In the following letter Michael Farris answers common questions from a state representative. The letter came from The Convention of States website. I thought his answers would be helpful to all of us as we discuss Article V and the possibility of implementing new amendments through a state convention with our family and friends. – Alexis
The following is from an email exchange between Michael Farris and a state representative.
Thanks so much for your kind letter. I am happy to answer your questions.
Your first question:
1. “My greatest concern is that so few public officials seem to know the importance of the existing U.S. Constitution, and our society is so disconnected from the history and principles that delivered this nation to greatness. By opening the Constitution to such an ignorant population do we risk much more than we stand to gain?”
The short answer is that there is no realistic risk anything bad will happen as a result of a Convention of States. We will either do something good (or even very good), or we will accomplish nothing at all.
The reason I say this arises from the following chain of reasoning:
1. Washington, DC, is utterly broken.
2. Washington, DC, will never voluntarily relinquish power.
3. If we allow Washington, DC, to continue on its current course of big government, it will utterly destroy American liberty. Debt is the most tangible method of destruction. But big government complete with spying on the American public, the improper use of executive orders, over-regulation, etc., etc., will most certainly destroy American liberty relatively soon.
4. We must save liberty before it is too late.
5. Trying to elect more conservatives to Washington, DC, as a method of fixing this problem hasn’t worked. Even when we have had our best leaders there, they have been unable or unwilling to make the kind of structural changes necessary to save American liberty. Even Ronald Reagan could not deliver on his promise to eliminate the U.S. Department of Education.
6. The Founders gave us Article V for the very purpose of creating structural changes when the federal government abuses its power.
7. Even the anti-federalists of that generation who had opposed the adoption of the Constitution were not afraid to use Article V. The Virginia General Assembly, which was controlled by the anti-federalists, voted to apply for an Article V Convention, which they called a Convention of States, in the very first session of Congress under the Constitution. They wanted the Bill of Rights and other amendments suggested in the Virginia convention to ratify the Constitution.
8. The argument that we would be “opening up” the Constitution in a Convention of States under Article V is not correct. This argument is normally premised on an inaccurate understanding of the Constitutional Convention itself. People claim that the delegates were sent there merely to amend the Articles of Confederation, but once the subject was “opened up” they rewrote the Constitution. (As an aside, those who contend that the Constitution was illegally adopted usually call themselves “constitutionalists.” It is utterly inconsistent to claim to be a constitutionalist and to believe it was illegal from the get-go. It is like saying that George Washington was a great hero but he was also a British spy.) This argument is based on a misrepresentation of history, as I explain here. The 1787 Covention was not a “runaway,” and, therefore, there is no reason to fear it will “happen again.”
9. Every state legislature in the union, other than Hawaii, has at one time or another applied for a Convention of States. There have been over 400 such applications, yet we have never had a convention. Why not? Because there is a “unified subject rule.” The applications must aggregate to 2/3rds of the states (currently 34 states) and MUST BE called for the same purpose. We have never had 2/3rds of the states apply for the same purpose. The purpose the states outline in their applications is limiting and controlling for all stages of the process. We know as a historical fact that it controls the CALLING of the convention, and we know from the litigation I did that it is unconstitutional to change the process midstream. Thus, the subject matter limitation imposed by the states in their applications is binding at all stages of the process.
10. State legislatures control this process from beginning to end. Governors are irrelevant. Congress can only name the time and place. State legislatures name the delegates and give them their instructions.
11. All voting at a Convention of States is done on the basis of one state, one vote. Thus, it requires 26 states to approve anything as a “proposed constitutional amendment.” The convention has no more power than Congress. It can only propose amendments.
12. Thirty-eight states must ratify any proposed amendment.
13. The idea that anything crazy could make it through that process is simply untenable. We will either get good amendments or we will get nothing. If the Convention were appointed in some other manner, then there would be a lot more to worry about. But the people who must approve the work product–state legislatures–are the ones who name the delegates. They are also the ones who give the convention its subject matter.
14. At this point in our history, our country’s most conservative institutions are our state legislatures. We must act soon while conservatives still control this process. Otherwise big cities, big government, and big media will use their influence over Washington, DC, to ruin this nation and destroy our liberty.
I promise you, my other answers will be much shorter.
Your second question:
2. Would the legislatures’ efforts be more effectively directed toward holding office holders accountable to their oaths before changing the document that is the subject of the oath? For example, can the states effect impeachment of those key authorities who have been so derelict in their duties?
State legislatures currently have no power to impeach federal officials from their states. This is not a viable option.
This would, however, be a proper amendment to suggest at the Convention of States we are proposing. I like the idea of giving the state governments the power to impeach Congressmen and Senators from their states.
One of the amendments I had previously contemplated has a similar impact. The federal courts regularly refuse to rule on constitutional issues they want to avoid by calling them “political questions” or by claiming that no one has standing to sue to challenge these matters. (For example, legal challenges to a President taking us to war without a declaration of war is avoided by the political question/standing method). One of my ideas for an amendment would be to automatically grant state legislators standing to challenge any action of the federal government as violating its constitutional limitations.
We need better enforcement mechanisms, and we can get them through a Convention of States.
Your third question:
3. If we could and would first enforce the Constitution, then I expect we would see stronger support for amending it. But if we cannot enforce it, why go to the trouble and risk of attempting to amend it? Is it simply for the publicity/educational value? Obviously the discussion has caused a deep divide amongst conservatives who support the Constitution. This divide could end up costing us key seats on Election Day, as half of the conservatives may feel disenfranchised if this is pursued.
The big answer is this: Washington, DC, pretends to obey the Constitution, and the Supreme Court gives them cover. The vast majority of damage to our country has been done to us as the result of the misuse of two provisions in the Constitution–the Commerce Clause and the General Welfare Clause. You and I (and every sensible American) knows those in Washington have abused these Clauses. They can still pretend to obey the Constitution, however, because of how the Supreme Court has misinterpreted it. We have not gone so far down the road that people admit Washington disobeys the Constitution and it doesn’t matter.
If the American public believed Washington, DC, purposefully disobeys the Constitution, there would be huge political backlash.
We need proper amendments to effectively limit the power of the federal government—especially the courts. If I am a delegate to the Convention of States I will propose reconfiguring the Supreme Court after the model of the European Court of Human Rights. There are 46 nations in that court’s jurisdiction, and every nation appoints one judge. We should expand the Supreme Court to 50 justices and have the states appoint the justices for a specific term (6 or 8 years) with no right of reappointment. That one change would do more to ensure a constitutional government than anything I know of.
It is true that we are dividing conservatives today. That is sad, but it is also diminishing. The growing number of conservative leaders who are supporting a Convention of States (Mark Levin, David Barton, Glenn Beck, Rush Limbaugh, Sean Hannity, and dare I add Mike Farris) is gaining momentum, and soon those opposing the Convention of States will be on the margins of our political movement.
But I cannot promise every state legislator that there will be no political price to pay for this. Right now, state legislatures control less than half of the issues they would be considering if the Constitution’s original plan was being followed. Congress has stolen the majority of your jurisdiction. We can continue to fight and scrap over a decreasing scope of state jurisdiction in conservative states like Montana, Idaho, and Mississippi, while Congressmen from Illinois, California, New York and Massachusetts make the actual decisions for the majority of issues that impact your state.
In any fight worth having there are political risks. I am walking away from the opportunity to run for Congress to lead this effort. My own district’s seat has just come open after 34 years. I would be the most likely GOP candidate to win the nomination in a seat held by a GOP member for 34 years. I am taking a risk for a position I long planned to seek. But I believe that my own election would be meaningless compared to the good I can do to help save the nation through a Convention of States.
If we want to save liberty, if we want to preserve the legitimate jurisdiction of the states (which is essential to liberty as well), then we have only one realistic alternative. The Founders gave us a Convention of States for just such a time as this. We had better use it before it is too late.
I am more than willing to talk with you at any point about any of this.
Michael Farris, JD, LLM
Convention of States Project