A MAGA Convention of States

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By Christopher Schorr

A new take on the November midterms has emerged: Democrats are marching to victory!  The Democrat base is newly energized following the Dobbs decision and recent legislative victories.  The GOP’s generic ballot lead has vanished, and, thanks to the January 6 (show) trials, independent voters are recoiling from the party of “domestic terrorism” and embracing the party that supported the Antifa and BLM riots.
 
There are a few problems with this account.  To begin, President Biden is massively unpopular.  The public correctly views him as having failed dramatically:
 

• In Afghanistan, where Biden presided over a humiliating national defeat (-55% on foreign policy),
• On border security (What border?  -58% on immigration),
• On the inflation and energy crises that Biden helped to create (-71% on inflation), and
• On the broader economy, which is either in recession or heading there, depending on whom you ask (-64% on economy).

With Biden at the helm, voters also see their government comporting itself like a banana-republic dictatorship.  Federal law enforcement targets the regime’s political opponents, from the opposition party’s leader to ordinary citizens.  A corrupt Department of Justice ignores evidence of serious crimes committed by Biden’s son and defies federal law by refusing to protect Supreme Court justices from political intimidation.
 
This is the governance record that Democrats must defend in November.  It gets worse.
 
The Democratic Party is out of step with the country on major cultural issues.  Their embrace of Critical Race Theory alienates 62% of Americans.  Their efforts to institutionalize unscientific faculty lounge fantasy gender theories — the application of which looks a lot like child abuse — is, likewise, political folly.
 
Far from riding high, the Democratic Party is limping to the November midterms and bleeding support from Hispanics, blacks, and young people.  It is no small thing for a party whose raison d’être is race/gender/gay/whatever minority grievance to lose minority support to the (supposed) party of white/male/hetero/whatever supremacy.  Democrats are in serious trouble come November.
 
How big a Republican victory?  
 
Do Democratic weaknesses portend a “red tsunami”?  Perhaps.  Democrats led in the generic ballot around this same time during the GOP wave years of 2010 and 2014.  In 1994, Democrats led until Election Day (where they were wiped out).  The current generic ballot tie is nothing to scoff at.
 
There are other reasons for Republican optimism:
 

• The GOP leads in new party registrations,
• The backlash against the FBI’s unprecedented raid on President Trump’s residence is likely to boost Republican enthusiasm, and
• The Republican House map appears to be expanding.

The Senate map would look better without candidates like Mehmet Oz, but fortunately, candidate quality matters less in wave years.
 
For all the insider hand-wringing over the electability of MAGA candidates, the greater impediment to a GOP landslide may be that the party’s Establishment would prefer to avoid an electoral mandate for donor-alienating MAGA policies.  Every actor in the D.C. political drama — from Biden’s handlers to the Establishment to the press — understands that a red tsunami elevates the MAGA/America First movement and its leader, President Trump.
 
Without presuming such a victory and thereby failing to earn it, MAGA Republicans should begin planning for how we would translate a landslide victory into enduring policy reforms, should the voters grant us the opportunity.  This includes engaging MAGA voters in “partners discussions” through conservative media.

 

Seize the Moment with a MAGA Convention of the States
 
The GOP currently controls both legislative houses in 31 states, if we include unicameral Nebraska.  In the best-case 2022 scenario, Republicans would expand their hold to 38 states — no easy feat.  Why 38?  With 34 state legislatures, Republicans could call a convention of the states (CoS) under Article V to propose amendments to the Constitution.  Thirty-eight GOP legislatures would then be needed to ratify amendments (with fewer than 38 GOP legislatures, amendments would need bipartisan support).  The CoS idea is succinctly described by its advocates here and by its panicked opponents here.
 
As an example of how Republicans could capitalize on a 2022 red tsunami, I propose the following:
 
Proposed Amendment 1: End Mass Immigration
 
This is the obvious amendment.  CoS efforts have thus far emphasized Tea Party–era fiscal concerns.  While these issues are vitally important (see Proposed Amendment 2), the GOP is a now a MAGA party, and a MAGA CoS really must address immigration.  We should amend the Constitution to:
 

1. End birthright citizenship and limit “natural born” citizenship to the children of citizens and legal immigrants.
2. Require the federal government to remove all unlawfully present foreigners and require full state and local government compliance with these efforts.
3. Set an annual immigration cap (say, of 200,000) for legal immigrants, illegal aliens, refugees, and asylees.
4. If admissions exceed this cap, the allotment for the subsequent year (and additional years, as needed) is reduced accordingly.

Establishing an immigration “budget” will force Congress to prioritize.  Does Congress want more engineers or more day laborers?
 
Proposed Amendment 2: Mandate Originalism
 
This is the easy amendment.  Professor Randy Barnett proposed the following 13 years ago:

The words and phrases of this Constitution shall be interpreted according to their meaning at the time of their enactment, which meaning shall remain the same until changed pursuant to Article V; nor shall such meaning be altered by reference to the law of nations or the laws of other nations.

To this, we should add clauses
 

1. Limiting the number of Supreme Court justices to nine and
2. Closing the “treaty loophole” (Barnett’s fourth proposed amendment).

An originalist mandate will not stop every lawless judge from distorting the plain meaning of text for political ends; however, delegitimizing the idea of a “living Constitution” will help to limit such abuses.
 
Proposed Amendment 3: Enact a Modified Balanced Budget/”Penny Plan”
 
This is the difficult amendment.  A balanced budget amendment eliminates or severely restricts deficit spending; however, deficits can be necessary during wars and recessions.  Several balanced budget proposals include waivers for such occasions.
 
The war problem is especially concerning.  It is a tragic fact that the country is less united and less patriotic today than in years past.  Expect this situation to worsen when today’s CRT-indoctrinated children become tomorrow’s voters.  Imagine a scenario where the United States, led by Republican president and a Democrat Congress, is embroiled in a foreign conflict and, perhaps, a recession as well.  Under the constraints imposed by a balanced budget, what would stop a party comprising the likes of Reps. Ocasio-Cortez, Omar, Tlaib, and Pressley from demanding maximum policy concessions in exchange for maintaining funding for the war?  Patriotism, you say?  Love of the white supremacist, male, cis-hetero patriarchy?  Unlikely.
 
I proposed a limited balanced budget amendment along the following lines:

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