The DeSantis Constitution

DeSantis, a 2005 graduate of Harvard Law, isn’t any sort of threat to return us to a world of taxation without representation, but he’s an expert MAGA dog-whistler.
DeSantis, a 2005 graduate of Harvard Law, isn’t any sort of threat to return us to a world of taxation without representation, but he’s an expert MAGA dog-whistler. Photo: Paul Hennessy/SOPA Images/LightRocket via Getty Images
Tina Nguyen
February 15, 2023

Despite all the agita over Ron DeSantis, an intriguing, and possibly revelatory, article about the governor flew mostly under the radar last month. According to the Tampa Bay Times, a little-known Idaho political group had run a radio ad featuring DeSantis declaring his support for invoking Article V of the U.S. Constitution, which allows for amendments to America’s foundational legal document, to impose term limits on Congress. “Florida’s legislature was the first state in the nation to pass a resolution calling for an Article V term limits convention,” DeSantis says in an undated audio recording that was also uploaded to the U.S. Term Limits website, one of the groups backing the movement. “I’m so encouraged to hear that Idaho is working on the same term limits resolution.”

Tinkering with the Constitution has, of course, been a conservative fantasy for centuries, albeit without much traction. But, these days, the political will has been accumulating within parts of the right to prompt Congress to call an honest-to-god constitutional convention via an arcane and untested provision of Article V. Shrewdly, DeSantis doesn’t go beyond proposing term limits, but even this position has allowed fringe conservatives to dream of a day when they can use their control of state legislatures to fix all sorts of perceived federalist ills: the tax code, the expansion of the Commerce Clause, and so forth.

DeSantis, a 2005 graduate of Harvard Law, isn’t any sort of threat to return us to a world of taxation without representation, but he’s an expert MAGA dog-whistler. And just as Trump found ways to speak in the love language of the Proud Boys, in 2016, without fully engaging the group, DeSantis clearly recognizes that bandying about the term allows him to wink at Tea Party federalists, fringe conservative academics and grassroots insurrectionists, alike, without getting dirt on his starched white shirts. (Representatives for DeSantis did not comment when I asked if he still supports an Article V convention.)

Or that’s the theory, anyway. “I had advisors in my race against DeSantis actually suggest that would be the ultimate signal to conservatives,” said former Republican Florida Rep. David Jolly, who briefly ran against DeSantis for Senate in 2016. “It’s a signal to the Tea Party, 9/12 [Project] thread in the party, because it is the ultimate federalist move—the notion that the federal government is too powerful, and so we need to take power away from it, and we can do it as people who organize in states across the country.” Jolly also conceded the challenges around Article V, namely that it’s complicated to understand, before noting how that may be immaterial. As he said succinctly, Article V “checks the box.”

It’s a potentially clever way for DeSantis to court an insurrectionary segment of the MAGAverse while playing inside the confines of a party practically begging for an insurrection-free presidency. It’s also another example of DeSantis slowly building his MAGA policy platform by identifying the party’s most emotionally-charged gripes, from the economy to the culture war, then allying with groups that could help him turn those gripes into legislative action items.

Indeed, DeSantis has proven particularly capable at leveraging his legal background to advance his executive agenda. Over the past several weeks, DeSantis took control of a state-run liberal arts college, placing several members of the right-wing Claremont network on its board; vowed to turn the progressive New College of Florida into the “Hillsdale of the South”; and proposed to mandate courses in Western civilization and dismantle diversity programs. Meanwhile, for the non-ideologue, DeSantis’s economic record is a free-marketeer wet dream, from keeping small businesses open during Covid (sans mask and vaccine regulations) to signing a bill that helps property insurance companies in the hurricane-rich state avoid litigation from policyholders. 

It’s all served to bolster DeSantis’s reputation among the Republican business class as a more competent, doctorate-wielding avatar of MAGA country club conservatism. “DeSantis is a lawyer, so he thinks about how to use power in the way that a lawyer does, kind of like Obama did,” said Will Chamberlain, the former editor-in-chief of the conservative journal Human Events and a pro-DeSantis online influencer. “When Obama was president, he was like, Okay, how, what powers do I have, how can I use them? Where can I be aggressive? Where is it ambiguous and where can I push? DeSantis does the same stuff.” 

As an example, Chamberlain cited DeSantis’s suspension of several state attorneys for pushing back against his policies concerning abortion and trans rights. “It wasn’t forbidden. It wasn’t obvious that that was clearly allowed, but it was certainly completely defensible. So he did it, and then basically was like, Oh, we’ll see. The courts may reject that. They may accept it. It’s not clear. But I’m going to do it.

But the promise of constitutional remedies to culture war grievances, while appealing to primary voters, may also become a turnoff for moderates and independents if DeSantis pushes that line on the campaign trail, let alone from inside the White House. “If he doesn’t get his way, he’s gonna reach for whatever lever that allows him to get his way,” predicted Jolly. “And as I think it’s been wisely put, Donald Trump is unique in his willingness to shred the Constitution. Ron DeSantis just wants to challenge it, so that the courts will reshape it in his image.”