This is the first of a three-part series.
On June 17, State Representative Rob Chase of LD 4 hosted a debate between our own State Director, Eric Minor, and Leah Southwell, Western Regional Field Director of the John Birch Society (“JBS”) before a live audience in Spokane, Washington.
As many of you may be aware, JBS, while generally a very conservative organization, has been a staunch opponent of the COS mission, and its presence in eastern Washington and western Idaho makes reaching out to and persuading this audience a big priority.
There are three main areas of contention. The first challenge issued by JBS is the authority, or legality, of amending the Constitution using the Article V convention process. That is the focus of today’s article.
WATCH THE FULL DEBATE HERE
Issue #1: Was the 1787 Constitutional Convention (and its product, the United States Constitution) itself the product of a “runaway convention,” thus demonstrating that amending by convention is uncontrollable?
JBS argues that the delegates were called to the convention by the continental Congress to make amendments to the Articles of Confederation, that they exceeded their mandate to make amendments to the Articles of Confederation only, and instead fully re-wrote the Constitution and a new ratification procedure that required less than 100% agreement for the new Constitution of the entire union. This, they argue, is a demonstration of the dangers of the convention method.
But this is one of those arguments that proves too much. Astonishingly, under this rationale our Constitution was unlawfully drafted and ratified. Why, then, does JBS accept the Constitution at all? Here is the (rather incredible) answer:
"In the end, I’m not saying that they did something bad. . . we [the delegates] accept the fact that we’re not going to abide by the commissions that were granted to us by the state legislators, because we have a higher authority that we have to face. And that is of the people. Madison said that people were, in fact, the fount of all power, and by resorting to them, all difficulties were overcome." – Ms. Leah Southwell, debate at 19:52.
This line of reasoning (1) is circular, (2) ignores the actual sequence of historical events which culminated in the Constitution, and (3) fails to acknowledge that 100% of the states ultimately ratified the Constitution.
A Circular Argument Undermines Itself: A circular argument uses what it is trying to prove as both premise and conclusion. Here, JBS uses the conclusion, “the Constitution was unlawfully adopted,” to prove that one of its provisions, Article V, is untrustworthy. Yet JBS relies on the validity and authority of the Constitution (despite re-assigning the very basis of its validity and authority) to argue that the states should use Article VI (nullification) as its sole remedy. An unsound argument such as this cannot demonstrate that the convention process is inherently uncontrollable.
History on the One Side, Fear-Mongering on the Other: The argument that the 1787 Convention was invalid ignores the history of Article V. As Eric Minor pointed out, at the Annapolis Convention, five states were attempting to discuss resolutions to interstate commerce issues being experienced by the states. Debate at 24:12. The delegates to the Annapolis Convention quickly realized that the issues that should be discussed went beyond interstate commerce solely, and so they called for a broader convention among the several states to ‘render the constitution adequate to the exigencies of the union.’ It was on this basis that the states convened. The source of authority for calling the constitutional convention was not, therefore, the Articles of Confederation, but as the Constitutional Congress called it (and as COS co-founder Michael Farris points out), the ‘residual sovereignty of the states.’ See Can We Trust the Constitution? Answering the “Runaway Convention” Myth, Michael Farris, JD, LLM (available at conventionofstates.com/resources).
Moreover, Mr. Minor pointed out, interstate conventions were commonplace in the revolutionary period, and every one of them had been conducted by ‘one state, one vote.’ So the history of the convention process does not mandate in favor of those who would claim, like JBS, that some other method might be used (such as proportional representation, where a large state like California could get extra votes). Debate at 36:31.
Like many COS opponents who are on the left, JBS uses a negative (the convention process has never been used to amend the Constitution) to amplify our natural, human fears of the unknown. The real reason the Article V convention process has not been used is the sheer difficulty of getting 2/3 of the several states to agree on the same resolution. Instead of acknowledging this, as an honest opponent would, JBS chalks it up to a fictional suspicion of likely catastrophe. The result reads like copy for a horror movie trailer:
"Do you think that lobbyists would just sit back and not get involved in a convention? Do you think that Antifa wouldn't get involved in convention? Do you think that the United Nations wouldn't be involved in their convention? Do you know when I was in Chile and we were having an election, people in Chile said, ‘We think that we should be [. . . ] allowed to vote for your president’? . . . Do you think the rest of the world is gonna sit back and watch the us have their friendly little conversation? [. . . ] The foundational principles of America will be on the table." – Leah Southwell, debate at 58:27 (emphasis added).
One cannot help but wonder why, if JBS wants to be guided by history, they should refer to the experiences of a South American country with a history of dictatorship such as Chile and not the actual history of the convention process in the United States, which has a track record of success.
Ratification: According to Mirriam-Webster.com dictionary, to ratify “is to approve and sanction formally: confirm.” Wikipedia elaborates: it is “a principal’s approval of an act of its agent that lacked the authority to bind the principal legally.”
At this point the JBS arguments are starting to look a lot like a two-legged stool. The first leg is the claim to “history,” which is really just their supposition that the delegates convened under the Articles of Confederation to write a new constitution; during which they changed the number of states necessary to ratify, so ratification is no protection. But the delegates were not (see supra). Instead, they were acting under the authority of the sovereignty of their principal (their state), to “render the Constitution adequate to the exigencies of the union.” They rendered (fulfilled that mandate). The states approved (ratified what they came up with). And with ratification, any objection anyone could make to the new ratification process is quashed. It simply doesn’t matter.
With respect to the “fear-mongering” side of their argument (the second leg of the two-legged stool) JBS also argues (from “history” as they see it) that ratification does not offer protection because the convention is inherently “uncontrollable.” But it is hard to see how this is so. Thirty-four legislatures send their delegates with the same resolution to convention, and will those delegates now reject the express political will which brought them there in the first place? And now, will those thirty-four legislatures plus four more ratify amendments produced at convention which vary substantively from which they were tasked? At a certain point conjecture of this kind start to seem a bit absurd. The bottom line is that no amendments to the Constitution will be effectuated without the will of three-fourths of the legislatures of the several states, or 38 states. This is a very high bar. Getting thirty-four states to convention represents a substantial unification of political will. A much more realistic concern is whether four more states could be convinced to join in the spirit of the resolution at the convention for proposing amendments, than whether bad actors could completely derail the event.
Conclusion to Part 1: The 1787 Constitutional Convention demonstrated no inherent instability in the convention process. There is no “precedent” for a runaway convention, because the convention was lawfully convened under the residual sovereignty of the states. Moreover, and in any event, the question of the authority of the delegates are moot once the states ratify.
Just so, an Article V convention today has no power to bind the principals (the states) to amendments proposed there. They, too, would need to ratify. The political will required to get to convention is a powerful argument against any fears of derailment by bad actors. The political will required for the states to ratify is even greater.
JBS is actually arguing that our Constitution was the product of a power-grab. This should sound familiar to anyone who has heard of the 1619 Project. The lack of solid evidence is why they invoke our fear that we might lose our beloved Constitution if we put Article V to the test. That alone should make us wonder as to their motivation.
But let us say it is simple fear on their part. If that is the case, there is all the more reason to go forward with all the energy, strength of purpose, and determination we can muster. Should some shadow army of leftist trolls appear at the convention, well, we knew that fight was coming. We’ve seen their fires on the horizon. If by our efforts we can get our resolution to convention, we will have chosen the battleground.
EXCERPTS FROM THE DEBATE
Note: The excerpts below are edited for clarity and brevity. Headers are by the author. The full debate is available at the link below.
I. ERIC MINOR (CONVENTION OF STATES ACTION): I'm the State Director for the Convention of States. I've been doing this for about seven years or so, and I'm going to start by just giving the audience a quick overview of Article V, [which is] the article in the Constitution that provides the mechanism for the Constitution to be amended. There are two ways for amendments to be proposed, and there are two ways for [the proposed] amendments to be ratified.
Two Ways to Propose Amendments: The first way is for Congress to propose the amendments. If two thirds of each chamber pass a law saying that they're putting forward that amendment for consideration. So two thirds, both chambers of Congress.
The second method for proposing is for . . . the legislatures of two thirds of the several states to make a call for an amendment proposing convention. If we hit that threshold, then the states will come together in convention, they will argue and they will put forth one or two or five amendment proposals for any amendment that is put forward for consideration.
Two Ways to Ratify Amendments: There are two ways to ratify it. The first way is for three quarters of the several states, that's thirty-eight states of our fifty need to ratify.
Or the second mechanism is that conventions in the fifty states are called, and three quarters of those state conventions have to ratify it. So that's thirty-eight state conventions.
Summary of Prior Article V Proceedings
[Of the twenty-seven amendments to our Constitution], all of them were proposed by [getting agreement from two thirds of each chamber of Congress]. Twenty-six of [our twenty-seven amendments] were ratified by state legislatures; [the exception was] for the repeal of prohibition. They [Congress] decided to [ratify it] by convention
A number of groups have attempted to use [the] second path [of proposing amendments by state conventions] . . . [In the early 1900’s,] they almost made it to the two thirds threshold for electing senators by popular vote [when] Congress actually stepped in and decided to put forward that amendment themselves. That was the 17th Amendment. And many of us may not like the 17th Amendment. I certainly don't. Also, later on in the twentieth century, a group seeking a balanced budget amendment attempted to use Article V. They got very close, 32 states, but then they stalled as a few states rescinded that. So that second mechanism in the two hundred plus year history of America has never been utilized.
The Framers of Article V Unanimously Approved the State-Initiated Convention Process: I want to emphasize that there was 100% unanimous agreement [that the framers of our Constitution] wanted that second mechanism in there. The convention had made it to its last day, that wasn't in there, and nobody had brought it up.
And then, Colonel George Mason from Virginia stepped up and suggested, Hey, we can't just let Congress propose amendments. We have to make a mechanism for the people through their state legislatures to propose amendments. Otherwise, Congress will never rein in its own power. [Of] this particular suggestion, according to Madison's notes, there was no disagreement whatsoever. It just went through with 100% agreement.
The Current Proposal Under Article V of the Constitution: The COS plan in terms of an Article V Convention is to call a convention for proposing amendments, limited to three subject areas. Number one, impose fiscal restraints on the federal government. Number two, limit the power and jurisdiction of the federal government. Number three, impose term limits on federal government officials, including Congress. I suspect most of the people in this room probably agree with all of those sentiments.
The Argument that Article V Was Produced By A Runaway Convention Is Specious: JBS will argue that the convention that brought us our Constitution, the 1787 Constitutional Convention, was itself the product of a runaway convention, but I will explain why that is not the case.
The impetus for that 1787 convention was actually a prior convention called the Annapolis Convention, where delegates from five states got together to talk about ways to improve, to specifically talk about the commerce problems that the states were having after ratification of the Articles of Confederation. The Annapolis Convention recommended to the states that they call a broader convention specifically for the purpose of making the constitution adequate for the exigencies of the union. Seven states made that same call for that convention, to render the constitution adequate for the exigencies of the union. Then the continental Congress chimed in and said, we endorse this.
Point being, it was the states that called the convention, not the continental Congress.
II. LEAH SOUTHWELL (JOHN BIRCH SOCIETY): I want to just thank all of you for coming here tonight and being willing to learn more [on] this subject and issue. On its face it sounds quite appealing, but the deeper that you go and the more you understand history and the only precedents that we have, the more the concerns start to come up.
“We Agree on the Problem – The Federal Government Is Out of Control:” We actually both agree on the problem -this serious problem - the federal government is out of control. The Constitution was written to control the government, to limit their powers. We all agree that they're way outside of their powers.
“Article V is Not the Only Way to Rein In the Federal Government”: We both agree that the Constitution needs to be used and sought for the solutions. But is this the one and only way under the Constitution to rein in the federal government? And we say no.
“Simpler, Safer, Less Risky Tools Could Be Applied Right Now”: There are other ways that are simpler, that are safer, that are less risky, and that could be applied right now. They have been before and need to be applied again. We've got to use the right tool for the right purpose at the right time. . . the most effective tool and the least destructive, or the least risky, tool.
“Why Hasn’t the Article V Convention of States Been Used Already?”: As Eric has already explained, there are two methods. The first method is the only one we've ever used. Why? It's been called upon since the beginning of our country, calls for this in the hundreds for this over the decades. Why has it never happened? Perhaps there are good reasons for this. And I hope you'll see that understanding what Article V says is very important. And even more importantly, what Article V doesn’t say. These are not my opinions, but facts that you can go up and go look for yourself. We can't have wishful thinking. We can't say, “At least, this would be doing something.” “Something” can be absolutely the wrong thing to do.
Two Constitutions: The first one was the Articles of Confederation, but they were found lacking. They lacked the power of enforcement. They provided that the Congress could tax the states, but there was no enforcement mechanism to get the money. So, they were seeking a bit more power, and this was their reason for coming together- to resolve some of these issues.
The Delegates to the 1787 Constitutional Convention Exceeded Their Authority: The delegates were given specific commissions from each state, and these commissions were similar in nature, but they were not all exactly the same. And the commissions were for the purpose of amending those Articles of Confederation, to make it adequate, meaning to correct any errors that were there that were leaving [the Articles of Confederation] wanting.
It was not to throw out the foundation of the government that we had. It was to make adequate. So, there was no “okay to do whatever you've got to do.” You've got to ask yourself, was the source of the power to the delegates to be exercised for a limited constitution, or was this to be a more general grant of authority to the delegates?
What I found fascinating was, again, to understand the debate that happened at the actual convention. To say it was not a runaway is completely wrong, because our founding fathers will admit that they did not follow their commissions. Of those that came there, one delegate walked away, saying “I wasn't given the power to do this. I'm not participating in this. I'm going home.” Others said, “We don't have the power, and we shouldn't proceed with what you want to do.” And still others said, we don't have the power, but we should proceed anyhow; we're in a dire situation and we need to do something. And so, we're here, let's deal with this and face this.” I have two pages of quotes for you on the table out there that you really should pick up. Quite fascinating. They all acknowledged that they were going outside of their powers. Now I ask you, when you go outside of your powers, does that not make it a runaway? Does that not make it something that it turned into, that they were not sent there to do?
The Outcome of the 1787 Constitutional Convention Was Nevertheless Acceptable: In the end, I'm not saying that they did something bad. James Madison and our founding fathers appealed to the ultimate sovereign power of the people, not the state commissions, for their authority. So we are okay, and [we accept the fact that we're not going to abide by the commissions that were granted to us by the state legislators, because we have a higher authority that we have to face. Madison said that people were, in fact, the fount of all power, and by resorting to them, all difficulties were overcome. He persuaded the others to agree that they had the authority to alter, and/or abolish their constitution. At that time they also recognized the Declaration of Independence, which says: “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 affect their safety and happiness.”
How was America created? America was created by declaring themselves independent from a tyrannical power. They had the right to alter or abolish any government. And we still do if we believe in the Declaration of Independence.
So, in understanding this debate, please understand the principles that the founders were dealing with right then right there, who was the authority of their power and what was their goal and mission and what were they allowed to do?
And they acknowledged that they had the right to alter or abolish their form of government.
