Michael Farris parts ways with friend Phyllis Schlafly over Article V

Michael Farris parts ways with friend Phyllis Schlafly over Article V

Why we need a convention of the states now

Michael Farris parts ways with friend Phyllis Schlafly over Article V

By Michael Farris -Via WND.com-

Phyllis Schlafly was the general of the army in the battle against the Equal Rights Amendment. I was a line officer called into duty when, in 1978, Congress purported to change the deadline for the ratification of that amendment.

On behalf of three Washington state legislators, I filed the first legal challenge to the constitutionality of the misuse of the Article V process by Congress. My lawsuit was later consolidated with a similar case filed by state legislators from Arizona and Idaho.

Phyllis and I traveled together throughout Washington state to urge support for my lawsuit. She helped raise the funds that allowed us to battle both the federal government and the National Organization for Women.

We won that case at the federal district court level. The Supreme Court granted review but put the case on ice until the second deadline expired. When 38 states failed to ratify by the date of the “extended” deadline, the Supreme Court ruled the whole matter to be moot.

We were together then. Now Phyllis argues against the use of Article V, while I am helping to lead the effort for the Convention of States Project, which seeks to use the power of the states to rein in Washington, D.C.’s, abuse of power.

I tell this story to illustrate two points in response to Phyllis Schlafly’s latest argument against a convention of states. First, knowledgeable conservatives can legitimately disagree on this issue. Phyllis Schlafly and I have been friends for well over 30 years and have worked together on countless causes. She is a true blue conservative, and I am a true blue conservative. We both have substantial experience in Article V issues – she as a political leader and advocate and I as a constitutional litigator.

I am not the only true conservative to disagree with Phyllis on this. Talk-show host Mark Levin and Sen. Tom Coburn are among the many conservative leaders who, like me, have begun to call for a convention of the states to stop Washington, D.C., from abusing its power.

When longtime conservatives disagree, it is time to listen to the merits of their arguments rather than making snap judgments when one side proclaims that no conservative can disagree.

Recounting our work together on the ERA litigation leads to my second point. Phyllis argues, “Article V doesn’t give any power to the courts to correct what does or does not happen.” Phyllis knows better. She was present in the federal courtroom in Boise, Idaho, when I (along with other members of our litigation team) argued that Congress had misused its Article V power. We won in court. And Phyllis and I both celebrated that victory. The courts can and have stopped the abuse of the power granted by Article V.

But I disagree with Phyllis on an even more fundamental issue. She argues that the Constitution was illegally adopted as the result of a runaway convention. This argument is an old one, but the complete history shows it to be an unjustified slander against the Constitution itself.

The anti-federalists invented this calumny against the Constitution, and the public schools have repeated it for so many generations that most Americans accept it as true. I am baffled by any friend of the Constitution who argues that it was illegally adopted. Why should an illegal document be defended at all?

Proponents of the “illegal Constitution theory” like to point to the phrase that called the Convention “for the sole and express purpose of revising the Articles of Confederation.” But the call for the Convention issued by Congress didn’t end with that phrase. The very same sentence also said that the purpose of the Convention was to “render the federal constitution adequate to the exigencies of Government & the preservation of the Union.” The call of the Convention used the terms “Articles of Confederation” and “federal constitution” interchangeably in the same sentence.

The Convention wasn’t limited to proposing one amendment or a thousand. It wasn’t required to send a series of amendments back for individual consideration. It was perfectly within the call of the Convention to put together a new package to “render the federal Constitution adequate” to save the nation. And that is what the participants did.

In order to negate the slander against the Constitution, it is incredibly important to understand the next two steps in the process of its adoption and to compare them with the requirements for amendments to the Articles of Confederation. Any change to the Articles required the approval of Congress and the ratification by all 13 state legislatures.

The Constitutional Convention proposed two important changes in this process. First, rather than having the Constitution approved by state legislatures, they recommended convening special ratification conventions in each state. Second, they recommended that the number of states required to approve the Constitution be changed from 13 to nine.

It is the change in the amendment process that receives the most attention from those who claim that the Constitution was illegally adopted.

But contrary to what you were taught in the public schools, that change in process did not happen without proper approval. Congress first approved the new process and sent this recommendation to the state legislatures. All 13 state legislatures approved the new process by calling for ratification conventions in their own states.

The requirements of the Articles of Confederation were meticulously followed. Congress and all 13 state legislatures approved the change in the ratification process. It is true that the Constitution was approved by this new process, but the change in process itself was first approved by use of the old rules under the Articles. To call the Convention a “runaway convention” is not just a myth – it is defamation against both the Constitution and the Founders.

I respectfully contend that it is time to stop demeaning the Founders and start using the tools they gave us to stop a true runaway government – the one that is functioning today in Washington, D.C.

At the Constitutional Convention, George Mason insisted that the states be given the power to propose amendments to the Constitution without needing approval from Congress. He argued that if the federal government abused its power – as he predicted it certainly would – it would never consent to any corrective action. Only the states could be trusted to rein in federal abuses of power.

Those who oppose the use of Article V have not proposed an equally effective solution to stop the abuse of power in Washington, D.C. Phyllis and I have labored side by side for decades, trying to elect conservatives and lobby Congress to follow the Constitution. While we have had successes here and there, it cannot be doubted that Washington, D.C.’s, abuse of power has grown dramatically – with no end in sight.

Which do we reasonably fear more? A runaway federal government on a path to destroy our liberty? Or a convention of the states given the clear and enforceable mandate to correct the abuses of power by the federal government?

Many knowledgeable conservative scholars have made the unimpeachable case that the checks and balances contained in Article V will prevent any mischief. For heaven’s sake, 38 states are required to ratify a new amendment. If we can’t get 13 states to stop something crazy, we are wasting our time trying to save the republic.

Day by day and year by year, Washington, D.C., is deliberately and persistently increasing its power. Washington, D.C., will never fix itself. The framers gave the states the power to amend the Constitution to limit the power of the federal government should it abuse the original document.

That abuse is more than apparent to any reasonable American. A convention of states under Article V is our only realistic hope of saving our liberty. I fear Washington, D.C., far more than I fear the Founders, the states and Article V.

Michael Farris is a U.S. constitutional lawyer. He is a founder of the Home School Legal Defense Association (HSLDA) and Patrick Henry College


  1. Good article. I like the idea of a states convention.

  2. Gail Keller says:

    Sadly, Mr. Farris speaks not to Phyllis Schlafly’s objections to an Article V convention, but to questions he can easily answer. He certainly is positive that the 3 branches of govt. would enforce the new amendments better than they currently enforce the Constitution. I am not sure that reason would be so optimistic.

    One of Schlafly’s questions is, how many delegates will come from each state? Farris hopes that it will be like the Senate, the same number. Schlafly says, hold on – Democrats would prefer to have one per Congressional district, or delegates tied to the number of Electoral votes. California has 55, my purple state has 10. Do I want California, New York, Texas and Florida to control the convention? Not I.

    The original Constitutional convention required the states to approve it. A new Article V convention could say that it’s approved if only 51% of the states approve it. I do not think that its delegates will be as wise as our Founding Fathers were.

    No less of a scholar and jurist than the late SC Chief Justice Warren Burger was in complete agreement with Schlafly, and disagreement with what Farris believes.

    Read this to see Schlafly’s main objections. Thank you for posting, to help in the discussion of the value of an Article V convention.

    Click to access 20Questions.pdf

    Here is Schlafly’s compendium of arguments against an Article V convention. You can see that his article doesn’t deal with her many concerns.

    Thanks again for the post. Conservatives need to educate themselves and discuss this important issue.

    • Hi Gail. Have you read Mark Levin’s book, The Liberty Amendments? Have you read Rob Natelson’s work on this subject?

    • Irene And John says:

      These are interesting questions and nobody answers them. Where did the framers say how many votes each state would have? How many delegates? If anyone can answer, please do. Add links and references.
      Irene and John

    • Hello! Rob Natelson answers many of Schlafly’s objections here: http://www.americanthinker.com/2013/08/the_myth_of_a_runaway_amendments_convention.html Please read to get both sides of the issue!

      • Thank you for this informative link. I heard Michael Farris was at the Cuccinelli rally in Sterling the other day. I wish I could have gone but I was too busy. I would love to meet Mr. Farris one day. I followed you on twitter. Keep up the good work with The Convention of States Project. The American people appreciate what all of you are doing.

    • With all due respect it appears that Gail has not spent the time to actually read Levin’s book or review Natelson’s and Farris’ work on Article V. Prof. Natelson, a law prof. for over 25 years, and now a scholar in residence at the Independence Institute is widely considered the premier scholar in the country on Article V. Michael Farris, Chancellor of Patrick Henry College, and the founder of the Home School Legal Defense Association is one of the few attorneys in the country ever to argue an Article V case before SCOTUS. Levin is widely respected as a serious conservative, Constitutional lawyer, and scholar, in addition to his on-air presence. If you want the facts, based on the actual history, you must be familiar with their work. You can start with this YouTube video where Natelson does a thorough take down on the idea of the risk of a “runaway” convention. http://www.youtube.com/watch?v=XzMpSdc5jRQ For a complete discussion of the subject, you can download the Convention of States Handbook here: http://dqdqcwd2kvidt.cloudfront.net/sites/default/files/ConventionOfStates_Handbook_0.pdf. If you want to really understand the whole subject, you should read Levin’s book, which you can get at Amazon. And if you’re interested in getting involved by volunteering (thousands already have), you can do so by going to http://www.SelfGovern.com.

      • Mark, thank you for this brilliant comment. I heartily concur with everything you said! Levin’s best selling book is fabulous and thoroughly covers the subject matter. I had posted one of Prof. Natelson’s youtube videos a couple of weeks ago on this site and I just made it a sticky post so it will stay on the front page.God bless you.

  3. Tenth Amendment Center says:

    Farris is wrong. Levin is wrong. I stand with Thomas Jefferson
    Tenth Amendment Center


  1. […] Even constitutional lawyer, Michael Farris, who is both a colleague and a friend of Phyllis Schlafly…. Farris states ” I fear Washington, D.C., far more than I fear the Founders, the states and Article V.” I could not agree with him more. Michael Farris is leading the effort to make this idea a reality with The Convention of States Project. […]

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