Convention of States
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Convention of States A Handbook for Legislators and Citizens Third Edition ConventionOfStates.com SelfGovern.com
Transcript of Convention of States
Convention of States
A Handbook for Legislators and Citizens
Third Edition
ConventionOfStates.com
SelfGovern.com
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3Washington, D.C., Is Out of Control and Will Not Relinquish Power. . . . . . . . . . . . . . 4The Founders Gave Us a Solution: A Convention of States. . . . . . . . . . . . . . . . . . . . . . 6How Our Proposal Differs from Other Article V Plans . . . . . . . . . . . . . . . . . . . . . . . . . 8Our Political Plan to Call a Convention of States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Why a Convention of States Is the Safest Alternative to Preserve Our Liberty. . . . . . 10We Know How a Convention of States Would Operate . . . . . . . . . . . . . . . . . . . . . . . . 11Action Steps for Legislators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Action Steps for Citizens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Leadership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Model Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
“Can We Trust the Constitution? Answering the ‘Runaway Convention’ Myth” by Michael Farris . . . . . . . . . . . . . . . . . . . . . . . . . 17
Excerpts from “Founding-Era Conventions and the Meaning of the Constitution’s ‘Convention for Proposing Amendments’ ” by Professor Robert G. Natelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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Table of ContentsThe Case for a Convention of States
A PROJECT OF CITIZENS FOR SELF-GOVERNANCE
A Solution As BIG As The Problem!
The public widely believes our nation is headed in the wrong direction. They believe that futureprospects are troubling, not only for this generation but for generations to come.
The public is correct.
What is not widely known is that the Constitution itself provides a real, effective solution. MarkLevin’s bestselling book, The Liberty Amendments, has opened the eyes of millions of Americansto the possibility of stopping the federal abuses of power through a Convention of States. Althoughwe began the COS Project independently, our plan is a near-perfect match with Levin’s ideas.
The plan we propose does not commit us to any particular amendments. That will be up to thestates when they convene. But it does commit us to a particular subject—proposed amendmentsmust be designed to limit the power of the federal government.
Introduction
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Washington, D.C., Is Out of Control and Will Not Relinquish PowerWe see four major abuses of the federalgovernment:
• The Spending and Debt Crisis
• The Regulatory Crisis
• Congressional Attacks on State Sovereignty
• Federal Takeover of DecisionMaking
These abuses are not mere instances ofbad policy. They are driving us towardsan age of “soft tyranny” in which thegovernment “softens, bends, andguides” men’s wills. If we do nothing tohalt these abuses, we run the risk ofbecoming, as Alexis de Tocquevillewarned in 1840, nothing more than “a flock of timid and industrious ani-mals, of which the government is theshepherd.”
1. The Spending and Debt CrisisThe $17 trillion national debt is stagger-ing, but it only tells a part of the story.If we apply the normal rules of businessaccounting, the federal governmentowes at least $50 trillion more in vestedSocial Security benefits and other pro-grams. This is why the government can-not tax its way out of debt. Even if itconfiscated everything owned by pri-vate citizens and companies, therewould still not be enough to cover thedebt.
2. The Regulatory CrisisThe federal bureaucracy has placed aregulatory burden upon businesses thatis complex, conflicted, and crushing.Little accountability exists when exec-utive agencies—rather than Congress—enact the real substance of the law.Research from the American EnterpriseInstitute, shows that since 1949 federal
regulations have lowered the real GDPgrowth by 2% and made America 72% poorer.
3. Congressional Attackson State SovereigntyFor years, Congress has been using fed-eral grants to keep the states under itscontrol. By attaching mandates to fed-eral grants, Congress has turned statelegislatures into their regional agenciesrather than treating them as truly inde-pendent republican governments.
A radical social agenda and an erosionof the rights of the people accompanyall of this. While substantial effortshave been made to combat social engi-neering and protect peoples’ rights, wehave missed one of the most importantprinciples of the American founding.State legislatures need to be free toimplement the will of the voters in theirown states, not the will of Congress.
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“If we do nothing to halt
these abuses, we run the
risk of becoming, as
Alexis de Tocqueville
warned, nothing more
than ‘a flock of timid and
industrious animals, of
which the government is
the shepherd.’ ”
4. Federal Takeover of theDecision Making ProcessThe Founders believed the structures ofa limited government would provide thegreatest protection of liberty. Therewere to be checks and balances at thefederal level. And everything not specif-ically granted to Congress for legisla-tive control was to be left to the statesand the people.
Collusion among decision makers inWashington, D.C., has overrun thesechecks and balances. The federal judi-ciary supports Congress and the WhiteHouse in their ever-escalating attackupon the jurisdiction of the fifty states.This is more than an attack on the inde-pendence of the states. This robs thepeople of their most fundamental lib-erty—the right of self-governance.
We need to realize that the structure ofdecision making matters. Who decideswhat the law shall be is even moreimportant than what is decided. The
protection of liberty requires a strictadherence to the principle that power islimited and delegated.
Washington, D.C., does not believe this principle, as evidenced by anunbroken practice of expanding theboundaries of federal power. In aremarkably frank admission, theSupreme Court rebuffed a constitutionalchallenge to the federal spending powerby acknowledging its approval of pro-grams that violate the original meaningof the Constitution:
This framework has been sufficientlyflexible over the past two centuries toallow for enormous changes in thenature of government. The FederalGovernment undertakes activitiestoday that would have been unimag-inable to the Framers in two senses;first, because the Framers would nothave conceived that any governmentwould conduct such activities; andsecond, because the Framers wouldnot have believed that the Federal
Government, rather than the States,would assume such responsibilities.Yet the powers conferred upon theFederal Government by the Constitu-tion were phrased in language broadenough to allow for the expansion ofthe Federal Government’s role.
New York v. United States, 505 U.S.144, 157 (1992).
This is not a partisan issue. Washington,D.C., will never voluntarily relinquishmeaningful power—no matter who iselected. The only rational conclusion isthis: unless some political force outsideof Washington, D.C., intervenes, thefederal government will continue tobankrupt this nation, embezzle the legit-imate authority of the states, anddestroy the liberty of the people. Ratherthan securing the blessings of liberty forfuture generations, Washington, D.C., ison a path that will enslave our childrenand grandchildren to the debts of the past.
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“This is not a partisan issue.
Washington, D.C., will never
voluntarily relinquish
meaningful power — no
matter who is elected.”
“We need to realize that the
structure of decision-making
matters. Who decides what
the law shall be is even
more important than what
is decided.”
Most people don’t know that there aretwo methods to propose amendments tothe Constitution.
1. Two-thirds of each house of Congress agrees to propose a partic-ular amendment; or
2. Two-thirds of the state legislaturespass applications for an amend-ments convention.
The Founders knew the federal govern-ment might one day become drunk withpower. The most important check to thispower is Article V. Article V gives statesthe authority to hold a convention forthe purpose of proposing amendmentsto the Constitution.
By calling a convention of states, wecan stop the federal spending and debt spree, the power grabs of the fed-eral courts, and other misuses of federal power. The current situation isprecisely what the Founders feared, andthey gave us a solution we have a dutyto use.
After the states propose, debate, andvote upon the proposed amendments,they will be sent to the 50 state legisla-tures for ratification. Congress mustchoose one of two “modes of ratifica-tion.” They can either submit theamendments to state conventionselected for that purpose or to the statelegislatures. Three-quarters of the states
must agree for any of the proposedamendments to be ratified.
Congress has no authority to stop such a process. The Founders made sureof that.
We are approaching a crossroads. Onepath leads to the escalating power of anirresponsible centralized government,ultimately resulting in the financial ruinof generations of Americans. The otherpath leads to the restoration of libertyand an American renaissance.
Which will you choose?
The Founders Gave Us a Solution: A Convention of States
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“By calling a convention of states, we can stop the federal
spending and debt spree, the power grabs of the federal courts,
and other misuses of federal power.”
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The Congress, whenever two thirds of both Housesshall deem it necessary, shall propose Amendmentsto this Constitution, or, on the Application of theLegislatures of two thirds of the several States,shall call a Convention for proposing Amend-ments, which, in either case, shall be valid to allIntents and Purposes, as part of this Constitution,when ratified by the Legislatures of three fourthsof the several States, or by Conventions in three
fourths thereof, as the one or the other Mode ofRatification may be proposed by the Congress;Provided that no Amendment which may be madeprior to the Year One thousand eight hundred andeight shall in any Manner affect the first and fourthClauses in the Ninth Section of the first Article;and that no State, without its Consent, shall bedeprived of its equal Suffrage in the Senate.
Article V, U.S. Constitution
A story from the Convention of 1787:
“On September 15, as the Convention
was reviewing the revisions made by the
Committee of Style, George Mason
expressed opposition to the provisions
limiting the power to propose amendments
to Congress. According to the Convention
records, Mason thought that ‘no amend-
ments of the proper kind would ever be
obtained by the people, if the Government
should become oppressive, as he verily
believed would be the case.’ In response,
Gouverneur Morris and Elbridge Gerry
made a motion to amend the article to
reintroduce language requiring that a
convention be called when two-thirds ofthe States applied for an amendment.”
30 Harvard Journal of Law and
Public Policy 1005, 1007 (2007).
We believe our strategy gives us anexcellent chance of success.
Two goals separate our plan from allother Article V efforts:
1. We want to call a convention for aparticular subject rather than a par-ticular amendment. Instead of callinga convention for a balanced budgetamendment (though we are entirelysupportive of such an amendment),we want to call a convention for thepurpose of limiting the power andjurisdiction of the federal govern-ment.
2. We believe the grassroots is the keyto calling a successful convention.The goal is to build a political oper-ation in a minimum of 40 states, get-ting 100 people to volunteer in atleast 75% of the state legislative dis-trict (that’s 3,000 districts). Webelieve this is very realistic. Throughthe support of the American peoplethis project will succeed.
Our Solution Is Big Enough to Solve the ProblemRather than calling a convention for aspecific amendment, Citizens for Self-Governance has launched the Conven-tion of States Project to urge statelegislatures to properly use Article V tocall a convention for a particular sub-ject—reducing the power of Washing-ton, D.C. It is important to note that aconvention for an individual amend-ment (e.g. a balanced budget amend-ment) would be limited to that singleidea. Requiring a balanced budget is agreat idea that CSG fully supports. Con-gress, however, could comply with abalanced budget amendment by simply
raising taxes. We need spendingrestraints as well. We need restraints ontaxation. We need prohibitions againstimproper federal regulation. We need tostop unfunded mandates.
No current Article V proposal has beenable to reach the 34 state applicationsneeded to call a Convention of States.There is not enough momentum behindany one amendment. Ideally, the Con-vention of States Project allows all theseArticle V efforts to combine, givingthem the collective force necessary tocall a convention.
Once called, the delegates will be ableto debate and propose a complete pack-age of restraints on all branches of thefederal government. This is what ourplan will do. It would allow ALLamendments germane to “limiting thepower and jurisdiction of the federalgovernment” to be considered.
What Sort of Amendments Could Be Passed?The following are examples of amend-ment topics that could be proposed at aconvention of states:• A balanced budget amendment• Reducing federal spending power
(fixing the General Welfare Clause)• Reducing federal regulatory power
(fixing the Commerce Clause)
• A prohibition of using internationaltreaties and law to govern the domesticlaw of the United States
• A limitation on using Executive Ordersand federal regulations to enact laws(since the Congress is supposed to bethe exclusive agency to enact laws)
• Imposing real checks and balances on the Supreme Court (such as term limits)
• Placing a limit on federal taxation
Of course, these are merely examples ofwhat could be up for discussion. So longas a proposed amendment relates to lim-iting the power of the federal govern-ment, the Convention of States itselfwould determine which ideas deserveserious consideration, and it will take amajority of votes from the states to for-mally propose any amendments.
American citizens have become so frus-trated with runaway federal power thatthey have begun discussing ideas likenullification and even secession. Suchideas are not only impractical; theycould ultimately lead to a violent con-flict. We need not turn to such dangerousalternatives. The Founders gave us alegitimate path to save our liberty byusing our state governments to imposebinding restraints on the federal govern-ment. We must use the power granted tothe states in the Constitution.
How Our Proposal Differs from Other Article V Plans
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“The Founders gave us a legitimate path
to save our liberty by using our state
governments to impose binding restraints
on the federal government.”
The GrassrootsThe leadership of the COS Projectbelieves the success of a Convention ofStates depends directly on American citizens. Our plan is not only simple, itis realistic:
• We will build a viable political opera-tion that is active in at least 40 states.
• These 40 states have approximately4,000 state house districts. Our goal isto have a viable political operation inat least 3,000 of these districts.
• We will have 3,000 district captainswho will organize at least 100 peoplein each district to contact their state legislators to support a conven-tion of states, and turn out at least 25 people per district at legislativehearings.
Legislators must know that our grass-roots team will have their backs if theysupport a Convention of States. A wide-spread grassroots organization has beenmissing from the Article V movement.
CSG’s President, Mark Meckler, wasthe co-founder of the Tea Party Patriots— the largest tea party group inthe country. Michael Farris is thefounder of the Home School LegalDefense Association. As such, he bringswith him over 30 years of grassrootsleadership and activism in all 50 states.Eric O’Keefe was the lead organizer forthe term limits movement that resultedin 23 states passing ballot initiatives tothat effect. We not only have experi-enced staff for this project, but we arealso networking with like-minded coali-tion members across America.
The strategic advantage of a fresh starton the application process is that we willbe building current grassroots opera-tions in all of the states neededto ratify any proposed amendments, andhave them all addressed at one conven-tion. If one of the existing proposals(such as the balanced budget applica-tions) achieved 34 valid applications,CSG certainly would support it as well.
Unfortunately, the balanced budget planrelies on applications that were enactedten, twenty, and thirty years ago. The grassroots organizations thatachieved those victories are long gone.Starting fresh insures that we have cur-rent political operations in all the statesnecessary to actually ratify any proposed amendments.
Starting fresh also allows us to avoidany legal difficulties that may arise dur-ing the “aggregation” process. Applica-tions must deal with the same issue inorder for them to be counted towards thenecessary 34 states (or, in order for themto be “aggregated”). Many of the bal-anced budget applications, for example,are sufficiently different that they maybe subject to legal challenge when thetime comes to determine which statesare included in the count. It is unlikelyall balanced budget applications cur-rently pending will be successfullyaggregated. We will be proceeding witha unified application using the sameoperative language in all states.
Thus, there is both a legal advantage(clear aggregation) and a politicaladvantage (current grassroots network-ing) to a fresh start on the applicationprocess. Moreover, we will have agreater ability to protect our liberty byaddressing the full scope of the prob-lems in Washington, D.C., through aConvention of States.
This unique strategy combined withstrong grassroots support will provide aclear path to victory.
Only one question remains. Will youhelp?
Our Political Plan to Call a Convention of States
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The success of
a Convention
of States
depends
directly on
the American
citizens.
The most common objection to an Arti-cle V convention envisions a doomsdayscenario where delegates disregard thepurpose of the convention, rewrite theConstitution, and change the entireAmerican system of government. Thishas been called the “runaway conven-tion” scenario, and it is based on fearand misinformation.
Here are the facts:
1. There is a clear, strong single-sub-ject precedent that would almostcertainly be declared binding inthe event of a court challenge.There have been over 400 applica-tions from state legislatures for anArticle V convention in the historyof the Republic. No such conventionhas ever been called because therehas never been an application fromtwo-thirds of the states on a singlesubject. In addition to this, there is ahuge amount of historical precedentthat limits interstate conventions toa particular subject. See ProfessorRobert G. Natelson’s handbookhere: ww.alec.org/publications/article-v-handbook/. Also see hisessay on page 19.
2. Ratification of any proposedamendment requires the approvalof 38 states. It only takes 13 statesto vote “no” to defeat any proposedamendment. The chances of 38 statelegislatures approving a rogueamendment are effectively zero.
3. Improper changes to the processcan be legally challenged by statelegislators. Federal courts have heldthat Congress acted unconstitution-
ally when it changed the rules of theprocess in midstream. See, Idaho v.Freeman, 529 F. Supp. 1107 (D.Idaho 1981). CSG’s Senior Fellowfor Constitutional Studies, MichaelFarris, was lead counsel for severalWashington state legislators in thatlitigation.
4. There is absolutely no historicalprecedent for a runaway conven-tion. Many opponents of a Conven-tion of States make the historicallyfalse allegation that our Constitutionwas adopted as the result of an ille-gal runaway convention. This argu-ment was invented by the enemies ofthe Constitution and is unsupportedby historical fact. The truth is that thenew process for adopting the Consti-tution was unanimously approved by both the Congress and all 13states as required by the Articles ofConfederation. (See “Can We Trustthe Constitution?” by Michael Farrison page 17).
Thus, there are multiple lines ofdefense against any amendment thatdeparts from the original subject:(1) A majority of states at the Conven-tion would almost certainly vote such aproposal to be out of order; (2) If suchan amendment was proposed, a properlegal challenge would certainly be filedand have a great chance of success; (3) It is highly probable that at least 13states would defeat any such proposedamendment during the ratificationprocess; (4) It is a historical fallacy toargue that we have an established precedent of Conventions changing therules illegally.
American citizens must evaluate the rel-ative safety of two choices. Should weallow our runaway federal governmentto continue to abuse the Constitutionand the rights of the people, with thevague hope that someday Washington,D.C., will see the light and relinquishpower? Or should we call a Conventionof States, trusting that one of the manylines of defense will stop any misuse ofpower?
At the end of the day, we must trusteither Congress or the states. Recenthistory makes that an easy choice.Washington, D.C., is clearly the greatestdanger to our liberty.
We believe the choice is clear. A Con-vention of States is the safest path topreserve self-government and liberty.
Why a Convention of States Is the SafestAlternative to Preserve Our Liberty
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“At the end of the day,
we must trust either
Congress or the States.
Recent history makes
that an easy choice.
Washington, D.C., is
clearly the greatest
danger to our liberty.”
There are some who claim we knownothing about how a Convention ofStates would function. They say that noprecedent exists for such a convention,and it should be avoided due to all theunknowns. The historical record showsus that these assertions are plainly false.History tells us how a Convention ofStates would operate. Interstate conven-tions were common during the Found-ing Era, and the rules and proceduresfor such conventions were widelyaccepted. (For more on this historicalprecedent see Professor Natelson’s arti-cle on page 19.) According to ProfessorRobert Natelson, leading expert on theArticle V process, we know that:
• The “convention for proposingamendments” was consciously mod-eled on multi-state conventions heldduring the century leading up to the
Constitutional Convention, whenstates or colonies met together onaverage every 40 months. There arewell-established rules from these conventions that would govern anyconvention today.
• A Convention of States is a meeting ofsovereign governments, and eachstate has one vote. Each state commis-sioner is empowered and instructedby his or her state legislature.
• A convention “call” cannot determinehow many delegates each state sendsor how they are chosen. That is a mat-ter for each state legislature to decide.
• As was true of earlier interstate gath-erings, the convention for proposingamendments is called to propose solu-tions to discrete, pre-assigned prob-lems. There have been at least 36multi-state conventions in American
history. Not a single one exceeded itsprescribed mandate—not even theConstitutional Convention, despiteanti-historical claims to the contrary.
• The state legislatures’ applications fixthe subject matter for a convention forproposing amendments. When two-thirds of the states apply on a givensubject, Congress must call the con-vention. However, congressionalpower is limited to setting the initialtime and place of meeting.
The language in Article V does notspecify any procedural rules becausethe Founders knew them so well. Itwould have seemed unnecessary tospecify exactly how an interstate con-vention would operate. These rules arewell-established and would be upheldby the courts today.
We Know How a Convention of StatesWould Operate
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“The convention for
proposing amendments is
called to propose solutions
to discrete, pre-assigned
problems.” “When two-
thirds of the states apply on
a given subject, Congress
must call the convention.”
To call a Convention of States, 34 statelegislatures must pass applications onthe same subject matter. Governors playno official role in this process. A simplemajority rule applies unless the statelegislature has adopted prior rulesrequiring a different number.
“Aggregation” is the most importantissue for legislators to consider. Will
one state’s application be countedtoward the required 34-state majority,or will it be considered distinct fromthose of other states? The great varietyof applications for a proposed balancedbudget amendment demonstrates theproblem. Most legal scholars believethat a handful of the existing applica-tions will be considered sufficiently dis-tinct to deny aggregation status in a
final count. The best plan is for statelegislatures to adopt applications withoperative language that is identical or asclose to identical as possible. CSG’smodel application is contained in theAppendix on page 16. This modelapplication was drafted in consultationwith a wide range of constitutionalscholars, legislators, and citizenactivists.
Action Steps for Legislators
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“The best plan is for
state legislatures to
adopt applications
with operative
language that is
identical or as
close to identical
as possible.”
Ultimately, the success of a Conventionof States depends on the citizens of theUnited States. The grassroots will be theengine that drives this project. If Amer-icans are willing to sacrifice their timeand energy, there is still a chance to haltthe tyrannical abuses of the federal government.
In each state, we will appoint threestate-wide volunteer leaders: the StateDirector, Legislative Liaison, andCoalitions Director. These individualswill organize the movement across the state, coordinating volunteers, con-
necting with state legislators, and build-ing the grassroots network. In each statelegislative district, a District Captainwill be appointed to coordinate andmobilize volunteers in their district.
There are a number of ways volunteerswill be able to be involved in helpingmove the project forward:
• Recruiting friends, family, neighborsand co-workers to join the effort.
• Writing letters, making calls, and visiting state legislator’s offices toencourage them to support a Conven-tion of States.
• Attending legislative hearings to show support for a Convention of States.
• Organizing and speaking at events in your area as a representative for COS.
For more information about leadershipjob descriptions and volunteer opportu-nities visit www.conventionofstates.com.
The Founders gave us the tools to curb the federal abuse of power. It’stime we stand up and use them to pre-serve liberty—not only for ourselvesbut for posterity.
Action Steps for Citizens
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“The grassroots
will be the engine
that drives this
project.”
Mark MecklerCitizens for Self-Governance, President
B.A. in English Literature, San DiegoState University
J.D., with honors, University of thePacific McGeorge School of Law
Mark Meckler is the founder and President of Citizens for Self-Governance, an organization created to support grassrootsactivism in taking power from Washington, D.C., and return-ing it to its rightful owners, the citizens of the states. Meckleris widely regarded as one of the most effective and well-net-worked grassroots organizers in the nation and is regularlycalled on for political commentary in all forms of media.
Meckler is the co-founder and former National Coordinatorfor the Tea Party Patriots, the largest tea party organization inthe nation. He left the organization in February 2012 andfounded CSG to work more broadly on expanding the self-governance movement beyond the partisan divide.
As the President of CSG, Meckler makes sure that all projects,including Convention of States, are fully and appropriatelyfunded, staffed and managed, with a focus on strict steward-ship of donor dollars for maximum leverage and effect. Meckler is also personally involved in all media and publicrelations efforts.
Meckler and his wife Patty live in Northern California withtheir teenage children, where they share a love of outdoorrecreation and equestrian activities.
Eric O’KeefeCitizens for Self-Governance,Board of Directors
Eric O’Keefe has a 25-year history asan active strategist, board member,and donor with organizations workingto advance individual liberty, promotecitizen engagement and restore con-
stitutional governance. O’Keefe helped found U.S. Term Lim-its in 1991, and in recent years, co-founded the Campaign forPrimary Accountability, the Health Care Compact Alliance,and Citizens for Self-Governance. O’Keefe is also a foundingboard member of the Center for Competitive Politics and Cit-izens in Charge Foundation.
O’Keefe’s book on the corruption of Congress, “Who RulesAmerica,” won praise from the late freedom advocate Milton Friedman.
O’Keefe also serves on the board of directors of the WisconsinClub for Growth, which has been active defending Gov. Walker’s agenda during legislative campaigns, recallcampaigns, and legislative races.
When he is not engaged in political activities, O’Keefe is a private investor based in rural Wisconsin, where he and hiswife raised three children.
Michael FarrisCitizens for Self-Governance, Senior Fellow for ConstitutionalStudies, Head of Convention ofStates Project
B.A. in Political Science, magna cum laude, Western Washington University
J.D., with honors, Gonzaga University School of Law
LL.M., with merit, in Public International Law, University of London
Michael Farris is the Chancellor of Patrick Henry College andChairman of the Home School Legal Defense Association. Hewas the founding president of each organization.
Farris is a constitutional appellate litigator who has served aslead counsel in the United States Supreme Court, 8 federal circuit courts, and the appellate courts of 13 states.
He has been a leader on Capitol Hill for over 30 years and is widely known for his leadership on homeschooling, reli-gious freedom, and the preservation of American sovereignty.
A prolific author, Farris has been recognized with a number ofawards including the Salvatori Prize for American Citizenshipby the Heritage Foundation and as one of the “Top 100 Faces in Education for the 20th Century” by Education Weekmagazine.
Farris and his wife Vickie have 10 children and 17 grandchildren.
Leadership of the Convention of States Project
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Model Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
“Can We Trust the Constitution? Answering the ‘Runaway Convention’ Myth” by Michael Farris . . . . . . . . . . . . . . . . . . . . . . . . . 17
Excerpts from “Founding-Era Conventions and the Meaning of the Constitution’s ‘Convention for Proposing Amendments’” by Professor Robert G. Natelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Appendix
We want you to have all
of the information you
need to get involved.
Please see the materials
we’ve gathered for
you to be the most
informed person in
your community.
It’ll take hard work,
but it’s time to spread
the word!
Whereas, the Founders of our Constitution empowered State Legislators to be guardians of liberty against futureabuses of power by the federal government, and
Whereas, the federal government has created a crushing national debt through improper and imprudent spending,and
Whereas, the federal government has invaded the legitimate roles of the states through the manipulative processof federal mandates, most of which are unfunded to a great extent, and
Whereas, the federal government has ceased to live under a proper interpretation of the Constitution of theUnited States, and
Whereas, it is the solemn duty of the States to protect the liberty of our people—particularly for the generationsto come—to propose Amendments to the Constitution of the United States through a Convention of the Statesunder Article V to place clear restraints on these and related abuses of power,
Be it therefore resolved by the legislature of the State of _______________:
Section 1. The legislature of the State of _________ hereby applies to Congress, under the provisions of ArticleV of the Constitution of the United States, for the calling of a convention of the states limited to proposingamendments to the Constitution of the United States that impose fiscal restraints on the federal government,limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and formembers of Congress.
Section 2. The secretary of state is hereby directed to transmit copies of this application to the President andSecretary of the United States Senate and to the Speaker and Clerk of the United States House of Representatives,and copies to the members of the said Senate and House of Representatives from this State; also to transmitcopies hereof to the presiding officers of each of the legislative houses in the several States, requesting theircooperation.
Section 3. This application constitutes a continuing application in accordance with Article V of the Constitutionof the United States until the legislatures of at least two-thirds of the several states have made applications onthe same subject.
www.ConventionofStates.com Model Application for States
Application for a Convention of the StatesUnder Article V of the U.S. Constitution
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The Convention of States is a project of
Some people contend that our Consti-tution was illegally adopted as theresult of a “runaway convention.”They make two claims:
1. The convention delegates wereinstructed to merely amend the Articles of Confederation, but theywrote a whole new document.
2. The ratification process wasimproperly changed from 13 statelegislatures to 9 state ratificationconventions.
The Delegates ObeyedTheir Instructions from the StatesThe claim that the delegates disobeyedtheir instructions is based on the ideathat Congress called the ConstitutionalConvention. Proponents of this viewassert that Congress limited the dele-gates to amending the Articles of Con-federation. A review of legislativehistory clearly reveals the error of thisclaim. The Annapolis Convention, notCongress, provided the political impetusfor calling the Constitutional Conven-tion. The delegates from the 5 states par-
ticipating at Annapolis concluded that abroader convention was needed toaddress the nation’s concerns. Theynamed the time and date (Philadelphia;second Monday in May). The Annapolis delegates said they weregoing to work to “procure the concur-rence of the other States in the appoint-ment of Commissioners.” The goal ofthe upcoming convention was “to renderthe constitution of the Federal Govern-ment adequate for the exigencies of theUnion.” What role was Congress to play in call-ing the Convention? None. TheAnnapolis delegates sent copies of theirresolution to Congress solely “frommotives of respect.” What authority did the Articles of Con-federation give to Congress to call sucha Convention? None. The power ofCongress under the Articles was strictlylimited, and there was no theory ofimplied powers. The states possessedresidual sovereignty which included thepower to call this convention.Seven state legislatures agreed to senddelegates to the Constitutional Conven-
tion prior to the time that Congressacted to endorse it. The states told theirdelegates that the purpose of the Con-vention was the one stated in theAnnapolis Convention resolution: “torender the constitution of the FederalGovernment adequate for the exigenciesof the Union.” Congress voted to endorse this Conven-tion on February 21, 1787. It did not pur-port to “call” the Convention or giveinstructions to the delegates. It merelyproclaimed that “in the opinion of Congress, it is expedient” for the Con-vention to be held in Philadelphia on thedate informally set by the AnnapolisConvention and formally approved by 7state legislatures. Ultimately, 12 states appointed dele-gates. Ten of these states followed thephrasing of the Annapolis Conventionwith only minor variations in wording(“render the Federal Constitution adequate”). Two states, New York andMassachusetts, followed the formulastated by Congress (“solely amend theArticles” as well as “render the FederalConstitution adequate”).
Can We Trust the Constitution?Answering The “Runaway Convention” MythMichael Farris, JD, LLMChancellor, Patrick Henry CollegeSenior Fellow for Constitutional Studies, Citizens for Self-Governance
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We can’t walk
boldly into our
future, without first
understanding
our history.
Can We Trust The Constitution? Answering The “Runaway Convention” MythContinued from page 17
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History tells the story.
The Constitution was legallyadopted.
Now, let’s move on to gettingour nation back to the greatness the Founders originally envisioned.
Every student of history should knowthat the instructions for delegates camefrom the states. In Federalist 40, JamesMadison answered the question of “whogave the binding instructions to the del-egates.” He said: “The powers of theconvention ought, in strictness, to bedetermined by an inspection of the com-missions given to the members by theirrespective constituents [i.e. the states].”He then spends the balance of Federalist40 proving that the delegates from all 12states properly followed the directionsthey were given by each of their states.According to Madison, the February21st resolution from Congress wasmerely “a recommendatory act.” The States, not Congress, called theConstitutional Convention. They toldtheir delegates to render the FederalConstitution adequate for the exigenciesof the Union. And that is exactly whatthey did.
The Ratification ProcessWas Properly ChangedThe Articles of Confederation requiredany amendments to be approved byCongress and ratified by all 13 state leg-
islatures. Moreover, the Annapolis Con-vention and a clear majority of the statesinsisted that any amendments comingfrom the Constitutional Conventionwould have to be approved in this samemanner—by Congress and all 13 statelegislatures. The reason for this rule can be found inprinciples of international law. At thetime, the states were sovereigns. TheArticles of Confederation were, inessence, a treaty between 13 sovereignnations. Normally, the only way changesin a treaty can be ratified is by theapproval of all parties to the treaty. However, a treaty can provide for some-thing less than unanimous approval if allthe parties agree to a new approvalprocess before it goes into effect. This isexactly what the Founders did.When the Convention sent its draft ofthe Constitution to Congress, it also rec-ommended a new ratification process.Congress approved both the Constitu-tion itself and the new process.Along with changing the number ofrequired states from 13 to 9, the new rat-ification process required that state con-ventions ratify the Constitution rather
than state legislatures. This was done inaccord with the preamble of the Consti-tution—the Supreme Law of the Landwould be ratified in the name of “We thePeople” rather than “We the States.”But before this change in ratificationcould be valid, all 13 state legislatureswould also have to consent to the newmethod. All 13 state legislatures did justthis by calling conventions of the peopleto vote on the merits of the Constitution.Twelve states held popular elections tovote for delegates. Rhode Island madeevery voter a delegate and held a seriesof town meetings to vote on the Consti-tution. Thus, every state legislature con-sented to the new ratification processthereby validating the Constitution’srequirements for ratification. Those who claim to be constitutionalistswhile contending that the Constitutionwas illegally adopted are underminingthemselves. It is like saying GeorgeWashington was a great American hero,but he was also a British spy. I standwith the integrity of our Founders whoproperly drafted and properly ratifiedthe Constitution.
Overview Of Prior American ExperienceWith Conventions […]
A. Conventions Before the Constitution The Founders understood a political“convention” to be an assembly, otherthan a legislature, designed to undertakeprescribed governmental functions. Theconvention was a familiar and approveddevice: several generations of English-men and Americans had resorted to
them. In 1660 a “convention Parlia-ment” had recalled the Stuart line, in theperson of Charles II, to the throne ofEngland. A 1689 convention Parliamenthad adopted the English Bill of Rights,declared the throne vacant, and invitedWilliam and Mary to fill it. Also in1689, Americans resorted to at leastfour conventions in three differentcolonies as mechanisms to replaceunpopular colonial governments, and in1719 they held yet another.
During the run-up to Independence,conventions within particular coloniesissued protests, operated as legislatureswhen the de jure legislature had beendissolved, and removed British officialsand governed in their absence. AfterIndependence, conventions wrote sev-eral state constitutions.
Those state constitutions also resortedto conventions as elements of theiramendment procedures. The Pennsyl-vania Constitution of 1776 and the
Founding-Era Conventions and the Meaning of the Constitution’s
“Convention For Proposing Amendments”Professor Robert G. Natelson
The Independence Institute; Montana Policy Institute
April 22, 2012 65 Fla. L. Rev. 615 (2013)
[The following is an excerpt from Professor Robert G. Natelson’s Florida Law Review article titled below. For brevity allcitations have been removed. It can be downloaded in full at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2044296.
These excerpts are reprinted here with the permission of the Florida Law Review and Professor Robert G. Natelson.]
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“The Founders understood a
political ‘convention’ to
be an assembly, other than
a legislature, designed
to undertake prescribed
governmental functions.”
What does that mean
for a modern Convention
of States?
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Vermont Constitution of 1786 bothauthorized amendments conventionslimited as to subjects by a “council ofcensors.” The Massachusetts Constitu-tion of 1780 provided for amendmentby convention. The Georgia Constitu-tion of 1777 required the legislature tocall a convention to draft constitutionalamendments whose gist had been pre-scribed by a majority of counties.
Conventions within individual coloniesor states represented the people, towns,or counties. Another sort of “conven-tion” was a gathering of three or moreAmerican governments under protocolsmodeled on international diplomaticpractice. These multi-government conventions were comprised of delega-tions from each participating govern-ment, including, on some occasions,Indian tribes. Before Independence,such gatherings often were called “con-gresses,” because “congress” was anestablished term for a gathering of sov-ereignties. After Independence, theywere more often called “conventions,”presumably to avoid confusion with theContinental and Confederation Con-gresses. But both before and after Inde-pendence the terms could be employedinterchangeably.
Multi-government congresses or con-ventions were particularly common inthe Northeast, perhaps because govern-ments in that region had a history ofworking together. In 1643 the fourcolonies of Massachusetts, PlymouthColony, Connecticut, and New Havenformed the United Colonies of NewEngland. Essentially a joint standingcommittee of colonial legislatures, thisassociation was not always active, butendured at least formally until 1684. In1695, the Crown created the Dominionof New England, a unified governmentimposed on New England, New York,
and New Jersey. The Dominion provedunpopular, and in 1689 colonial con-ventions swept it away; nevertheless,northeastern governments continued toconfer together. Many of these meetingswere conclaves of colonial governors,usually conferring on issues of defenseagainst French Canada and her allied Indian tribes, rather than conven-tions of diplomatic delegations. Anexample from outside the Northeastwas the meeting of five governors held at Alexandria, Virginia in 1755.Many others, however, were full-dressconventions among commissionersappointed from three or more colonies.These meetings were usually, but not always, held under the sanction ofroyal authorities.
To be specific: Three colonies met atBoston in 1689 to discuss defenseissues. The following year, the actingNew York lieutenant governor called,without royal sanction, a defense con-vention of most of the continentalcolonies to meet in New York City. Themeeting was held on May 1, 1690, withNew York, Massachusetts Bay, Con-necticut, and Plymouth colonies inattendance. A similar gatheringoccurred in 1693 in New York, this timeunder Crown auspices. Other defenseconventions were held in New YorkCity in 1704, Boston in 1711, Albany in1744 and 1745, and New York City in1747. The New England colonies heldyet another in 1757.
In addition to defense conventions,there were conventions serving asdiplomatic meetings among coloniesand sovereign Indian tribes, particularlythe Iroquois. There were at least tensuch conclaves between 1677 and 1768involving three or more colonies. Thoseten included gatherings in 1677, 1689,1694, and 1722 at Albany, New York;
in 1744 at Lancaster, Pennsylvania; in1745, 1746, 1751, and 1754 at Albany;and in 1768 at Fort Stanwix (Rome), New York.
The assembly at Lancaster became oneof the more noted. Participants includedPennsylvania, Maryland, Virginia, andseveral Indian tribes. The proceedingslasted from June 22 to July 4, 1744, andproduced the Treaty of Lancaster. Evenmore important, however, was theseven-colony Albany Congress of 1754,whose proceedings are discussed in Part IV.A.
The most famous inter-colonial conven-tions were the Stamp Act Congress of1765 and the First Continental Con-gress of 1774, discussed in Parts IV.Band IV.C. As for the Second ContinentalCongress (1775-81), participants mightinitially have thought of it as a conven-tion, but it is not so classified herebecause it really served as a continuinglegislature.
After the colonies had declared them-selves independent states, they contin-ued to gather in conventions. All ofthese meetings were called to addressspecific issues of common concern.Northeastern states convened twice inProvidence, Rhode Island—in Decem-ber, 1776 and January, 1777, and againin 1781. Other conventions of north-eastern states met in Springfield, Mas-sachusetts (1777); New Haven,Connecticut (1778); Hartford, Con-necticut (1779 and 1780); and Boston,Massachusetts (1780). Conventions thatincluded states outside the Northeastincluded those at York Town, Pennsyl-vania (1777), Philadelphia, Pennsylva-nia (1780 and, of course, 1787), and Annapolis, Maryland (1786). Therealso were abortive calls for multi-state conventions in Fredericksburg,
Founding-Era Conventions and the Meaning of the Constitution’s “Convention For Proposing Amendments” Continued from page 19
Virginia, Charleston, South Carolina,and elsewhere.
Thus, the Constitutional Conventionof 1787—far from being the uniqueevent it is often assumed to be—was but one in a long line of similar gatherings.
Conclusion: What Prior Conventions Tell Us About The Convention For Proposing Amendments As noted above, Founding-Era customsassist us in understanding the attributesand procedures inherent in a “conven-tion for proposing amendments,” andthe powers and prerogatives of theactors in the process. This Conclusiondraws on the historical material col-lected above, together with the briefconstitutional text, to outline thoseattributes and procedures.
The previous record of American con-ventions made it clear that a conventionfor proposing amendments was to be,like its immediate predecessors, aninter-governmental diplomatic gather-ing—a “convention of the states” or
“convention of committees.” It was tobe a forum in which state delegationscould meet on the basis of sovereignequality. Its purpose is to put the “statesin convention assembled” on equalfooting with Congress in proposingamendments.
Founding-Era practice informs us thatArticle V applications and calls may askfor either a plenipotentiary conventionor one limited to pre-defined subjects.Most American multi-government gath-erings had been limited to one or moresubjects, and the ratification-era recordshows affirmatively that the Foundersexpected that most conventions for pro-posing amendments would be similarlylimited. Founding-Era practice informsus also that commissioners at anamendments convention were to oper-ate under agency law and remain withinthe limits of their commissions. Neitherthe record of Founding Era conventionsnor the ratification debates offer signif-icant support for the modern claim thata convention cannot be limited.
The only Founding Era efforts to insertin a convention call prescriptions otherthan time, place, and subject-matterwere abortive. When Massachusetts
presumed to set the voting rules whilecalling a third Hartford convention, twoof the four states invited refused to par-ticipate. In the few instances in whichconvention calls suggested how sover-eign governments should select theircommissioners, some of those govern-ments disregarded the suggestions, buttheir commissioners were seated any-way. This record therefore suggests thata convention call, as the Constitutionuses the term, may not include legally-binding terms other than time, place,and subject. However, the occasionalFounding-Era practice of making callsand applications conditional and ofresc ind ing them sugges t s tha t Article V applications and calls alsomay be made conditional or rescinded.In accordance with Founding-Era prac-tice, states are free to honor or rejectcalls, as they choose.
Universal pre-constitutional practicetells us that states may select, commis-sion, instruct, and pay their delegates asthey wish, and may alter their instruc-tions and recall them. Although thestates may define the subject andinstruct their commissioners to vote ina certain way, the convention as a whole
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“History and the
constitutional text
inform us that a
convention for proposing
amendments is, like
its direct predecessors,
a multi-government
proposing convention.”
Continued to page 22
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makes its own rules, elects its own officers, establishes and staffs its owncommittees, and sets its own time of adjournment.
All Founding-Era conventions weredeliberative bodies. This was true to acertain extent even of conventionswhose formal power was limited to anup-or-down vote. When Rhode Islandlawmakers submitted the Constitutionto a statewide referendum in townmeetings rather than to a ratifying con-vention, a principal criticism was thatthe referendum lacked the deliberativequalities of the convention. Critics con-tended that a ratifying convention,unlike a referendum, provided a centralforum for a full hearing and debate andexchange of information among peoplefrom different locales. They furthercontended that the convention offered away to supplement the affirmative ornegative vote with non-binding recom-mendations for amendments.
Before and during the Founding Era,American multi-government conven-tions enjoyed even more deliberativefreedom than ratifying conventions—as, indeed, befits the dignity of a diplo-matic gathering of sovereignties. Nomulti-government convention was lim-ited to an up-or-down vote. Each wasassigned discrete problems to work on,but within that sphere each enjoyedfreedom to deliberate, advise, consult,confer, recommend, and propose.Multi-government conventions alsocould refuse to propose. Essentially,they served as task forces where dele-gates from different states could shareinformation, debate, compare notes, andtry to hammer out creative solutions tothe problems posed to them.
History and the constitutional textinform us that a convention for propos-
ing amendments is, like its direct pred-ecessors, a multi-government proposingconvention. This suggests that anamendments convention is deliberativein much the same way its predecessorswere. This suggests further that when alegislature attempts in its application tocompel the convention to merely voteup-or-down on prescribed language, itis not utilizing the application power ina valid way.
Prevailing convention practice duringthe Founding Era permitted a few pro-cedural variations, and it is precisely inthese areas that the text of Article V pre-scribes procedure. Specifically:
• During the Founding Era, multi-stateconventions could be authorizedmerely to propose solutions for stateapproval, or, less commonly, toresolve issues; in the latter case eachstate “pledged its faith” to complywith the outcome. Article V clarifiesthat an amendments convention onlymay propose. At the ConstitutionalConvention, the Framers rejectedproffered language to create anamendments convention that couldresolve.
• During the Founding Era, a proposingconvention could be plenipotentiaryor limited. Article V clarifies that nei-ther the states nor Congress may callplenipotentiary conventions underArticle V, because that Article author-izes only amendments to “this Consti-tution,” and, further, it proscribescertain amendments.
• During the Founding Era, an “appli-cation” for a multi-government con-vention could refer either to (1) arequest from a state to Congress tocall, or (2) the call itself. Article Vclarifies that an application has onlythe former meaning.
• During the Founding Era a call could come from one or more states,from Congress, or from another con-vention. Article V prescribes that the call for an amendments conven-tion comes only from Congress, but is mandatory when two thirds ofthe states have submitted similarapplications.
• During the Founding Era, one propos-ing convention (that of 1787) hadattempted to specify how the stateswere to review its recommendations.Article V clarifies that an amend-ments convention does not have thispower.
Thus do text and history fit together toguide us in the use of Article V.
Founding-Era Conventions and the Meaning of the Constitution’s “Convention For Proposing Amendments” Continued from page 21
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Notes
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Notes
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