Title: Answers to Questions Posed by the JBS
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This article by Michael Farris directly and thoroughly responds to the 16 so-called “unanswerable” questions posed by the John Birch Society
Created: 2017-07-06 07:08:54
Updated: 2024-11-30 19:00:00
Published: 2017-07-17 20:00:00
Converted: 2025-04-14T19:22:48.949082322
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Answering the John Birch Society Questions about Article V
Michael Farris, JD, LLM
The John Birch Society describes itself as a constitutionalist
organization, yet it is highly critical of a very important component
of the Constitution. The JBS does not like Article V’s provision that
allows the States to unilaterally propose and ratify amendments to
the Constitution.
George Mason demanded that this provision be included in Article V
because he correctly forecast the situation we face today. He
predicted that Washington, D.C. would violate its constitutional
limitations and the States would need to make adjustments to the
constitutional text in order to rein in the abuse of power by the
federal government.
Current conservative solutions to the problems of federal abuse of
power fall into one of two general strategies: (1) try to elect more
conservatives to federal office; or (2) promote theories like
“nullification” that are not grounded in the text of the Constitution
and have no realistic chance of success.
Our plan is to use the Constitution’s own formula—a Convention of
States under Article V—to give us real solutions that are as big as
the problems.
Here are our answers to the sixteen JBS questions:
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1. What ails America? Is it our Constitution or our
Congressional, Presidential, and bureaucratic non-
compliance with the Constitution?
The central problem with American government is the belief that the
purpose of government is to provide for our needs. Washington,
D.C. carefully nurtures this belief because it serves its own prime
purpose—the aggregation of federal power. Accordingly,
Washington, D.C. has gradually amassed overwhelming power that
is clearly outside of the boundaries that the Framers intended when
they wrote the Constitution.
This improper aggregation of power crisis, in fact, arises indirectly
from the Constitution itself. The Constitution permits the federal
judiciary to be the final interpreter of the Constitution.1 Because the
1
Some argue that the Founders never intended for the Supreme Court to have the power of
judicial review. History does not support this assertion.
In the records of the Connecticut ratification convention we find a very clear statement on this
issue from Oliver Ellsworth. Ellsworth was a delegate to the Constitutional Convention in
Philadelphia, a delegate to the ratifying convention in his home state of Connecticut and was
the Chief Justice of the Supreme Court from 1796 to 1800. Here is what he said in the
Connecticut convention:
If the general legislature should at any time overleap their limits, the judicial
department is a constitutional check. If the United States go beyond their powers, if
they make a law which the Constitution does not authorize, it is void; and the judicial
power, the national judges, who to secure their impartiality, are to be made
independent, will declare it to be void. On the other hand, if the states go beyond their
limits, if they make a law which is a usurpation upon the federal government the law is
void; and upright, independent judges will declare it to be so.
A very similar statement was made by James Wilson during the state ratifying convention for
Pennsylvania. Wilson also possesses a tremendous resume. He was a delegate to the
Constitutional Convention, the Pennsylvania ratifying convention, and was one of George
Washington’s initial appointees to the Supreme Court.
Wilson said:
If a law should be made inconsistent with those powers vested by this instrument in
Congress, the judges, as a consequence of their independence, and the particular
powers of government being defined, will declare such law to be null and void; for the
power of the Constitution predominates. Any thing, therefore, that shall be enacted by
Congress contrary thereto, will not have the force of law.
The Federalist No. 78 contains yet another declaration to this same effect:
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Framers did not have any meaningful experience with the practice
of judicial review, they did not construct adequate checks and
balances vis-à-vis the judiciary.
Accordingly, the Constitution, as interpreted by the Supreme Court
today, is in fact the problem. This interpreted Constitution allows
runaway spending, undeclared wars, government agencies spying
on the citizens, massive debt that will impose economic slavery on
our children, rule by executive order, coercive medical insurance,
and the rise of a dominating bureaucracy.
All of these things are constitutional according to the Supreme
Court or lower federal courts. Moreover, the two most abused
provisions of the Constitution have been amenable to abuse
because they were not written tightly enough to effectively
implement the drafters’ intentions. The Interstate Commerce Clause
was intended to allow Congress to set the rules for interstate
shipping. As interpreted, it allows Congress to regulate virtually any
part of our lives that has a dollar sign attached to it.
The General Welfare Clause as interpreted allows Congress to tax
and spend for any fool thing that Congress desires. Madison’s view
of the General Welfare Clause (which was shared by a majority of
the Framers) was that the General Welfare Clause was not a grant
of spending power at all. It was a limitation on spending. Madison
believed that when Congress used its other enumerated powers to
spend, it had to do so in a manner that truly promoted the welfare
The complete independence of the courts of justice is peculiarly essential in a limited
Constitution. By a limited Constitution, I understand one which contains certain
specified exceptions to the legislative authority; such, for instance, as that it shall pass
no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be
preserved in practice no other way than through the medium of courts of justice, whose
duty it must be to declare all acts contrary to the manifest tenor of the Constitution
void. Without this, all the reservations of particular rights or privileges would amount to
nothing.
There is nothing to the contrary which appears in any place in the drafting or ratifying
conventions. The original meaning of the Supremacy Clause is quite clear. When Congress
passes a law that is contrary to its power in the Constitution, it is the duty of the judges to
declare it void.
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of the nation (“the general welfare”), as opposed to the welfare of a
specific locality or a small group of individuals.
The Hamilton view of the General Welfare Clause was famously
adopted and explained by Joseph Story in his seminal work on the
Constitution. It was Story’s version of this Clause that caused the
Supreme Court to initially adopt this approach in United States v.
Butler, 297 U.S. 1 (1936). Story explained that while the General
Welfare Clause did contain an additional grant of power to tax and
spend, it was subject to two important limitations. First,
expenditures should be for the national interest, not local or
personal interests. Second, this Clause was subject to the first
resolution adopted in the Constitutional Convention—that this
Constitution was adopted solely for areas where the States
possessed no jurisdiction. In other words, if the States could spend
money on a particular subject, Hamilton and Story thought that
Congress could not spend money for that purpose under the
General Welfare Clause. States can, if their State constitutions
permit, spend money on education, welfare programs, medical
programs, and retirement programs. Accordingly, Congress has no
jurisdiction under the General Welfare Clause to spend money for
any of these purposes.
All of the entitlement spending that is bankrupting this country
would be unconstitutional if we faithfully followed either Madison’s
or Hamilton’s view. All federal mandates imposed by Congress on
the States would likewise be unconstitutional.
Accordingly, our task is to do two things to fix these constitutional
problems. We need to write very specific language that clarifies and
adjusts the Commerce Clause and the General Welfare Clause
according to their original meanings. Moreover, we need to put
proper checks and balances in place to ensure that the federal
judiciary no longer has the ability to legislate from the bench.
We should make other course corrections as well, because the
Constitution as interpreted contains other serious flaws. The
Framers made all treaties the supreme law of the land. However,
the Framers understood the treaty power to reach only the subject
of how nations treat other nations—not how our own nation
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interacts with and governs our citizens. Today, however, treaties are
viewed as capable of controlling the internal law of the United
States. This error must be definitively corrected.
Likewise, the taxing power in the Sixteenth Amendment is
dangerous and needs to be changed.
Executive orders and administrative regulations have been allowed
to become law even though Article I, Section 1 declares that all
federal laws must be passed by Congress. The current
interpretation is unacceptable and must be corrected.
Experience has taught us that the Constitution as interpreted has
allowed the abuse of both federal power and the rights of the
people. We need to correct these erroneous interpretations and
constrain the power of the federal judiciary to make activist
interpretations in the future.
George Mason knew that it would take constitutional changes to
return the government in practice to the government the Framers
intended to give us. And he knew that Washington, D.C. would
never propose such changes. He was right on all counts.
2. If our Constitution is the problem, what exactly do we need
to change in it and why can’t that be done by the method
that all 27 amendments have undergone to change the
Constitution?
I have already explained the basic changes needed in the
Constitution as interpreted.
It should be self-evident why it is impossible to get necessary
amendments via the usual congressional process: Congress will
never propose any amendments that reduce federal power. George
Mason correctly understood this reality. Washington, D.C. will
never voluntarily relinquish power. Anyone who thinks otherwise is
deluding himself.
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3. If the problem isn’t the Constitution, but rather
unfaithfulness to the Constitution, how will changing the
Constitution remedy the problem?
The answer is simple: We must curtail the power of the Supreme
Court to approve federal power grabs by the other branches. When
we address the whole problem and not just pieces, a solution
becomes apparent.
4. Who is in charge of calling the convention according to
Article V? If Congress calls the convention, as Article V says
it does, who decides how many delegates each state gets?
Will the number of voting delegates be population-based or
will each state get one vote or will another method be used?
Are these questions that state legislatures are charged with
deciding or does Article V say that Congress decides?
Article V and the settled historical practices give us all of the
necessary rules. The following questions and answers explain each
step in the process:
a. What is the subject matter of the Convention?
b. Where will the Convention be held?
c. When will the Convention start?
d. Who will appoint the delegates (and how many)?
e. What amendments will be proposed?
f. How are the amendments to be ratified?
a. Subject matter
The subject matter of the Convention is settled by the States. There
have been over 400 applications for a Convention of States in the
history of the Republic. We have never had a Convention because
we have never had two-thirds of the States agree on the subject
matter. State legislatures control the subject matter. Just as the
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calling of the Convention is subject to the subject matter limitation,
all stages of the Article V process are likewise prohibited from going
outside of this limitation.
b. Where will the Convention be held?
Congress gets to decide this question. Any place other than
Washington, D.C. is appropriate in our view.
c. When will the Convention start?
Congress also gets to decide this question. Congress must pick a
reasonable time and place. If it fails to do so, the States have the
residual sovereignty that would permit them to agree to a time and
place. Litigation to mandate a time and place would be almost
certainly successful. Congress has a mandatory, non-discretionary
duty to call the Convention and choose a reasonable time and
location.
d. Who will appoint the delegates and how many will each State
get?
In the very first application filed by Virginia in 1789, the Virginia
General Assembly properly called this process a “Convention of
States.” It is not a Convention of delegates from States. It is a
Convention of sovereign units of government.
Every stage of the proceeding requires the States to act as singular
sovereign entities. Thirty-four States must enact applications. There
is no proportionality rule. One State, one vote. In the ratification
process, thirty-eight States must ratify. There is no proportionality
rule. One State, one vote. This same principle holds true for the
Convention itself. There is no other way to vote other than one
State, one vote when sovereign entities meet to transact mutual
business.
There have been over thirty multistate conventions held in the
history of the Republic. They have been sanctioned by a wide
variety of sources of authority. The one rule that has been
scrupulously followed in all these conventions is this—voting is
always on the basis of one State, one vote. One convention proposed
to change the voting to a proportional representation basis.
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However, the vote on that motion was conducted on a one-State,
one-vote basis and the motion was rejected.
The very fact that Article V does not specify a formula for the
number of delegates indicates that the Framers understood that the
States were not sending representatives who act in their individual
capacities. The Framers knew that it would be one-State, one-vote,
and that each State had the unfettered authority to determine the
number and characteristics of their deputies. It would have been
unacceptable to the Founders to say, for example, that each State
gets three representatives. This would mean that representatives
from State A could cast two votes for a proposition and one vote
against it. This would be voting by individuals. The Framers wanted
voting by States just as they did at the Constitutional Convention
and every other convention that preceded it.
Accordingly, the number of delegates each State chooses to send is
a non-issue. If State A sends 11 delegates and State B sends 7
delegates, both States only get one vote. Delegates must caucus and
cast the vote for their State on each issue by a majority within that
State.
e. What amendments will be proposed?
The subject matter of the Convention is settled in advance by the
State applications. For our model application, the subject matter is
limited to imposing fiscal restraints on the federal government,
limiting the jurisdiction of the federal government, and imposing
term limits on federal officials.
The final text of any amendments on these subjects (and only these
subjects) will be approved only when twenty-six or more States
approve.
If more than one amendment is proposed, which is likely, they will
be sent as a package—just like the Bill of Rights—where each
amendment would be ratified (or rejected) individually.
f. How will the amendments be ratified?
Congress gets to choose whether ratification is directly by the State
legislatures or by ratification conventions within the States.
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5. At the convention how many amendments can be proposed?
There is not a specific limit under our application. It is relatively
certain that there would be at least a few amendments proposed,
perhaps as many as ten to twelve.
6. Where are the amendments proposed according to Article V?
Are the amendments proposed before the convention of the
states or are they drafted and deliberated upon at the
convention by the delegates? Are those who support the
convention under the assurance that it won’t be a runaway
convention contradicted by their own statements (not to
mention Article V) which support the idea that the
amendments are proposed, deliberated, and drafted at the
convention itself?
The final version of the amendments will be drafted at the
Convention. The scope of the subject matter of the amendments is
set by the States in the applications.
The wisest path is for the States to work together to find language
that is the most likely to accomplish the purpose of the Framers
and be politically viable in the ratification stage.
There is a huge difference between a Convention that fine tunes the
language of an amendment as compared to a Convention that gets
to change the subject matter for the meeting. Consider the example
of a Convention trying to draft term limits for federal judges. If it
became apparent that having one term of ten years was going to be
more acceptable than two terms of six years, then sensible people
would want the delegates to be able to choose the final wording
most likely to be ratified in 38 states. Delegates need to have the
flexibility to negotiate final language while being strictly limited on
the subject matter. This is exactly what happens under our
Convention of States application process.
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The two real controls on the possibility of a runaway Convention
are: 1. The States adopt the subject matter of the Convention in
advance, and it is binding. 2. Thirty-eight states must approve the
proposed amendments coming from the Convention.
It takes an incredibly wild imagination to believe that delegates
appointed by the State legislators would defy their given agenda,
and then, after an open rebellion, the State legislators in both
houses of thirty-eight states would ratify an errant amendment.2
Congress is a permanent constitutional convention. It can propose
amendments on any subject it wants, any day of the week. It is
virtually impossible to imagine a Convention of States (appointed by
State legislatures) composed of delegates more irresponsible than
the governing majorities in Congress. Yet, Congress doesn’t ever
send out crazy amendments. Why not? Its members are constrained
by the political realities posed by ratification—and nothing else.
A runaway Convention is no more likely to occur than President
Obama appointing me to the next vacancy on the Supreme Court. It
is theoretically possible—but with just a sniff of realism, common
sense tells us it is impossible.
7. If we aren’t following the Constitution now, would it be
logical to assume that once we pass amendments to the
Constitution, then the new amendments and the
Constitution will be followed?
We agree completely with the sentiment that, on the whole, our
country is not following the original meaning of the Constitution.
However, there are certain subjects where the Constitution has
been interpreted accurately in light of original intent. For example,
the Second Amendment has been on good footing lately. The Full
2
Even if Congress chooses State ratification conventions as the method for ratification, the
State legislatures choose the method of selecting the delegates for such conventions. If the
States believe that the process has been abused, they will surely choose a method for naming
the delegates that will follow their desires. For example, nothing would stop a State from saying
that the ratifying convention would be composed of delegates appointed by each member of the
house and senate, with each representative getting to choose one delegate.
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Faith and Credit Clause is functioning well. Term limits on the
President are being obeyed.
The core answer to this question relates back to the answer to the
first question. Our government is operating in substantial
compliance with the Constitution as interpreted by the Supreme
Court. Thus, the government has a plausible claim that it is
currently obeying the Constitution.
Conservatives generally believe that the Supreme Court was wrong
in saying that Obamacare was constitutionally authorized by the
General Welfare Clause, but a Supreme Court majority held it to be
so. This decision was horrible if we use originalism as our standard,
but was only a slight extension of past Supreme Court precedent.
Thus, it is not outlandish for the government to claim that
Obamacare is indeed constitutional under the Constitution as
interpreted by the Supreme Court.
So, if we are going to really fix the problems with our government,
we must restrain all branches of federal power. In fact, the most
important checks of all may well be those related to constraints on
judicial power.
With properly written amendments, we can move the country to the
point where our government would be in substantial compliance
with the Constitution as written rather than as interpreted by the
Supreme Court. This can be done by proper limitations on the power
of the federal judiciary as well as a new methodology of appointing
justices. Moreover, replacing broadly worded phrases like “the
General Welfare Clause” with precise language that puts clear and
proper limits on such powers will make a difference.
But let’s suppose that even with new safeguards, the left succeeds
in overriding these new amendments with new federal usurpations.
It will be a pyric victory for them if they thwart the intent of newly
adopted amendments. The political coalition necessary to win
ratification in 38 States is more than big enough to completely
throw Washington, DC office holders out on their ear. No politician
could then legitimately claim that they were following the true
meaning of the Constitution. The public would know better. And the
public would throw the rascals out.
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8. Do the proponents of the Article V Convention assume that
the progressives, globalists, socialists, and liberal Democrats
will sit out this convention? Or will they vie and struggle for
the delegate seats? What political theories will dominate the
Article V Convention?
Since the delegates are appointed by the State legislatures, the
most reasonable assumption (bordering on virtual certainty) is that
the delegates will generally reflect the political philosophy of the
State legislatures.
Republican legislatures dominate. There are twenty-seven States (if
Nebraska is counted) that are fully controlled by Republicans. There
are six States where the Republicans control one chamber. Even
some Democratic States cannot be fairly described as dominated by
leftist progressives—(West Virginia and Nevada, for example).
The clear answer is that Republicans from southern, mountain, and
central States will dominate the Convention. California, New York,
and Massachusetts will send liberal delegates. They all get one vote
per State. These three States, then, will be consistently outvoted by
Idaho, Wyoming, Mississippi, and Louisiana.
The left will send out their own fear-mongering material claiming
that people like me will become delegates. And indeed I hope that I
will be selected. The reality is the same for all sides. Delegates will
generally reflect the political philosophy of each of the fifty State
legislatures.
9. Do the proponents of an Article V Convention truly consider
the risks associated with the congressional right to decide
upon the method of ratification of the proposed
amendments? What if Congress chooses the state
ratification conventions as the method of ratification, won’t
the legislatures then be cut out of the ratification process
altogether?
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Congress, of course, has this option. But the State legislatures
control the process for selecting the delegates to a ratification
convention. There is every reason to believe that the delegates to a
State ratification convention would be chosen by a popular vote of
the people. But the final decision on this would be in the hands of
each State legislature.
We would look forward to a grassroots election on the question of
whether Washington, D.C. has too much power. We will win that
battle handily.
There is one really important reason that Congress will be reluctant
to choose ratification conventions. This is revealed by a lesson from
history. The original Constitution was not originally ratified by the
State ratification conventions in North Carolina and Rhode Island.
Both States held a second ratification convention to consider the
issue a second time. On the second attempt, the Constitution was
ratified in both States.
Accordingly, if a State fails to ratify in its first convention, the State
legislature could continue to call additional ratification conventions
until thirty-eight States have ratified; it can keep calling
conventions until it gets the result it wants. So the State
legislatures play an important role in both methods of ratification.
The States really do have the power here.
10. If this is just a “convention of states” and not a
constitutional convention are you content with the political
atmosphere and morality of the current representatives in
your state government? Does it give you comfort to know
that those public servants at your state level of government
will be able to make changes to the Constitution?
This question is based on a theological proposition that is
demonstrably false. Lurking behind the question is the implication
that people of the Founding Fathers’ generation were basically good
while today’s politicians are basically evil. From both a theological
and historical viewpoint, this implication is false.
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Theologically, the Framers correctly believed that men were born
with a sin nature. That is why they created the form of government
that we have. We have checks and balances, enumerated powers,
and federalism all because the Framers knew that all men were
sinful.
They also knew that their own generation was sinful. The way that
Virginia’s Baptists were treated by the political establishment in the
1770s was utterly shameful. Baptists were jailed, beaten, and
driven from church services by officials—or by thugs protected by
officials.
The Alien and Sedition Acts were passed by the Framers’
generation—and the voters threw out the supporters of this horrible
legislation in the next election. Both theology and history
demonstrate that it is wrong to assume that that the Founders’
generation was composed of angels while ours is composed of
devils.
The fact that over 90% of Americans distrust Congress tells us
something very good about the wisdom of the current generation.
To those who counter this observation with the fact that the
American public elected Obama twice, one response is this: Who
can blame the voters for foolish choices in elections when the
Republicans who want to go to Washington are usually no different
from the Democrats who want to go to Washington?
Moreover, there is no political plan of any kind that doesn’t
ultimately rely on the voters being willing to do the right thing.
Those who promote nullification hope to get enough citizens to
pressure State legislatures to do the right thing. Those who want to
change Washington, D.C. by electing good conservatives are
planning to rely on voters willing to do the right thing.
If the voters are crazy and incapable of doing the right thing, then
they are crazy and incapable for all purposes. We believe that when
voters are given a real plan that is based on the actual text of the
Constitution and is accompanied by a viable strategy, enough
voters will arise to require the requisite number of States to do the
right thing.
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Conservatives shouldn’t be fomenting fear of common people. That
is an elitist strategy.
The correct analytical approach is a simple comparison. The
Constitution gives us two different ways to pass amendments to
stop the abuse of power in Washington, D.C. One process requires
Congress to propose the amendments. The other process allows the
States to propose the amendments. Which group can we trust to
propose amendments that will curtail the power of Washington,
D.C.?
11. One proposed “Liberty Amendment” allows 3/5 of the U.S.
House and Senate to overturn any Supreme Court ruling.
But Article III, Section 2, Clause 2 grants Congress the
power, with only a simple majority of both houses of
Congress, to overturn Supreme Court rulings by limiting the
appellate jurisdiction of the Supreme Court. Does the
proposed “Liberty Amendment” strengthen or weaken this
congressional check on the Supreme Court?
This question demonstrates a lack of knowledge of constitutional
law and litigation.
It is quite true that Congress can pass laws which can restrict the
appellate jurisdiction of the Supreme Court. It is not quite as simple
a process as this question suggests. Such a law requires not only a
simple majority of both Houses of Congress (or perhaps sixty votes
in the Senate depending on the vagaries of the new filibuster rule),
but also the signature of the President.
In the entire history of our nation, the power cabal in Washington,
D.C. has never placed any meaningful limits on the appellate
jurisdiction of the Supreme Court. It is fanciful to think that
Washington, D.C. will do so within our lifetimes.
Moreover, the question doesn’t comprehend the legal implication of
removing the Supreme Court’s appellate jurisdiction. Such a law, if
passed, would not reverse a single Supreme Court decision. In fact,
if passed, it would make it impossible to ever get a future Supreme
Court to reverse a previous bad decision.
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Let’s consider the example of Roe v. Wade to demonstrate how it
works. If Congress had removed the jurisdiction of the Supreme
Court to decide abortion cases prior to its decision in Roe v. Wade,
that would have been wonderful. That decision would have never
been issued.
But, what happens if Congress removes the Supreme Court’s
appellate jurisdiction while Roe v. Wade is still the controlling
precedent?
Removing the appellate jurisdiction of the Supreme Court on
abortion would have the following effects:
1. It would leave the federal appeals courts in place to make
whatever rulings they wanted on abortion without the
possibility of Supreme Court review.
2. Even if the proponents were savvy enough to remove all federal
court jurisdiction on the issue of abortion, Roe v. Wade would
still be frozen in place as the controlling precedent.
3. If we succeeded in removing federal court jurisdiction over all
abortion questions, State judges would have the final say on
the issue of abortion in their States. But, State judges are still
bound to follow the Constitution of the United States. That
much is not debatable. And most State judges would consider
themselves still bound to follow Roe v. Wade, because State
judges consider themselves bound to follow U.S. Supreme
Court interpretations of the United States Constitution until
formally reversed. Thus, State courts would still follow Roe v.
Wade in virtually all cases.
4. If conservatives had political success in the future and were
able to get a prolife majority appointed to the Supreme Court,
that Court would not have the jurisdiction to reverse Roe v.
Wade because its appellate jurisdiction would have been
removed.
This “fix” for judicial activism is popular in some circles and is
certainly well-intentioned, but it is totally misguided. It would not
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reverse the bad decision. Far worse, it would permanently freeze
bad decisions in place as the binding precedent.
The best solutions for judicial activism include: term limits on
federal judges, giving the States and Congress the ability to vacate
Supreme Court decisions, and changing the appointment process
for federal judges so that the States control the selection of
Supreme Court Justices and perhaps the judges at other levels of
the federal judiciary. All of these things can be done at a
Convention of States.
12. One proposed “Liberty Amendment” requires 30 states to
agree in order for the states to overturn federal law. As
written, the Tenth Amendment of the Constitution clearly
allows any one state to nullify federal law that exceeds its
enumerated powers. Does this “Liberty Amendment
strengthen or weaken the position of the states?
The Tenth Amendment contains no explicit power for any one State
to nullify a federal law. Such a claim is wishful thinking at best and
historically disingenuous.
The Supremacy Clause of the Constitution contains the correct view
of nullification. Nullification is not the rule. Constitutional laws
passed by Congress are the Supreme Law of the Land, and a single
State does not have the power to determine a law of Congress to be
unconstitutional.
The correct view of the Tenth Amendment is that it is a check on
misuse of power by Congress. But nothing in that Amendment gives
a single State the power to determine that Congress has abused its
power.
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13. Proponents of the convention say that one great security
against a runaway convention is that only thirteen states
have to choose not to ratify, thus guaranteeing that bad
amendments won’t be ratified. Can you name those thirteen
states you can count on to oppose such bad amendments?
The Sixteenth and Seventeenth Amendments were passed
with similar safeguards in place. Why didn’t enough states
stand up against those amendments to prevent their
ratification?
The Sixteenth and Seventeenth Amendments were popular in their
day, and they passed. Sometimes we are successful in defeating
amendments. The Equal Rights Amendment was defeated. Child
Labor Amendments were defeated.
Amendments that are considered unwise by the generation in
question go down to defeat. The ERA is a good example. It was
supported by a simple majority of the public in many States. But a
well-organized and substantial minority battled against it and it
was defeated. We cannot amend the Constitution unless the vast
majority of the American public supports the particular
amendment.
If we are going to believe in a Republican form of government, we
have to embrace the idea that each generation has the moral right
to change the law however it wishes, provided that it follows the
proper process for changing the law.
The amendments that are suggested for today will not pass unless
they are sufficiently approved by the vast majority of the American
public in order to gain ratification by thirty-eight States.
We can guarantee that no amendment that is crazy or outlandish
by today’s standards can possibly pass today.
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14. Proponents of a convention say that the Constitution can’t
be destroyed because Article V only authorizes amendments
to “this” constitution. By definition, amending the
Constitution is changing the Constitution, and in Article V
there is no limit to the number of amendments. So is there
any assurance that certain amendments will be off the table?
Doesn’t amending the Constitution create a new
Constitution?
Most of the questions in this list are fair-minded and deserve a real
answer. This particular question borders on being frivolous.
Nonetheless, I will answer briefly.
Did the adoption of the Bill of Rights make a new Constitution? Of
course not.
By this argument, the Tenth Amendment resulted in a new
Constitution rather than reinforcement of principles in the original
document. Does the JBS really object to the adoption of the First,
Second, and Tenth Amendments on the ground that they created a
new Constitution? Really?
15. Could the method of ratification for these proposed
amendments from the convention be changed? Didn’t the
original Constitutional Convention of 1787 create its own
rules for ratification in contradiction to the requirements of
the Articles of Confederation?
This question betrays a lack of historical knowledge. The original
Constitutional Convention was not called under the authority of the
Articles of Confederation. No provision existed in the Articles for any
such process.
The States correctly understood that they possessed residual
sovereignty to call a convention to reconsider their current national
charter. Seven States had called the Convention and had appointed
their delegates before Congress endorsed the Convention in 1787.
The States told their delegates to “render the federal constitution
adequate to the exigencies of the Union.”
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But the majority of the State calls for the Convention specified that
the ratification process would be the same as under the Articles of
Confederation; to wit, changes would need to be approved by
Congress and ratified by all thirteen State legislatures.
In light of the directions given to them by their States, the delegates
from the Constitutional Convention followed this path and sent two
proposals to Congress.
One was to approve the Constitution itself. The other was to
approve a new method for ratification—rather than thirteen
legislatures, nine State conventions would be required to ratify.
Congress unanimously approved both recommendations. But
Congress did not send the Constitution directly to the State
conventions. Rather, it sent the Constitution and the
recommendation for the new process to all thirteen State
legislatures.
Thus, the first step in the process in every State was for the
legislature to consider whether or not it would approve the change
in the ratification process.
All thirteen State legislatures approved the new ratification process
by calling ratification conventions in each State.
This includes both Rhode Island and North Carolina. Even though
the conventions in those States rejected the Constitution itself, their
State legislatures accepted and utilized the new process.
The JBS argument that the Founders did not follow the lawful
process in ratifying and adopting the Constitution exposes the
central fallacy of the JBS on this entire subject. The John Birch
Society believes that our Constitution was illegally adopted. Thus,
they cannot legitimately call themselves supporters of the
Constitution. You cannot believe that our Constitution is the morally
appropriate, supreme law of the land if you think it was illegally
adopted.
It has always been enemies of the Constitution who have contended
that the Constitution was illegally adopted. Claiming to be a
constitutionalist, while rejecting the legitimacy of the Constitution’s
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adoption process, is like claiming that George Washington was a
great American hero, but he was also a British spy.
If one reads all the original documents, the correct history is clear.
The States appointed the delegates and gave them their
instructions. The Founders followed the correct process and got
unanimous approval from Congress and all thirteen State
legislatures in order to move to the new ratification process.
16. Is our federal government out of control? That is to ask,
has it escaped the boundaries of the Constitution? Is
Congress operating outside of the powers delegated to it
under Article I? Has the concept of federalism been
overthrown to a large degree by an oppressive central
government? Of course, but what is the proper remedy? Do
we have a constitutional problem or a problem following the
Constitution?
Yes. Washington DC is truly out of control. And yes, the
Constitution as interpreted by the Supreme Court is the problem.
There is only one realistic approach on the table that has any
possibility of fixing the problem.
There are only four alternatives.
1. Keep trying to fix Washington by sending better
representatives to Washington.
2. Hope that some solution that is not found in the Constitution
(like nullification) will be miraculously successful despite every
realistic consideration to the contrary.
3. Do nothing.
4. Use the process the Framers gave us. Have the States call a
Convention to limit the power of the federal government.
Trying harder with the same old tactics won’t work. Extra-
constitutional schemes won’t work. Doing nothing will work—if your
goal is to preserve the status quo and destroy liberty.
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I believe in the Founding Fathers and their solution for today’s
problem. A true constitutionalist embraces the entire Constitution
as intended—this includes Article V’s Convention of States.
Only a Convention of States will give us effective solutions to the
abuse of power in Washington, D.C. It is our moral obligation to
protect liberty for ourselves and our posterity.
Every possible plan ultimately relies on motivating a number of
loyal Americans to do the right thing to save the country. We are
confident that the vast majority of people who love liberty will join
us in supporting the Constitution’s own solution to federal power
abuses. We urge the JBS to reconsider its position and join with us.
Michael Farris
Michael Farris is the Chancellor of Patrick Henry College, the
Chairman of the Home School Legal Defense Association, the
President of Parentalrights.org, and is the Director of the Convention
of States Project for Citizens for Self-Governance. Farris earned his
law degree magna cum laude from Gonzaga University Law School.
He was the Articles Editor for the Gonzaga Law Review and Moot
Court Champion in the Linden Cup Competition. Farris recently
completed his LLM, with honors, from the University of London in
Public International Law.
At Patrick Henry College, Farris has taught Constitutional Law for 14
years and has coached the PHC Moot Court team. (Moot Court is a
simulated argument before the Supreme Court on constitutional
issues). His Moot Court team has won eight national championships,
including the last six in a row.
Farris has litigated dozens of constitutional cases in the state and
federal courts and has argued before the United State Supreme
Court, eight federal Circuit Courts of Appeal, and the appellate courts
of thirteen States. His litigation history includes a case regarding
Article V, in which he represented four Washington State legislators
in a constitutional challenge to the act of Congress purporting to
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change the date for the ratification of the Equal Rights Amendment in
the midst of the process.
Farris has written fifteen books, including a textbook on
constitutional law and a scholarly 500-page history of religious
liberty and the adoption of the Bill of Rights, and several law review
and other scholarly journal articles.
Mike Farris has been a committed conservative leader for over thirty
years, with true expertise on the Constitution. He has successfully
lobbied and litigated for homeschooling liberty and has been credited
(or blamed) for successfully organizing the defeat of the United
Nations Convention on the Rights of Persons with Disabilities. He is
considered one of the nation’s leading opponents of the UN
Convention on the Rights of the Child. He has testified in Congress
and state legislatures many times, including testimony in opposition
to the appointment of Supreme Court justices and in the Senate
Foreign Relations Committee in opposition to the UN CRPD.
Farris has been awarded the Salvatori Prize for American Citizenship
by the Heritage Foundation, a Lifetime Achievement Award by The
Family Foundation of Virginia, and was named one of the Top 100
Faces in Education of the 20th Century by Education Week magazine.