The History and Future of Article V: A Conversation vol. 3

To know where we’re going, we have to remember where we come from. Convention of States Co-Founders Mark Meckler and Michael Farris recount the rich history of the Article V movement and chart their vision for its future. For newcomers and seasoned COS veterans alike, we trust you will find this conversation informative and inspiring.

Read parts one and two here!

Michael Farris: Virginia was the first to pass a call for the 1787 Constitutional Convention using the language “render the federal constitution adequate for the exigencies of the union.” A total of six states did exactly the same thing before Congress basically endorsed the idea. They endorsed the idea, but they gave their opinion that the convention should only amend the Articles of Confederation. But it wasn’t the official call for the convention. It’s not what gave the delegates their authority. If the delegates violated their authority, you must compare what they did to what their states told them to do.

In fact, if you read the debates of the Constitutional Convention — Madison has notes, there are a few other notes that are in existence — every single time the question came up, they said, well, let’s go read our credentials from our states. And so, it was the states that called the convention. It was the states that gave them their authority.

Twelve states showed up. Rhode Island chose not to come. They didn't have to. Nine states did exactly what Virginia did. Connecticut basically just paraphrased it. New York followed what Congress said, and Massachusetts did both. It did what Virginia said and what Congress said.

Now, New York didn't vote after July. Once it became clear that they were going to write a new document. Two guys from New York went home, and under the rules of the New York legislature, unless all three delegates were there, New York ballots couldn't be cast. So Alexander Hamilton stayed and debated, but he never cast a vote for New York. So New York delegates obeyed their instructions.

There was a resolution in Massachusetts at the ratification convention, saying that they should condemn their delegates for violating their instructions. And there was a vote taken by the Massachusetts ratification convention on that question, and by an overwhelming majority — by about a 2 to 1 margin — the people in Massachusetts said, “No, they obeyed their instructions.” The best evidence of whether the Massachusetts delegates obeyed their instructions is what those people in Massachusetts said in the immediate aftermath of what had happened. And so the question of whether they obeyed their instructions — it's really clear, they obeyed their instructions.

The Constitutional Convention did not pass only one document. It passed two documents. The first document was the Constitution itself, which was a recommendation. The second document was a recommendation on the new process. And they sent both of those documents to the Congress in Philadelphia, and the Congress in Philadelphia voted only on the recommendation of the new process. They approved it unanimously, and then they sent it out to the 13 state legislatures to authenticate the new process.

All 13 state legislatures originally rejected the Constitution. All of them approved the new process. How were you supposed to change the process under the Articles of Confederation? Congress was supposed to unanimously approve it. All 13 states were supposed to unanimously approve it. How did we get the new process for the Constitution? Exactly the same way: Congress approved it completely, and 100% of the state legislatures voted to use the new process. Both from a substance perspective — what authority did they have? — and the process they got to, they did it exactly right.

They didn't really mean to, exactly. I think it was God's mercy and guidance because Alexander Hamilton and James Madison were generally really aligned. But when it came to the ratification process, they were enemies on that question. Basically, Hamilton wanted to do it one way, and Madison wanted to do it the other way. And they finally said, “OK, let's do both.” They sent it to Congress and they sent it to the States, and by doing both, that was the right answer. That was the legally correct answer. 

Mark Meckler: Yeah, Mike, I've heard Madison quoted by our opponents saying that Madison said, or others at the convention said that the delegations exceeded their authority. Did you find any evidence for that?

Farris: No, no, there's no evidence whatsoever of that. People have been saying that from the beginning. The person most responsible for saying that in my lifetime was Chief Justice Warren Burger. Warren Burger, by the way, was the mastermind behind Roe v. Wade. And at the time, he started campaigning against using Article V. There were 19 states that had resolutions to call for an Article V convention on the question of reversing Roe v. Wade, and Burger became friends with Phyllis Schlafly [a famous Article V opponent] when they were both on the Commission on the Bicentennial of the Constitution. And in that capacity, Warren Burger made a speech that the Constitution of the United States was illegally adopted.

How can you be the Chief Justice of the United States Supreme Court, be the head of the Commission on the Bicentennial of the Constitution, and then argue it was illegally adopted?

To be continued…