What if there were a fourth branch of government that would allow the fans of "Duck Dynasty" to overturn Roe v. Wade, repeal Obamacare and pretty much nullify any federal law or Supreme Court decision they don't like, based on the support of as little as 12 percent of the nation's population? And what if that fourth branch already existed in the American constitutional order, just waiting to be properly realized?
That's basically the dream of conservative activist Charles Kacprowicz, as described in a recent conference call with supporters, effectively summing up many of the deepest hopes and fears of right-wing America in the post-Bush era.
"The best that we have now is the idea of nullification. But the states right now do not have a provision in the Constitution that allows them to countermand laws,” Kacprowicz said. But he's crafted a proposal that would change all that. “With this provision, in the Sovereignty and States Rights Amendment, they can countermand it, and they can disallow it when 30 states say 'let's stop.' "
Naturally, Kacprowicz had a red meat example close at hand. "Obamacare right now has at least 26 states who have already filed lawsuits against the government for imposing on them the tax and the imposition of Obamacare on the states,” he continued. “That's already going forward. So you have that right there. We need four more states and Obamacare is history. And so that's the kind of power that this has in this sovereignty amendment."
Kacprowicz isn't presently a leading player, but as this passage shows, he straddles two rising, radical state-level tendencies that the national media have woefully underreported so far: one an explosion of clearly unconstitutional “nullification” legislation, and the other a growing movement to call a constitutional convention (Kacprowicz prefers “amendment convention”) to pass a set of conservative dream amendments. Because he provides a uniquely crafted bridge between these two efforts, his ideas could prove significant in the near future.
What's more, he's operating in a double blind spot, which makes him particularly difficult for the national media to comprehend: First, there's the blind spot of routinely underreporting state-level political news, most notably, recent waves of right-wing legislation: antiabortion laws, voter-suppression laws, stand-your-ground laws, etc. Second is the blind spot of conservative radicalization, which the media staunchly refuses to report on, except through the limits of the he said/she said format, which automatically blurs and obscures the story.
In tandem, the two blind spots have obscured the story of state-level conservative radicalization throughout the post-Vietnam era. The most recent issue of the Public Eye magazine from Political Research Associates is devoted to highlighting this neglected concern, and two of the contributing authors, Frederick Clarkson and Rachel Tabachnick, monitored Kacprowicz's call and shared some thoughts about it.
Clarkson wrote “Exposed: How the Right’s State-Based Think Tanks are Transforming U.S. Politics,” while Tabachnick co-authored the article “Nullification, Neo-Confederates, and the Revenge of the Old Right” with Frank L. Cocozzelli. The first story examines the extensive state-level networks of Heritage-style free market think tanks (the State Policy Network) and Family Research Council-style social conservative think tanks (the Family Policy Councils). These have been instrumental in nourishing a culture of state-level right-wing activism that goes largely unnoticed by the national media. Clarkson called Kacprowicz “an obscure figure who may have found the missing link — the unifying logic that can unite far right factions into a campaign to make the greatest change in the Constitution since ratification. At least in his own mind.” While his ideas may be too radical to succeed, Clarkson warns, “The amendment's very radical nature could generate an inflammatory debate that makes other competing proposals seem moderate by comparison, even though there is nothing moderate about them.”
The second story examines the ideological infrastructure at play behind recent state-level political developments, which it traces back to the Old Right “paleoconservatives” whose ideas have often been presented as libertarian in the hands of Ron Paul and his associates. As it quickly points out, “Since 2010, state legislators have introduced nearly 200 bills — on 11 issues alone — challenging federal laws that they deem unconstitutional,” including anti-gun control bills in at least 38 states, and anti-Obamacare laws in at least 20 states. Such activism even "extends beyond the 50 state legislatures, spreading to county and local governments, including about 500 county sheriffs who have affirmed their commitment to 'saying “no” to Obama gun control.'”
Of course, nullification is unconstitutional. The text of Article VI is crystal clear:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. [emphasis added]
The stark disconnect between textual reality and the “constitutional” rhetoric of today's Tea Party-era conservatism could hardly be clearer. But equally clear is the trend line of presidential election results: Republicans have only won a majority of the popular vote just one time since 1988 — in 2004, when Bush was reelected by the narrowest margin since Woodrow Wilson in 1916. Following the latest reminder of this trend, with Romney's defeat in 2012, there was much Beltway buzz about the GOP “rebranding” itself, especially to appeal to the Hispanics. But the real action in conservative and GOP politics this past year has been in state-level struggles where the aim was not to win over new voters, so much as to rewrite the rules of the game. And that's where Kacprowicz comes in.
He is far from alone in calling to amend the Constitution via a convention called by the states. A book along these lines by conservative talk-show host Mark Levin, "The Liberty Amendments," became an instant New York Times bestseller this summer, and there was a meeting of 97 state representatives from 32 states in early December to discuss the idea. But Kacprowicz understands the pitfalls for conservatives like himself much better than most, and has detailed plans about how to avoid them. He also understands how to use the amendment process to legalize a form of nullification, his aforementioned “countermand” provision. These two aspects of his thinking set him apart.
“The notion of the countermand, as articulated in the sovereignty amendment, creating a fourth branch of government that can say no to any federal provision is novel, to my knowledge,” Clarkson said. “I think it is interesting that Kacprowicz feels that it may make all of the other potential 'amendment conventions' unnecessary. So in Kacprowicz's theory, the best-case scenario is for the right can exercise enough power in the states to countermand federal actions they dislike, from Roe to the EPA.”
Procedurally, Tabachnick said, “The major difference between Kacprowicz and the other groups is his conviction that the delegates must be ambassadors of the state legislature they represent. He insisted that all of the other groups are calling for their representatives to be free agents and able to make their own decisions about how the convention will be run. He fears this would result in chaos.”
Even worse, it could result in progressive amendments — such as one overturning Citizens United. This is clearly not what conservatives have in mind, and it's led some — such as the John Birch Society and the Constitution Party — to oppose the convention approach entirely.
The notion of delegates as ambassadors derives from Kacprowicz's belief that state legislatures are sovereign entities, a status they allegedly retain from the pre-constitutional era. It's a belief system he shares with most nullificationists, as explained and debunked by Tabachnick's co-author, Frank Cocozzelli, in another piece last year. Most obviously, 37 state governments have been created since the Constitution was signed. But even the original 13 states had never been independent, sovereign countries. Even during the Revolutionary War, they operated under the Continental Congress, which raised taxes and waged the war for independence as a unified national effort. Such basic middle school history and civics seem lost on today's conservative activists.
“I can picture 530-some delegates trying to decide if you're going to have a republic, or if you're going to have a democracy,” Kacprowicz said during the call. “If there's a democracy, everybody who has a delegate is going to want to have one vote. If you have a republic, then every state has one vote. If in fact it's the former, that means that whatever, in my case, whatever conservative approaches you might have in advancing an amendment at a convention, we will automatically lose.” [emphasis added] Nothing could be clearer: For conservatives to get what they want, democracy itself must be off the table.
To make his point more concrete, Kacprowicz added, “Montana, say, with, say, four delegates, is no match for 40 out of California. So as a result, the smaller stares are going to come out short, and they'll have very little influence on the direction of the convention.”
“They know that they cannot win on their issues without stacking the deck with the most elite form of republicanism possible,” Clarkson said
This anti-democratic orientation is the common thread connecting the countermand proposal with Kacprowicz's procedural view of how the convention should be organized and controlled. In his view, state legislatures should instruct their representatives in advance about how to vote, just like nations instruct their ambassadors. (Forget for a moment that ambassadors represent the executive branch of government, answering to the head of state.) Kacprowicz proposes the vehicle of a “delegate resolution” to control the delegates' votes, so that the convention itself becomes a mere formality, much like the electoral college. He's even drafted model legislation for state legislatures to use.
As for his countermand proposal, recall that it would only require the legislatures of 30 states to nullify any federal law, regulation or Supreme Court ruling. Because so many states have such small populations, as of 2012 this meant that legislatures representing just 24 percent of the total U.S. population could nullify any and all federal laws for all the rest of us. In fact, since it only requires a 50 percent +1 majority of any legislature, the actual percentage of Americans represented by them could be as low as 12 percent — or even significantly lower, given how few people tend to vote for state legislators.
Thus, the idea of enshrining minority rule is absolutely central to Kacprowicz's vision — it's a feature, not a bug.
“I think the most interesting part of this is not whether they can get all the way to Kacprowicz's crackpot sovereignty/countermand amendment, but whether some kind of Article V convention can get off the ground,” Clarkson said. “Clearly elements of the right have given a lot of thought to this, just off of our radar screens. And frankly, it seems not impossible. But at the very least, it has the potential to be a force in the national political conversation.”