US Constitution Article V Convention

The "Convention of States" Projects' Argument in Favor of a Convention

Some readers may be aware of our previous substack guest written by Christian Gomez for the John Birch Society, titled “Article V Convention Threatens Liberty”. Suffice to say, the response that essay generated reminded me of this famous quote:

Nay, fly to Altars; there they'll talk you dead;
For Fools rush in where Angels fear to tread.

Alexander Pope “An essay on criticism”, 1709

Lesson learned. My intention was to provide a forum for discussion of this topic, and by god a discussion certainly did ensue. I will spare you the details, but it certainly played a role in Jill and I lately starting to feel a bit like a pair of kicked dogs.

One positive thing which came out of this was that I was contacted by leadership from the Convention of States organization, we discussed their point of view, and I suggested that they write an essay which I would post on this substack to provide a counterpoint.

As preface to their essay posted below, their legal council asked that I note the following:

1: The Convention of States under Article V has no power to rewrite the constitution, or even to amend the constitution. It only may propose amendments, just as Congress can. 38 states must ratify each proposed amendment.

2: The Convention of States cannot propose amendments to any issue it wants. Previous attempts at calling Article V conventions have resulted in SCOTUS precedents stating that all amendments are limited to the subjects of a convention’s petition. The petition signed by 19 states to date limits amendments to those that “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, or limit the terms of office for its officials and for members of Congress”. Proposed amendments outside those subjects could be struck down by SCOTUS and not eligible for ratification by the states.

3: Most states that have passed the above resolution have passed “faithful delegate” laws, making it a felony to propose or support amendments or to fail to propose or support amendments counter to the instructions of the state legislature.

4: SCOTUS precedent has already established that each state delegation has one vote, as was true of all of the many conventions of states that have occurred both before and since the adoption of the present Constitution.

The author of the following essay, Rita M. Peters, is a constitutional attorney. As an allied attorney with Alliance Defending Freedom and a former staff attorney with The Rutherford Institute, Rita has authored numerous briefs for the United States Supreme Court and the United States Circuit Courts of Appeals. She currently serves The Convention of States Project as Senior Vice President for Legislative Affairs. Rita writes an online column for The Stream, and her first book, Restoring America’s Soul: Advancing Timeless Conservative Principles in a Wayward Culture, was released in 2019. Rita also co-hosts a 30-minute weekly radio program, “Crossroads: Where Faith and Culture Meet,” which airs on multiple stations covering Virginia, West Virginia, and Maryland. Rita lives in Harrisonburg, Virginia, with her husband, Tim, and their six children.

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From time to time I get complaints for posting things that I think are important to read without including my own opinion. Just to remind, my position now and always has been that I try to help people to be able think by helping provide them with the tools and necessary information, but I do not presume to tell people what to think.

In this case, as far as I am concerned, I can see merit in both positions. To my mind, this is a situation where there is potential risk, but also potential benefit. The challenge being to minimize the risks and maximize the benefits. So please have at it and actively discuss the risks and merits of the case being made in the comment section below! Please try to keep your comments kind and professional. I think that most of us that care about this issue are on generally the same side in our desire to defend and protect the republic during a time when the Administrative state and the “Uniparty” seems to be all in on the idea that Nation-States are obsolete political structures and the United States government needs to get onboard with the one world government being promoted in Brussels and Davos.

As can be seen from her essay, the Hon. Rita M. Peters clearly is quite passionate about the topic. As good barristers are prone to do from time to time, she personalizes her essay a bit too much for my taste. To that end, I suggest we will all do well to remember the infamous words of Benjamin Franklin at the time of the signing of the Constitution:

“We must, indeed, all hang together or, most assuredly, we shall all hang separately.”

Benjamin Franklin (US Statesman 1706-1790)

With that said and without further ado, the following is a commentary in rebuttal to the John Birch Society point of view on this topic. And just to be clear, I do not endorse the ad hominem statements made. But this was the author’s forum and her statement. In my opinion, the tone and personal attacks actually weaken the arguments made.

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A Response to Christian Gomez

By Rita M. Peters

Previously on Dr. Malone’s Substack, JBS’ writer Christian Gomez was given the opportunity to post a piece critical of the idea of calling a convention of states under the second clause of Article V of the United States Constitution.  Dr. Malone has advised us that he was simply providing space for debate, and not taking a position on this issue.  He then offered us the opportunity to post a countervailing perspective. We appreciate Dr. Malone’s generous offer to host such an exchange.

While JBS writer Christian Gomez disagrees with the vast majority of well-known conservative scholars who have weighed in on the issue, he agrees with respected, conservative constitutional experts on at least one thing about the Constitution: it is the bulwark of protection for liberty in America. But while the respected and widely published experts believe that Article V’s convention process is an essential part of that bulwark, Gomez seems to believe it is some kind of self-destruct button.

Before we get to the arguments on either side, let’s examine the sources. Christian Gomez is a “Research Project Manager” for the John Birch Society with a bachelor’s degree from Seton Hall University.  He is not a lawyer, nor a peer-reviewed published author on the subject of the Constitution or Article V. 

On the other hand, arguing in favor of the states using the Article V convention process, we have nationally renowned constitutional experts with too many letters behind their name to list here. Among these are:

• Professor Rob Natelson, whose scholarly works have been cited by the U.S. Supreme Court more than a dozen times, and who wrote the definitive treatise on Article V, outlining his research on the law and history of Article V.

• Michael Farris, who led the charge to legalize homeschooling in all 50 states, founded Home School Legal Defense Association, Patrick Henry College, and now heads Alliance Defending Freedom (the largest religious liberties litigation firm in the world). He also published the definitive piece on the legitimacy of the 1787 constitutional convention in Harvard’s Journal of Law and Public Policy which absolutely refutes the old myth that the 1787 Constitutional Convention was a “runaway.” [1] 

• Mark Levin, who, while known for being a radio talk show host, is a well-credentialed lawyer and constitutional scholar in his own right. He worked in the White House under President Reagan’s Attorney General Edwin Meese, and has also written a book, The Liberty Amendments, urging the states to use their Article V power, along with many other best-selling books on law and politics.

• Professor Randy Barnett, Patrick Hotung Professor of Constitutional Law at the Georgetown University Law Center and Faculty Director of the Georgetown Center for the Constitution.  Professor Barnett’s publications includes twelve books, more than one hundred articles and reviews, as well as numerous op-eds. [2]

• Charles J. Cooper,  a former member of the Reagan Administration who has argued before the Supreme Court and spent much of his career defending constitutional rights as a top lawyer for the National Rifle Association.

• Robert P. George, one of the nation’s leading conservative legal scholars, currently the McCormick Professor of Jurisprudence and founding director of the James Madison Program in American Ideals and Institutions at Princeton University. He is chairman of the United States Commission on International Religious Freedom (USCIRF) and has served as a presidential appointee to the United States Commission on Civil Rights.

• C. Boyden Gray, who served as Legal Counsel to Vice President Bush (1981– 1989), as White House Counsel in the administration of President George H.W. Bush (1989–1993), and as counsel to the Presidential Task Force on Regulatory Relief during the Reagan Administration. 

• Nelson Lund, a professor at George Mason University School of Law who clerked for Justice Sandra Day O’Connor and served in the White House as Associate Counsel to President George H.W. Bush.

• Andrew McCarthy, a Senior Fellow at National Review Institute, contributing editor at National Review, and regular legal contributor to Fox News . Mr. McCarthy is a former Chief Assistant U.S. Attorney in New York.

• Mat Staver, the Founder and Chairman of Liberty Counsel and a former dean at Liberty University School of Law.

While it is important to judge the credibility of those seeking to persuade us, we ultimately have to evaluate their arguments.

The first thing to notice about Christian Gomez’ argument (and that of the John Birch Society he represents) is that it is incongruous. They claim to revere the Constitution, but they demonize the Article V convention process, which is part of it. They describe the Bill of Rights as “paramount to preserve liberty,” yet scoff at the idea of new amendments for the same purpose.

At the core of the anti-convention argument is the faulty premise that the Constitutional Convention of 1787 was a “runaway convention.” In short, the JBS believes that the statesmen who drafted our Constitution did so in defiance of the commissions their states gave them. A full, well-researched response to this now-debunked claim can be read in Michael Farris’ law review article, published in the Harvard Journal of Law and Public Policy.

But one point is worth mentioning here. Incredibly, Gomez goes a bit further than others of his ilk by claiming both (1) that the Founders “outright discarded limitations that were issued by 10 of the 12 authorizing states” and (2) that they “were not legally bound to any limitations on their authority.” According to Gomez, they simply acted on the basis of the right of any people, expressed in the Declaration of Independence, “to abolish or alter their government.” In other words, the Constitution’s framers defied the limits of the authority given to them by their states, and it was perfectly legal for them to do so.

These claims are squarely at odds with the Founders’ own words. They took great pains to consider and discuss the limits of their authority at the Convention. They certainly did not believe they were free to disregard their states’ instructions. In Federalist 40, James Madison carefully examined the scope of the Convention’s authority–thus proving that limitations mattered–and concluded that it encompassed the drafting of the new Constitution.

Now, we know that Gomez is familiar with Federalist 40, because he quotes from it (albeit out of context [3]) in his article. So apparently, Gomez thinks his own understanding of the Founding Fathers’ source and scope of authority is superior to that of James Madison. In fact, his entire argument hinges upon his being convinced of this.

Now, some readers may rightly ask at this point, “What does the 1787 Constitutional Convention have to do with the states holding an Article V convention to propose amendments today anyway?” Well, because the JBS believes that the 1787 Convention defied its authority, they think that at a modern-day convention held pursuant to Article V, the state delegations sent to propose amendments that limit federal power will likewise defy their authority and scrap our entire Constitution.

According to Christian Gomez and the JBS, if 34 states were to take the incredibly foolish step of applying for a convention to propose amendments that limit the scope and power of the federal government, the ultimate outcome would be a Leftist-controlled circus writing a radical new constitution that would “permanently consolidate [the Administrative State’s] current unconstitutional powers.”

Of course, they have absolutely no basis for those claims. So, in order to refute the outlandish prediction, we are left to plain-old common sense.

The best way to highlight the absurdity of the JBS narrative is simply to ask a few questions:

1. Why would the states bother to comply with the forms and requirements of Article V of the Constitution if their intention is simply to “alter and abolish” the Constitution and form a new government? Article V doesn’t contain a process for abolishing the Constitution; only for adding amendments to it.

2. What would cause the radical shift in purpose and political power–from 34 states seeking to restrain federal power, to 38 states seeking to expand and empower the administrative state?

3. Given that the power of a convention under Article V is the same power that it gives Congress–the power to merely propose amendments to “this Constitution”--why isn’t JBS sounding the alarm that Congress may, at any moment, adopt a radical new Constitution?

Let’s be serious. Neither Congress nor a convention of the states is going to scrap our Constitution–at least not formally. Congress (led by America’s radical left) has, for many decades, been lawyering around the Constitution’s limitations. This is the real and present danger. It will continue to do so until the states use their power to close the loopholes found in constitutional phrases like “the general welfare” and “regulate commerce . . . among the states.”

A Convention of the States, called under Article V pursuant to the applications of 34 state legislatures to propose amendments that “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and set term limits for federal officials” has no more power to scrap and replace the Constitution than a Miss America Pageant.

Gomez and the JBS act as if they need to convince foolish conservatives like Mark Meckler, Mark Levin, and Michael Farris, and the scholars listed above that writing a new Constitution is a bad idea. But we’re already convinced of that. And even if we wanted a new Constitution, Article V does not allow for it.

But here’s the kicker: the Leftists”, whom the JBS insists are waiting in the wings to take over a convention, are terrified that COS will succeed in its mission. 

Exhibit A: Public Statement of 230+ Leftist organizations in opposition to an Article V Convention of States.

Exhibit B: Brand-new book by Senator Russ Feingold: The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It.

So here’s where we stand:

• The states have lost control of the Senate, one of their two original checks on the federal government.

• The states retain their other power to check federal overreach - the Article V Convention process.

• The radical Left is afraid that the Right is conspiring to destroy the Constitution through an Article V Convention.

• The fringe Right is afraid that the Left is conspiring to destroy the Constitution through an Article V Convention.

• The feds go on destroying the Constitution, in practice, year after year, as they re-interpret it to mean what they want it to mean. Federal growth continues.

• The Article V Convention process–the states’ one remaining tool for countering federal overreach, sits dormant, as the Left and Right warn themselves against each other.

The picture would be comical if the stakes weren’t so high. The stakes are nothing less than the future of our constitutional republic, and the freedom of our children and grandchildren. It’s time for rational thinking. It’s time for action. And it’s time for Christian Gomez and the John Birch Society to stop siding with Common Cause, Center on Budget and Policy Priorities, Hillary Clinton, La Raza, MoveOn.org, and all the other radical leftist organizations in America standing together against conservatives who are trying to save the Republic by using the constitutional remedy provided to us by the Framers in Article V. 

Today, millions of citizens, and a list of conservative endorsers too long to cite here, are in the fight to save the Republic from the radical left.  The facts are clear, despite the attempts by the John Birch Society and Christian Gomez to obfuscate them.  Real conservatives understand the facts, the history and what’s at stake. 

To learn more, visit https://conventionofstates.com/resources,

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Footnote 1: During his career as a constitutional appellate litigator, Michael Farris has served as lead counsel in the United States Supreme Court, eight federal circuit courts, and the appellate courts of thirteen states. His broad court experience includes litigation on Article V questions. Mr. Farris is widely respected for his leadership in the defense of homeschooling, religious freedom, and the preservation of American sovereignty.

Footnote 2: His most recent book is The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (2021) (with Evan Bernick). His other books on the Constitution include: An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know (2019) (with Josh Blackman); Restoring the Lost Constitution: The Presumption of Liberty (2nd ed. 2013); Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016); and Constitutional Law: Cases in Context (4th ed. forthcoming 2022) (with Josh Blackman).

Footnote 3: In Federalist 40, James Madison takes pains to prove that the delegates to the Constitutional Convention of 1787 were both authorized by their commissions and justified by circumstances in drafting the Constitution. Gomez quotes from a portion of Madison’s second argument without mentioning the first.

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