Feingold sees Constitutional threat; others see chance for change – former U.S. senator from Wisconsin is on a mission to protect and update the Constitution | Wisconsin Jewish Chronicle

Feingold sees Constitutional threat; others see chance for change – former U.S. senator from Wisconsin is on a mission to protect and update the Constitution 


Former U.S. Senator Russ Feingold has issued a warning about a conservative movement to trigger a Constitutional Convention, and he’s got a proposal to revise the Constitution, to better protect it. 

Feingold noted in an interview with the Chronicle, that “should this convention be called, there are no rules, and the far right is going to try to impose a set of rules that will mean a very small minority of Americans will rewrite the Constitution in a way that I think will upset many Americans and frankly, many American Jews, including myself, who see the Constitution as a bedrock of our freedom.” 

Supporters of a Constitutional Convention, on the right, disagree that the proposed move is something to fear. They see it as a chance to unlock the power of the people.  

Feingold, a Janesville native, served as a Democratic U.S. Senator from Wisconsin, from 1993 to 2011. Feingold is president of the American Constitution Society and has taught at Stanford University, University of Wisconsin, Yale University and Lawrence University. 

Now, Feingold is on a mission to educate the public on the Constitution and to protect it. He and his former law student, Peter Prindiville, over the summer published a book for the general public, “The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It.” 

What are the rules? 

The book focuses on the U.S. Constitution’s Article V power to call a Constitutional Convention, which requires three-quarters of states to agree. The book argues that this high bar may be obtainable thanks to gerrymandering of state legislatures, perhaps with an assist from state legislatures’ older and problematic votes to call a convention. Those could, in theory, be counted along with the votes of modern Republican-controlled state Legislatures.  

In July 2020, former Wisconsin Gov. Scott Walker made the argument that the number of states needed to call a Constitutional Convention had already been reached, according to the book, which also claims his math depends on legal leaps that don’t add up. Yet. 

Might the U.S. Supreme Court go along with Walker’s argument? Would it even be up to the court? 

It’s hard to say that or just about anything else about this, because this part of Article V has never been used and the Founding Fathers couldn’t agree with each other enough to give us a detailed rulebook. Or any kind of rulebook. It does seem, though, that a Constitutional Convention could scrap the founding document we’ve got and start anew. 

The mock convention 

In their book, Feingold and Prindiville report on a mock Constitutional Convention put on by conservatives in 2016: “George Washington–really an actor appearing on horseback via video–began the meeting: ‘I am presently concentrating my forces where I have no doubt that we are on the verge of a great and important victory,’ he declared.” 

The delegates “war-gamed the whole scenario,” according to Feingold and Prindiville’s book. “They wrote parliamentary rules, established committees and subcommittees, and drafted and debated proposed amendments.” 

You may think Article V is a forgotten, unused part of the Constitution, but these conservative advocates are serious, according to the authors. The people who put on the 2016 mock Constitutional Convention – the Convention of the States Project – did not respond to Chronicle requests for comment, but they’ve got plenty online to back their positions.  

“Only a Convention of States [Constitutional convention] has the power to repair the damage and halt the federal government from eroding the liberties of the sovereign citizens further,” according to a free “Pocket Guide,” which draws legal conclusions about the process that are disputed by Feingold and Prindiville’s book. 

It’s not at all clear that a new Constitutional Convention would follow the rules of the original one that founded the United States in 1787, but if it did, that’s a problem, according to Feingold. Each state would get one vote, which could tilt very conservative if delegates are selected by legislatures.  

A problem for Jews? 

Supporters listed in the “Pocket Guide” include conservatives like radio personality Mark Levin, Republican Florida Gov. Ron DeSantis, Jewish commentator Ben Shapiro, and commentator Sean Hannity, among many others.  

But this is not a straight party lines issue, according to a Sept. 4, 2022, New York Times piece. There are those on the left who would like a convention, and some on the right worry about the Second Amendment. 

Feingold knows where he stands – he is opposed to a convention.  

“For most of us growing up in the 20th century, in the first part of the 21st century, who were Jewish, the American Constitution is seen as one of the greatest protections of our freedom, and our ability to lead our lives in ways that we could not in so many other countries in the world …. I think many of us have been brought up with, and I’ve grown up with, a deep faith in the Constitution,” Feingold said.  

“Those of us who have studied closely, whether Jewish or not, realize it’s not perfect; in fact, it had been terrible. At the beginning, there weren’t women or African Americans or Native Americans even represented. On the other hand, there were the principles of protecting freedom and broadening individual rights, of free speech of religious freedom. These things are foundational for American Jews, and Jews anywhere. 

“There are people … who would basically do things that would establish elements of a state religion. And of course, that is considered threatening by most of us who are Jewish. And I believe that could potentially be part of their agenda, although that is not what they at least suggest that they’re going to focus on. But as Peter and I have written, a convention like this can go in any direction.” 

The Convention of States Project organization says in its promotional material that it seeks “a national effort to call a convention under Article V of the United States Constitution, restricted to proposing amendments that will impose fiscal restraints on the federal government, limit its power and jurisdiction, and impose term limits on its officials and members of Congress.” Feingold and Prindiville argue it’s not clear pre-set limits on the power of a convention will legally limit the convention once it’s called. 

The Convention of States organization describes some of its goals in its “Pocket Guide”: “Should the government decide what to do about your health care, or should you and your doctor decide? Should D.C. bureaucrats decide what to do about education, or should you, your spouse, and your children’s teachers decide? Should nine Supreme Court Justices decide what constitutes a marriage, or should you, your community, and your state decide? …. This solution was hidden in plain sight in Article V of the Constitution, and it’s our best and last chance to take the power back from the out-of-control politicians in Washington and safeguard our liberty once and for all.” 

The “Pocket Guide” adds: “Most of the problems our country is facing are the result of Constitutional interpretations that capitalize on ambiguities in the wording of certain phrases ….” 

Feingold’s proposed upgrade 

The Convention of the States organization says change is needed. On that vague point, the two sides may agree. “Constitutions must change through time to meet new needs; otherwise, they grow brittle and ineffective,” write Feingold, and co-author Prindiville, who is a nonresident fellow at the Stanford Constitutional Law Center and a Washington, D.C. attorney. “While the stabilizing force of our Constitution is one of its many gifts, it is not and cannot be treated as immutable holy writ.” 

If it’s easier to change the Constitution in a reasonable and relatively democratic way, Americans are less likely to leap past it and ignore its actual meaning, or so the theory goes.  

The book’s proposals for reform of the Constitutional revision process include: requiring a national popular vote for the ratification of proposed amendments; requiring approval in separate Congresses; and voter approval of state legislature choices on calling Constitutional Conventions, among others. 

“I think the American Constitution, and it’s checks and balances, in the guardrails it places on government and our public life, are exceptionally important,” said Feingold’s co-author Prindiville, in an interview with the Chronicle. “I just turned 30 …. I worry about the future of the Constitution in my generation. And it’s a document I admire. I think it has crafted a political culture and a legal system that has allowed the United States to continue to be one of the greatest if not the greatest country in the world.  

“I worry about the longevity of that experiment in the coming decades.”