There is a long-simmering fight on the right between those who urge a convention of the states, under Article V of the Constitution of the United States, and those who urge active resistance at every level of government to nullify unconstitutional actions by every branch of government. The former argue for reformation of the Constitution, while the latter argue for restoration of the Constitution as currently written. Both have merits, both are sincere, and both do not say enough. What follows is a brief outline of some contentions and a suggested common flaw with a common, but very hard, solution.
The convention of states argument is most notably advanced by Mark Levin, in The Liberty Amendments, and by Mark Meckler through the Convention of States Project. Their core claim is the Framers anticipated conditions, under which Congress would be corrupted by at least self-interest and would effectively refuse to put one or more needed amendments before the states for ratification. We certainly see Congress, the presidents, and the courts playing a cynical game of blame avoidance while they collectively distort the legitimate Constitution, as properly amended by the Article V ratification process.
This is why the Supreme Court has become such a political battleground, as the original Anti-federalist position on courts has proven true and the Federalist argument, “least dangerous branch,” has been repeatedly falsified. The Anti-federalist styling himself “Brutus” published a short series of clearly written essays, aimed at people like you and me, concluding:
A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice. But in order to enable them to do this with the greater facility, those whom the people choose at stated periods should have the power in the last resort to determine the sense of the compact. If they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil. But when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not constitutionally accountable for their opinions, no way is left to control them but with a high hand and an outstretched arm.
Brutus was right, but could not foresee the other branches engaging in kabuki theater, using the unaccountable courts to their own benefit.
This same game is why the Code of Federal Regulations dwarfs the U.S. Code, which dwarfs the Constitution, effectively creating a fourth branch of government, without authorization of the people through their states ratification process. Naturally, both distortions of the Constitution impinge on our liberty, and both lack carefully constructed checks and balances, ratified into the Constitution through the Article V process.
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
The Article V Convention of States process has never been used, while the Congress has acted 19 times to send proposed amendments to the states for ratification. The first time was in the first Congress, when it sent a slate of 12 proposed amendments, ten of which were ratified as the Bill of Rights. Then, Congress acted twice, quickly, to send the 11th and the 12th Amendments to the states, fixing bugs revealed in the early operation of the Constitution.
There was a lull until after the American Civil War, when Congress acted three times in quick succession to send the 13th, 14th, and 15th Amendments for state ratification. After another lull, the early and mid-Twentieth Century saw Congress act 13 times, resulting in 12 amendments being ratified. Convention of states advocates argue the constitutional reform process works and is needed now.
The outlier is the Equal Rights Amendment, defeated by the newly invigorated social conservatives. The face of that movement was Phyllis Schlafly, at the head of the Eagle Forum. Perhaps it was her experience in this fight that caused her to vigorously oppose the convention of states movement as a constitutional con game, too dangerous to unleash. Andy Biggs rose from the Arizona state legislature to the U.S. House of Representatives, despite or with his publication of The Con of the Con-Con.
The position argued from the Eagle Forum and the modern John Birch Society is that the courts and the rest of government will make a mockery of any amendment, continuing their lawless behavior. The real answer, they say, is to do the hard work of growing a citizenry knowledgable of the Constitution and Declaration of Independence. They also argue that a convention will get out of control, or be under the control of globalists from the left and right. They allege bad motives and bad funding sources. The Convention of States Project response is that amendments take such a strong level of support, with 3/4 of all the states agreeing in close order, that courts and other politicians are too frightened to disobey. Yet the infamous Slaughterhouse Cases of 1872 would seem to give the lie to this.
No sooner had the Reconstruction Amendments (13 through 15) been ratified, than the Supreme Court, which had triggered the bloodbath, the unprecedented carnage of the Civil War, by its naked, lawless bigotry in Dred Scott, again acted in naked, lawless bigotry to render the 14th Amendment meaningless. What followed were a consistent series of fraudulent decisions, culminating in 1896 with Plessy v Ferguson‘s cynical “separate but equal.” So, the courts demonstrably do not respect the will of the people, or is it more complicated?
The corrupt bargain settling the 1876 presidential election outcome saw the white northern business interests, and their white Republican congressional creatures, do a dirty deal with white southern agribusiness men. and their white Democratic congressional creatures, to withdraw federal protection of Southern blacks. This had the added benefit to the white Republican Congressional members of effectively, rapidly, removing their new black Republican peers. They were all for freeing the slaves, but not for having to work side-by-side with emancipated leaders.
So, the Supreme Court may not have been in any fear of effective contradiction by the American people when it gutted the three most recent amendments. Senator Mike Lee of Utah agrees that the Constitution must be restored by rebuilding a citizenry that is knowledgable of the written Constitution and Declaration of Independence. He proposes other actions, but the adult education piece is foundational. In this, he overlaps with the Eagle Forum and John Birch Society.
That same informed citizenry would seem to be essential to the success of any convention of states campaign. How else will you get “two-thirds of the several states” to agree to the need, and three-quarters of the states to ratify proposed amendments? But who is informing the citizenry, and how?
The actual history of alcohol prohibition reveals a nearly half-century campaign at the school board and local newspaper level to shape curricula and editorial positions. Eventually, there was a critical mass of temperance propaganda, effectively shaping the thinking of enough men to outlaw alcohol production and sale. Remember that women did not get the right to vote until two years after men outlawed alcohol. Mens’ hearts and minds were shaped for two or three generations, creating the conditions for passage of Prohibition.
Both do not say enough:
Now consider the relentless, unidirectional propaganda transmitted through the education and media systems to Gen X, Millennials, and now Gen Z. Look at changes in attitudes and responses to opinion surveys. Neither the restoration nor the reconstruction arguments articulate effective plans to reverse this wave of current and near-future voter opinion.
Indeed, the left will soon be in a position to call the bluffs of both conservative factions. You say you want to amend the Constitution? What will you do when a new plurality shows up in enough states, ready to “reform” the Bill of Rights to match their sensibilities? When three-fourths of the states ratify hate speech clauses, and define historic Christianity as unprotected bigotry, what will you argue then? It is in the Constitution, so shut up and “support and defend.”
You say resist and restore? What happens when state after state turns on your resistance and your efforts to restore? What happens when they counter your informal efforts to properly teach the Constitution with state-mandated curricula and focussed media propaganda contradicting and silencing your message?
What if they properly amend the Constitution you venerate, to better suit their desires? Remember that Article V is part of the original Constitution, so appealing back does you little good. They can point back and quote Framers anticipating a need for future amendments.
What is to be done?
Any viable solution must include immediate and sustained state-level re-education, counter-messaging at every level. Think “Schoolhouse Rock” or PragerU on steroids across radio, television, and internet platforms. Think every state imposing free speech codes on every corporation in their boundaries, using every tool available to prevent corporations from acting with the left to subvert or change the Constitution, both within the corporation and in the community. Corporations must be told that if they want the steak and sweets of low taxes and friendly regulations, they must first agree to eat the spinach of really respecting, in policy and action, religious conservatives.
Think imposing ideological diversity or neutrality and free speech on the state-funded education system at every level, starting in public school and college administrations. The Goldwater Institute’s campus free speech model legislation is a good start. Hold elected officials responsible for holding regents and administrators accountable.
Yes, we also will need a long term march through the institutions, but the enemy gets a vote and now plays this game from the commanding heights of the institutions. If Texas flips in the next few election cycles, taking the nation with it, Republican governors who bragged of bagging big employers will be to blame. They, and other Republican governors, acted as the servants of the Chamber of Commerce while paying lip service to social conservatives, whose enemies the governors were welcoming in without condition.Published in