Title: Problems with the Testimony of Robert Brown
Original CoS Document (slug): problems-with-the-testimony-of-robert-brown
Login Required to view? No
Attached File: Problems_in_the_Testimony_of_Robert_Brown_Digital_(1).pdf
Created: 2022-07-13 09:06:38
Updated: 2023-07-13 23:00:00
Published: 2022-07-13 01:00:00
Converted: 2025-04-14T20:04:52.630018571
PROBLEMS
IN THE TESTIMONY OF
ROBERT BROWN
By Professor Rob Natelson
Problems in the Testimony of Robert Brown
By Robert G. Natelson1
1
About the Author: Professor Natelson is the director of the Article V Information Center at the Independence Institute in
Denver and has published widely on many parts of the U.S. Constitution for the scholarly and popular markets. He is the most-
published active scholar on the Constitution’s amendment process, and the author of The Law Of arTicLe V//, a legal treatise. //
His research studies have been relied on by the highest courts of 16 states, by federal appeals courts in five cases, and by U.S.
Supreme Court Justices in seven cases.
Professor Natelson has degrees in history and law, the latter from Cornell University (J.D. 1973), where he was elected to
both the Cornell Law Review and the University Senate. (He chose the latter.) After practicing law (1974-85), he served as a
tenure-track and tenured professor of law (1985-2010).
Professor Natelson has split his professional experience between the public and private sectors. He also has extensive political
experience: In Montana, he led several successful statewide ballot campaigns to restrain taxes and spending, and he placed
second in a five-candidate field in the open party primaries for governor (2000). A more complete biography is at https:%%//%%i2i.
//org/about/our-people/rob-natelson///.
“It is much easier to alarm people than to inform them.”
—William Davie
Constitutional Convention Delegate
i
1
Problems in the testimony of robert brown
I was enjoying success placing research articles in
academic journals on common legal topics. Then
I researched and composed an article on the
more exotic subject of classical Roman law, and I
submitted it to a peer-reviewed legal history journal.
A “peer reviewed” journal is called that because
other scholars anonymously examine and report
on your article before the journal agrees to
publish it. This ensures the contribution is well-
grounded and adds to human knowledge.
Based on peer review of my submission, the
journal’s editor rejected it and provided me with
a copy of the review to explain why.
The reviewer’s assessment was devastating. He
said it was obvious that I was writing without prior
education in Roman law—that I knew little about
scholarship in the field, and, frankly, I was clueless
as to how much I didn’t know.
I was emotionally crushed, but I also recognized
that the reviewer was correct. And although the
reviewer could have remained anonymous, he
kindly disclosed his identity to me. He helped me
work through my disappointment. He outlined
what I needed to do before I could contribute
to the very specialized realm of Roman law. I
don’t remember all his recommendations, but I
do recall that one of them was to acquire some
formal education on the subject.2
The experience taught me that I had fallen into
the common error of undervaluing other people’s
specialties. (Think of all the disasters wrought by
overconfident husbands who imagine they can do
their own plumbing!) The experience also taught
me that when researching a subject, you should
gather as much information about it as possible:
Never limit your universe of sources.
The experience had some implications for the
reviewer as well. He told me he had a hard time
writing his assessment, precisely because my
paper lacked the foundation of basic knowledge
of the field. If he were responding to a scholar who
had some foundational knowledge, the review
could have simply pointed out the mistakes, and
perhaps suggest ways to correct them. But to
respond effectively to a beginner, he also had to
outline and explain many of the fundamentals.
Later I learned how time consuming this is. For
example, when a lawyer has to thoroughly explain
a legal conclusion to a non-lawyer, the lawyer
first must outline basic concepts taught in law
school before proceeding to the issue at hand.
The difficulty increases exponentially when the
non-lawyer thinks he’s already an “expert” in the
subject, and has reached a different conclusion.
Such people never want to believe the truth, so
the lawyer has to pile up sources to support the
most elementary propositions.
This is one reason lawyers tell each other, “Never
argue law with a non-lawyer.” Much the same is said
in other specialties as well, and often less politely.
Early in my 25-year career as a legal academic I had an
experience both humiliating and invaluable.
2
After additional research over several years, I was able to publish a related article that did not require as much specialized
knowledge: Robert G. Natelson, The Government as Fiduciary: Lessons from the Reign of the Emperor Trajan, 35
Richmond L. Rev. 191 (2001).
2
This is such a case: Robert Brown is a novice who
promotes himself as an expert. So to explain why
his conclusions are incorrect, you often have to
review the basics understood by all true experts.
That is why this paper is so long.
Background
Robert Brown is an employee of the John Birch
Society (JBS). Videos of his performances
before legislative committees show that he
holds himself out as a “nationally known
constitutional scholar.”3 He or JBS apparently
used like representations of expertise to obtain
an interview with Joshua Philipp of the Epoch
Times, an international newspaper.
However, Brown’s biography shows none of the
background or hard work necessary to make one
a constitutional scholar, much less a “nationally
known” one.4 There is no evidence of formal, or
Brown’s biography shows none of the background or hard work necessary to make one a
constitutional scholar, much less a “nationally known” one. There is no evidence of formal, or
even informal, training in law, history, or language. A search of an academic database revealed
no evidence that he has published any scholarship on the Constitution or on anything else.
3
https://youtu.be/aeaAfCdQk18. The video shows Mr. Brown representing himself as a “nationally known constitutional scholar”
at legislative hearings in North Dakota, South Dakota, and South Carolina.
4
Mr. Brown’s official JBS biography is sketchy. It tells us only that “he and some buddies started a bicycle design company for a
few years,” that he has worked for JBS since 2009 and that he raises chickens and goats on two acres of land.
3
Problems in the testimony of robert brown
even informal, training in law, history, or language.
A search of an academic database revealed no
evidence that he has published any scholarship
on the Constitution or on anything else.5
I recognize, of course, that everyone has a First
Amendment right to express his or her opinion,
expert or not. But no one has the right to mislead
legislators on important matters of law and policy
under the cover of false credentials.
To use an analogy: Suppose John Q. Quacker
regularly influenced government health policy by
holding himself out as a “nationally known cardiac
surgeon”—but had never gone to medical school,
never served a residency, and never performed
an operation. We would be justifiably concerned.
We should be equally concerned when a person
offers constitutional and other legal advice and
affects legislative policy without any reasonable
basis for doing so.
Yet Brown has repeatedly purveyed constitutional
and legal advice, frequently on the very important
issue of whether state lawmakers should apply for
a convention for proposing amendments to the
United States Constitution. Brown’s statements
are based on citations, sometimes out of
context, from only a narrow sliver of the sources
constitutional scholars employ in their work.6
The Interview
To illustrate the problems in Brown’s approach,
I have chosen his Epoch Times interview with
Joshua Philipp. The interview is 30 minutes long.
This paper quotes relevant excerpts, and then
Suppose John Q. Quacker regularly
influenced government health policy
by holding himself out as a “nationally
known cardiac surgeon”—but had never
gone to medical school . . . We should
be equally concerned when a person
offers constitutional and other
legal advice and affects
legislative policy without
any reasonable basis
for doing so.
5
Publishing in scholarly journals subjects one’s work to review and critique from others knowledgeable in the subject.
6
Constitutional scholars work with 18th century law books, cases and statutes; the 18th century educational canon (including
the Greco-Roman classics); British parliamentary records; political and philosophical works influential with the Founders, such
as those by Aristotle, Cicero, Locke, Montesquieu and DeLolme; colonial charters and instructions to colonial governors;
4
It would have been correct to say that there
are only two ways of proposing amendments.
However, Brown and other convention critics
often fudge the difference between proposal and
ratification to suggest, falsely, that a convention
alone, without state ratification, could impose
constitutional change. The Constitution and
many other sources (see Notes) make it absolutely
clear this is not so.
Brown also conflates proposal and ratification
elsewhere in the interview, as explained below.
* * * *
Brown: “So, the second method has never been
used before. We’ve been well over 200 years under
the current constitution, and it has been brought up
a number of times throughout our nation’s history.”
Correction: This is a half-truth, because it
understates the role the Constitution’s application-
and-convention process has played in American
history. Although the process has not been used
to completion, states have adopted hundreds of
“applications” for a convention, and on several
occasions America has been quite close to one.
On several occasions as well, application campaigns
have forced Congress to propose amendments or
take other action. Without the convention process,
it is very likely neither the Bill of Rights nor the 17th
nor 22nd Amendments would have been adopted.
responds to each. The footnote below provides a
link to the entire interview.7
* * * *
Joshua Philipp: “Hey, welcome back everyone. . . .
Robert Brown. He’s a constitutional expert with the
John Birch Society. And Robert, it’s a real pleasure
to have you on Crossroads. . . . Now, I’m curious
from your standpoint, what is the Convention of
States? How would you describe it?”
Robert Brown: “Convention of States is an
organization pushing to use the second method in
Article V for obtaining changes or amendments to
the Constitution. . . . . Yeah, in Article V it talks
about two different ways of amending or changing
the Constitution.”
Correction: Mr. Brown’s response is inaccurate in
two respects. First, he fails to distinguish between
a “convention of states” as a constitutional
mechanism and the Convention of States
Project, which is one of several organizations
trying to bring about such a convention.
Second, he erroneously states that there are two
ways of amending the Constitution. In fact, there
are four: (1) proposal by Congress, ratification
by state legislatures, (2) proposal by interstate
convention, ratification by state legislatures,
(3) proposal by Congress, ratification by state
conventions, and (4) proposal by interstate
convention, ratification by state conventions.
pre-1787 state constitutions; debates in the state legislatures and state ratifying conventions; newspaper articles and speeches;
and the records of the Continental, Confederation, and First Federal Congresses. These materials sprawl over hundreds of
volumes. Practicing constitutional lawyers increasingly use the full range of this material as well.
Fully competent constitutional scholarship also requires some background in the Latin language. See fOrreST McDOnaLD,
nOVuS OrDO SecLOruM xi (1985) (Professor McDonald was arguably our greatest 20th century constitutional historian).
5
Problems in the testimony of robert brown
* * * *
Brown: “James Madison in particular. . . strongly
pushed against achieving the Bill of Rights through an
Article V Convention, saying it was a more dangerous
mode than Congress. He uh- in fact, a letter to
George Turberville, November 2, 1788, he says he
would tremble at the results of a convention. . . . .”
Correction: JBS borrows many of its arguments
from liberal sources opposed to a convention,
and this is one example.
The myth that Madison—the principal author of
Article V—opposed its provision for conventions
apparently was invented by liberal lawyer Arthur J.
Goldberg in 1983.8 Madison’s full correspondence
on this subject includes at least twelve other
letters, and it tells quite a different story.
Madison’s full correspondence tells us that he did
not oppose Article V conventions in general; he
opposed only a specific proposal for a convention
to re-write the entire Constitution. In that
correspondence, moreover, Madison also wrote
he would be fully agreeable to holding a convention
in a year or two, after some experience under the
new government. In a letter written later in life,
Madison endorsed an amendments convention
over the favorite JBS “solution” of nullification.9
* * * *
Philipp: “Now, on the Convention of States, you
mentioned that you—you kind of see the same
problems but you—you don’t think that—that the
model of using it to amend the Constitution is a good
model. Why not? What is the argument against it?
What would you say?”
Brown: “. . . Given today’s political environment, if we
were to pull up the anchor of the U.S. Constitution and
drift to the center of political thought today, do you
feel that would move us closer to the views of Marx
or Madison? And obviously, our nation has moved far
more towards the socialist mentality than we were in
1787 when the Constitution was originally written . . . .”
Correction: Convention advocates explicitly
rule out “pull[ing] up the anchor of the
U.S. Constitution.” They seek only (in the
Constitution’s words) “a convention for proposing
amendments” “to this Constitution.”
JBS claims it is a bad time for a convention, and
it has been making that claim for decades, no
matter what the political conditions. It is clear
that JBS does not consider any time to be good.
Practically speaking, right now probably is a good
time for a convention to propose conservative-
leaning amendments: Thirty-one state
legislatures are Republican. Congress is deeply
unpopular, and its narrow Democratic majority
is widely viewed as overreaching. The present
justices on the Supreme Court and other federal
courts are the most favorable in years.
* * * *
8
//Arthur J. Goldberg, //Commentary: The Proposed Constitutional Convention, 11 hastings const. L.Q. 1 (1983).
9
I have collected Madison’s correspondence on the subject at the Article V Information Center webpage at https:%%//%%
//articlevinfocenter.com/what-madison-really-said-in-1788-and-1789-about-holding-a-second-convention///. On a Montana
radio show several years ago, I informed Mr. Brown of this correspondence, what it said, and where to find it.
6
Madison’s full
correspondence tells us
that he did not oppose
Article V conventions
in general; he opposed
only a specific proposal
for a convention to
re-write the entire
Constitution. In that
correspondence,
moreover, Madison also
wrote he would be fully
agreeable to holding
a convention in a year
or two, after some
experience under the
new government.
7
Problems in the testimony of robert brown
Philipp: “Now, I know proponents of it, they
argue that—y’know, they can preven- they can
propose amendments, but they’re saying that you
can’t undo current rights within the Constitution.
Is this accurate? What do you—what do you think
on this?”
Brown: “It’s really not [accurate] . . . . The problem
is, historical precedent does say otherwise. And
this is probably the number one most important
argument between the two sides, is what does the
historical precedent say?”
Correction: There is no “important argument
between the two sides” about historical precedent,
because opponents really don’t cite any.
Historical precedents include (1) about forty
conventions of states and colonies since 1677, (2)
hundreds of convention applications, and (3) a line
of reported Article V court decisions dating back
to 1798. (The case law is discussed in my treatise,
//The Law of Article V//.) Out of all this material, Mr.
Brown selects only one incident occurring more
than 200 years ago—and as we shall see, even his
understanding of that incident is wrong.
* * * *
Brown: “The 1787 Convention, where our
constitution was written, is really the only national
constitution amending convention we’ve ever had.”
Correction: That’s not true. A national
amending convention was held in Washington,
D.C. in 1861. More states participated in that
convention than at any convention of states
before or since.10 In addition, the Albany
Congress of 1754 and the First Continental
Congress of 1774 were national conventions
that proposed what were then basic
constitutional changes.
Even if Brown’s comment were technically
true, it would be deceptive. This is because
regional and national conventions of states
operate under much the same protocols,
including (1) limited and defined powers and (2)
equal voting power for each state. The Article
V Information Center provides a complete list
of these conventions.11
* * * *
Brown: “And in that case we have the existing
constitution as the Articles of Confederation.”
Correction: The Articles of Confederation were
not a constitution as we think of one, and the
Confederation Congress was not a government.
The Articles were a multilateral treaty something
like NATO. The Confederation Congress was a
limited coordinating body much like NATO’s
North Atlantic Council.
In thinking of the Articles as a “constitution” in
the modern sense, Mr. Brown commits a common
error in historical method called anachronism.
* * * *
Brown: “States sent delegates to the 1787
Convention and gave them specific delegate
10
For a summary, see It’s Been Done Before: A Convention of the States to Propose Constitutional Amendments,
11
List of Conventions of States and Colonies in American History, https:%%//%%articlevinfocenter.com/list-conventions-states-
//colonies-american-history///.
8
commissions, or authority.”
Correction: As noted above, the 1787 convention
is the sole precedent opponents cite. Their
fundamental argument is that the 1787 conclave
exceeded its authority (“ran away”). From
that, we are supposed to fear a more limited
convention held under very different conditions
over 230 years later.
Even if it were true that the 1787 convention
had exceeded its authority (and, as explained
below, it is not true) that is not very good
evidence of what would happen in a convention
of states today.
First: There have been about forty conventions
of states, many after 1787.12 They were governed
by procedures that have become standardized,
including rules limiting their authority. Everyone
concedes that the other conventions remained
within their authority. Certainly thirty-nine offer
much more precedential weight than just one.
Second: The 1787 convention was not called
under the Articles of Confederation. It
operated outside of any legal restraint other
than the delegates’ commissions. By contrast, a
convention for proposing amendments is called
under the Constitution and is subject to the rules
of the Constitution. Over a century of decided
case law affirms that.
Third: On the modern convention floor, any
commissioner raising issues outside the prescribed
agenda can be reined in with a simple point of order.
Fourth: Modern technology enables the state
legislatures commissioning delegates to use
video oversight to track them 24/7. If a straying
delegate somehow were not brought back to
order, a supervising state legislative committee
would see the incident in real time and could
immediately re-instruct or recall.
* * * *
Brown: “States sent delegates to the 1787
Convention and gave them specific delegate
commissions, or authority. You’re authorized to
make these types of changes; you’re not authorized
to change these things . . . Mark Meckler,
Convention of States, organizations like that, will
repeatedly claim those convention delegates were
given full authority to make any changes they felt
were necessary to the Articles of Confederation.
Now, if that were true, do you think that delegates
would have known that? And the reason I say that
is because, as you look through Madison’s notes
from the federal convention, you see this issue came
up repeatedly throughout the Convention: do we
actually have the authority to be creating a new
constitution, instead of just amending the Articles
of Confederation? . . . .
“First side said things like, ‘We really don’t have the
authority and we should not proceed with changing
the Constitution this drastically without first going
back to the States and getting further authority.’
That was the argument of William Patterson, uh
Charles Pinckney, Elbridge Gerry13, John Lansing.
“The other side of the argument was not what
Mr. Meckler says, ‘They have full authority.’ The
12
See the previous footnote.
13
In this interview Brown makes an error no genuine constitutional scholar would make: He pronounced Elbridge Gerry’s last
name with a soft “g” (like “Jerry”) rather than how Gerry actually pronounced it (with a hard “g”). It seems like a small mistake,
but such mistakes are clues to whether the speaker knows what he or she is talking about.
9
Problems in the testimony of robert brown
other side of the argument represented by people
like Edmund Randolph, Alexander Hamilton, even
James Madison, was, ‘You’re right, we really don’t
have the authorization to be doing this, but we
need to do it anyways. This is an urgent need of our
nation. . . . We must proceed.’
“Nobody stood up in the 1787 Convention and claimed,
‘Look at our commissions, we’re fully authorized to
make any changes we feel are necessary.’”
Correction: These comments depart from the
traditional JBS line, which is that Congress called
the 1787 convention and limited it to proposing
only amendments to the Articles. However,
modern research has made that position untenable,
so I am glad to see Mr. Brown abandon it.
Madison points out in Federalist No. 40 that
the state-issued commissions (or “credentials”)
defined the scope of the convention’s authority.
Founding-era law books confirm this rule. Now,
among the 12 states participating in the 1787
convention, all but two (Massachusetts and
New York) issued commissions conveying full
power to propose a new form of government.
The general public overwhelmingly shared the
expectation that the convention would propose
a new form of government—some imagined it
might be a monarchy!
Brown points to statements by commissioners
questioning the extent of their authority. But
what determines whether the 1787 convention “ran
away” is what the commissioners’ credentials said,
not what anyone said they said!
There were several reasons why commissioners
might rhetorically question their authority.
Some represented one of the two states granting
narrower powers, such as New York’s John Lansing
and Massachusetts’ Elbridge Gerry. Virginia’s
Madison points out
in Federalist No.
40 that the state-
issued commissions
(or “credentials”)
defined the scope
of the convention’s
authority. Founding-
era law books confirm
this rule.
10
Edmund Randolph clearly did not buy the “no-
authority” argument, but like the good advocate
he was, he conceded it arguendo (for sake of
argument) and built his case on practical rather
than technical legal grounds. William Paterson of
New Jersey denigrated his authority for strategic
reasons—to strengthen his case for equal state
representation in the Senate. Once Paterson
achieved his goal, he dropped the argument and
urged creation of a strong government.
Brown’s restriction to a narrow range of sources
prevented him from learning that during
the ratification debates the Constitution’s
advocates addressed the issue. They vigorously
defended the delegates’ actions as authorized
by their commissions.14
* * * *
Brown: “In fact, one of the challenges I repeatedly
put out to the other side, they never want to answer
this: show me the delegate. Show me the delegate
who made that claim, ‘We have full authority.’”
Correction: Mr. Brown has never put the
challenge to me. I would have responded by
naming James Wilson, who told the Convention,
“Relative to the powers of this convention—We
have powers to conclude nothing; we have power
to propose anything.” 15
* * * *
Brown: “Instead, what they did was, and this comes
directly from James Madison, I’m going to read it
to you directly. They said that people were in fact,
the fountain of all power, and by resorting to them,
all difficulties were got over.”
Correction: This is another example of
opponents conflating proposal with ratification.
As Madison (in Federalist No. 40) and other
Founders made clear, the power to propose
came from the states via their commissions to
“We have powers to
conclude nothing;
we have power to
propose anything.”
- James Wilson
14
See, e.g., Carlisle Gazette, Mar. 12, 1788, in 34 DOcuMenTary hiSTOry Of The raTificaTiOn Of The cOnSTiTuTiOn 1014, 1016.
15
// 1 Farrand’s Records 266 (Jun. 16, 1787) (//as reported by Rufus King).
11
Problems in the testimony of robert brown
the delegates. The power to ratify came from
the people, who elected delegates to their
state ratifying conventions.
* * * *
Brown: “They were also given a constitutionally
defined ratification process, they threw it out,
retroactively created a much lower bar . . . .”
Correction: Mr. Brown’s claim is that (1)
the Constitutional Convention provided for
ratification by nine states rather than the
thirteen required by the Articles, so therefore
(2) a modern amendments convention might
alter the ratification process as well.
Constitutional scholars consider this as one of
the “runaway” alarmists’ loonier ideas. It is based
on utter ignorance of governing law, both in 1787
and now. Specifically:
• As noted before, the 1787 convention was
not held under the Articles of Confederation.
It was held under reserved state powers
retained by signatories of treaties and
recognized explicitly by the Articles. The
convention could, therefore, propose any
method of ratification it chose. Incidentally,
the Confederation Congress approved the
convention’s actions when it forwarded the
Constitution to the states and urged them to
hold ratifying conventions.15
• A convention for proposing amendments,
by contrast, receives its power from the
Constitution and is subject to its rules,
including ratification rules. One of the
clearest principles from 223 years of Article
V court decisions is that no participant in
the amendment process may change the
Constitution’s amendment rules. But Mr.
Brown never mentions case law. From
listening to him you’d think the courts never
issued an Article V ruling and all we have to
go on is what allegedly happened in 1787. Yet
there are hundreds of cases defining general
constitutional principles and dozens more
interpreting Article V.
• Nor do alarmists tell us how, if a convention
purported to change the ratification rules, it
could enforce its decision. Call out the army?
* * * *
Brown: “[T]he precedent they set was, these
types of conventions represent, not the States,
not the legislatures, but they represent the people
themselves . . . .”
Correction: It is unclear what Mr. Brown means
by “these types of conventions.” If he is referring
to conventions that deal with constitutional
issues, then his statement is only a half-truth.
Conventions elected directly by the people within
a particular state—sometimes called constituent
conventions—represent the people. Constituent
conventions were used to ratify the U.S.
Constitution and the 21st amendment. They also are
employed to propose and ratify state constitutions.
Interstate conventions whose commissioners
are selected as directed by state legislatures
are called conventions of states or conventions
of the states. They answer to the states or state
legislatures directly, so they represent the people
15
Did Congress Approve the Constitution? A Member’s Letter Says “Yes”, https:%%//%%articlevinfocenter.com/did-congress-approve-
//the-constitution-a-members-letter-says-yes/.//
12
only in a remote sense. When called under states’
reserved powers, conventions of states meet to
propose solutions to common problems—such
as coordinating state laws or negotiating water
compacts. When called under Article V of the
Constitution, they may propose amendments
to the states for ratification. My treatise, The
Law of Article V, discusses the legal differences
among conventions.
* * * *
Brown: “. . . and as such their power cannot be
limited. Now, we’ve seen that same precedent
upheld repeatedly in state conventions ever since. I
mentioned the Montana one, for example.”
Correction: This is legal nonsense. Conventions—
even those that represent the people directly—
usually are limited. Brown cites the 1972 Montana
constitutional convention as an unlimited body.
But the Montana Supreme Court specifically held
that its powers were limited. State of Montana ex rel.
Kvaalen v. Graybill, 496 P.2d 1127 (Mont. 1972).
Unless a convention is acting in absence of an
established government (as in some states at the
opening of the American Revolution), it is always
limited to some extent. For example, a state
convention called under an existing constitution
may not be subject to the legislature, but it is
limited by the terms of the existing constitution.
When state conventions were being considered
to ratify the 21st Amendment, some people
argued they would be unlimited—but court
adjudication determined otherwise. As noted
earlier, the courts have ruled repeatedly that all
assemblies operating under Article V are bound
by the rules laid out in the Constitution.
* * * *
Brown: “In fact, if you look to the—the law journal
that’s called Corpus Juris Secundum, that’s a
collection of various Supreme Court rulings from
If a convention purported to change the ratification rules,
how could it enforce its decision? Call out the army?
13
Problems in the testimony of robert brown
the States all across the country, and we’ve seen
consistently the same thing.”
Correction: Where do we begin with this one?
There is so much error from which to choose!
First: Contrary to Mr. Brown’s description,
Corpus Juris Secundum (CJS) is not a “law
journal.” It is a legal encyclopedia that attempts
to summarize law on all topics.
Second: CJS is not a “collection of various
Supreme Court rulings.” It is principally a legal
text with supporting citations from federal and
states appellate courts at all levels.
Third: Every first-year law student learns that
CJS’s text is not fully trustworthy and should
never be cited as authority. It is used principally
as a case finder. You have to read the cases it
cites to find out what the law is, then expand your
research to find other cases on the same topic.
Fourth: Mr. Brown apparently didn’t read
the cases referenced in the part of CJS he
mentions. If he did, he’d know they have
nothing to do with Article V conventions.
He would also learn that those cases are
all very old. They were decided long
before most Article V court rulings
were issued. Thus:
• In Cox v. Robison, 105 Tex. 426,
150 S.W. 1149 (1912), the facts
were that in 1866, the former
Confederate state of Texas was
under federal military occupation. As
commander-in-chief of the U.S. armed
forces, President Andrew Johnson called
for a Texas state constitutional convention.
The court held that the state constitution did
not have to be ratified by the people because
the president had not required it. (Presumably
he could have limited the convention by
requiring it.)
• Frantz v. Autry, 18 Okla. 561, 91 P. 13 (1907)
dealt with a local constitutional convention
Congress had authorized in what was then the
Territory of Oklahoma. The case held that the
convention had all the power Congress gave
it, and that Congress had imposed only a few
limits. The cases said the convention needed
to respect only the limits Congress imposed.
• Koehler & Lange v. Hill, 60 Iowa 543, 14 N.W.
738 (1883) held that when any constitution
prescribes an amendment procedure, that
procedure must be followed. It added “The
powers of a convention are, of course, unlimited.
The members thereof are the representatives
of the people, called together for that purpose.”
But the court was speaking of state constitutional
conventions, not federal conventions, and this
case is contradicted by later authority, such
Every
first-year law
student learns that
Corpus Juris Secundum’s
text is not fully trustworthy
and should never be cited
as authority. It is used
principally as a case
finder.
14
as State of Montana ex rel. Kvaalen v. Graybill,
496 P.2d 1127 (Mont. 1972), mentioned above.
• Loomis v. Jackson, 6 W.Va. 613 (1873) says
that “A [state] constitutional convention,
lawfully convened, does not derive its powers
from the legislature; but from the people.
The powers of such a convention are in the
nature of sovereign powers.” But in this
country, we frequently limit sovereignty, and
a convention’s authority can be limited by an
existing constitution.16
• Sproule v. Fredericks, 69 Miss. 898, 11 So.
472 (1892) examined the power of a state
constitutional convention called by the
legislature. It ruled that the convention’s
power was very broad, but also acknowledged
that its power could have been limited.
Again, nothing in these five decisions had
anything to do with Article V.
So much for Mr. Brown’s cases. I’ve taken some
time to examine his misuse of CJS because it
illustrates the conceptual chaos that ensues
when someone ignorant of law starts interpreting
legal texts and spouting legal advice.
* * * *
Brown: “Congress is essentially—they often
refer to it as a sitting constitutional convention
themselves. Madison differentiated between them.
Again, as I mentioned as he was putting out his
opposition to an Article V Convention, he said
that in his view, the Convention would feel much
greater latitude in making sweeping changes to
the Constitution than Congress would, which is
why he said Congress is the safer mode.”
An amendments convention
may do only what Congress
may do at any time: propose
amendments. But unlike a
convention, Congress has
unlimited, unrestricted
power to do so.
16
Incidentally, another line in the Loomis case contradicts the common JBS claim that Congress could control an amendments
convention: “That the legislature can neither limit or restrict [conventions] in the exercise of these powers . . . .”
15
Problems in the testimony of robert brown
Correction: As already discussed, Madison was
not opposed to amendments conventions. The
reason he opposed New York’s 1788 proposal
was because its scope was too wide and it came
too early. But very few convention applications
have been as broad as that. The applications
being passed today are all quite focused.
In this passage Mr. Brown does inadvertently
allude to an inconvenient fact: An amendments
convention may do only what Congress may
do at any time — propose amendments. But
unlike a convention, Congress has unlimited,
unrestricted power to do so.
MR. BROWN CLAIMS
HE ORGANIZED
A GROUP TO
PRESSURE REP.
DENNY REHBERG…
BUT AFTER
BROWN STARTED
HARASSING HIM,
REHBERG’S RATING
DROPPED TO 80%
IN 2011 AND 76% IN
2012—HIS LOWEST
SCORES EVER.
16
* * * *
Brown: “Congress already pretty much does whatever
they want to with regards to what the Constitution says,
for the most part. And the only reason they get away
with that, is we the people don’t hold them to it . . . .
“When I first moved to Montana about a decade
ago, I organized a couple hundred people, and we
started holding our congressman accountable to
his voting as it squared with the Constitution. At
the time, his “constitutional rating,” so to say, was
somewhere around 40-60%. He was always right
in the middle. About half the time he’d follow the
Constitution, half the time he wouldn’t. Within four
months, he was at 80% and thereafter he was stated
at 90%, because we started pushing on him on . . . .”
Correction: This prescription for curing the
federal government is terminally naïve. The
majority of members of Congress, particularly
the leadership, are long-time holders of “safe”
seats and immune to popular, pro-Constitution
lobbying. Indeed, they hold their seats largely by
violating the Constitution.
The Congressman referred to is Rep. Denny
Rehberg (R.-Mont.), who was in office from
2001 to early January 2013. Mr. Brown claims
he organized a group to lobby Rehberg “about
decade ago” — i.e., sometime between 2009
and 2011. Now, if anyone was amenable to
“constitutionalist” lobbying, Congressman
Rehberg should have been. He served a swing
district, and I know from personal acquaintance
that he has conservative values.
But did Brown’s lobbying really have any effect?
The American Conservative Union ranks
members of Congress by their commitment to
smaller, constitutional government. The ranking
is on a scale of zero to 100.
Rehberg was rated for the years 2001 through
2012. His ACU voting record for each year was
as follows:
2001 - 84%
2002 - 100%
2003 - 84%
2004 - 96%
2005 - 92%
2006 - 83%
2007 - 88%
2008 - 84%
2009 - 92%
2010 - 96%
2011 - 80%
2012 - 76%
If there is any pattern in their figures at all—and I’m
not sure there is—it suggests Brown’s efforts may
have been counterproductive. In the years including
and up to 2010, Rep. Rehberg’s ACU score had
ranged from 84% to 100%. But after Brown started
harassing him, Rehberg’s rating dropped to 80% in
2011 and 76% in 2012—his lowest scores ever.
In theory millions of Americans could pressure
members of Congress to change. But as a matter
of historical record, this does not happen: The
organizational costs for conservative Americans
are too high. Professional lobbyists concentrated
in Washington, D.C., are paid big money to
lobby, and they do it continuously. They offer
concrete benefits beyond what the conservative
grassroots can offer, such as connections to many
large political donors. They enjoy the support of
the national media, which has strong incentives
to concentrate power at the federal level.
There are good people in Congress. But as they
acknowledge, they need firm rules to restrain
their behavior and enable them to justify voting
against certain programs. Only constitutional
amendments can provide those rules.
17
Problems in the testimony of robert brown
* * * *
Brown: “We look at Federalist 16, 26, and 33:
Alexander Hamilto-Hamilton talking about the
power that we the people and we the States have
to push back against federal tyranny. Madison
picks it up in Federalist 44 and 46, 46 especially.
And what’s interesting is, in all of those documents
where they’re talking about what to do to push back
against federal tyranny, they never mention Article
V. In fact, when you go onto Federalist 48 and 49,
Madison directly addresses that.”
Correction: Notice how Mr. Brown’s sources
for the ratification debates consist solely of
The Federalist—a minuscule fraction of the
ratification record. He never mentions the
other founding-era commentators who spoke
to the amendments convention process.17 Even
his use of The Federalist is clumsy. For example,
at this point he overlooks references to the
Article V convention process in Federalist No.
43 and No. 85.
* * * *
Brown: “In 49, [Madison] asks, ‘Is it appropriate
to use a Convention to address breaches in the
Constitution when the federal government ignores
it?’ And his answer is absolutely not . . . .”
Correction: This is another example of Brown’s
inept use of The Federalist. Trying to convert
one of its essays into an argument against the
Constitution’s amendment process makes no
sense at all. The Federalist was written to support
the Constitution, not trash it.
Here’s the real scoop on Federalist No. 49: When
Madison was writing, Pennsylvania and Vermont
had constitutions that provided for a “council of
censors” to meet every seven years. The censors
could decide whether their state constitution was
working well. The censors could call a constitutional
convention to address any problems.
In 1783, Thomas Jefferson outlined his own ideas
for a new Virginia constitution. In partial imitation
of the Pennsylvania-Vermont approach, his draft
would have permitted some state officials to call
a convention for “altering this Constitution or
correcting breaches of it.” Strikingly, this new
convention was to have all the powers enjoyed by a
plenary constitutional convention—including power
to write an entirely new document and impose all
its changes without a ratification procedure.
Madison had four objections: (1) A rogue state
legislature could block the process in various ways;
(2) “frequent appeals” for constitutional revision
could reduce public respect for government;
(3) frequent referrals to the citizenry might
cause constitutional turbulence; and (4) the
legislature—the branch most likely responsible
for the problems—might highjack the process.
Notice that none of these objections is
relevant to calling a convention under Article
V. The states, not federal officials, initiate
and staff the convention, thereby preventing
congressional obstruction or control. Article
V is very difficult to trigger, eliminating the
danger of “frequent appeals.” A convention
for proposing amendments has power only to
propose specified amendments, not re-write
17
For collections of this material, see, for example, my following two articles: Is the Constitution’s Convention for
Proposing Amendments a ‘Mystery’? Overlooked Evidence in the Narrative of Uncertainty, 104 MarqueTTe L.
reV. 1 (2020) and Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing
Amendments,” 65 fLa. L. reV. 615 (2013). See also A Founder Gives Us a Lesson on the Constitution’s Amendment
Process, https:%%//%%articlevinfocenter.com/founder-gives-us-lesson-constitutions-amendment-process/.
18
the Constitution. And unlike Jefferson’s idea for
periodic plenary constitutional conventions, any
proposal from an Article V convention is subject
to a difficult ratification process.
In a portion of Federalist No. 49 Brown fails
to quote, Madison assures us that, although he
objects to Jefferson’s plan, still “a constitutional
road to the decision of the people ought to be
marked out and kept open, for certain great and
extraordinary occasions.”
Unlike the proposals Madison was criticizing,
the convention procedure of Article V seems to
meet his goal very well.
* * * *
Brown: “Now, in Federalist uh, I think it was 43,
yeah, in Federalist 43, Madison does address the
Article V Convention. And in that case, he refers to
it as “the remedy for errors” in the Constitution.”
Correction: Mr. Brown is repeating—perhaps
is the author of—a common JBS claim that the
only role for an amendments convention was to
correct drafting errors in the Constitution.
This is still more nonsense. The fact that Madison
stated one purpose of the convention procedure
does not mean he excluded other purposes.
Other Founders itemized additional purposes.
One was the need to correct federal abuses
and overreach. That was the reason George
Mason gave at the Constitutional Convention.
During the ratification debates, prominent
advocates cited the convention procedure again
and again as a key safeguard against abuse.18
* * * *
Trying to convert one
of The Federalist essays
into an argument against
the Constitution’s
amendment process
makes no sense at
all. The Federalist was
written to support the
Constitution, not trash it.
18
See, e.g., The Founders Pointed to Article V as a Cure for Federal Abuse//, https:%%//%%articlevinfocenter.com/the-founders-//
//pointed-to-article-v-as-a-cure-for-federal-abuse/ (//collecting examples).
19
Problems in the testimony of robert brown
Brown: “Article V has never been used
technically, as far as the convention mode. It has
no track record of any success other than, well,
it did pressure Congress into passing the 17th
Amendment, which I wouldn’t really consider a
good thing but, on the other hand, nullification is
just one of many tools in our quiver.”
Correction: Mr. Brown incorrectly uses the term
“nullification” to refer to all methods of what
Madison called “interposition.” In constitutional
scholarship, “nullification” usually refers to
formally adopting a state law or state convention
resolution declaring that a federal law is void
within state boundaries. The Constitution has
no provision for nullification and, contrary
to JBS claims, Madison firmly opposed it—
recommending an Article V convention instead.19
* * * *
Brown: “Well, y’know, in that light, it really gives a
feeling of there’s a sense of urgency here: We’ve gotta
get something done, we’ve gotta do it soon. And if
we look at the timetable, Convention of States is the
example again, they’ve been around for seven years,
they’ve gotten less than halfway to the thirty-four
states mark. If they don’t lose momentum . . . we’re
looking at another ten years before they get to 34
states.
“They also admit that there will be numerous legal
challenges stalling the process along the way. When
we eventually get to a convention, Congress calls
the convention, they finally conclude their—their
whatever amendment proposals they come up with,
and then it goes out to the States for ratification.
. . . You’re looking at a minimum of 20 years for
anything to actually go into effect from a convention.
I don’t think we have 20 years to turn this around.”
Correction: It ill behooves someone who had
been slowing down a process to gripe about
it being slow. On several occasions in recent
American history, we have been at the cusp
It also ill behooves an organization to complain about length of time
when it has had over 50 years for its own “solutions” to work.
19
James Madison to Edward Everett, Aug. 28, 1830, https:%%//%%articlevinfocenter.com/wp-content/uploads/2021/02/1830-0828-
20
of a convention only to see JBS and other
alarmists frighten people away.
It also ill behooves an organization to complain
about length of time when it has had over 50
years for its own “solutions” to work. Of course,
they haven’t worked, and by any measure, the
political system is more dysfunctional than ever.
History shows that once a popular amendment
is proposed, it can be ratified in fairly short
order—depending on the proposal, 15 months is a
reasonable estimate. The 26th Amendment was
ratified in slightly more than three months.
As for litigation: Mr. Brown probably is wrong on
this one as well. The Convention of States Project
application is designed in a way to minimize the
chances of lengthy litigation. (That is not true of
the non-uniform applications promoted by some
other Article V organizations.)
* * * *
Brown: “. . . the moment. . . the balanced budget
becomes a higher priority than all these other
programs, then Congress will make it their highest
priority as well and will pass a balanced budget.
“So, the problem really isn’t Congress, it really isn’t
the federal government, it really comes down to
what we the people tolerate.”
Correction: This reflects Mr. Brown’s ignorance of
how the federal government works. As the Public
Choice school of economics has documented,
politicians respond to incentives. Over the long
term, these incentives are more important than
the character of the politicians themselves. When
the incentives are bad, the results usually are
bad. When the incentives are good, the results
usually are good. However, concentrated special
interests, with media support, almost always can
offer stronger incentives than the diffused public.
There are various ways to change incentives, but one
of the most direct is to alter the system in which
political actors work—by constitutional amendment.
When given the opportunity for constitutional
change, people act differently than they do
from day to day. Take the balanced budget
amendment as an example: Right now, Congress
has strong incentives to deficit-spend and very
weak incentives to balance the budget. Special
interests fight for as much federal booty as
they can, knowing that if they don’t do so, the
spending will happen anyway—but it will go to
someone else. Fiscal conservatives have never
been able to match that clout, even though they
probably comprise most of the U.S. population.
But when people are given a chance to adopt a rule
that they know (1) is for the good of all and (2) will
bind others as much as themselves, they act very
differently. A carefully-worded balanced budget
amendment will never be proposed by Congress—
the incentives to deficit spending are too strong.
But if a convention of the states proposed it, it
probably would be ratified fairly quickly.
Conclusion
Mr. Brown has little knowledge of constitutional
history, constitutional law, law in general, or
government operations. But his claims to
expertise have certainly helped to disable a
key constitutional check-and-balance. Brown
proposes other remedies, but he and his
predecessors have argued for those remedies for
decades, while federal dysfunction grows ever
worse.
Our ability to extricate ourselves from our current
political problems depends heavily on whether
we use the most powerful tool the Founders gave
us for correcting federal dysfunction and abuse.
The time for using it is here—in fact, it has been
here for a very long time.
540-441-7227