaotic budget processes, "foul mouthing" of witnesses, and low approval ratings. This dissatisfaction drives people to seek "different methods of trying to govern a country."

• The issue of gerrymandering was highlighted as a critical underlying factor. State legislatures, often gerrymandered, would be selecting delegates to a convention. Manzullo noted that a "constitution redrafted by a group of Gerry mandard legislatures" is a concerning prospect.

IV. Proposed Solutions and Challenges

A. Feingold's Proposed Article V Reform:

• To address the difficulty of amendment and ensure popular input, Feingold and his co-author propose changing Article V.

• Their idea: An amendment would require approval by "the majority of people in a popular vote in a majority of the states so 26 States majority of the people in those States vote for it and a national popular vote on the amendment." This aims to truly embody "We the People."

B. Holding onto the "Nurse":

• Dean Kearney expressed a "small C conservative" view, preferring "the status quo over the risks" of a convention. He's reminded of the line, "always hold on to Nurse for fear of getting something worse." He believes it's "really important for the center to try to hold" and that people in the legal profession "need to resist" the idea that the center cannot hold.

C. Engaging with the System:

• Professor Bernick emphasized that "there has been no successful social movement in the United States... that has not made use of legal systems and the constitution in their freedom struggles." He concluded, "use the Constitution regardless of its imperfections you've got to that's the culture we have and that's the best we've got to make of it."

V. Conclusion

The discussion highlighted a critical and often overlooked threat to the stability and democratic principles of the U.S. Constitution: the potential for an uncontrolled constitutional convention. While the system offers mechanisms for change, the lack of clear rules for such a convention, coupled with deep-seated political polarization and public dissatisfaction with government, creates a fertile ground for unintended and potentially radical outcomes. The panelists, while differing on the degree of constitutional veneration and the ideal path forward, universally acknowledged the "alarming" nature of the current push for an Article V convention and underscored the importance of public awareness and engagement with this "sleeper issue."