The History and Future of Article V: A Conversation

Convention of States Co-Founders Mark Meckler and Michael Farris recently reunited for a trip down memory lane, recounting the rich history of the grassroots Article V movement and charting their vision for its future. For newcomers and seasoned COS veterans alike, we trust you will find this conversation informative and inspiring. We’re excited to share the full transcript of their discussion, published in several parts, exclusively on the COS blog!

Mark Meckler: Thanks for the introduction. I am so excited about this conversation because I want to give you guys a little history.

I mean, a lot of you guys have been with us a long time. Not many since the very beginning; two of us since the very, very beginning, and you’re looking at the old guys right here. And so, I'm gonna start with a little bit of background from what — actually, let’s start with you because you go even further back than me.

You’ve done a lot of stuff in your career — Founder of Home School Legal Defense Association, fighting for the right of parents to school their kids in the way they see fit, founded Patrick Henry College. And then, at some point, you decided something else had to be done with our system of government. It wasn't working the way it was intended to work. And you started to delve into this idea of using Article V. Why don't you talk about your thought process before you and I even met?

Michael Farris: Sure, Mark, and it's great to be with you and great to see all the attendees and the district captains and the volunteers and the people who really make COS a reality on a day-to-day basis and give me hope for the future of the country.

So, I have practiced constitutional law full-time since 1980. I’ve been a lawyer. I was doing all kinds of work for the first four years, but since 1980, I’ve been doing full-time constitutional litigation. And I also taught constitutional law at Patrick Henry College for 17 years. And especially there, I realized how many of the problems we face in the country are just simply a misuse of constitutional structure and authority. And if we have the ability to curtail the problems with interpreting the Constitution incorrectly, we really stop the runaway government.

You can call it anything you want. You can call it the swamp. You can call it runaway government. There are many ways to describe a government that's gotten way too big, and the basic problem is we don't know what the purpose of government is anymore.

If you think the purpose of government is to provide for your needs, you end up with socialism, and you end up not only broke, you end up in shackles. And so, there's just a natural progression toward government abuse, and we are progressing rapidly in that direction, and I wanted to do something about it.

I grew up, frankly, watching the men in my church have potluck suppers, and they talk about solving the problems of the church and then solving the problems of the city and the state and the nation and the world. And they had some pretty good ideas from time to time. They never did a blessed thing. It just drove me crazy. And so when I see a problem, I'm just wired to want to do something about it.

And so, there is a solution the Founders gave us, and I believe that’s real, and I believe it can be done. 

Everybody wanted to know: is it possible to legalize homeschooling in all 50 states? And I said, just watch what God and God's people can do. And it took 25 years, but what God and God's people can do was to make the recognition of homeschooling real in all 50 states. It was always legal, but the government just didn't figure that out. But we got it recognized, and so, I believe, this is just as real as that — just as uphill as that, but just as real as that.

The solution for our country is enormous. It's the whole freedom game that we're trying to impact in a way that nothing else has the potential to save it in the way that this does.

Meckler: So, Mike, you — what's interesting to me about this whole thought process is, and I know you this way, you're a fixer. So you're like, how do I fix this?

How did you come to Article V?

I'm a lawyer. You know, I went to law school. I don't think I had any inkling that you could use Article V to do this.

I discovered Article V about a year before I met you, which is, in me, God's intervention, preparing me to meet you. But I didn't really think you could do it. I co-hosted a conference at Harvard Law with Larry Lessig on the idea of using Article V. And I thought, OK, that's interesting. I'd never thought of that, but I was a skeptic. Not a skeptic in the sense I was afraid of it or worried about it, but I was a skeptic. Like, can you actually do that? I mean, it seems like it's such a high bar, and there are other things we need to worry about. But somehow you discovered that tool and said, no, this is it, this is the right tool in the tool kit.

Farris: Well, I got my attention to Article V, in general, pretty young as a lawyer. I was about two years out of law school when Congress passed an extension of time for the Equal Rights Amendment, and I was getting involved. I was still in private practice, but I was getting involved in more and more conservative political activity and legal activity in Washington State. And this lady named Dottie Roberts called me up. And Dottie, earlier in her life, before she became a Christian, had smoked a lot. So I can never tell the story without doing Dottie smoker's voice.

She said, “Mike, Congress just passed the extension of time on the ERA. What do you think about that?

And I said, “Well, Dottie, I think it's unconstitutional.”

She said, “So, what are you gonna do about that.” And “nothing” was not an acceptable answer to Dottie Roberts.

And so, I filed the first lawsuit challenging the constitutionality of Congress's bill — they passed it by a simple majority vote — to change the rules for ratifying the Equal Rights Amendment. I represented four Washington State legislators. I had the good sense to dismiss my original case about two weeks after I filed it and moved it to the Federal District Court in Idaho, where a very similar case had been filed by the Attorney General of Idaho and other team members and they were representing Idaho and Arizona legislators.

We all worked together. I still had a speaking role in the case, but I was two years out of law school. I had no business being lead counsel on that.

However, I did an in-depth immersion in Article V. In fact, I went to the National Archives during those days and held in my hand the actual ratification papers for every constitutional amendment — starting with the 13th amendment and going forward in the future to the modern times — to look at it because part of the arguments of the ERA were that the ratification documents weren't done correctly. And so, we were just comparing what had been done.

So I actually went to the National Archives, and I've looked — I'm probably the only person that's done that — looked at every single amendment and ratification document. So, I just got immersed in Article V. We weren't in the convention of states process then, but if you're going to litigate Article V, you gotta know what the whole thing is, and that's how I got involved.

Meckler: So, another interesting part of the story that I think most people don't know, which kind of surprised me because I bought it hook, line, and sinker when you told me, is you went to other organizations first. Convention of States was not your first stop. When you and I started to work together, we didn't have Convention of States as an organization. We had Citizens for Self-Governance. We were not very prominent. So, you had gone other places first and kind of pitched this idea around, right?

Farris: Yeah. That's essentially correct. I went to a meeting in Denver. Rob Natelson was there. Same people that have been behind the Balanced Budget Amendment (BBA) efforts were there. And we were just talking about the BBA and related Article V kind of ideas.

And I started looking at the aggregation issue relative to the Balanced Budget Amendment because they were passing in such different ways that I thought there was going to be litigation. And some of them were close calls, and some of them, they were probably gonna lose.

Meckler: Mike, can you explain real briefly what aggregation is for people who don't understand that?

Farris: When different states pass the same bill, the question is, are they close enough so that they all count for the same purpose? When the House and the Senate, whether it's in Congress or a state legislature, passes a bill, the normal rule is both legislative bodies have to pass the exact same bill for it to aggregate together and count as one bill.

And so, applying that standard to the Equal Rights Amendment, I went through that, for example — the hilarious thing was the National Organization for Women sent out a model ratification document that contained errors in the text of the BBA. They left a couple of words out. They had the punctuation wrong, and a bunch of states didn't ratify the real BBA. They ratified the model put out by the National Organization for Women. So I was sensitive to this aggregation issue from all of that. And I started looking at them and seeing — well, how close are these? 

And so, I made two arguments. One was: Look, these are going to be contested issues, and you may win, you may lose. Secondly, and more importantly, if you're gonna actually ratify, you need to have 34 states that in roughly the same period of time come together, so you have a chance of getting 38 to ratify. Because if you're taking something from 50 years ago or 75 years ago and trying to base that on your call for the convention, it says nothing about, for example, right now, there's a convention of states application valid from Massachusetts for a right to life convention. Well, if we got to 34, somehow, there's a right to life convention. You think Massachusetts would send a pro-life delegation? No. That ain't gonna happen. So my argument was, why don't we do it right?

One, let's broaden it out a little bit because the problem is bigger than a balanced budget. It's spending controls, it's power grabs, it's bigger. And secondly, let's do it with precision so that the exact same operative language is done in all 34 states.

Got some reluctance from the people who have been at this for a while. They kind of hemmed and hawed. And I said, “O.K., well, thanks for your interest, guys. Let's go do this differently.” And that's when I met you.”

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