Freedom First Society


The Sovereign Dynamic

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.

It’s a Whole New Con-Con Game

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.


The Danger of a Convention of States

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.


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.

Tangents & Traps: Con-Con Movements

Having witnessed the difficulties and dangers of the first Convention which assembled under every propitious circumstance, I should tremble for the result of a Second….
 — Letter of James Madison to George Lee Turberville, November 2, 1788

In recent decades, groups calling for a constitutional convention (con con) have brought the nation to the brink of disaster. A con con is an assembly of state-appointed delegates meeting for the purpose of proposing amendments to the federal Constitution, as provided in Article V. But the powers of a con con extend far beyond merely proposing amendments. A federal convention concentrates in one place all sovereign powers inherent in the people of a free country. For this reason, its powers have no limits. A con con can change or repeal every word of the U.S. Constitution, including the rules for ratification of any new or revised Constitution.

For these obvious reasons no second federal convention has ever been held. We do not believe, in today’s climate of Insider media control, influence, and political deal-making, that our Constitution could survive a modern convention.

A con con is triggered when two thirds of the states formally pass a resolution asking Congress to call one. The purpose for which a state might apply to Congress for a convention has no real significance, for once a con con meets and is called to order it can do anything it wants. A con con is a sovereign body and has power to create a Congress or to disband a Congress or, more generally, to change any federal entity or abolish any government office or limitation established by the first convention. If you are not yet fearful of a modern con con, please re-read and re-think the above.

The Conspiracy’s hand in trying to assemble a modern con con has been patently obvious, for certain members of the Council on Foreign Relations (CFR) advocate an overhaul of the Constitution, yet support con con efforts promoted under the most conservative-sounding pretexts. When you see leading figures in the CFR lobby for a balanced federal budget, for traditional marriage, and against flag burning, you know something’s fishy in Denmark. They are using popular conservative issues as a pretext to get their hands on the Constitution. Moreover, con-con advocates falsely assert that a con con can be limited to the single issue for which it is called.

In 1983, the country was just two states away from a convention. Thirty-two of the necessary thirty-four states had filed applications with Congress under the balanced-budget pretext. The work of slowing down this drive and turning it around was a monumental, organized effort undertaken by the author and led by the future founding officers of Freedom First Society.

Please be aware that it is much easier to ward off a con con movement at the outset than to rescind state resolutions in state-by-state battles. At this writing, 13 states have withdrawn their applications. Adding those to the two-state deficit of 1983, we now have a 15-state safety margin protecting the Constitution. These figures are important, because alarmists and rip-off artists are still raising funds by claiming the nation is just now only two states away from a con con. We call these characters con con con-artists, and we trust you will send them no money.

Every patriotic American should work to preserve the Constitution by opposing any state resolutions asking Congress to call a convention — no matter how appealing the reason. Any state request for a con con, even one supported ostensibly as a mere tactic for convincing Congress to act to propose an amendment, is a foolish gamble and a dangerous tangent.

Time to Curb the Court

Campaign for Decency

We must marvel at the foresight of America’s founders. They looked centuries beyond their time and provided ways to save us from the dreadful effects of our own negligence. They gave us the means to correct a remiss Congress, to contain a power-prone president, and to limit an out-of-control Supreme Court. We may not deserve the safety measures handed down to us, but those provisions are clearly spelled out in the Constitution just waiting for us to use them.

From among the many wise provisions of our founders we find one particular safeguard we should welcome like fresh air in a stuffy courtroom. It’s that clause found in Article III, Section 2, providentially written as follows: “…the supreme Court shall have appellate Jurisdiction, both as to law and fact, with such Exceptions, and under such Regulations as the Congress shall make.” 

It was never the intention of our founders to create an all-powerful, unaccountable Supreme Court. Each department of government has clearly defined bounds, but each also has oversight power that we call checks and balances. Most everyone is familiar with the president’s power to veto legislation and the offsetting power of Congress to override it. Also well known are certain checks on power through the nomination and confirmation process, and the ultimate check of impeachment, or at least the threat thereof.

The Exceptions Clause

So it is with the Supreme Court. Congress has a way to prevent its perverse rulings on appellate cases. The history of our country, even before the Constitution was ratified, confirms that there never was any misunderstanding about the meaning and viability of the exceptions clause of Article III. In 1796 Oliver Ellsworth, Chief Justice of the United States recognized not merely the option, but the essence of congressional limits on the Court’s appellate jurisdiction. This view was confirmed again by Chief Justice John Marshall in 1805 and has been affirmed by all Supreme Court justices who have commented on the subject.

The constitutional power of Congress to check the Court is alive today and remains one of the most timely and compelling mechanisms available to the American people. This means there never was any excuse for our nation’s moral standards to be mocked and demeaned by activist Supreme Court justices. Lower court cases, which have been settled on moral or religious grounds, find their way to the Supreme Court by the appeal process. Those kinds of cases — either individually or as a group — can be singled out by Congress and excluded from review by the Supreme Court.

Among landmark cases corrupted by the Supreme Court are the denial of Bible reading in public schools, prohibition of school prayer, the legalizing of abortion, banning religious displays in public places, legalizing sodomy, and defending pornography. Congress clearly has the power to make exceptions to those kinds of cases and block their review by the higher court.

In this carefully focused effort, a good question arises: If we seek to restrain the Supreme Court, why can we not also restrain the federal district courts? For certain, many of the lower courts are equally flagrant in their disrespect for moral standards. But unfortunately we cannot take on the lower courts and the high court at the same time, or at least not in this first stage of our Campaign for Decency.

Two Different Procedures

Control of the two court systems entails two different legal routes. Trying to combine the two goals into one legal action would very likely hamper, or even prevent, success. We need to explain:

The Supreme Court and the inferior federal courts cannot be limited by Congress in the same way because the two levels of the federal judiciary came into being through different levels of power. The power creating the Supreme Court was structural. It was created by the Convention of 1787, along with the mode of controlling it. On this constitutional basis, Congress may limit the appellate jurisdiction of the Supreme Court without asking permission and without passing a pertaining law. The lower courts, on the other hand, are an entirely different breed. These district courts were created by Congress, and their jurisdiction can thus be limited only by enacting a law for doing so.

For these and other carefully assessed considerations, our Campaign for Decency faces off initially only with the Supreme Court where the opportunity for success is greater than through a combination bill such as H.R.539, a measure presently before Congress. H.R.539 attempts to limit the two levels of courts at the same time through the same (statutory) procedure. But this process mixes apples and oranges, which may very well invalidate the bill. Moreover, as a formal bill, even if passed, H.R.539 must go to the president’s desk where it will face a certain veto.

Notice that no new laws are needed to execute the work of a department when its operations and options are established by the Constitution. The president, for example, may propose a budget, nominate ambassadors, or grant pardons without asking permission or without any new laws. Congress can make its own rules without any new laws, and the Supreme Court can try its original jurisdiction cases without asking permission. Similarly, Congress may exercise its constitutional power over the appellate jurisdiction of the High Court without asking permission or without any new laws.

Exceptions to this rule are constitutional provisions that require implementing legislation. But otherwise, no department of government need hesitate, or ask permission, to act within its established bounds. Thus Congress may limit the kinds of cases to be heard by the Supreme Court without any new laws or supplemental authority. Obviously, the exercise of an original structural power by any branch of government is not subject to a veto by the president. This is the avenue we propose for controlling the Supreme Court.

By Concurrent Resolution

How then, if not by passing a bill, does Congress notify the Supreme Court of new limits on its jurisdiction? This may be done by issuing a Concurrent Resolution, approved by a simple majority of the House and the Senate. That’s all. It is not a law, it is a statement through which Congress may assert a pre-existing constitutional authority, and by which the other departments of government are bound.

A recent example of the use of such a resolution is H.Con.Res.5, which affirms the pre-existing constitutional power of Congress to declare war. It was introduced in the House of Representatives in the 1st Session of the 111th Congress (with the Senate concurring) expressing that, according to Section 8 of Article I of the Constitution of the United States, Congress has the sole and exclusive power to declare war. Under this heading the “Whereas” clauses state the reasons and applications of the resolution.

A Concurrent Resolution to limit the Supreme Court would follow the same form, expressing that, “Pursuant to Section 2 of Article III of the Constitution of the United States, Congress has the sole and exclusive power to make regulations and exceptions to the appellate jurisdiction of the Supreme Court. Accordingly, effective this date, the Congress of the United States denies the Supreme Court appellate jurisdiction over cases relating to public or private religious expression, definitions of marriage, sexual practice, and abortion.”

Significantly, this procedure would accomplish our immediate purpose while safely circumventing the desk of the president.

The simplicity of this route and the independence of Congress in following it, should be a great advantage over previously defeated efforts. All such attempts have failed to get through the Senate, where reticence to face a veto by the president — any president — is most common. The Concurrent Resolution process bypasses that particular obstacle.

Correcting Past Sins

Okay, that should curb the Court’s passion for perversion, but what about its past sins? How do we nullify the existing immoral burdens imposed by former Supreme Courts? How for example do we reverse Roe v. Wade and Lawrence v. Texas?

That will take time. The Constitution does not provide Congress the means for nullifying past Court decisions. Therefore, each overturned case will have to be taken back to the court of its origin and re-tried.

Unfair? Yes, but the second time around the lawyers fighting for decency will have a slight advantage. They will have the same files, proven arguments, decent-thinking judges, and local juries. Under these refreshing circumstances, and knowing their work will not be overturned, the lawyers can move their cases quickly through the lower courts. Finally, the original moral decisions will be just and permanent. On this glorious occasion the moral spirit of America will once again be smiled upon by God.

But while God smiles, the Conspiracy will rage. And that is exactly the reason we have taken up this cause as a major campaign. While uplifting and inspiring the good men and women of America, we hope to expose the design of those who have placed the lowest form of evil on the highest public altar. By its deliberately crass and offensive display at the nation’s highest court, the Conspiracy has depressed and discouraged millions of Americans who think the whole nation wallows hopelessly in the sewers of Sodom and Gomorrah. This is an outlandish fraud, and we intend to expose and prove it.

Our Campaign for Decency will go a long way toward rekindling courage and hope in the American people, while showing the hand of the Conspiracy behind many of the most daunting problems of our time.

Specific action steps will be spelled out in subsequent Action Reports. Those steps will provide members with opportunities to help get an appropriate resolution or resolutions introduced in both houses of Congress, to build grassroots pressure on other congressmen to become co-sponsors, and to educate other activists and leaders on our side of the culture war regarding this opportunity. Stay tuned.


The Supremacy Clause

Is a treaty with a foreign country superior to the U.S. Constitution? Some would like you to think so. It’s not a new idea, but it pops up every few years and is about to surface again as President Obama revives a very bad treaty. The measure at hand is the United Nations Convention on the Rights of the Child (UNCRC). It was signed almost 20 years ago by President Bush (the elder) and again later by the Clinton administration, but never ratified by the Senate.

Considering the rash desperation that rules in Washington, and the no-huddle plays called by Mr. Obama, passage in the Senate is a fearful possibility. Could anything be worse than that? Unfortunately yes. The UNCRC could not only bind American families under a radical UN “law,” but passage of the treaty could punch a gaping hole in the U.S. Constitution. The notion that treaties supersede the Constitution has been so flagrantly propagated that some citizens and members of Congress actually believe it. Many who read Article VI ignorantly, really do think treaties are greater than the Constitution.

Granted, a quick glance at Article VI of the Constitution may give that impression, but that’s only because so few understand the meaning of this important article, the logic behind it, and the reason for its emphatic wording. The clause in question is paragraph two, known as the Supremacy Clause:

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, any thing in the constitution or laws of any State to the contrary notwithstanding.

The 1787 Convention was called to resolve major problems that developed among the thirteen states under the Articles of Confederation (1781 to 1789). One serious problem was conflicting treaties: those made independently by the states and those made by the Confederation Congress in behalf of the Confederation as a whole.

Congress had appointed Jefferson, Franklin and Jay to negotiate trade and peace treaties between the Confederation and the nations of Europe. But the European powers refused to sign them. They questioned the validity of accords with Congress as opposed, for example, to existing agreements with Virginia or North Carolina. They asked which treaty would be supreme, a state’s treaty or one made by Congress?

Another problem facing the Confederation was a dangerous mix of foreign policies carried out by states having treaties with the Indian tribes. Those treaties covered matters of peace, access to lands, and trade agreements. Some of the states conducted wars independently with the Indian nations and settled their disputes with peace treaties without the concurrence of neighboring states.

Benjamin Franklin expressed his concern over such developments:

The power of making peace or war with Indian nations is at present supposed to be in every colony, and is expressly granted to some by charter, so that no new power is hereby intended to be granted to the colonies. But as, in consequence of this power, one colony might make peace with a nation that another was justly engaged in war with; or make war on slight occasions without the concurrence or approbation of neighboring colonies, greatly endangered by it; or make particular treaties of neutrality in case of a general war, to their own private advantage in trade by supplying the common enemy; all of which there have been instances; it was thought better to have all treaties of a general nature under a general direction, that so the good of the whole may be consulted and provided for….

The Confederation Congress repeatedly tried to unify the states in these matters, but to little avail. In the absence of a federal court system, Congress attempted to establish the supremacy of its treaties by resorting to the state courts. A state court, however, is naturally bound by its constitution, so the judges ruled inevitably in favor of the state’s treaties and against those made by Congress.

When the time came to write a new constitution, the treaty problems were a top priority. In fact, the first attempt to assemble a convention six months earlier at Annapolis was called to address trade and treaty questions exclusively. So when the Convention met in 1787, its delegates were determined to solve the Confederation’s conflicting treaty problems, and thereby speak to the world with one voice.

This explains the purpose and strong language of Article VI. The authors of our Constitution made it abundantly clear that only United States treaties would be valid and universally recognized. There would be no more state-made treaties. Federal treaties would be the supreme, officially recognized treaties regardless of state laws or the opinions of state judges. Notice that the Supremacy Clause also puts muscle behind the old treaties made by Congress under the Articles of Confederation. The former Congress finally had its day in court!

Enemies of the Constitution have played fast and loose with the language of Article VI. One of the most outlandish assertions came in 1952 from John Foster Dulles (later to serve as Eisenhower’s Secretary of State) who said treaty laws can override the Constitution:

Treaties, for example, can take powers away from Congress and give them to the President; they can take powers from the states and give them to the Federal Government, or to some international body, and they can cut across the rights given the people by the Constitutional Bill of Rights.

Can you imagine the founders of our nation spending four months in Philadelphia, hammering out every possible way to limit and separate the powers of a federal system, working to secure the unalienable rights of the people – and after all that brilliant, painstaking work, draft one clause that wipes out the entire Constitution and the whole purpose of the Convention?

President Obama’s voice in the Senate is Barbara Boxer, who along with Obama has said the UNCRC is long past due. Meanwhile, on the other side of the aisle we hear, as an opposing argument, the false alarm of treaty supremacy over the Constitution. If Boxer gets two-thirds of the Senate to ratify the UNCRC, and the false opposition successfully feigns fear for the Constitution, our enemies may walk away with two extra points: families in America will register their kids with the UN, while our country suffers major constitutional damage.

The treaty deception pops up again and again in the media, classrooms, the courts, and Congress. Fortunately, not all who believe that nonsense are smitten by the objectives of Secretary Dulles, who was a founding member of the Council on Foreign Relations – not exactly friends of the Constitution.

A few lawyers have dissected the Supremacy Clause, claiming anything “made in pursuance” of the Constitution differs from anything “made under the authority of the United States.” But these are not divergent factors; they are the parallel phrases of an 18th century literary style. America’s founders regarded any federal law or treaty not made pursuant to the Constitution as illegal and unenforceable. They did not identify two sources of authenticity for a proper treaty or a proper federal law. Each is either constitutional or it is not. In other words, all federal laws and all federal treaties made in pursuance of the Constitution are equally legitimate.

Upon ratification of the Constitution, all state treaties were nullified and their constitutions were amended accordingly. Thereafter, only federal treaties were recognized. United States treaties are created when proposed by the President, with the advice and consent of the Senate. The combined power of the President and the Senate, in their treaty-making capacity, was never intended as a power to alter the Constitution, as James Madison made clear:

I do not conceive that power is given to the President and the Senate to dismember the empire, or to alienate any great right. I do not think the whole legislative authority have this power. The exercise of the power must be consistent with the object of its delegation.

And to this, Thomas Jefferson added:

I say the same as to the opinion of those who consider the treaty-making power to be boundless. If it is, then we have no Constitution.

Beware the False Idea that Treaties Override the Constitution

The United Nations Climate Change Conference in Copenhagen will not make the earth one degree cooler. But in reality the Conference is not about CO2 emissions or the temperature of the planet. It’s about power — it’s a sheer, unmitigated grab for control over every man, woman, and child on the face of the earth. And on top of their power over all living (or dead) human beings, the engineers of this enormous fraud hope to pocket all that remains of the world’s wealth — lots of slaves and lots of money. Not a very complicated purpose.

Please don’t credit President Obama for engineering this massive plot. He deserves only the International Impudence and Audacity Award, something he my want to hang next to his Nobel Peace Prize. Remember, he just follows the rules. He is not really in charge; he is the hired runner trying to impress his masters by how fast he can carry their baton to the finish line.

At Copenhagen Mr. Obama will likely sign anything that’s laid on the table. But that will not, as some voices conjecture, signal the end of the U.S.A. The December meeting is preliminary to the big kill. It serves two goals: first to intensify the fear of a climate crisis; and second, to get the American people accustomed to the heresy that “treaty laws can override the Constitution.”

Origin of the Myth

The frightful idea that U.S. treaties with foreign nations supercede the Constitution has been regularly promoted since the Eisenhower era. It was given a big boost in 1952 when Secretary of State1 John Foster Dulles, a founding member of the Council on Foreign Relations (CFR), made the following statement:

… congressional laws are invalid if they do not conform to the Constitution, whereas treaty laws can override the Constitution. Treaties, for example, can take powers away from Congress and give them to the President; they can take powers from the states and give them to the Federal Government, or to some international body and they can cut across the rights given the people by the Constitutional Bill of Rights.2

It would be hard to find a more preposterous assertion. Sadly, however, many citizens have been led to believe that treaties do override the Constitution. Could anyone really think our founding fathers spent four months in convention, limiting the size, power and scope of government, and then provided for their work to be destroyed by one lousy treaty?

But one might object, what about Article VI? Article VI establishes the supremacy of U.S. laws and treaties made within the bounds of the Constitution. It is called the Supremacy Clause, because it places federal laws and treaties that are made pursuant to the Constitution above state constitutions, laws. and treaties.

Some Important History

This was needed because, contrary to their agreement under the Articles of Confederation, certain states had violated their trust and entered into treaties with foreign powers. During the convention, Madison said: “Experience had evinced a constant tendency in the States to encroach on federal authority; to violate national Treaties, to infringe the rights and interests of each other.”3

State-made pacts often conflicted with peace and trade treaties wanted by the Confederation Congress for the benefit of all thirteen states, making it hard for Congress to consummate better agreements with other nations. This also led to fierce contention between the states in their effort to monopolize the import of goods from Europe and the Indian tribes. But more serious dangers arose in matters of security, for should one state be at war with a foreign power while a sister state honors its peace agreement with the same enemy, the security of the entire Confederation would be threatened.4

In an effort to head off such dangers, the Confederation Congress frequently attempted to nullify state-made treaties in the state courts (there were no federal courts). But as might be expected, the state judges ruled inevitably in favor of their own states, pursuant to the state laws and constitutions.

The 1787 Convention corrected that problem by making certain only federal treaties would be recognized as valid. In this light, it is not hard to understand why paragraph two of Article VI is worded as follows:

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, any thing in the constitution or laws of any state to the contrary notwithstanding.

Upon ratification of the Constitution, the state treaties were nullified. Thereafter, only federal treaties were recognized as supreme, regardless of any remaining state provisions to the contrary. Moreover, under the new Constitution the founders established a Supreme Court, granting it original jurisdiction over treaty controversies, and thereby removing from state judges jurisdiction over treaty cases. In addition to quelling strife among the states, Article VI accomplished a major objective of the Convention, mainly that of placing the United States in a position to speak to the world with one voice.

United States treaties are created when proposed by the President, with the advice and consent of the Senate. The power of the President and the Senate, in their treaty-making capacity, was never intended to be a power greater than the Constitution.

Citizens who met in the state ratifying conventions (1787 to 1790) to examine with great care the provisions of the proposed Constitution had a correct understanding of the Supremacy Clause. During the ratifying debates, James Madison answered questions regarding the new national charter and commented on the extent of the treaty-making power under Article VI:

I do not conceive that power is given to the President and Senate to dismember the empire, or to alienate any great, essential right. I do not think the whole legislative authority have this power. The exercise of the power must be consistent with the object of its delegation.5

In the same discussion Madison said: “Here, the supremacy of a treaty is contrasted with the supremacy of the laws of the states. It cannot be otherwise supreme.” That is, a treaty cannot in any other manner or situation be supreme.

Thomas Jefferson: “I say the same as to the opinion of those who consider the grant of treaty-making to be boundless. If it is, then we have no Constitution.”

But we do have a Constitution. Its life and viability depend entirely on the small number of citizens who, 1) understand the document and 2) who equally understand the forces at work to destroy it. At this point enough time has passed, and enough false teachings have been promulgated, to cause modern Americans to fall for the treaty power ploy. It is not surprising that John Foster Dulles, a ranking member of the CFR, should in 1952 circulate the treaty-power heresy that yet prevails. We must wonder also by what objective Lord Christopher Monckton overstates the scope of the Copenhagen conference and repeats the Dulles heresy that U.S. treaties absolutely over-ride the Constitution.

It is time for serious reflection on the words of Edmond Burke, “The people never give up their liberties but under some delusion.” We who work to preserve the sovereignty of the United States must work energetically to expose the Dulles delusion — the ridiculous idea that treaties have intrinsic powers greater than the Constitution. We can do little to stop the President from signing accords at Copenhagen and other places,6 but we can do much to render his antics impotent by building a better informed public.


1 Dulles actually made this statement during a speech in Louisville on April 2, 1952, shortly before Eisenhower appointed him Secretary of State.

2 Quoted by Frank E. Holman, Story of the Bricker Amendment, (New York Committee for Constitutional Government, Inc., 1954), pp. 14, 15.

The Records of the Federal Convention of 1787, Farrand, Vol. I, p. 164.

4 Benjamin Franklin’s Plan of UnionAmericaVol. 3, p. 47.

5 Debates on the Federal Constitution, Jonathan Elliot, ed., second edition, Philadelphia, J.B. Lippincott Company, 1907, Vol. III, p. 514.

6 President Obama is expected to seek ratification of three major pacts aimed at reducing U.S. nuclear weapons, in addition to pressing for ratification of the UN’s Law of the Sea Treaty.


A High-Speed Constitution?

For a brittle old piece of parchment, the U.S. Constitution certainly lives a charmed life. Since the day it was born, the Constitution has been battered by aspiring rulers, demagogues, reformers, collectivists, conceited intellectuals, deluded students, journalists, ambitious presidents, and creative members of the Supreme Court.

Hardly a citadel of power has resisted attacking the Constitution — yet when the smoke and thunder settle, that venerable document continues to wave like old glory in the dawn’s early light. Why is this so? Because it is not paper and ink. It is not simply a relic preserved in a vacuum under glass at the National Archives. The Constitution survives precisely because it is not what its critics think it is or what some want it to be.

The Constitution is not, for example, a sponge that swells when wet. It does not rise and recede with the tide, nor does it shift left or right with day-to-day opinions. It is not as some fancy it, “a living constitution,” a pulsating organism that mutates into whatever an alleged majority want it to be. The Constitution is not a retail product appealing to the mass market; it has no model year, flaunts no new amenities, and is not always user-friendly.

Okay, then what is it? The Constitution is the containment vessel of government. It controls meltdown when government heats up. It is designed to keep government within its walls at all times and under all circumstances. The size and power of government tend to expand in proportion to the egos of those who run it. Therefore, until modern science produces an ego-deflation device, a human-ambition retardant, and a lust-for-power inhibitor, we’d better hang on to that old parchment and treat it kindly.

A growing number of writers and reformers miss the point. They want to put the Constitution in a wind tunnel and trim it for Mach One, thinking faster is better — believing that instant amendments, overnight legislation, quick treaties, and hasty impeachments are the substance of good government.

Do they really think the founders of our country stumbled by chance upon separate institutions, enumerated powers, checks and balances, bicameral lawmaking, and the executive veto — never realizing such measures would be inconvenient or cumbersome? Sorry, 1787 was not a time for loose reins and neither is today.

Those who think they are smarter than Washington, Madison, and Hamilton need to get off their populist soap boxes and look into our country’s great documents. Records of the founding Convention chronicle the hard, step-by-step deliberations of the men who worked out a remarkable balance between power and restraint, creating a government with enough power to defend its people, but not enough to enslave them.

The creators of our Constitution purposely and carefully built guard rails, roadblocks, and speed bumps into the system to assure that no one individual or department could crash through its walls, consolidate power, and run off with our freedom. Deliberate, and sometimes slow, lawmaking is a small price for the freedom we enjoy here in the USA.

But Daniel Lazare thinks otherwise. In his book, The Frozen Republic, Lazare describes a United States paralyzed by “a counter democratic system dedicated to the virtues of staying put in the face of rising popular pressure.” Certainly, our system is counter democratic. For history teaches that popular pressure — artificial or real — is the common pretext employed by the ambitious for assuming despotic power.

Our founders knew that and therefore gave us a republic, a system that prevents 51 percent of the people from voting away the liberty and property of the other 49. But that principle doesn’t seem to faze writers who are hooked on speed in government. As with so many instant intellectuals, Lazare attributes U.S. failures to problems never addressed in the Constitution, and often to problems stemming from the outright violation of it.

Another hurry-up critic is a college professor at the University of Texas. Writing in the Los Angeles Times, Sanford Levinson says, “[T]he Constitution is so far from perfect that it threatens our ability to resolve the daunting problems facing our society.” As one example Levinson cites the cumbersome process of impeachment and the pain of waiting so long to dump the president. He claims that “60% of Americans disapprove of the job [the president is] doing.” Yet Mr. Bush, he laments, will occupy the White House until January 20, 2009.

The professor thinks a national plebiscite (a popular “no confidence” system) should replace our present method of impeachment. He says not a word about the actual impeachment of Bill Clinton, which moved through the House precisely as the founders intended.

Before the impeachment resolution reached the Senate, however, the House charges had been touted in the media as nothing more than cheap Republican efforts to exploit a sex scandal involving a Democratic president. Under media influence and White House pressure, the Senate waffled and refused to look seriously at the evidence.

The Senate’s failure to convict was not a failure of the impeachment system, but a disregard for it. By ignoring the seriousness of the charges, the Senate simply failed to carry out its constitutional duty. As with many critics of our national charter, Levinson attributes daunting problems to the document itself, rather than to the defiance of its wise provisions.

The idea that the Constitution was written for a backwoods, horse-and-buggy society and will not work in our advanced hi-tech civilization is nonsense. The Constitution does not confront technology or distance or population; it confronts the nature of man. It retards man’s ambition to use the power of government for personal power and dominion — a trait that exists in human beings at all times. It matters not whether one travels in a horse-drawn carriage or a jetliner, the universal tendency to exercise political power over others is the same — if not even worse today in this world of high-speed everything.

Tangents & Traps: The Election-year Illusion

As surely as the world revolves, and a new day dawns, political hope is born and reborn and reborn again. Every two years, and every four years, a surge of great expectation lights up the political horizon. New candidates putting fresh faces on old promises appear on the scene like budding plants in springtime. “Finally, at last, this year we have a great guy (or woman) who will go to Washington and get government under control! Let’s get behind this candidate and clean up that mess in Washington.” Right?

What’s wrong with this familiar scene? Nothing, other than it’s chronology is all backwards. The renewable energy of political action is light-years ahead of the electorate. Unless the people at home understand the problem to be solved in Washington, political action is nothing but a wishful roll of the dice. It is a gamble, which even if won is lost. That’s right, rolling a seven or eleven might even get a good man in office, but it cannot keep him there. Moreover, if he uncharacteristically keeps his campaign promises, he will be an outcast in that whirlpool of compromise and accommodation.

The best person you send to Washington can never restore republican government in the face of badly informed, brainwashed Republicans and Democrats at home. The failure of the freedom battle is manifest in public office, but its roots are at home in the public mind. Most people simply do not know what is going on (or who really runs things), and that is the huge flaw in premature political action. We send men and women into the lion’s den, unaware that there is even a lion lurking in the pit.

When the media begin to chew up perfectly good members of Congress, few citizens in their district can overcome the onslaught or see through the ruse. Hardly any American citizens realize there is an enemy who rules behind the scenes, and consequently few in his home district realize what’s happening to their elected official. He may have done his best to honor his oath of office, but his own party, the press, and the leadership in Congress have isolated and silenced him, and his poorly informed friends at home no longer stand by him.

Unless the voters in a congressional district understand the anti-American forces at work, and have sufficient numbers to stand solidly behind a real statesman in Congress, their political action is doomed. It is way ahead of its time. Freedom is a year-round undertaking, not an election-year hope. To achieve positive, genuine reform, the great expense and energy spent every election year must first be used to build a strong base of citizens wise to the Conspiracy.

The illusory quick-fix of political action directed at a naive, uninformed electorate is a huge election-year, no-win tangent.

Tangents & Traps: Public Protest Gatherings

“But obviously, if the Insiders at the top cause enough of these “demonstrations” to be organized, and to become big enough and disorderly enough, the American people can readily be brought to accept, approve, and even applaud, the use by these Insiders of army troops, as an auxiliary or substitute for local police forces, to restore ‘law and order.'” — Robert Welch, December 1969

Wise activists are wary of attention-seeking activities that challenge public order. Any such major activity nearly always attracts the media. Television crews and reporters rush to such occasions looking for strife, controversy, and yes, many reporters hope to film violence.

News coverage of public dissent in the form of a march, demonstration, or protest plays directly into the hands of the Conspiracy. Anarchy — or virtually any form of public disorder — creates an excuse for government to show its muscle and exercise force against the dissidents, which turns out to be force against everyone. This has been one of the most common yet subtle ways by which governments expand their power.

The general public wants order, and the Insiders want police power for which disorder is a convenient excuse. Citizens must beware of being used in any form of public protest that strengthens the enemy by furnishing an excuse for more laws, more government, and extreme enforcement measures.

Once a public protest is organized — for good or ill — all it takes is one or two people planted in the crowd to provide the violence or ill manners that can be displayed on television to discredit the cause.

For this and other good reasons, Freedom First Society does not organize demonstrations, marches, and other kinds of public protest. Moreover, we scrupulously stay away from areas where confrontation or violence are likely to occur, and we advise our patriotic friends to do likewise.

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