The Wacky World of “Delegate Bills”

Opponents of state legislatures’ applications to Congress to call an “Article V Convention” are often also battling “delegate bills” — also known as “unfaithful delegate laws.” Such state-legislative bills are ostensibly intended to prevent delegates to an Art. V convention from going beyond the purpose of the state’s request to Congress — which is usually a convention that will propose only one amendment, and only on some specific topic (e.g., term limits).

On first blush, it might seem that by opposing delegate bills, opponents of an Art. V Convention (“Con-con”) are fighting contrary to their own interest: After all, such activists warn against a possible “runaway convention” and preventing that outcome is (supposedly) what delegate bills are for!

In fact, though, a delegate bill is only somewhat less dangerous than an actual Con-con-application by a state. This post will unravel the real nature, and danger, of these bills.

Delegate Bills’ Implicit Assumption Is What Con-con Opponents Reject

Usually, when someone opposes a measure, it’s because they want to avoid the effects mentioned in the measure itself. But in the case of “delegate bills,” we oppose the measure because we want to avoid anyone accepting the false suggestion implicit within the measure.[1]

In delegate bills, the false, dangerous unstated presupposition is the idea that state legislatures can control the proceedings of an Article V convention, once Congress has called it! For a state-legislative committee or chamber even to vote on such a bill is for it to accept implicitly this wildly specious assumption — which assumption, if the bill passes, can only give the state’s legislators false confidence that they can apply for an Article V Con-con with perfect safety.

Therefore, we must oppose any move to bring a delegate bill to a vote. But if it does come to a vote, we must push strongly for the rejection of the bill — which rejection will obstruct the inducement of this false confidence, and thereby make less likely the passage of an Art. V application (and make more likely the rescission of any application already passed).

Are delegate bills really as disconnected from reality, though, as Con-con opponents believe? Oh, yes! The rest of this post will review why the delegate bills’ unstated assumption is truly outlandish.

The Basic American Principle Which That Assumption Ignores

In the first place, the delegate bills’ unstated assumption is strikingly out of touch with a fundamental principle of government our Founding Fathers believed, and which is implicit in the first three words of our Constitution: “We the People….” Our Declaration of Independence stated the principle explicitly (see our emphasis, below, in bold):

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. — The United States Declaration of Independence, July 4, 1776; Paragraph 2

OK, you say; but did the Founding Fathers, and the People, really believe this principle (which was later called “Popular Sovereignty”) from 1776 to 1787 (the year a convention produced our current Constitution, including Article V)? Yes, definitely — the principle had become very dear to their hearts: In fact, they used it in the creation of, and then re-stated the principle in, the constitutions for most of their newly-freed states.

Therefore, the burden of proof is certainly on those, such as Prof. Rob Natelson, who claim that the drafters of our current Constitution had a quite different notion of constitutions, conventions, and sovereignty in mind while drafting Article V! But there is little need to quibble about who has the burden of proof, for even the founders they most like to quote disagree: we can cite telling statements from both Roger Sherman and George Mason regarding Article V — both of whom were in the group that did the major work on its drafting.

Moreover, we have the full, clear statement of another major participant in its drafting, James Madison, who later, in Federalist Paper 40 (the last 4 paragraphs), cited the Declaration of Independence on this very principle to justify the “runaway convention” of 1787. For Madison, that convention exemplified:

the transcendent and precious right of the people to “abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,”….

At that 1787 convention, in arguing for giving the People, rather than state legislatures, power to ratify the new Constitution, George Mason expressed the principle well:

[State legislatures] are the mere creatures of the State Constitutions, and cannot be greater than their creators.… Whither then must we resort? To the people with whom all power remains that has not been given up in the Constitution derived from them. It was of great moment [Mason] observed that this doctrine should be cherished as the basis of free Government. — Max Farrand, Records of the Federal Convention of 1787, Vol. II, p. 88

Therefore, since clearly the kind of drafting-convention Article V has in view is a convention of The People’s (not the legislatures’) delegates, we can affirm that within the American philosophy of government, state legislatures have no authority at all to command Article V convention delegates as to what they may or may not propose. So much, then, for the viewpoint of American jurisprudence.

But, someone might say — granted, Article V conventions are true constitutional conventions, exercising the People’s sovereign, “self-evident” right to “alter or abolish” forms of government. Even so, couldn’t state legislatures still figure out some way, possibly, to control the delegates to an Article V convention? Aren’t some of these delegate bills quite inventive, after all, in the mechanisms they contrive for making the convention-delegates toe the line? Isn’t it remotely possible, that some of those mechanisms might work?

The Insurmountable Legal Hurdles over Which the Assumption Stumbles

As we shall see, blogger and former litigation-attorney Publius Huldah is right on target in the way she has answered that question: “[A]ttempts to control Delegates with ‘unfaithful delegate’ laws are laughably ineffective.” Let’s consider a few simple reasons why that’s true — even leaving aside, for the moment, the above basic principle of American jurisprudence.

Many or most delegate bills speak as if it were completely up to state legislatures to sort out who the delegates will be (representing the legislature, after all — as these bills wrongly presuppose!), as well as, all the rules and procedures of the convention itself. In short, the people drafting delegate bills tend to do it as if Article V adds, “After Congress calls the (drafting) convention, the State Legislatures shall all go off and figure out everything about how the convention will run: who will be sent to it, what motions shall be in order when, etc., etc.”

Does it say that, though? No, Article V does not say that. It says simply, “The Congress … on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments.…” After applying to Congress to call such a convention, the state legislatures have no further role in the process.

Admittedly, neither does Article V delegate to Congress (explicitly) such tasks as providing a selection-method for delegates. However, Article I, Sec. 8 concludes with the “Necessary and Proper Clause,” which delegates to Congress the right to make any laws “necessary and proper for carrying into execution” all powers given to Congress explicitly in the Constitution — e.g., the Art. V power to “call a convention for proposing amendments” when two-thirds of the states apply for it.

The Congressional Research Service, an agency within the Library of Congress, suggests that Congress alone has the power to organize the convention.  In its 2014 report entitled “The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress,” the Research Service states on page 4:

[W]hile the Constitution is silent on the mechanics of an Article V convention, Congress has traditionally laid claim to broad responsibilities in connection with a convention, including (1) receiving, judging, and recording state applications; (2) establishing procedures to summon a convention; (3) setting the amount of time allotted to its deliberations; (4) determining the number and selection process for its delegates; (5) setting internal convention procedures, including formulae for allocation of votes among the states; and (6) arranging for the formal transmission of any proposed amendments to the states.

Another mechanism one finds in some delegate laws is reminiscent of children playing in a schoolyard, where one of the children, not liking the way the game is going, announces huffily he is through, picks up his toys, and heads for home. Apparently, some state legislators believe that a similar behavior on the part of their delegates, in case the Art. V convention doesn’t go the way they like, will not merely show their displeasure, but also somehow pull the plug on the convention, ending its work.

One way to look at this remarkable assumption is to ask whether Article V says (or implies somehow) that the convention’s work will not be considered to have completed legitimately unless no state legislature withdraws its application, before the work’s completion. But of course, it does not say (or imply) that; nor is there the slightest reason, in the Article itself or in American jurisprudence or legal history, to imagine that a state’s application has any further effect once Congress has accepted and tallied it.

One final delegate-control mechanism we shall consider is the legislature’s threat of punishment — or at least, withdrawal from the convention — of any delegate who votes contrary to the intent of the state’s application for a convention. Indeed, some delegate bills have classified all such “unfaithful” voting punishable as a felony!

Such a mechanism assumes, however, that the state legislature will be kept strictly apprised of what’s going on within the convention — including, who voted how on what. But this is a spurious assumption.  Since state legislatures do not control its procedures, the convention could have voice votes — in which case no one knows who voted how — or, even if the votes be by rollcall, they could be by secret ballot. Or, the secrecy could be made complete: As happened early in our own, 1787 constitutional convention, the assembly could simply vote to keep the entire proceedings secret!

Thus — as we said above — state legislators are quite divorced from reality when they suggest that they can control an Article V convention’s deliberations. Often, it is difficult not to laugh at the ingenious but impotent devices whereby they expect to control such a convention.

However, it is not mere courtesy that prevents us from laughing at these failed attempts. For the danger that these incapable delegate bills present is not a laughing matter: Our brilliant Constitution, a true wonder of the ages, is in danger! We must make clear to all state legislators enticed by these siren songs, that “delegate bills” cannot control an Article V convention!

 * * *

[1] That is to say, whether the measure should be passed or rejected is, in the case of delegate bills, not a simple, but a “complex” (a.k.a. “loaded”) question! And as logicians and rhetoricians warn,

A “loaded question”, like a loaded gun, is a dangerous thing. A loaded question is a question with a false or questionable presupposition, and it is “loaded” with that presumption. The question “Have you stopped beating your wife?” presupposes that you have beaten your wife prior to its asking, as well as that you have a wife. If you are unmarried, or have never beaten your wife, then the question is loaded.…

So, a loaded question is one which you cannot answer directly without implying a falsehood or a statement that you deny. For this reason, the proper response to such a question is not to answer it directly, but to either refuse to answer or to reject the question. —


In a Nutshell, the Case Against a Con-con

The proponents of an Article V constitutional convention tell us it’s necessary, to save the country. As confirmed opponents, we say that we must at all costs avoid it, to save the country — or at least, to save the Constitution. Yet, so far, it has not been the easiest thing in the world, to get a grasp of either side’s argument.

The burden of proof should surely be on the proponents of a major undertaking of this sort, which, though described in the Constitution, has yet to occur in our entire history. Instead, they lobby largely outside the public view for their unprecedented “solution” and seek no debate. All the more then, do we as opponents of an Article 5 “Con-con” need to identify and understand the principal objections, to help us carry the issue.

Alright, then, what is fundamentally wrong with the Article V Con-con push?

The Alleged Benefits

Let’s start with the alleged benefits of holding an “A5C” (Article V Con-con). The notion most successfully selling state legislatures on an A5C is the idea that THIS is the key to reigning in that out-of-control monster, our federal government. There are even claims that this part of Article V was put into the Constitution precisely as the solution that states might bring into service, like pulling a rabbit out of a hat, should the federal government ever exceed its constitutional bounds.

This recently contrived mythos is outlandishly inaccurate. What Article V says it would call a convention to do, is to propose constitutional amendments. Therefore, to suggest that Article V was put into the Constitution in case the federal government needs reigning in is to suggest that amending the Constitution was considered the key to controlling the federal government.

Yet, almost everything the A5C proponents consider a transgression on the part of the federal government (e.g., spending to bust the budget), and that they claim an amendment would fix, is something the Constitution already outlaws! If the government were obeying NOW the clear mandates of the Constitution, none of these problems would be plaguing us!

Changing the Constitution is the wrong solution to an enforcement problem. The Constitution itself was designed to be, and explicitly portrays itself as, the chains for binding down the federal government.

Of course, we cannot just dismiss it as impossible, that some such amendment might have a beneficial effect. But the suggestion that legislators who disobey large swaths of the Constitution will somehow behave better when faced with an amendment, ought to have the burden of proof. Yet which of the A5C supporters has ever tried to prove this?

The “term limits” Con-con call is somewhat different: Instead of suggesting amendments are magically stronger than the Constitution itself, it suggests that Congress-persons who can run for re-election only so many times will magically behave better than those who can run any number of times. But folk who understand the meaning of “lame duck session” know that congress-people not subject to the ballot box are less likely to behave!

Not every call for an A5C claims, necessarily, that it will save us from government’s bursting of constitutional bounds. But every such call feels an obligation to downplay costs or risks that an A5C may present. And here, we shall see, is where proponents out-do themselves in making up fantastic claims.

The Danger

Proponents want to sell us the line that it is possible to put constraints, ahead of time, on an Article V constitutional convention — so that it will only consider certain topics, and perhaps only follow certain procedures. Yet, as Don Fotheringham explains so clearly and documents so tellingly, in America, the people, not legislatures, are sovereign — over constitutions as well as over governments. “We the People” wrote the Constitution; and that is who will propose amendments to it, or even total rewrites of it, if an Article V constitutional convention occurs.

Is that not what happens in every state today, when a state-constitutional convention is called? This popular-sovereignty principle is built into, not only the Preamble of our current Constitution, but also the very Declaration of Independence that brought the United States into being:

We hold these Truths to be self-evident … [t]hat to secure these rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed. That whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Forms, as to them shall seem most likely to effect their Safety and Happiness.

The one historic example we have for a constitutional convention at the federal level, was the one that produced our current Constitution. For proponents of another federal convention, then, it is quite embarrassing that writing a new constitution was not what that first convention’s delegates were sent there to do: they were merely to discuss, debate, and possibly propose some amendments to the then-current Articles of Confederation. But, as James Madison emphasized, the delegates represented the People of the United States — not the state legislatures — and therefore they had autonomy from all legislatures, whether state or federal, in determining the scope as well as the rules of their convention.

So, as Don Fotheringham emphasizes, every state legislator needs to be aware that the same popular sovereignty that applies to any state-constitutional convention these days, would apply also if we should ever have another federal constitutional convention. And that convention would therefore be no more under the control of either Congress or the state legislatures than was that 1787 Convention, which providentially gave us a far more perfect constitution than any convention could be expected to compose today in an environment dominated by pro-Big government media.

Unreliable Protection

One objection that arises at this point sounds reasonable, until you think about it: Since around two-thirds of the state legislatures are dominated by Republicans — goes the claim — we can rest assured that no radical proposal that does away with the Second Amendment, say, or rewrites the whole Constitution, will be ratified by three fourths of the legislatures.

However, there are two false assumptions here: First, the objection overlooks that a constitutional convention has authority, not only to set its own rules, but also to rewrite the rules of how its proposals are to be ratified. The Constitutional Convention of 1787 did exactly that; if it had not, it would have been harder to get our present Constitution ratified!

But even if the A5C resists the temptation to change the ratification rules, that leaves us with the rules laid down in Article V. And there, Congress can choose either of two routes: ratification “by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof.”

As an example that proves how dangerous and uncontrollable the second route is, Utah, the most pro-Prohibition state in the union, ratified the amendment that repealed Prohibition! Conventions, whether state or federal, are innately uncontrollable creatures; and thus, special interests may easily “hijack” them for purposes the People oppose.

Requested Actions:

  1. Contact the legislators in your state and urge them to oppose ANY call for an Article V Constitutional Convention. 2. Share this post with other concerned citizens.

For more support, see our “Expose the Article V Con-con Fraud”  campaign page, particularly the opinions of constitutional experts. Useful also, if confronting abusive, ad hominem arguments from the proponents, is an excellent recent piece by Wynne Coleman, of “No Convention of States NC,” on the growing use of such tactics. (Also, see the Heckler-Levin video rant linked therein.)

If It Ain’t Broke, Don’t Fix It!

Pity the poor proponents of an Article V con-con. How could they ever have happy holidays?

For they are self-impaled on the horns of a brutal dilemma. They must argue either:

  • that amending our Constitution will somehow, magically, turn Constitution-despising government officials into Constitution-obedient ones; or else,
  • that the Constitution, as it stands, has some significant flaws that have allowed the federal government to get “out of control.”

Very oddly, though, despite such a daunting dilemma you never see a con-con proponent backing off from his or her insistence that we must amend our Constitution — and, that it needs to be done through a (colossally dangerous) Article V constitutional convention! Only this magic (albeit never-before-used) formula will save us from our “out of control” government, they keep saying.

Take, for example, the odd insistence of Mr. Nick Dranias.

Nick Dranias’s criticism of the U.S. Constitution

Mr. Dranias, who leads Compact for America, has apparently enough sense to realize that though proving the second point (flaws in the Constitution) would be a formidable challenge, proving the first is clearly impossible. He has thus, almost alone, taken on the challenge of proving that our Constitution is to blame for our bloated federal government.

Unfortunately, Dranias’s case rests on a misconstrual of the Constitution and of the history of our federal government’s borrowing and spending.

According to Dranias (on his Compact for America website), “The Constitution as it exists fully authorizes unlimited spending, taxing and borrowing in support of the enumerated powers.”

He adds quickly, “Of course, the federal government is doing much much more than what the Founders thought the enumerated powers authorized. But that is politically inevitable when you give elected officials an unlimited credit card with which they can promise anything to get elected at no immediate cost to current voters!”

Dranias is very fond of using this phrase “unlimited credit card” to describe the Constitution’s lack of explicit limitation on federal-government borrowing. He means, apparently, that they can borrow as much as they want, at any time, with no penalties felt at all soon.

The metaphor is clever but misleading. A look at the actual historical data on U.S. federal government debt makes clear how misleading it is.

How did we REALLY get our mountain of national debt?

If the Constitution is an “unlimited credit card” that allows Congressmen to buy their way to re-election, how does Mr. Dranias explain the fact that our national debt was relatively under control until the Vietnam War was winding down, and then suddenly exploded in the early 1970s?

Even though there was concern over our growing national debt before the 1970s, compared to today’s enormous debt, the debt was miniscule. Although it grew significantly during World War II, a time-chart of the debt will show that it grew practically none between 1945 and 1970. Not until the early 70s did our debt begin its exponential climb to its current astronomical heights.

Why was that? Were U.S. Congressmen generally so obtuse before 1971 or so, that they never noticed the Constitution gives them an “unlimited credit card” with which to buy votes? Or were they perhaps all angelic statesmen, before that time, who kept to the Constitution’s spending-bounds out of the goodness of their hearts?

Or, was there perhaps something that happened in the early 70s that opened the spigot for unlimited government borrowing? There was indeed: On August 15, 1971, President Richard Nixon made a catastrophic structural change to our monetary and banking system. This change allowed for virtually unlimited creation of (new) money by the Federal Reserve System, to lend to the government (at below-market-level interest rates).

For it was on that date that Nixon “shut the gold window” to foreigners,

refusing to let foreign central banks redeem their dollars for gold, facilitating the devaluation of the U.S dollar which had been fixed relative to gold for almost thirty years. While not strictly a default on a US debt obligation, by closing the gold window the US government abrogated a financial commitment it had made to the rest of the world at the Bretton Woods Conference in 1944 that set up the post-war monetary system. At Bretton Woods, the United States had promised to redeem any and all U.S. dollars held by foreigners — later limited to just foreign central banks — for $35 dollars an ounce. This promise explains why the Bretton Woods monetary system was called a “gold exchange standard” and why many believed the US dollar to be “as good as gold.” (

Redeemability is what a “bank note” is all about: It is simply a bank’s I.O.U. for the bearer’s “demand deposit” of true, commodity money (namely gold, in this case). It is understood to be strictly redeemable in that money, on demand, to whomever is bearing the note.

Perusal of a 1934 Federal Reserve 10-dollar note, for example, shows that the note declares it is “legal tender for all debts, public and private, and is redeemable in lawful money [initially, actual dollars, of gold or silver, or redeemable U.S. Treasury Gold or Silver Certificates] at the United States Treasury, or at any Federal Reserve Bank.” It states further that “The United States of America will pay to the [note’s] bearer on demand Ten Dollars.” (interpolations in square brackets ours.)

President Franklin Roosevelt had already “shut the gold window” to U.S. citizens back in 1933, allowing the banks to forego honoring their commitment to redeem the notes in gold (or Gold Certificates). But at that time they were still exchangeable for U.S. Treasury-issued Silver Certificates; and those were redeemable, in silver coins.

Then in 1968, President Johnson and Congress had nullified the pledge to redeem the Silver Certificates — again, for U.S. citizens only. But not until Nixon “shut the gold window” to foreigners also in 1971, were U.S. “dollars” — including, paper Federal Reserve “Notes” — completely unshackled from redeemability in precious metal.

Did that major change indeed open the spigot for creation of Federal Reserve paper “dollars”? Yes, of course: If banks no longer have to redeem their “notes” at all, yet those notes are “legal tender,” they will really go to town with their “money”-printing presses! They’ll be more than happy and ready to loan these fraudulent paper “notes” into circulation.

One may readily confirm that that is what has happened, by glancing at a time-chart of the M3 U.S. “money” supply: Clearly it was right around 1971 that our supply of (paper) “money” began to increase by leaps and bounds. Before then, the “money” supply was somewhat limited by the gold supply in the Federal Reserve’s vaults.

Did the Constitution permit this debt disaster?

So, is Mr. Dranias correct, in blaming our national-debt disaster on the Constitution? No — unless the Constitution permits government to declare irredeemable paper money a “legal tender” in payment of debts. For only if they are declared “legal tender” must such fraudulent, irredeemable and therefore essentially worthless notes be accepted as real “dollars,” when the government (or anyone else) offers them in payment of a “dollar”-denominated charge or obligation.

But in fact, not only does the Constitution not permit this; it forbids it. At the time of its ratification, the states had created an inflationary crisis by declaring a burgeoning mountain of irredeemable bank notes “legal tender.” This is why the Constitution forbade states to “make any thing but gold and silver coin a tender in payment of debts” (Art. 1, Sec. 10). That provision brought an end to the inflation.

Naturally, the Founders would not have permitted the federal government to step in and re-create this disaster of worthless “legal tender.” But they did not feel it needful to state explicitly that the federal government is (with the states) forbidden to do this, since (as the Tenth Amendment says) any power not explicitly delegated to the federal government, by the Constitution, is understood not to be granted to it.

Thus the Constitution also did not permit the government to take these other actions that were crucial in its drive to substitute paper, irredeemable currency for our sound money:

  • creation of the Federal Reserve System, in 1913;
  • “shutting the gold window” to U.S. citizens, in April 1933;
  • forbidding them, at that same time, to own or use monetary gold; and
  • the final, complete repudiation of our currency’s redeemability, in 1968 and 1971.

So it turns out that, thru his misdirecting of the blame, Mr. Dranias is implicitly exonerating our leaders and the Fed, and irresponsibly risking our liberty. For the Constitution is not the problem. Disobedience to the Constitution is!

Tragically, the constitutional requirement to limit government to its enumerated powers has virtually disappeared from media-led political discussion, in favor of a dangerous “how much can we afford?” debate. Without an informed electorate forcing its representatives to adhere to the Constitution, the government’s substitution of irredeemable Federal Reserve bank notes for our once-sound monetary system has supported a massive explosion in the national debt. Our need is not to alter, but to return to, that wisely crafted form of government that our Founders outlined so clearly.

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.

Expose the Article V Con-con Fraud — Report

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

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

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

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


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.

Wake Up, Little Chickens!

A talk by Mrs. Julianne Young delivered April 11, 2014 at a Freedom Rally in Pocatello, Idaho.

A cry jolts the still, sleepy morning to life. “There’s a skunk in the coop!” Dad scrambles for his gun, bed-heads crowd at the window, and bare feet streak across the dewy lawn. Dad cautiously peers ‘round the doorway while we all hold our breath. Two feathered friends lay dead in the straw with gaping, bloody wounds, while a dozen others mill about expressing their distress in a chickenish fashion, upset and oblivious all at once.

A white stripe shrinks into a dark corner where murderous, beady little eyes watch and wonder what we will do next. One chicken calmly saunters past the shadow, looking the skunk over quizzically.

That skunk will be hard to hit in the shadows. It will be him or Dad! Then—BLAM! BLAM! The skunk stirs and an acrid, skunky smell fills the air. One final BLAM! All is still. We run, choking and crying! But the chickens haven’t even noticed. They hop and pick their way through the carnage, gossiping and clucking.

A skunk lurks in society’s coop as well. He cowers in vague generalizations, rarely showing his true, deepest colors. His tidy fur coat and voluptuous tail proclaim world peace, prosperity for the masses, and personal fulfillment. He makes black, white, and white, black. He boldly invites all to embrace him, assuring us that his aims are irreproachable and mocking those who hesitate as old-fashioned, close-minded, naive, or bigoted. His odor permeates the media, our politically correct communications, and our public schools. He has been working, day and night, for decades in a deliberate and well-organized way to undermine God-given liberty and bring about a self-proclaimed silent revolution through “countless small adjustments.”

Many see troublesome symptoms and strut around expressing chickenish sentiments. They pick through the mess, decrying it— a rising divorce rate, fatherless children, STDs, lengthening prison roles, skyrocketing debts, a teetering national economy, illiterate high school graduates, and rampant drug and alcohol abuse. Others are too cauterized by their ball games, their entertainment, and the pursuit of the almighty dollar to notice that anything is happening at all. Surely, if they ignore it, it will go away. A third group calmly saunters up to the shadow, admiring its fierce, independent nature and the voluptuous coat they see there.

The skunk is real, and he is dangerous. His velvet coat is called humanism. His velvet claws are socialism or communism, which are “as alike as two peas in a pod.” He is not just another step in the political evolution of America, nor is the carnage about him the result of stupidity or clumsiness. He is cunning, consistent, well-organized, and deliberate. If you want to understand better what I am telling you pick up a copy of Vance Smith and Tom Gow’s well-documented book, Masters of Deception. There are copies at the Freedom First Society booth. The skunk’s self-declared intent is to destroy and devour, and as long as the chickens tolerate or ignore his presence, they are in great danger. Complacency and Compromise are the keys to our sure demise.

Wake up chickens! Stop picking through the carnage and open your eyes to the deliberate, organized, well-funded skunk. Stop giving him the authority to educate our chicks, provide for our physical needs, and dictate the future of our nation. Stop voting for skunks that don chicken headdresses and then vote for the conservative path to the destruction of our God-given, inspired Constitution.

That Constitution is our protection. It is the walls of our coop! It is a binding contract between God, the people of America, and those entrusted with public office. It means what it meant at the time we entered into it. No court on earth has the right to re-define the terms of that contract. Even the Supreme Court is inferior to the Constitution. It was not even a party to the initial contract and only exists under the authority of that sacred document. It is absurd to even suggest that a creation could be given the power to define their creator.

No politician on earth has the right to negate the provisions of the Constitution by supporting unconstitutional programs or policies. The Freedom First Society has put together an excellent online voter guide at that assesses voting records, not by some conservative index, but based on the Constitution. This voter guide screens out posturing or party-line votes which mean nothing, but are often cast just to make a politician look a little more chickenish. It’s time we woke up to the reality that compromise is not a virtue when one is compromising away the lives, liberties, and properties of the American people, now and for generations to come.

Lastly, we cannot afford to tolerate continued support for Constitutional amendments. A Constitutional Convention is one of the greatest threats to that sacred document, and no Constitutional amendment is worth that risk. The Constitution is not broken and giving the skunks the authority to remodel the coop will never provide more security! Any politician that will compromise the security of the coop in this regard is not a true friend to the Constitution or to the chickens, no matter how conservative they are or how good their remodel project sounds.

Wake up little chickens! There is nothing a skunk fears more than truth. Get educated! Get organized! (The Freedom First Society has a great little book called Organize for Victory!) Take aim and FIRE!!! Sooner or later it will be the skunk or us. May God bless us with the wisdom to spot him, the courage to face him, and the ability to win. Thank you.

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.

New Hampshire Kills Con-Con

Eternal Vigilance

Our determination to preserve the U.S. Constitution is never-ending. In 1990, one of our patriotic friends in New Hampshire began a vigil to keep the Constitution out of the clutches of radical reformers. The specter of subjecting the Constitution to destructive changes came by the action of 32 states (including New Hampshire) as a result of their applications to Congress to call a federal constitutional convention (con con). The number of states needed to trigger a convention is 34 (two-thirds of the states), meaning the nation was on the brink of a constitutional disaster, for a con con is a sovereign assembly having no higher authority to limit or control its work.

By 1990, two of the 32 states (Alabama and Florida) had awakened to the reality that the U.S. Constitution could never survive a modern con con, and they took the lead by formally withdrawing their con con requests.* New Hampshire was among the remaining 30 states where alert citizens tried repeatedly to get a resolution passed to kill that state’s con-con application.

For the next 20 years faithful citizens, led by Bill McNally of Windham, New Hampshire, kept draft legislation on the desks of their state legislators, constantly reminding their elected officials of the dangers of a modern-day con con. Finally, this year their vigilance paid off with passage of a rescinding resolution, HCR 28. It was titled: “A resolution rescinding all requests by the New Hampshire legislature for a federal constitutional convention.” We are especially heartened to note that this legislation passed unanimously in both the House and the Senate.

*As of this date, the final score shows 13 state withdrawals. Adding this to the original two-state deficit, we now have a safety margin of 15 states preventing a constitutional crisis.


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