On June 17th, 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. In Part 1, we addressed their argument that the delegates exceeded their authority to write the U.S. Constitution. Here, we look at the JBS contention that an unacceptable risk to our Constitution exists by using the Article V process, because Article V does not contain rules governing the convention process.
The arguments brought by John Birch Society against Convention of States in the recent debate belong to these three general categories:
1. Invoking [fear of] the unknown. Because the process of Article V has never been used, opponents try to create an impression that failure is both a likely outcome and will result in catastrophe to our Republic.
2. Reassuring us that it's better to continue in the familiar ways. In other words, let's just try harder, using the same channels, to halt overweening federal power.
3. Intimidating us by invoking the “battle of the experts.” Either (they hope) you will fall for the claim that there are more experts against an Article V state convention than there are for it (an unverified claim at best, also a fallacy called argumentum ad populum), or that you will give up before you start, because “it’s a matter for the experts.”
Before going on, it is important to point out that John Birch Society presents as a conservative organization. This is extraordinarily puzzling. It takes very little research or thought to unmask the arguments as specious. Moreover, they have not always been opposed, and although the reasons for their changed course [1] can only be speculated upon, it does coincide with a rise in scholarly articles by left-wing judicial activists. See https://conventionofstates.com/files/the-liberal-establishment-s-disinformation-campaign-against-article-v-and-how-it-misled-conservatives/download by Natelson, Robert (2017).
1. Relying On the Unknown to Increase Apprehension:
Argument 1, "Hasn't Happened Before" (JBS): Because an Article V Convention of States has never been called, this is tacit acknowledgment that the process is dangerous and should not be used:
As Eric has already explained, there are two methods. The first method is the only one we've ever used. Why? [There have been hundreds of] calls for [an Article V convention] over the decades. Why has it never happened? Perhaps there are good reasons for this.
Leah Southwell, Debate at 15:48 (emphasis added)
After implying there might be “good reasons for this,” later in the debate Ms. Southwell spoke at length about her experiences while living in Chile,[2] where the people (apparently disastrously) re-wrote their constitution:
You want to know how many great ideas they had for a new constitution. They came up with 499 articles to their constitution. [I’ll get my complaints] on paper. . . I'll let you get yours on paper . . . and everybody gets their complaints out.
Is that the foundation for good government? How can we improve upon the Constitution? This is one of the longest, oldest constitutions in the history of mankind. Is it flawed or are we the ones who have not understood the principles that were behind that constitution and held our legislators accountable to their limitations? I think the problem is us and electing people who would do this, not the document.
Leah Southwell, Debate at 55:58.
Within the argument from Ms. Southwell are the seeds of its own destruction. How, indeed, can we improve upon the Constitution? We who support an Article V Convention of States support the Constitution, because Article V is in the Constitution. Furthermore, the argument seems to misunderstand- and greatly underestimate the power of- the entrenched nature of what decades of statists have done to our Constitution. Despite claims to the contrary by many, our government does follow the Constitution – as interpreted by the Supreme Court, who has “interpreted” many of the original checks and balances out of existence, with the result being the rise of an unelected federal bureaucracy, an increasingly power-hungry executive branch, and weak or non-existent oversight by Congress.[3] Convention of States Action seeks to restore accountability.
Argument 2, Process Not Spelled Out (JBS): Should the calls to a convention be successful, the state convention process is “unknown,” specifically: how will the applications will be counted? How will the delegates will be chosen? what will Congress do in response? whether the votes of the delegates will be weighted based upon population, whether a reviewing court will find the amendments valid.
In response, Eric pointed out that the text of Article V itself specifies one state, one vote, because to call an Article V convention requires two thirds of the states. To ratify requires three fourths of the states. There is nothing in Article V to suggest proportionality by population, either in the calling of the convention or in the ratification process. And if the drafters had wanted proportionality to affect how Article V was to operate, they knew how to specify that as they did in fact do so in Articles I and II. And moreover, every interstate convention has been one state, one vote. [4] Finally, the fact that a convention writes its own rules is not a reason to believe that the one state, one vote rule would be discarded, because such an action would directly contradict Article V itself. A similar argument can be made as to ratification. [5]
2. Staying On The Same Road: The Argument From the Familiar
Ms. Southwell argues that the states should just ignore the federal government when it exceeds its constitutional powers:
So do we have other options? Absolutely. Article VI says that all law must be in pursuant of the Constitution. It means there may be no law that does not adhere to or is not compliant with the Constitution. So many of our laws are unconstitutional laws. What is the duty of a state when the federal government mandates something upon them that is unconstitutional? They need to refuse to comply, right?
Leah Southwell, Debate at 42:06.
The name for this option is “nullification,” and while it is a valid exercise of state power, Eric’s response was basically, how’s that working out for you?
Leah suggests using nullification a few years back. What is it? Probably eight years ago by now we got Obamacare, [which is] unconstitutional. The 10th amendment says the federal government only gets to pursue things that are enumerated in the constitution. Doesn't say anything about healthcare.
They were out of bounds to do that. How are you going to nullify that? [As] soon as that thing got passed, my healthcare premiums quickly doubled. . . Try nullifying the 16th amendment and income taxes. Some people try it, but frequently they get whacked by the IRS and they come and seize their house and throw 'em in jail.
Eric Minor, Debate at 49:35.[6]
3. Your Experts, My Experts: Don't Fall for Intimidation
JBS attempts to neutralize the scholarship supporting the legality and authority of Article V as follows:
I want to show you, they have [this] Rob Natelson [as their] expert. This [indicating] is a pile of what legislative experts have said about the constitutional convention under Article Five; it's by Supreme Court justices, it's by district [court] judges. It's by professors of law from Harvard, from Stanford, from all over throughout the years who have stated that . . .there are no rules. This is way too risky, and all of these have said, ‘This is not a good idea.’
Leah Southwell, Debate at 31:27.
This is known as the “battle of the experts,” and invoking it is a tactic which often succeeds. Again, it’s a fear tactic. It works because (like most sophist techniques) there is a germ of truth. After all, “experts” are usually employed in a field unfamiliar to the rest of us, with its own jargon, studies, and literature. Nevertheless, there are some good ways to evaluate experts, even if you are not one yourself.
A natural response to what Ms. Southwell said is to think, “well, if a bunch of Supreme Court justices are opposed, professors of law and so forth all say it’s dangerous, who am I to think otherwise?” But even if we do not feel qualified to evaluate the substance of the arguments, or if we don’t have time to do the research ourselves, we might invoke the proverb, “judge a man by the reputation of his enemies.” JBS invokes quantity (the “pile” of experts) – we should invoke quality. So exactly who are these enemies? From Natelson:
During the 1950s, ‘60s and ‘70s, establishment liberals were pleased with the growth of the federal government and the activist Supreme Court. They wanted no corrective amendments. Rather, they felt threatened by conservative and moderate efforts to use the convention process. Liberals developed, therefore, a campaign to effectively disable it.
Their project was highly successful. It not only gained traction among liberals, but it pitted conservatives against conservatives by persuading many of them to abandon one of the Constitution’s most important checks on federal overreaching. The campaign’s . . . psychological and political force continue unabated for decades.”[7]
Mr. Natelson then discusses the specific opponents and their writings. Here, you can see many of the opponents referred to by Ms. Southwell:[8]
The “pile of experts” who oppose using Article V by the state convention process, referred to by Leah Southwell, are no friends of the U.S. Constitution as originally conceived. On the contrary, these are people who believe in an expanded role for government and in reducing the checks and balances provided under the Constitution.
There are still better ways, of course, to determine the outcome of the “battle of the experts,” although evaluating their reputations may be the quickest and (therefore) the most practical method for busy people. By far the best and most worthwhile way is by reading and becoming familiar with original sources. For from its founding, America has been a country which believes in self-governance. We should thoroughly reject the idea that we should be governed by those who believe themselves our betters. And while our ability to govern ourselves has been severely undermined by those who have, over the decades, interpreted our Constitution so as to keep power in the hands of the powerful, Article V was written that we might reclaim our right of self-governance, for just such a time as this. We have only to use it.
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[1] Note transcript at 10:12, where Eric Minor points out that JBS supported the use of Article V by the states from 1958 through 1983. The reasons for their switch are unclear but coincide with a “disinformation campaign” conducted by the Left during those years. See Natelson article, supra.
[2] However, if JBS wants to be guided by history, they should refer to the actual history of interstate conventions in the United States. As pointed out by Eric Minor (and as detailed by Rob Natelson in his book), the U.S. interstate convention process has a track record of success.
[3] See generally The Liberty Amendments, Mark Levin, Simon & Schuster, Inc. (2013)
[4] There have been at least 33 interstate conventions in American history. Five Myths About an Article V Convention, Dunaway, Rita https://conventionofstates.com/files/article-13-five-myths-about-an-article-v-convention
[5] JBS further argues that the convention could decide to change the ratification process.
[6] See Is Nullification the Answer? https://conventionofstates.com/files/is-nullification-the-answer-1
[7] Natelson, Robert, supra, The Liberal Establishment’s Disinformation Campaign Against Article V and How It Misled Conservatives, p. 9.
[8] The late Justice Antonin Scalia is sometimes claimed to have opposed Article V based upon remarks he made in 2014 on a televised interview (The Kalb Report). However, this does not appear to be for the reasons the opponents of Article V would have you believe. (Also notice that he uses the term “constitutional convention” which refers to a convention to re-write the Constitution, and not the Article V process for proposing amendments here.) Here is the full text:
Q: “Justice Stevens recently suggested a Constitutional amendment to modify the Second Amendment. If you could amend the Constitution in one way, what would it be and why? Justice Scalia?
A: (Justice Scalia) “I certainly would not want a constitutional convention. I mean, whoa! Who knows what would come out of that. But if there were a targeted amendment that were adopted by the states, I think the only provision I would amend is the amendment provision. I figured out at one time what percentage of the populace could prevent an amendment to the Constitution, and if you take a bare majority by population, I think something less than 2% of the people can prevent a constitutional amendment. It should be hard, but it shouldn’t be that hard.” The Kalb Report - Ruth Bader Ginsberg & Antonin Scalia - YouTube (emphasis mine).
