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State legislators need to beware: Nothing written in a state’s application for a constitutional convention has any force or validity once that convention is called to order. That is the nature of a sovereign assembly. That explains why America’s founders put the needs of the people ahead of all state and federal mandates when they met in 1787. A brief look into the roots of America’s constitution-making system will confirm this essential truth.

Constitutional Conventions are Strictly American

It should be understood that constitution-making through the convention avenue is strictly an American affair. Civilian sovereignty as found in the United States is unknown to other nations where sovereign power is vested in kings and dictators. Under such forms of government the rulers have no need for a people’s convention. They have no reason to allow citizens to make the rules of government, for the monarch or the ruling elite hold all sovereign power. They devise their own structure of government and make and enforce laws according to their desires.

From colonies to states

Until 1775 the American colonies were bound by written charters under which Great Britain directed their governments. These charters were, of course, suspended the moment the colonies declared their independence; however,  three of the thirteen states retained their colonial legislatures and merely revised their charters to serve as constitutions.[1] In 1776, five states adopted constitutions in the same manner in which they would have passed mere statutes, without authorization from, or ratification by, the people. [2]

The origin of constitutional conventions

In 1777 the Massachusetts legislature set itself up as a convention and drafted a state constitution. This constitution was immediately rejected by the voting public who resented the legislature’s assumption that it could call a convention without first obtaining authorization from the citizens of the state.

The principal factor which defeated the Massachusetts constitution was the widespread belief that only the people could define their rights and determine their form of government. The voters insisted that the only valid kind of convention would consist of delegates to whom the powers of the people were delegated for the sole purpose of framing a constitution. It would not be a body of representatives entrusted at the same time with other duties.[3]

The following year the chastened Massachusetts legislature called upon the voters to state whether they wished a constitutional convention and whether they would authorize the legislature to call one. The vote on both questions was affirmative, and accordingly the 1780 legislature called a convention to draft a constitution, which became the present Massachusetts constitution.[4]

The experience of New Hampshire was very similar. In 1777 that legislature also met as a convention and drafted a constitution, which was rejected by the people. They rebuked the legislature because it was not within its authority to organize a convention and make its own rules of governance.

The principle of sovereign power      

Most of the other newly freed states also attempted to frame constitutions under their legislative powers as if they were passing ordinary statutes. Although these constitution-making efforts varied slightly from state to state, the sovereign principle was not fully established until the citizens rejected the statutory route and took charge of the convention process.

In 1781 and 1782 the citizens of New Hampshire authorized a convention following the example of Massachusetts. Both states held America’s first bona fide constitutional conventions, and their example was soon followed by the other states.[5] The people had rejected the statutory form of government-making, insisting that supreme sovereignty of a free state was vested in the whole body of the people having power to create or alter governments “deriving their just powers from the consent of the governed.”[6] Constitutional conventions came indirectly from the people who called upon their legislators to appoint deputies to create a political system that would bind state officers to specific spheres of activity and prohibit them from doing anything else.

The sovereign principle: well understood in the original thirteen states

Nearly all of the original state constitutions, or declarations of rights, affirm the fundamental right of the people to establish or change their form of government. The following list of quotations from these early documents may help establish this point.

Massachusetts — The people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity, and happiness require it. (Massachusetts Constitution, Preamble and Bill of Rights, Art. VII, 1781)

South Carolina — Some mode should be established by common consent, and for the good of the people, the origin and end of all governments, for regulating the internal polity of this colony. (Preamble to the South Carolina Constitution, 1776)

North Carolina — All political power is vested in and derived from the people only. (North Carolina Constitution, Declaration of Rights, Art. I, 1776)

Maryland — All government of right originates from the people, is found in compact only, and instituted solely for the good of the whole. (Maryland Constitution, Art. I, 1776)

Virginia — When any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal. (Virginia Constitution, Bill of Rights #3, 1776)

Pennsylvania — Whenever these great ends of government are not obtained, the people have a right, by common consent, to change it, and take such measures as to them may appear necessary to promote their safety and happiness…. The community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish government in such manner as shall be by that community judged most conducive to the public weal. (Preamble to the Pennsylvania Constitution and Declaration of Rights, Art. V, 1776)

Georgia — The people, from whom all power originates and for whose benefit all government is intended. (Preamble to the Georgia Constitution, 1777)

New Hampshire — All government of a right originates from the people, is founded in consent, and instituted for the general good. (New Hampshire Constitution, Preamble and Bill of Rights, Art. X, 1784)

Delaware — All just authority in the institution of political society is derived from the people, and established with their consent to advance their happiness. (Preamble to the Delaware Constitution, 1792)

The federal convention system is born

The principle of a supreme sovereign citizenry was at the root of America’s constitutional convention system. The same format was used as the basis of the Federal Convention which met in Philadelphia in 1787. By virtue of the desire of free citizens to alter their form of government, the state legislatures were authorized to appoint deputies to act for the people in amending the Articles of Confederation.[7] The Continental Congress also acted on the matter by passing a resolution which attempted to set limits on the convention and required that it meet:

….for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several state legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of government and the preservation of the Union. [8]

Members of Congress felt that this resolve would bring the acts of the proposed convention within the legal requirements of the Articles, since it was presumed that whatever was proposed by the convention must be agreed to by Congress and confirmed by all thirteen states. It should be noted that none of these mandates were upheld. The Convention of 1787 obeyed its call to convene, but ignored entirely the directives from Congress and the states. Why was this so? Because the deputies were proxies of the sovereign citizens for whom they were acting. As such, the Convention had every right to form a new government.

That is the power and dynamic of the American convention system. James Madison admitted that the Convention violated its orders from Congress and the states but rested his case on the final purpose of the Convention. “…if they [the Convention] had violated both their powers and their obligations in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America.” [9]

Why must the sovereign principle be understood?

The origin and basis of America’s constitutional convention system is immensely significant. It shows that governments in the United States do not create or alter their own framework. As already noted, when the early legislatures attempted to create constitutions they were soundly rebuked by the voting public for the obvious reason that only the people can determine the system, limitations, and scope of their government. This is a permanent prerogative of all free people. “Whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it….” [10] Are not “we the people” just as sovereign today as we were 239 years ago when the Declaration of Independence was signed?

Turning the process upside down

Sadly, the current movement for a constitutional convention attempts to bypass the principle of citizen sovereignty. We the people rule the convention — not the state, not Congress, nor any government entity. An ambitious group of modern reformers insist, however, that 34 state legislatures have the power to limit the scope of a constitutional convention. What they are asserting is impossible. The state legislature is the creation of a convention and cannot also be its creator, nor can any elective body tell a convention what it can or cannot do. This principle was amplified by George Mason during the 1787 Convention: “Col. Mason considered a reference of the plan [the Constitution] to the authority of the people as one of the most important and essential of the Resolutions. The legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators.” [11]

This two-century old rule applies to all conventions called under Article V of the Constitution whether intended for a single amendment, multiple amendments, or for an entirely new government. During the Convention of 1787 Mr. Sherman noted that, absent any stipulations set forth in Article V itself, “future Conventions [would be free] to act in this matter like the present Conventions according to circumstances.”[12] Consequently, future conventions would be sovereign bodies as free as the 1787 Convention to act as circumstances require.

Citizens and state legislators must come to understand the American sovereign dynamic which places authority in its proper order, which recognizes the people as the supreme sovereign power of a free country. Ambitious and creative reformers have invented a whole new convention system. They have relegated the convention to a mere ratifying body and have made the state legislature the deliberative body. They have turned the sovereign principle upside down, making state legislators effectively superior to the citizens who created the framework of their governments.

Again, legislators need to beware: nothing written in a state’s application for convention has any force or validity once the convention is called to order. That is the nature of a sovereign assembly, and that explains why America’s founders put the needs of the people ahead of all state and federal mandates when they met in 1787.

If a modern convention is called, it will have every power held by America’s founders 228 years ago. Certainly a modern convention will have everything — everything except the moral and ethical integrity of George Washington, James Madison, Alexander Hamilton, and the other 52 men who gave birth to the document that Gladstone said was “the most wonderful work ever struck off at a given time by the brain and purpose of man.” [13] It is not likely that our Constitution could survive the mental and moral climate under which a modern constitutional convention would meet and deliberate.

 

[1] Massachusetts until 1780; Connecticut until 1818; Rhode Island until 1824.

[2] North Carolina, South Carolina, Georgia, Virginia, and New Jersey.

[3] Arthur Lord in II “Mass Law Quarterly,”1,5; cf. Journal, Mass. Conv., 1779-1780, p. 225

[4] George Tolman, “Preliminaries of the Concord Fight” (1902); 1917 Manual of the General Court (Mass.) pp. 86-87.

[5] As previously noted, Connecticut remained under its charter until 1818 and Rhode Island until 1824.

[6] From the Declaration of Independence.

[7] The Articles of Confederation was the “constitution” of the 13 states prior to ratification of the U.S. Constitution.

[8] Resolution adopted by the Continental Congress February 21, 1787.

[9] The Federalist no. 40.

[10] From the Declaration of Independence.

[11] Farrand, Records of the Federal Convention of 1787, Vol. II, p. 88

[12] Ibid., Vol. II, p. 630

[13] William E. Gladstone, Gleanings of Past Years, Vol. 7.

Our  Expose the Article V Con-con Fraud Campaign Action Report targets, in particular, the “Convention of States” project — one of several insidious attacks on our Constitution using the pretext of addressing legitimate conservative concerns.  Please read the report, and, when you understand the danger, support our campaign to derail this dangerous threat.

Urgent action is called for as the deceptive campaign targeting state legislatures is very well organized.  [A link to this report and additional support can also be found on the “Expose the Article V Con-con Fraud” Campaign Page, accessible via the “Take Action” tab.]

Recommended actions are provided at the end of the Report and also on our “Expose the Article V Con-con” Campaign Page.

The online Campaign Action Report is recommended for emailing.   Hard copies of  this Report can be ordered below through Tools & Products. Note that 25 copies are only $6 including shipping and 100 copies only $15 including shipping. So please be aggressive in your plans.

 

I do not believe the Constitution could survive a modern constitutional convention (con-con). So for many years I have been on the front lines of the anti-convention fight. By 1983 a con-con drive had come within two states of the 34 required to trigger a convention. With a profound sense of urgency and the help of many friends we were able create a little breathing space by getting thirteen of the 32 states to withdraw their resolutions.

Again, in 1995 I faced a fierce con-con effort called the Conference of the States and soundly defeated that scheme in fourteen legislative hearings the same year.

The new onslaught

The year 2015 began with con-con bills looming up in many states. Most of them were promoted on the promise of adding a Balanced Budget Amendment to the Constitution. I did not realize the extensiveness of this new drive until research specialist Andrew Carver uncovered con-con bills pending in 40 states. His first alert warned us that hearings on four con-con bills in Wyoming were imminent. So by the quick action of Freedom First Society friends, led by coordinator Nancy Dunn, a large number of letters to the Senate Rules Committee arrived just in time to kill Wyoming’s HB 75, HB 121, SJ 4, and HJ 4.

As a seasoned con-con warrior, I had confidence in our ability to defeat these bills in legislative hearings just as we had done in years past. But I soon discovered that the 2015 convention drive was not business as usual. We faced a whole new con-con game. This new drive is far better funded, made up of multiple groups with “conservative” credentials, and based on cleverly twisted constitutional phrases calculated to mislead Republican state legislators.

These combined con-con forces had spent much of the preceding year laying the groundwork for their 2015 legislative offensive. They had met frequently with state lawmakers to assure them that the solution to our bloated, oppressive, federal government was in their hands — that through Article V of the Constitution the states were empowered to call a convention to rein in this federal monster. All the states would need to do is apply to Congress for an “amendments convention” for the stated purpose. Upon the application of two-thirds of the states (34), Congress would be required to call the convention.

Well, that’s a pretty compelling promise, especially when backed up by false statements attributed to our Founding Fathers and by the dishonest assertion that a state could limit and control the deliberations and proposals of a convention.

The skilled con-con artists make highly emotional pleas for action against the very real problems of costly, overgrown government. Although they correctly identify a very serious problem, their amendment “solutions” are the supreme non-sequitur. They go after some implied flaws in the Constitution rather than government violations of the Constitution that are at the root of our overgrown government problem. I marvel that so many intelligent state legislators get caught up in such a senseless answer to Washington’s disregard for the Constitution.

Those who oppose the con-con in Republican states face bills endorsed by the Republican legislative leaders, and in many cases by the Governor. Consequently most of the reports we received on this year’s committee hearings indicated that that they were merely showcase exercises rather than honest evaluations of the issue. In Utah, for example, Senate hearings on HJR 7 allowed no more than two opposing witnesses who were allowed no more than five minutes each. In Oklahoma the opposition to HJR 1018 was allowed no more than two witnesses to speak for only 90 seconds each! Obviously, a “do pass” was pre-determined and the hearings were shameful pretenses.

North Dakota Surprise

In the year 2000 I worked personally with Senator Duane Mutch who took the lead in rescinding North Dakota’s 1979 con-con application. So when six new convention-related bills popped up recently, I contacted the senator (now retired) for help in blocking these bills.

We had friends on the Senate Judiciary Committee, but we discovered that the bills had been assigned to the Senate Government and Veterans Affairs Committee (GVA), where we could not expect committee members to be sufficiently informed to stand against these deceitfully promoted measures.

Off to North Dakota

I could hardly sit back and watch another blindfolded committee fall for the lies and false promises of the Convention of States Project and their associates. So I decided personally to attend the Committee’s hearings and testify.   It was a good thing I did, because I became the only opposition witness to take the podium.

At the state capital in Bismarck all the big con-con guns were present: Michael Farris of the Convention of States Project; Nick Dranias of the Compact for America; William H. Fruth of the Balanced Budget Amendment Task Force; Roman Buhler of The Madison Coalition, and other pro con-con big shots.

The first of the six bills before the Senate GVA Committee was HCR 3015, calling for a constitutional convention for amending the Constitution, ostensibly to add a Balanced Budget Amendment.

Virtually all testimony from the con-con men began with the usual emotional rant concerning the horrible situation in Washington, the gargantuan $18 trillion national debt, our perpetually unbalanced federal budget, and warnings of the imminent collapse of the United States. All diatribes of the con-con lobby followed this pattern, some lasting for ten minutes. The North Dakota House and Senate sponsors did likewise.

Falsified purpose of Article V

The local sponsors were followed by Michael Farris who came to the podium with a ridiculous fairy tale about the purpose of Article V. I have re-printed here exactly as given by Farris colleague, Ken Coccinelli:

“Our Founding Fathers gave the states a method of proposing amendments to our Constitution to rein in the power and jurisdiction of the federal government. Proud Virginian George Mason insisted that one day the federal government would outgrow its bounds, and when that day came, the states would need to have the ability to amend the Constitution to limit the power of the federal government. An Article V Convention of States is the specific recourse he and our Founders put in the Constitution for that purpose.”  

Not one word of the above statement is true. It is not simply an outrageous lie, but it is a ludicrous assertion that Mason or anyone else would make such an out of context statement during the Convention of 1787.

My turn at the microphone

When called to the podium, I referred the committee to a news item in which the Nevada Assembly had expunged its 1979 con-con on the basis of fraud. I said, “The Assembly had been promised that a convention could be limited to consider only a Balanced Budget Amendment. Later, when competent legal scholars proved that a convention could not be so limited, the Nevada Assembly realized they had been deceived, so in 1989 they expunged their resolution from the record. The bill before us, HCR 3015, makes the same false promise.”

I added that similar dishonest allusions are in the other five bills to be considered here today. “Since the same principles apply to all six resolutions,” I suggested “that in deference to the Committee’s time, I will oppose the similarities now and not take time to repeat them during each hearing.” The committee chairman, Senator Dick Dever, seemed to appreciate that.

I began by refuting the assertion that George Mason said Article V was created for the purpose of reining in abusive, out-of-control government. “George Mason did not make that statement or anything like it. The Constitution that the Convention had just written already reined in the power and jurisdiction of the federal government. That was the whole purpose of the Constitution. It would have been ludicrous for Mason or anyone else to make such a statement.”

The sovereign principle

I also considered it essential to explain to the Committee the sovereign role of a free people, for unless this were understood, I would not be able to refute several other heresies that were written into their HCR 3015 and commended by the preceding witnesses.  I explained that constitutional conventions are uniquely American, based on the reality that in a free country the people are inherently sovereign; meaning superior to the governments they create. Article V, for example, empowers the states merely to apply for a convention, not to set rules or limits on it. And once two-thirds apply Congress has only the authority to set the time and place for it. Why is this so? Because the convention is a sovereign assembly, a higher power than whatever it creates. The state is the creature of a convention and cannot dictate to its creator, the people.

In keeping with this principle I explained that delegates at the Convention of 1787 did not really operate a runaway Convention. “Yes, they violated their mandate from Congress, and ignored the rules of their state resolutions; but as proxies of the people they had every right to create a whole new government. This is what conventions have the power to do. And this is the power future conventions will have because they operate under the sovereign authority of the people.”

State resolutions do not dictate the terms of the convention

As an obvious device to allay the very real threat of an out-of-control con-con and its potential to make radical changes in our form of government, the state resolutions are filled with rules and restrictions intended to limit the convention to specified subjects. By recourse to the sovereign authority of a convention, I told the committee: “All of your precautions are worthless and will be tossed out at the convention door. The state legislature does not dictate to its creator (the convention), and that is what you are now attempting to do.”

Following this, I went through several of the amendments Mr. Farris thought a convention should consider and showed how worthless they would be as restrictions on the power of government. I concluded my testimony with, “Mr. Chairman, not one person in favor of a federal convention has identified a single flaw in the Constitution that needs to be corrected.”

The rebuttal of Mr. Farris

Michael Farris loves to cite his credentials, his great knowledge, his experience before the U.S. Supreme Court, and his extensive travels, which he said would include another trip to Idaho next week.

After bolstering his qualifications, Mr. Farris said, “I must compliment Mr. Fotheringham on his scholarship. He is one of few opponents of our project who understands that the 1787 Convention was not a runaway convention. But regarding his knowledge of George Mason, his scholarship does not go far enough. Had Mr. Fotheringham gone online and searched the University of Chicago Law Journal, he would have found the words which he claims George Mason never made.” Farris then quoted a statement by Mason from the Journal; but it was not even close to the statement he had made earlier about Mason’s reasons for the convention route of Article V.

Farris then asserted that the convention route of Article V was for amendments only, and did not authorize the same kind of convention as the Convention of 1787, and that the states did have the power to set its agenda. He added: “The legislatures have a solemn duty to use the Constitution to restore fiscal responsibility and save the country from certain disaster. That is why our Founding Fathers gave us Article V. Now is the time to use it and the states must have the courage to act now while there is anything left of our country.”

In closing, Mr. Farris took a shot at The John Birch Society and said he knew that “Mr. Fotheringham was engaged in some infighting, or had some problems with the organization and I think he is now affiliated with some other similar group.”

I don’t think that attempt to damage my credibility had the ill effect Farris had expected; for my friend, former senator, Duane Mutch, had served many years in the North Dakota Legislature while a member of the Birch Society, and he was highly respected by his colleagues.

Back at the podium  

Unlike the showcase hearings reported in other states, North Dakota treated me with fairness and respect. The chairman, Senator Dever, never denied me the opportunity to return to the podium and rebut the assertions of any con-con advocate.

Back at the podium I said: “Mr. Chairman, with all due respects to Mr. Farris, I did indeed search the website of the University of Chicago Law Journal, and the statement attributed to George Mason is not there. What Mr. Farris quoted from the Journal today is not the same false statement he has been circulating in his testimony here and around the country. He cannot produce evidence that George Mason ever made such a statement, or even hinted that Article V was created to rein in some future out of control federal government.”

The multiple bill strategy

Another scheme unique to this year’s con-con game is the multiple bill strategy.   Many states hosted several con-con bills that vary slightly, such as demanding a balanced federal budget, imposing term limits, or just limiting federal power. Passage of any one of these would be counted as a convention call and this provided opportunities for the advocates to quell objections to one bill by offering another as an alternative. The six bills considered in North Dakota were examples of the multiple bill strategy.

No committee votes were taken on the day of the hearings, so I left Bismarck feeling good about my defense of the Constitution and my response to the con-con men who had descended on the state in full force. When leaving the statehouse I stopped to shake hands with Mr. Farris. I was not kindly received.

One week later the North Dakota Senate Government and Veterans Affairs Committee voted on all six measures. Four of the bills, HCR 3014, HCR 3015, HCR 3016, and HCR 3017, were formal calls for a convention. Three of these con-con bills (HCR 3014, HCR 3016 and HCR 3017) were defeated. The other bill, (HCR 3015), which was not defeated, was all the con-con men really needed. The other two measures heard on the same day were incidental to the convention applications. HB 1138 was for the adoption of an interstate “compact for a balanced budget,” which passed, and HB 1441 was to provide penalties should the delegates depart from the states’ con-con agenda, which also passed. Had both of these last two measures been defeated, it would have had no effect on the result they were after. They wanted a con-con application under any pretext and, after passage of HCR 3015 in the full Senate, they got their wish.

In my opinion, passage of at least one bill is the cunning purpose of the multiple bill strategy. I regard all six of North Dakota’s Constitution-tampering bills to be merely excuses for plunging the Constitution into a modern convention. I testified against each measure on grounds that the Constitution is not defective and that a modern convention would likely destroy what remains of this wonderful United States.

Off to Boise, Idaho

I remembered what Mr. Farris said about going to Idaho next week, so I headed to Boise. I was determined not to lose anything by default — and just as I suspected — two con-con bills awaited hearings at the Idaho statehouse. I met Sunday evening, March 22, with old friends and learned that one of the bills, HB 67, was scheduled for a hearing the next morning.

This was a bill to establish the selection of delegates to a convention, but not specifically a call for one. So I decided to ask my friends to attend the Monday hearing and testify against the bill. On Monday morning my very capable friends stood boldly against HB 67 and the measure was narrowly defeated in a Senate hearing by a vote of 5 to 4. A fantastic development that led to a victory this year in Idaho.

The other bill, H.R. 18, was the actual con-con bill and a real threat. I was prepared to testify against that bill. However, in view of the exciting defeat of HB 67, I was told that the measure would likely not come up and would therefore die upon adjournment, which was only a week away. And that was what happened. Typically, a bill’s sponsor seeks to avoid outright defeat and instead await a better time and climate.

I did not see the angry Mr. Farris in Idaho. Considering his feeble offensive in Bismarck, it is entirely possible that he remained in ND to counter my charges of fraud. With no one around to dispute his fairy tales, he may have won privately the “do pass” motion on HCR 3015. Mr. Farris seems to have an inside track and high-level influence in the Republican states.

It is not business as usual in this year’s con-con fight. We now face a more corrupt and more sophisticated strategy for plunging the United States into constitutional chaos and for inflicting irreparable damage on the freedom and independence of the United States.

More than ever it is essential to build an informed constituency that will create sufficient pressure on state legislators to overcome the influence of the con-con lobby.

 

This article refutes the most common claims of an intense drive to stampede the public and state legislators into calling for a dangerous second constitutional convention (con-con) under the pretense of solving the very real problem of an out-of-control federal government.

The states cannot limit a con-con

The latest fad in con-con circles is the notion that Article V establishes a special breed of single-issue convention that empowers the states to limit the convention to a pre-set agenda. Con-con promoter Michael Farris asserts that an Article V convention is limited to consideration of single amendments and cannot, therefore, stray from its call and make wholesale changes in the Constitution.

Somewhere in his scholarship Mr. Farris has missed the point. In a free society the people are the supreme sovereign authority, and the power of a constitutional convention flows directly from the people. That is the power by which the states were created when freed from Great Britain. That is also the power that created the United States Constitution in 1787. Mr. Farris has it all backward; he has the creature (the states) dictating to their creator (the convention of the people).

When the people meet in convention they are under no obligation to abide by the terms of the state resolutions. That is why Article V establishes no procedures, other than to apply. Once two-thirds apply, Congress shall call a convention, and once the convention convenes, it is under the highest sovereign authority of a free country: the people. At that point the rules, procedures, and agenda are set by the convention. Neither Congress nor the state legislatures have any authority or control over a convention once it is called to order.

The idea that an Article V convention is something different from the Convention of 1787 is refuted by the official record. During the original Convention, when deputy Roger Sherman was making some incidental language changes in Article V, the record states:

Mr. Sherman moved to strike out of Article V, after “legislatures” the words “of three fourths” and so after the word “Conventions” leaving future Conventions to act in this matter, like the present Convention according to circumstances .1

In other words, they expected future conventions to be just like the present Convention which had power to create, alter, or abolish governments. Nowhere in the Records of the Federal Convention, or in the Federalist Papers, do the Framers imply that an Article V convention is anything other than the type of convention that was then underway in Philadelphia. Conventions are conventions whether intended for single amendments or wholesale changes.

A “limited constitutional convention” is an oxymoron.

Unlimited Power

The right of free citizens to amend or alter their form of government exists inherently with or without Article V. During the 1787 Convention James Madison stated that:

“The people were in fact, the fountain of all power, and by resorting to them, all difficulties were got over. They could alter constitutions as they pleased. It was a principle in the bills of rights that the first principles [the power of the people] might be resorted to.” 2

In 1967, Senator Sam Ervin was so intrigued by Article V that he thoroughly researched the subject and came to the conclusion that:

“… as We the People are the true de jure sovereign of these states, We the People cannot be held by anyone to any single issue once we convene our convention. If we so choose, the entire Constitution could be rewritten.”3

The Falsified Purpose of Article V

The con-con men have falsified the meaning and purpose of Article V. Here in bold type is a direct quotation from con-con collaborator, Ken Cuccinelli, who asserted that:

“Our Founding Fathers gave the states a method of proposing amendments to our Constitution to rein in the power and jurisdiction of the federal government. Proud Virginian George Mason insisted that one day the federal government would outgrow its bounds, and when that day came, the states would need to have the ability to amend the Constitution to limit the power of the federal government. An Article V Convention of States is the specific recourse he and our Founders put in the Constitution for that purpose.” 4

Every word of the above statement is false. Our Founding Fathers did not create Article V “to rein in the power and jurisdiction of the federal government.” The Constitution they had just written already did that. That was the reason for drafting the Constitution in the first place.

Moreover, “Proud Virginian George Mason” never said “one day the federal government would outgrow its bounds, and when that day came, the states would need to have the ability to amend the Constitution to limit the power of the federal government.” This is an outlandish lie. It cannot be found in the Records of the Federal Convention, or in any of the official founding documents. This fabrication is inconsistent with the main purpose of Article V, which Mr. Mason clearly explained in the official record:

“Col. [George] Mason urged the necessity of such a provision. The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence.” 5

James Madison also explained the purpose of Article V:

“That useful alterations will be suggested by experience could not but be foreseen. It was requisite therefore that a mode for introducing them should be provided. The mode preferred by the Convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable: and that extreme difficulty which might perpetuate its discovered faults. It, moreover, equally enables the general and state governments to originate the amendment of errors, as they may be pointed out by the experience on one side or on the other.” 6

The Illegal “Assembly of State Legislatures”

Without the slightest concept of the principles of America’s convention system, or of the sovereign source of government-making, a private group of state legislators has undertaken the task of making the rules for a future con-con. Their deliberations are a sad illustration of the failure of American education. Under the name, Assembly of State Legislatures (ASL), they purport to emulate the 1786 Annapolis meeting in which the deficiencies of the Articles of Confederation were discussed and a date set for revising them.

The ASL resolution asserts that the state legislatures have “relinquished power to the national government that has upset the balance originally provided by the Founders in our federalist system….” That is not exactly what has happened. The states have not relinquished power. The federal government has usurped power in violation of its constitutional limits. The imbalance of power stems from federal encroachment, not from any abrogation of power by the states, and certainly not as a result of any structural defects. The purpose and power of a constitutional convention is to amend or rewrite the Constitution. It is obviously impossible to amend the Constitution to restore a provision that was never taken out of it. The delegated federal powers and the residual state powers, as established in the Constitution, remain in place exactly as they were in 1791 when the Bill of Rights was added.

Absent any concept of constitution-making principles, the men and women at the ASL are making rules that will be tossed out at the con-con door. We can only assume that the ASL’s rule-making charade is a device for deceiving state legislators, assuring them that they can apply with confidence for a structured con-con.

One of our nation’s top legal scholars, Charles L. Black, of Yale University Law School, pointed out that during our nation’s first 100 years all convention applications were for a general convention. This means that during the lifetime of our founders, and long thereafter, all state legislators had a clear understanding of the autonomy of the convention itself. Mr. Black believes that any state application that attempts to limit a convention to a specific topic is null and void. 7 The 1786 Annapolis meeting — on which the ASL hangs its hat — did not create the rules or procedures for the Philadelphia Convention. This was all done on May 25, 1787 after George Washington called the Convention to order.

State legislators who are invited into the ASL should challenge its premises and reject the bogus authority of a private organization to establish rules for a federal convention.

Even the Proposed Amendments are Phony

The con-con men, who profess so much love for the Constitution, never say they think the document is flawed, or that the framers goofed, or that the Constitution has outlived its warranty. Rather, they present a list of problems that they claim the Constitution has failed to address and which they insist can be remedied only by means of a new convention. Here are several amendments that Mr. Farris, founder of the Convention of States Project, thinks would be up for discussion in a forthcoming convention:

• Balanced Budget Amendment
• A redefinition of the General Welfare Clause
• A redefinition of the Commerce Clause
• A prohibition of using international treaties and law to govern the domestic law of the United States
• Limitation on using Executive Orders to enact laws
• Imposing term limits on Congress and the Supreme Court

A Balanced Budget Amendment

The con-con men blame the Constitution for the absence of a balanced budget provision; however, adherence to the Constitution is the original balanced budget mechanism. Obedience to the Constitution would quickly restore fiscal sanity and limited government.

Con-con advocates never identify the cause of our budget woes, such as the unconstitutional agencies that sap $billions out of the Treasury. If we are really serious about budget deficits, why not abolish everything for which there is no constitutional authority?

A simple majority in Congress could, for example, repeal the legislation that created the Department of Energy, the Environment Protection Agency, the Department of Transportation, and Foreign Aid, and we would instantly have a $200 billion surplus! It is nonsense to claim the Constitution needs a budget amendment when getting our nation back under the Constitution is the obvious remedy.

Term Limits for Congress

On this issue8 Alexander Hamilton said: “Nothing appears more plausible at first sight, nor more ill-founded upon close inspection.”9 The Constitution does not establish term limits for the simple reason that the Continental Congress had already had term limits and they did not work. Why? Because term limits gave the country a perpetual lame duck Congress. Under term limits a politician knew he would never have to stand for re-election; consequently, if the man was prone to corruption, he got his corruption over with in a hurry.

During the 1787 Convention, Gouverneur Morris objected to a proposed term limits clause by pointing out that, “The ineligibility proposed by the clause as it stood tended to destroy the great motive to good behavior, the hope of being rewarded by a re-appointment. It was saying to him ‘make hay while the sun shines.’” 10

Deputy Roger Sherman added that, “Frequent elections are necessary to preserve the good behavior of rulers. They also give permanency to the government by preserving that good behavior because it ensures their re-election…. In Connecticut we have existed 132 years under an annual government, and as long as a man behaves himself well, he is never turned out of office.”11

The con-con promoters study the same documents we study; therefore, we know that they know that term limits is a phony issue. They cling to the term limits ruse apparently because the idea has appeal and looks “plausible at first sight.”

The greatest term limit device ever invented is the ballot box.

Term Limits for Justices of the Supreme Court

The Constitution already has a term limit law for the judiciary. It is called impeachment. The fact that judges are rarely impeached when they should be impeached is no fault of the Constitution.

Most social problems come through cases that arrive at the Supreme Court on appeal, such as abortion and school prayer. Getting the High Court out of these sensitive moral issues does not require an amendment. It is clearly within the power of Congress to limit the appellate jurisdiction of the Supreme Court.12 And with respect to the abusive federal district courts, these are all the creation of Congress and can be controlled, changed, or abolished by the same simple majority by which they were created.

Redefining the Welfare Clause

It is hard to believe that Mr. Farris and his con-con collaborators never looked in an eighteenth century dictionary to find out what the framers meant by “welfare.” The 1787 definition is: happiness, success, prosperity.13 The word means to fare well. The General Welfare Clause has nothing to do with government charity or handouts. The Preamble simply identifies what “We the people” have done to “promote the general happiness, success, and prosperity, and secure the blessings of liberty….” The Constitution is perfectly perfect in this respect. The only “redefining” needed for this clause is a little less socialism in the classroom and a little more integrity in Congress.

Redefining the Commerce Clause

This clause was not misunderstood during the lifetimes of the Framers. Its purpose was well-known and repeatedly defined. It was also explained in the Federalist Papers, essays no. 22 and 44. The states had opposed the taxation of goods passing through their borders, and the monopolization of certain foreign imports. Expediting the flow of commerce was a high priority of the Convention, and every delegate understood its importance and exact purpose. It is no fault of the Constitution that the Commerce Clause is flagrantly abused, nor does it make sense to call a convention to clarify it. Every unconstitutional activity assumed under the pretext of the Commerce Clause can be overturned by a simple majority in Congress. No need to tamper with the Constitution.

Redefining the Treaty Clause

Presumably Michael Farris is referring to Article VI in which “… all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” He apparently thinks this means international treaties are superior to United States domestic law and sees this as a reason to amend Article VI. If Professor Farris taught his students that the Supremacy Clause was a defect in the Constitution, we feel sorry for the students and their misinformed teacher.

Under the Articles of Confederation treaties that were made by the individual states often encroached upon the federal authority or were in conflict with treaties made or wanted by the Confederation Congress.14 Federalizing the treaty power was, therefore, a high priority of the 1787 Convention in matters of trade, security, and diplomacy.15 Accordingly, the Constitution was written to make United States treaties the only valid treaties and to nullify all existing state-made treaties, regardless of any provision in the state constitutions or opinion of the state judges. Article VI makes federal treaties supreme over state-made treaties and conflicting state laws. Treaties do not supersede the Constitution and must in fact be made “in pursuance thereof” (Article VI, Paragraph 2). The Treaty Clause needs only to be understood and properly taught. No amendment is needed.

Limitations on Executive Orders

Since Article I, Section 1, clause 1 of the Constitution vests all legislative power in Congress, how could anyone think the President could legally make any laws under any title or pretext? Nothing in the Constitution authorizes “Executive Orders” or any other lawmaking excuse for the president. The fact that Congress quivers when the president violates his proper role does not mean anything is wrong with the Constitution. It simply means we should remember the president’s audacity, and the need for a little backbone in Congress, when we cast our votes in the next election. The Constitution cannot be amended to eliminate that which it does not allow.

Hey, this leaves the con-con men without one valid reason to mess with the Constitution! By any assessment, the above list of amendments for which the con-con men demand a second convention shows the utter absurdity (or worse) of their big, expensive, nationwide con-con campaign.

Not one of their proposed amendments could rein in an out of control federal government!

State legislators will be wise to examine these phony amendments, and then look into the manner by which such baseless proposals made their way into legislative language. They are worse than stupid because they appear as benign resolutions, but bring with them the potential of serious consequences for our country.

The Founding Fathers’ Refused to Call a Second Convention

The Framers faced numerous objections during the ratification process. The anti-federalists wanted, among other things, a Bill of Rights, a less powerful Senate, and a Congress with power to veto Supreme Court opinions. In order to add these and other features to the Constitution the ratifying conventions had urged the framers to call a second convention. In reply to that idea Alexander Hamilton said:

The reasons assigned in an excellent little pamphlet lately published in this city [New York] are unanswerable to show the utter improbability of assembling a new convention under circumstances in any degree so favorable to a happy issue in which the late convention met, deliberated, and concluded. 16

Deputy Charles Pinkney of South Carolina expressed similar concerns:

Nothing but confusion and contrariety could spring from the experiment. The states will never agree in their plans, and the deputies to a second convention coming together under the discordant impressions of their constituents, will never agree. Conventions are serious things and ought not to be repeated. 17 [Emphasis ours.]

James Madison vehemently opposed calling an Article V convention. In a letter to a member of the Virginia House of Delegates, George Lee Turberville, Madison wrote:

Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a second…. 18

Does anyone believe Madison, Hamilton, or any of the Framers would see our day as a favorable time to call a convention? Or should we too “tremble for the result of a second?”

That Shaky Safety Valve

The con-con men are quick to assure state legislators that nothing can possibly go wrong because anything proposed in a convention must be ratified by three-fourths of the states. They ask:

Would 38 states ratify any bad amendments?

They already did! 19

They ratified the Fourteenth, Sixteenth, Seventeenth, and Eighteenth Amendments, all of which shifted power to the central government at the expense of the states. All of these bad amendments were promoted by the White House and the press. We may be assured that our pernicious mass media could never pass up such a golden opportunity to promote radical social change.

The Convention of 1787 got around its ratification problem by changing the number from thirteen states to nine. If a new con-con proposes anything doubtful, they too could change the ratification rule from 38 states to 26 — or perhaps ratification by the governors, or by sanction of the President. One thing is certain: If the con-con produces harmful or unwanted changes, the opposing states will never have a chance to veto it.

They Tricked Us In 1933

When the time came to repeal the Eighteenth Amendment (prohibition), Congress and the liquor lobby knew that the southern Bible-belt states, and a few of the western states, would never ratify it. They were correct. The repeal amendment20 would never have been ratified if sent in the normal way to the state legislatures. How did they get around this? They resorted to the option of ratification by public conventions. In Utah, for example, they held a statewide vote on the issue. Then from this tally, 27 voters who favored repeal were selected for the ratifying convention and unanimously approved repeal. Amazing! This trickery cannot be over-emphasized, for clearly 97 percent of Utah’s citizens opposed the amendment, and yet the non-drinking Mormon state “ratified” the Twenty-first Amendment to repeal prohibition.

Beware. If an unwanted amendment or corruption of the Constitution came out of a second convention, does anyone believe the opposing state legislatures would ever see it? There is no way to prevent a modern convention from changing the ratification process, or even skipping it entirely. There is no security in the assurance that “38 states” will keep harmful alterations out of our Constitution in a modern constitutional convention.

When it’s all said and done, the big push for a con-con is fluff, falsehood, and bluster.

The most ingenious legal scholar is incapable of writing an amendment that grants more freedom than is guaranteed by a fully enforced U.S. Constitution.

Political and economic abuse will end — and the Constitution will be safe — when the American people get their brains and their bodies back to the ballot box.

Notes

1. Farrand, Records of the Federal Convention of 1787, Vol. II, p. 630.
2. Farrand, Vol. II, p. 476.
3. Quoted in The Los Angeles Times, January 15, 1992, p. B7.
4. From a letter written by Mr. Cuccinelli addressed to voters in the state of Virginia.
5. Farrand, Vol. I, p. 202.
6. The Federalist no. 43.
7. Stated by Mr. Black in testimony before the U.S. Senate Subcommittee on the Constitution, September 29, 1979.
8. The founding documents define term limits as “ineligibility for reappointment.”
9. The Federalist no. 72.
10. Farrand, Vol. II, p. 33.
11. Farrand, Vol. I, p. 423.
12. U.S. Constitution, Article III, Section 2, Paragraph 2.
13. Definition of “welfare” found in Perry’s Royal Standard English Dictionary, Worcester, MA, 1788.
14. Farrand, Vol. I, p. 164.
15. Benjamin Franklin’s Plan of Union, America, Vol. 3, p. 47.
16. The Federalist no. 85.
17. Farrand, Vol. II, p. 632.
18. Rutland, R. ed. The Papers of James Madison, Vol. II, University of Virginia Press (1977), p. 330.
19. At that time three-fourths was 36 states.
20. The Eighteenth Amendment was repealed by the Twenty-first Amendment.