JBS: An obstacle to federal reform

The following was written by Convention of States Senior Vice President for Legislative Affairs and attorney Rita Peters and published on the Gem State Wire. Read the original article there.

Those who believe the Founders’ plan for a limited federal government is still the best way are pleased to see the Trump Administration cutting spending on outrageous programs and paring down the grotesquely oversized “fourth branch” of government–the bureaucracy.

Supporters of the Convention of States initiative, who are working toward the nation’s first Article V convention to propose constitutional amendments that limit the size, scope, and power of the federal government, are feeling empowered. As America begins to see that we really can function–and function better–with a smaller, more disciplined Washington, D.C., more state legislators will take a serious look at what a state-led Article V convention offers: the only way to make these reforms permanent. So it’s no surprise that so many Trump administration officials are fervent supporters of the COS movement.

Then there is the John Birch Society (JBS). They continue to nip at our heels, doing their best to peel away support for meaningful change with their misinformation campaigns, attempts to smear individual COS leaders, and their bald-faced, “sky-is-falling” type fear-mongering. Sadly, they are often successful.

The unfortunate reality is that it is far easier for a politician to vote “no” than to vote “yes.” The JBS seizes upon this opportunity, kicking up just enough dust to cloud the real issues by wrenching Founding Father quotes out of their context, telling half-truths about history, and predicting apocalyptic mayhem should anyone dare to invoke the Article V convention process.

The fact is, the “information” the JBS is peddling is wrong. Here is a list of five of the ways the JBS is misleading the American people.

1. They still insist that the 1787 Constitutional Convention was a “runaway convention.” This has been so soundly disproven by Michael Farris’ article in the Harvard Journal of Law and Public Policy that it is painful to still be talking about it. Suffice it to say that their error lies in their faulty premise that the Confederation Congress called the Convention. It didn’t, nor did it have power to do so. The states called the Constitutional Convention, and ten of the twelve delegations were commissioned to devise and discuss all such “alterations” and “further provisions” as would be necessary to “render the Federal Constitution adequate to the Exigencies of the Union.” If you want the full analysis, please refer to Michael Farris’ article. The JBS seems to simply pretend that it doesn’t know this article exists. 
2. Building on their completely false notion that the 1787 Constitutional Convention was a “runaway,” they insist that an Article V convention to propose amendments would also be a runaway. I pause to note that this is pure speculation which is, again, based on a false historical narrative. Delegations to an Article V convention have the power, under Article V, merely to “propose amendments” to “this Constitution.” This is the same power that Congress has under Article V; no more, no less. And it is completely different from the mission of the delegates to the Constitutional Convention, which was, again, to devise “alterations” and “further provisions” to render the federal government adequate to the needs of the Union. But it is also important to note that the JBS ignores the successful execution of scores of interstate conventions before and after the Founding Era. None of them ever exceeded its authority. In short, the record of interstate conventions (of which an Article V convention is one type) respecting the limits of their authority is 100%. Examples of a “runaway convention”? Zero.  
3. JBS claims that an Article V convention is dangerous because of “the right of the sovereign people meeting in convention to alter or abolish their form of government (stated in the Declaration of Independence).” This is just silly. The Declaration of Independence says nothing about people having to “meet in convention” in order to alter or abolish their form of government. It merely expresses a fundamental right that all people have. Why isn’t the JBS worried about Congress deciding to “alter and abolish” the government? Again, it has the exact same power that a convention has under Article V. There is simply zero link between the Article V convention process and the right of the people to abolish their government. 
4. The JBS claims that because the text of Article V doesn’t spell out that voting at an Article V convention would be on a one-state, one-vote basis, we can’t know that it would work that way. But think about it: there are plenty of words and phrases that aren’t defined in the Constitution, but we still know what they mean. Examples include “trials by jury,” “writs of habeas corpus,” and “original jurisdiction.” The Founders didn’t define terms of art that were already well-understood. In 1787, conventions of the states were well-known, frequent assemblies. States always appointed and commissioned the delegates, no matter who issued the call. Voting was always on a one-state, one-vote basis. 
5. JBS claims that an Article V convention opens the Constitution to a “rewrite.” Again, they have absolutely no basis for this claim, and it flies in the face of everything we know about Article V. Simply look at the text of Article V. In a single sentence, it gives a state-initiated convention the same exact power as it gives to Congress: the power to propose constitutional amendments. It does not give to Congress the power to propose amendments while giving a convention the power to rewrite the Constitution. Such a reading of the text is not even plausible, and would never survive legal scrutiny. When a convention is held, if enough states agree, it will result in one or more proposed amendments that, if ratified by 38 states, would be added to the list of amendments we already have. The Constitution does not get “opened up,” nor does it get “rewritten.” 

Anyone willing to take the time to read the serious, scholarly work done by credible experts–including an entire treatise on the law of Article V–must conclude that an Article V convention is a known, safe, and workable process for putting further limits on the federal government. By continuing to kick up dust that obscures this clear path to permanent reform, the JBS and their groupies are doing the work of those who prefer the dysfunctional status quo.

Rita M. Peters serves as Senior Vice President for Legislative Affairs at Convention of States Action and is an allied attorney with Alliance Defending Freedom. Prior to joining COS, Rita worked as Staff Counsel for The Rutherford Institute, a non-profit civil liberties organization. She is a member of the Virginia State Bar and the bar of the United States Supreme Court. As a Presidential scholar at West Virginia University, Rita earned dual bachelor degrees in 1998, graduating summa cum laude in both Journalism and Political Science. She earned her J.D. as a Benedum Scholar at Washington and Lee University School of Law, graduating cum laude in 2001. Rita lives in the Shenandoah Valley of Virginia with her husband, Tim, and their six children, three dogs, two miniature donkeys, and a small herd of miniature Scottish Highland cows.