For ratification, a simple majority in 3/4 of state legislatures (or a majority of delegates to 3/4 of state ratification conventions) will do.
Thanks for that correction.
A situation I was anticipating, but was too lazy to research is whether various states have enacted laws or legislative rules akin to Congress’s various “supermajority” rules/laws which enable a minority group to prevent certain votes passing, or in some cases even being taken at all, with far less than a majority of the chamber in support of their obstructionism.
IOW, if it takes 2/3rds in favor to mean “yes”, it takes only about 20% hard noes to force the outcome to always be “no”.
IMO it’s a decent bet that if such aren’t common at the state level yet, they will become so in an attempt to cement the rule of the non-majority.
Because the immense power and pervasiveness of ‘it hasn’t happened therefore it can’t happen’ requires a boot in the chops of such strength that it actually gets people thinking.
And that’s what the OP does.
At this point in 2024 the possibility of an autocrat (Trump) gaining the White House looks strong enough so that even Thomas and Alito would prefer to keep their hands clean. Well, relatively clean: it does look likely that they plan to hand him a permanent and irrevocable Get Out of Jail Free card. And as GailForce and Whack-a-Mole have said:
Crazy, extremist SCOTUS has already manifested itself. Too many of us are watching but refusing to see or acknowledge that extremism. Again, the ‘it can’t happen here’ fallacy is manifesting itself.
I do think a gradual approach, rather than an abrupt overturn of the system such as is outlined in the OP, is what the SCOTUS radicals favor. As HMS_Irruncible laid out:
Anyone who says that this is all fantasy needs to take a look at Project 2025.
The Constitution does not state that ratification in any one state only requires a bare majority of the Legislature/convention. Several states have supermajority requirements for amending their state constitutions.
Do you know of any states that have a supermajority requirement for ratification of amendments to the U.S. Constitution?
And given that the ratification convention is a way around the state legislatures, it would seem to be that a simple majority in a ratification convention would be sufficient. Certainly the state legislature would not have the power to require a supermajority for a convention.
There might not even be a civil war in the scenario described by the OP; other authoritarian regimes have established themselves without one, even when the faction seizing power did not already command majority support in the legislature or among the population generally. And not to Godwinize the thread, but in at least one such case the new regime had no problem allowing the ideologically acceptable/supportive judges of the supreme court to retain their positions.
I do not, but Constitutionally I see no reason why they couldn’t. The only requirement for ratification by state Legislatures (if Congress goes that route) is that it must be done by the Legislature — e.g. the Supreme Court has ruled that a statewide referendum cannot substitute for state legislative approval.
Potentially Congress could specify simple majority ratification in sending the amendment to the states. Other limitations on ratification not explicitly found in the Constitution — such as requiring ratification within a certain timeframe — have been found Constitutional.
But what does it get people doing?
I’d argue that thinking is a prereq to doing.
What attention step will awaken the sleeping giant of the large fraction of the American public who don’t want to live in a klepto-dictatorship and are now sleepwalking straight into that disaster?
Darn good question, but IMO that is the single most urgent question of our era.
Then ask it and see what responses you get. Apocalypse fan fiction is nowhere near asking that question. And, I would argue, gets no one to think seriously about it.
Which is the scary-but–true part of the discussion, and why the OP’s scenario is silly - they can win by much more deniable means. Let’s post an alternate (and probably much more likely) scenario:
2024 election comes down to another nail biter, with 4-5 states making the difference, and said states, with Republican leadership, carry through on 2020’s efforts to send their own slate of electors, rather than those voted for, per such attempts as AZ Senate Concurrent Resolution 1014 despite all evidence showing Biden winning by a smaller margin in said elections.
Democrats rally that such things are unconstitutional, Republicans push it to the SCOTUS, and the conservative majority support the textualist interpretation that gives the states great leeway to determine how the electors are chosen.
Boom, Pres Trump II. Now, there is much, if largely peaceful rioting, which Fox and all make a big hullabaloo about, and Prez Trump declares martial law, along with the support of enough of congress to prevent any challenge if not an outright majority…
All nice and legal, with a de facto dictator, who can indefinitely suspect the emergency and powers thus granted with sufficient support (and or flat out intimidation via force of violence) from Congress and the SCOTUS.
Add in a few contrarian voices being silenced as they’re “caught in the unavoidable violence” and you’ve gotten to the same effect, without needing to posit SCOTUS going full on mustache-twirling evil.
Anyway, it is fine and right to worry about the state of the nation, the SCOTUS not being the least of the worries, but other than actively breaking the law ourselves, doing the best we can (voting and getting out more of the vote) is the best we can do right now.
SHOULD Biden be safely elected, then yes, I would join some of the voices on the board in suggesting substantial changes to enshrine in law what has become easily ignored precedent for the SCOTUS and other branches of government. But that’ll take more than just Biden.
Pending a major shift in politics and power (ha!), or more likely (if not much) a fracturing of the wings of the Republican party (Conservatives vs MAGA as an example) allowing Democratic control, no, I see us as a nation continuing forward to various flavors of cold / warm / hot civil war.
Still many terrifying thoughts, but unless people haven’t been paying attention (which I don’t believe applies to nearly anyone on this board) we’ve been headed this way since (at a bare minimum) Republicans refused to hold Trump and his supporters responsible for Jan 6.
I agree with those who have noted that the most dangerous potential from this SC is its willingness to look the other way when MAGA states engage in election shithousery.
Roberts’s apparent belief in the rights of state legislatures to do almost anything they want in administering elections is a terrible weapon for the awful people running things in Wisconsin, North Carolina and Texas.
Not to be rude, and I don’t know if you’ve ever been in the military, but it sounds like your idea of the military is based on too many movies and tv shows.
As dopers have said before about other populations, the populations of militaries do not comprise one big, narrow-minded, hawkish monolith. I was in the Canadian military for 32 years, for the first 15 of which I was a naval warfare officer. As such, I have worked with a lot of USN officers and, if I had to stereotype them, I would describe most of them as the sort of people who would be great next door neighbours who you could have a blast with at a bbq.
Having said that, if SCOTUS pushed something like your premise and congress and the senate agreed (TBH I’m not completely sure how this works) and everybody went along, they shouldn’t necessarily depend on the military.
The paranoid conspiracy-theory alt-right believe we’re already in a dictatorship. So as far as they’re concerned America has nothing to lose; a Trump junta would at worst be a counter-dictatorship that would at least be on their side instead of against them.
Sure, but the problem is, who is the “valid” president?
Don’t think of it as a repeat of January-6, where Biden was the clear valid/legit president-elect and Trump supporters were throwing a big, illegal tantrum. Picture the reverse instead. Think of it instead as Trump and the GOP engineering the system so well that now Trump is the “valid, legit” president-elect (through schemes such as “alternate slates of electors” and the Supreme Court or whatnot) and now it’s the Biden supporters who look like they’re the ones trying to pull off an “insurrection.”
Do you think the military would really step in on Biden’s behalf in that scenario? That’s a lot snakier and tougher to picture given that Trump’s veneer of legitimacy would be so strong that the military officers might actually risk court-martial if they took action against Trump.
In the US (at least) it seems that military officers strongly lean conservative while the enlisted are more all over the place politics-wise with what seems a slight lean towards conservatives.
The below is 15-years old but I’d think the military is not known for changing fast so the study is probably pretty close to today’s reality.
It is true that the upper echelons of the military tilt right. My own [Dempsey’s] research confirmed that about two-thirds of majors and higher-ranking officers identify as conservative, as previous studies found. But that tilt becomes far less pronounced when you expand the pool of respondents. That is because only 32 percent of the Army’s enlisted soldiers consider themselves conservative, while 23 percent identify as liberal and the remaining 45 percent are self-described moderates. These numbers closely mirror the ideological predilections of the civilian population. . . .
IME “moderates” tend to lean a bit conservative. The Overton window has moved to the right which means that middle-ground has moved to the right.
But do they “lean conservative” or “lean whackjob conspiracy theorest”? They’ve merged in the GOP itself but does that necessarily extend to other institutions?
I do not know but looking at others in government the conservatives almost always get in line with the leader-du-jour no matter how odious. It is a GOP hallmark that they can get the rank-and-file to toe any line. Something democrats are distinctly bad at.
While Trump may be awful it seems, to their minds, anything liberal is worse.
I would not expect the military to be different except in the most extreme cases (e.g. Trump decides today is a good day to nuke Mexico).
The Military is not MAGA-
Yes, they supported trump in 2016, but in 2020 they turned on him and supported Biden.
Also SCOTUS is not MAGA. It has at least two true conservative justices- Gorsuch and Roberts. They believe in the letter of the law. 3 are liberal. That is why the Court has rejected silly assed MAGA crap like trumps challenge to the 2020 election.
Yes, they dumped Roe, but Roe was always controversial in the legal community- including some that approved of the idea but doubted the legality of the decision.
Is it even possible the court withholds its ruling until after the election, that is, into the next term? For sure that would delay any trial.
If so, in order to continue helping Trump, wouldn’t they rule in favor of immunity if Trump wins and against if he loses?